- 1 - HC-KAR NC: 2025:KHC:42058 RSA No. 883 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO. 883 OF 2022 (DEC/INJ) BETWEEN: SRI RAYAPPA GOWDA, S/O LATE NANJEGOWDA, AGED ABOUT 65 YEARS, R/AT RAYAPPANAPALYA, KUDUR HOBLI, MAGADI TALUK, RAMANAGARA DISTRICT-561 101. …APPELLANT (BY SRI JAYAKIRTHI M C, ADVOCATE) AND: 1. 1(a) 1(b) SRI VISWANATH, S/O LATE GANGAPPA, AGED ABOUT 70 YEARS. SINCE DEAD BY LR'S AMENDED AS PER ORDER DATED 05.06.2025 KAMALAMMA, W/O VISHWANATH, AGED ABOUT 65 YEARS, NARASANDRA POST, KUDAR HOBLI, MAGADI TALUK, RAMANAGARA DISTRICT-561 101. BANUPRAKASH B.V S/O VISHWANATH, AGED ABOUT 35 YEARS, NARASANDRA POST, Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:42058 RSA No. 883 of 2022 1(c) 1(d) 1(e) KUDUR HOBLI, MAGADI TALUK, RAMANAGARA DISTRICT-561 101. HEMA, W/O HEMANTHAKUMAR @ KEMPAIAH, AGED ABOUT 40 YEARS, MACHOHALLI, BAPU NAGAR VILLAGE & POST, VIA MAGADI ROAD, BANGALORE-560 091. PUSHPA, W/O MANJUGOWDA, AGED ABOUT 38 YEARS, AVALAHALLI, SINGANAYAKANAHALLI POST, YALAHANKA, BANGALORE-560 064. MAMATHA, W/O HARISHA, AGED ABOUT 36 YEARS, CHOKKANAHALLI RAJANKUNTE POST, YALAHANKA HOBLI, BANGALORE-560 064. …RESPONDENTS (BY SRI PRADEEP J.S, ADVOCATE FOR R1(a) TO (e)) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 22.04.2022 PASSED IN RA.No.37/2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, MAGADI, ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 03.08.2017 PASSED IN OS No.94/2007 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, MAGADI. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH - 3 - HC-KAR NC: 2025:KHC:42058 RSA No. 883 of 2022 ORAL JUDGMENT Heard the learned counsel for the appellant and also the learned counsel appearing for the respondents. 2. This second appeal is filed against the divergent findings of the trial Court and First Appellate Court. The trial Court when the suit in O.S.No.94/2007 was filed for declaration and mandatory injunction declared that plaintiff is the owner of suit 'B' schedule property which is part and parcel of the suit 'A' schedule property and defendant was directed to remove the construction made over the Suit Schedule 'B' Property or in the alternative, he shall give the plaintiff open space to such an extent. Defendant was also restrained from interfering in the possession of the plaintiff over the suit schedule properties. The same is challenged before the Appellate Court in RA.No.37/2017 and the Appellate Court having reassessed both oral and documentary evidence available on record, allowed the appeal and modified the same and suit of the plaintiff is decreed in part declaring that plaintiff is the owner of the part and parcel of 'A' Schedule Property situated in Block No.3 straight to Block No.2 on the northern side till end of the - 4 - HC-KAR NC: 2025:KHC:42058 RSA No. 883 of 2022 straight to said Block No.2 in possession of defendant as shown in Ex.C6-Sketch and the defendant was directed to deliver possession of the above said land in favour of plaintiff within three months from the date of the judgment. 3. Being aggrieved by the said judgment of the trial Court as well as the Appellate Court, the present second appeal is filed before this Court by the defendants. 4. When this Court found that it requires one more survey report, a Commissioner was appointed with the consent of both the parties and the Commissioner has also filed the report before this Court and the same is objected by the respondent/plaintiff contending that the earlier report of Ex.C6 as well as the present report both are not in consonance with each other. 5. Learned counsel appearing for the appellant would submit that in view of the report of the Commissioner filed before the trial Court which is marked as Ex.C6 and also the present Commissioner Report, he is only in excess possession of 01 guntas of land other than karab and ready to handover the same. - 5 - HC-KAR NC: 2025:KHC:42058 RSA No. 883 of 2022 6. Learned counsel appearing for the respondents submits that both the Commissioner Reports not tallies with each other. 7. It is also noticed by this Court that on the northern side of the boundary in Ex.P1-Sale Deed of the plaintiff shown another survey number but both the Commissioner Report disclose that on the northern side, the property in Sy.No.250/1 is remaining but the extent of possession which is shown in the earlier report as well as the present report is lesser the area which the plaintiff had purchased. But both the Commissioner Report disclose that the Taluk Panchayat is in excess of the land which they have purchased from one G.C.Chandregowda, who had purchased only 01 acre extent from the original owner i.e., the appellant herein and also in the present report discloses that there is a open space on the northern area of which is shown in the sketch prepared by both the Commissioners' and also water tank is in existence other than the area which is shown belongs to the Taluk Panchayat. When such being the case, out of 02 acres 16 guntas, 01 acre was sold in favour of Chandregowda, which was sold in favour of the Taluk Panchayat subsequently and to the extent of 20 guntas - 6 - HC-KAR NC: 2025:KHC:42058 RSA No. 883 of 2022 was sold in favour of the plaintiff/respondent and 4½ guntas was sold in favour of Jagadeesh Chandrababu and no dispute with regard to the said area which was sold in favour of the Jagadeesh Chandrababu since the same is adjoining land of Sy.No.250/3 and also Sy.No.250/1 and in between the land is earmarked in both the Commissioner Report and no need to make him as party to the proceedings. 8. Having taken note of the Commissioner Report filed earlier and also the present report and the objections filed by the respondents to the present report, matter requires to be remitted back to the trial Court for fresh consideration. The Commissioner Report filed earlier and the present one clearly disclose that Taluk Panchayat is in excess possession in the very same survey number and the Taluk Panchayat also to be made as party to the proceedings to decide the issue involved between the parties. When such being the case, it is appropriate to set aside the judgments of the Appellate Court as well as trial Court and consider the matter afresh. The plaintiff/respondent is also permitted to amend the plaint if necessary and also to make the Taluk Panchayat as party to the proceedings and only after impleading Taluk Panchayat, - 7 - HC-KAR NC: 2025:KHC:42058 RSA No. 883 of 2022 real dispute between the parties would be resolved and if necessary, if Taluk Panchayat subsequently sold the property and the persons who are in possession also can be made as parties for the adjudication. 9. In view of the discussion made above, I pass the following: ORDER i) The Regular Second Appeal is disposed of. ii) The judgments of the Appellate Court as well as trial Court are set aside. iii) The matter is remitted back to the trial Court for fresh consideration. The parties are directed to appear before the trial Court on 25.11.2025 without expecting any notice. The trial Court is directed to dispose of the matter within a period of 18 months. Sd/- (H.P.SANDESH) JUDGE NR/-, List No.: 1 Sl No.: 37