- 1 - NC: 2025:KHC-D:1978 RSA No. 100903 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 31ST DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100903 OF 2019 (INJ) BETWEEN: SRI. GANGADHAR S/O. GOUDAPPAGOUDA PATIL AGE: 38 YEARS, OCC: AGRICULTURE, R/AT: NEAR UDAY NAIK HOSPITAL YADAWAD ROAD MUDHOL, TQ: MUDHOL, DIST: BAGALKOTE-587313. …APPELLANT (BY SRI. MRUTYUNJAY TATA BANGI, ADVOCATE) AND: SMT. MEENAKSHI D/O. TIPPANNA BISARADDI AGE: 44 YEARS, OCC: HOUSEHOLD WORK, R/AT: NEAR UDAY NAIK HOSPITAL, YADAWAD ROAD, MUDHOL, TQ: MUDHOL, DIST: BAGALKOTE-587313. …RESPONDENT (BY SRI. B.S. KAMATE, ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED U/SEC.100 OF CPC, AGAINST THE JUDGMENT & DECREE DATED 29.06.2018 PASSED IN R.A.NO.40/2016 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, MUDHOL, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 07.04.2016, PASSED IN O.S. NO.276/2011 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, MUDHOL, DECREEING THE SUIT FILED FOR PERMANENT INJUNCTION. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH MANJANNA E Digitally signed by MANJANNA E Date: 2025.02.04 11:09:42 +0530 - 2 - NC: 2025:KHC-D:1978 RSA No. 100903 of 2019 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE E.S.INDIRESH) This appeal is preferred by the defendant challenging the judgment and decree dated 29.06.2018 in R.A.No.40/2016 on the file of the Additional Senior Civil Judge, Mudhol (for short “the First Appellate Court”) dismissing the appeal and confirming the judgment and decree dated 07.04.2016 in O.S.No.276/2011 on the file of the Additional Civil Judge and JMFC, Mudhol (for short “the Trial Court”) decreeing the suit of the plaintiff. 2. For the sake of convenience, the parties are referred as per their rank before the Trial Court. 3. It is the case of the plaintiff that the plaintiff is the owner in possession of the land bearing CTS No.4026A1D/6 measuring 166.50 square meters and CTS No.4026A1D/5 measuring north-south 50 ft., east-west 12 ft., and these properties are situate abutting towards northern side of Mudhol-Yadawad road. It is also stated in the plaint that the defendant is the owner of the land bearing CTS No. 4026A1D/5 measuring 110.75 square meters and the property situate - 3 - NC: 2025:KHC-D:1978 RSA No. 100903 of 2019 towards western side of property measuring east-west 12 ft., and north-south 50 ft., of CTS No.4026A1D/5. It is the case of the plaintiff that the plaintiff has produced hand sketch map in which the defendant has encroached a portion shown as ‘ABCD’ out of property bearing CTS No. 4026A1D/6 and also encroached a portion shown as ‘CDEF’ out of the property bearing CTS No.4026A1D/5. Hence, the plaintiff filed a suit in O.S.No.276/2011 before the Trial Court seeking the relief of permanent injunction restraining the defendant from re- encroaching and constructing a compound wall in the ‘A’ area shown as ‘AB’ in the hand sketch map. 4. After service of summons, the defendant entered appearance and filed a detailed written statement contending that both the properties are situated adjacent to each other and denied the averments made in the plaint regarding encroachment and contended that there is no compound wall between the properties of plaintiff and defendant and therefore, denied question of demolishing of compound wall. Hence, the defendant has sought for dismissal of the suit. - 4 - NC: 2025:KHC-D:1978 RSA No. 100903 of 2019 5. The Trial Court, based on the pleadings on record, has framed issues for its consideration. In order to prove their case, the plaintiff has examined two witnesses as PW1 and PW2 and got marked 10 documents as Ex.P1 to Ex.P10. The defendant has examined two witnesses as DW1 and DW2 and no documents were produced by the defendant. The Trial Court, after considering the material on record, by its judgment and decree dated 07.04.2016 decreed the suit and directed the defendant not to restrain the plaintiff from putting up any construction in ‘AB’ portion as shown in the sketch. Feeling aggrieved by the same, the defendant has preferred an appeal in R.A.No.40/2016. The said appeal was resisted by the plaintiff. The First Appellate Court, by its judgment and decree dated 29.06.2018 dismissed the appeal, consequently confirmed the judgment and decree passed in O.S.No.276/2011. Hence, the defendant has preferred this appeal. 6. I have heard Sri.Mrityunjaya Tata Bangi, learned counsel for the appellant and Sri.B.S.Kamate, learned counsel appearing for the respondent. - 5 - NC: 2025:KHC-D:1978 RSA No. 100903 of 2019 7. Sri. Mrityunjaya Tata Bangi, learned counsel appearing for the appellant submitted that both the Courts below solely based on the evidence of PW1 and PW2 have arrived at a conclusion that the defendant has tried to interfere with the possession of the property belonging to the plaintiff is concerned and accordingly, sought for interference of this Court. 8. Per contra, Sri. B. S. Kamate, learned counsel appearing for the respondent sought to justify the impugned judgment and decree. 9. Having taken note of the submissions made by the learned counsel appearing for the parties and on careful examination of the finding recorded by the Trial Court would makes it clear that there is no dispute with regard to the fact that the suit schedule property is belonging to the plaintiff and the land belonging to the defendant is situated adjacent to the suit schedule property. Taking into consideration the finding recorded by the Trial Court at paragraph 15 and 16 of the impugned judgment and decree wherein the plaintiff has produced Ex.P4 to Ex.P6 makes it clear that there is no - 6 - NC: 2025:KHC-D:1978 RSA No. 100903 of 2019 compound wall between the properties belonging to the plaintiff and the defendant and same was demolished by the defendant. In that view of the mater, I am of the view that the Trial Court, after considering the material on record, particularly with regard to appreciating the evidence on Ex.P4 to Ex.P6 has rightly decreed the suit filed by the plaintiff. The First Appellate Court after re-assessing the evidence on record as required under Order XLI Rule 31 of CPC has confirmed the judgment and decree passed by the Trial Court. In that view of the matter, I am of the view that the appellant/defendant has not made out a case for formulation of substantial question of law as required under Section 100 of the CPC. Accordingly, the appeal stands dismissed at the stage of admission itself. 10. In view of disposal of appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly. SD/- (E.S.INDIRESH) JUDGE YAN LIST NO.: 1 SL NO.: 17