- 1 - HC-KAR NC: 2025:KHC:27159 RSA No. 1833 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1833 OF 2013 (INJ) BETWEEN: 1. SRI LAKSHMAPPA S/O THIMMAPPA AGED ABOUT 61 YEARS 2. SRI CHANDRAMMA W/O LAKSHMAPPA AGED ABOUT 55 YEARS 3. SRI MOODALAGIRI S/O LAKSHMAPPA AGED ABOUT 34 YEARS 4. LAKSHMIDEVI D/O LAKSHMAPPA AGED ABOUT 31 YEARS ALL ARE AGRICULTURISTS R/O NAGAGONDANAHALLI VILLAGE BILUVALA POST, KASABA HOBLI KADUR TALUK CHIKMAGALUR DISTRICT …APPELLANTS (BY SRI. UMA SHANKAR M N., ADVOCATE) AND: RANGAPPA S/O THIMMAPPA Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:27159 RSA No. 1833 of 2013 AGED ABOUT 67 YEARS AGRICULTURISTS NAGAGONDANAHALLI VILLAGE BILUVALA POST, KASABA HOBLI KADUR TALUK CHIKMAGALUR DISTRICT …RESPONDENT (BY SRI. GNANESHA N I., ADVOCATE FOR C/R) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 16.9.2013 PASSED IN R.A.NO.75/2011 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, KADUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 4.3.2011 PASSED IN OS.NO.79/2008 ON THE FILE OF PRINCIPAL CIVIL JUDGE , KADUR. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT 1. This Regular Second Appeal is filed by the appellants, challenging the judgment and decree dated 16.09.2013 passed in Regular Appeal No.75/2011 by the learned Senior Civil Judge and JMFC, Kadur. 2. For convenience, the parties are referred to based on their rankings before the Trial Court, i.e., the appellants were the defendants, and the respondent was the plaintiff. - 3 - HC-KAR NC: 2025:KHC:27159 RSA No. 1833 of 2013 3. Brief facts, leading rise to the filing of this appeal are as follows: 4. The plaintiff filed a suit against the defendants for permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit schedule property. 5. It is the case of the plaintiff that, the suit schedule property is the ancestral property of the plaintiff, and he got the suit schedule property in a family arrangement. The house property of the defendants exists on the eastern side of the suit property. The plaintiff in order to construct the house obtained license and collected building materials. It is contended that the defendants have no right, title or interest over the suit schedule property. It is contended that the defendants attempted to interfere with the lawful possession of the plaintiff over the suit schedule property, and their efforts to resolve the dispute were unsuccessful. Hence, a cause of action - 4 - HC-KAR NC: 2025:KHC:27159 RSA No. 1833 of 2013 arose for the plaintiff to file a suit for a permanent injunction. Accordingly, he prays to decree the suit. 6. Defendant No.3 filed a written statement, which was adopted by the other defendants. Defendant No.3 denied the averments made in the plaint, and it is contended that the plaintiff is not in lawful possession of the suit schedule property, and denied the alleged interference by them. It is contended that one Thimmappa was the original propositus (moola purusha) of the family of the plaintiff and the defendants. The plaintiff and defendant No.1 are brothers, and about 20 years ago, a partition took place between the plaintiff and defendant No.1. Since partition, defendant No.1 and plaintiff have been residing separately. It is contended that defendants are in possession and enjoyment of the suit schedule property. Hence, prays to dismiss the suit. 7. The Trial Court, based on the pleadings of the parties, framed the following issues: - 5 - HC-KAR NC: 2025:KHC:27159 RSA No. 1833 of 2013 “1) Whether the plaintiff proves that he is in possession and enjoyment of the suit schedule property as on the date of suit? 2) Whether the plaintiff proves the alleged interference? 3) Whether the plaintiff is entitled to relief claimed? 4) What order or decree?” 8. The plaintiff, to substantiate his case, examined the power of attorney holder of the plaintiff as PW-1, one more witness was examined as PW-2, and 33 documents were marked as Exs.P-1 to 33. 9. On the other hand, the defendants, to prove their defence, examined the Secretary of Biluvala Grama Panchayat as DW-1, defendant No.1 as DW-2, and one more witness as DW-3, and 21 documents were marked as Exs.D-1 to 21. 10. The Trial Court, after assessing the verbal and documentary evidence, answered issue Nos.1 to 3 in - 6 - HC-KAR NC: 2025:KHC:27159 RSA No. 1833 of 2013 the negative; and issue No.4 as per the final order. The suit of the plaintiff was dismissed vide judgment dated 04.03.2011. 11. The plaintiff, being aggrieved by the dismissal of his suit vide judgment and decree passed in O.S. No.79 of 2008, preferred an appeal in Regular Appeal No.75/2011 on the file of the learned Senior Civil Judge and JMFC, Kadur. 12. The First Appellate Court after hearing the learned counsel for the parties, framed the following points for its consideration: 1) “Whether the appellant/plaintiff proves that he has been in actual and lawful possession and enjoyment of the suit schedule property and defendants have attempted to interfere with the same? 2) Whether the judgment and decree passed by the trial Court in O.S.no.79/2008 dated 04.03.20211 is illegal, erroneous and opposed to the - 7 - HC-KAR NC: 2025:KHC:27159 RSA No. 1833 of 2013 principles of law, facts and probabilities of the case and liable to be set-aside? 3) Whether the appellant /plaintiff is entitled for the relief claimed in the present appeal? 4) What Order?” 13. The First Appellate Court, on reassessing the verbal and documentary evidence, answered point Nos.1 to 3 in the affirmative, and point No.4 as per the final order. The appeal filed by the plaintiff was allowed, and the impugned judgment and decree passed by the Trial Court was set aside. Consequently, the suit of the plaintiff was decreed vide judgment and decree dated 16.09.2013. 14. The defendants, aggrieved by the judgment and decreed passed in R.A. No.75/2011, preferred this Regular Second Appeal. 15. Heard the arguments of the learned counsel for the defendants and the learned counsel for the plaintiff. - 8 - HC-KAR NC: 2025:KHC:27159 RSA No. 1833 of 2013 16. Learned counsel for the defendants submits that the measurement of the suit schedule property shown in the plaint schedule does not tally with the measurement shown in Ex.P-15 i.e., License for construction of building and Ex.P-22 i.e., Site Sketch. He also submits that the documents produced by the plaintiff came into existence during the pendency of the suit. He submits that the plaintiff has not produced any records to show his possession over the suit schedule property before filing of the suit. 17. He submits that the First Appellate Court, placing reliance on Ex.P-15 held that the plaintiff is in possession and enjoyment of the suit schedule property, and also recorded a finding that the defendants have not challenged Ex.P-15. He submits that the plaintiff has created documents, and filed the present suit on false and baseless grounds. He submits that the First Appellate Court has not properly - 9 - HC-KAR NC: 2025:KHC:27159 RSA No. 1833 of 2013 re-appreciated the entire evidence on record, and hence, he prays to allow the appeal. 18. Per contra, learned counsel for the plaintiff submits that the plaintiff acquired the suit schedule property in a family arrangement and the plaintiff is in peaceful possession and enjoyment of the suit schedule property. The plaintiff obtained the licence for construction of building in the suit schedule property; the plaintiff has produced records to establish his possession over the suit schedule property. He also submits that plaintiff has produced Ex.P-22/Rough sketch to show the measurement of the suit schedule property. Hence, the First Appellate Court considered Exs.P-15 and 22, and has rightly passed the impugned judgment and decree. 19. He submits that the First Appellate Court has considered the entire evidence on record and rightly decreed the suit of the plaintiff. Hence, on these grounds, he prays to dismiss the instant appeal. - 10 - HC-KAR NC: 2025:KHC:27159 RSA No. 1833 of 2013 20. This Court, vide order dated 15.09.2014, framed the following substantial questions of law: “(i) Whether the lower Appellate Court was justified in reversing the judgment of the trial Court ? (ii) Whether the finding of the lower Appellate Court is perverse ignoring the evidence on record ? ” SUBSTANTIAL QUESTION OF LAW Nos.1 and 2: 21. Substantial Questions of Law Nos.1 and 2 are interlinked with each other and are taken together for common discussion to avoid the repetition of facts. 22. The plaintiff filed a suit for a permanent injunction, contending that the plaintiff acquired the suit schedule property in a family arrangement and he has been in peaceful possession, and enjoyment of the suit schedule property. 23. To establish that, the plaintiff is in possession of the suit schedule property, he has produced 33 - 11 - HC-KAR NC: 2025:KHC:27159 RSA No. 1833 of 2013 documents, marked as Exs.P-1 to 33 and also examined witnesses, as PWs-1 and 2 to establish his possession over suit schedule property. 24. From the perusal of the records produced by the plaintiff, it is seen that Ex.P-1 is the power of attorney executed by the plaintiff in favour of his son— Basavaraja who deposed on behalf of the plaintiff as PW-1; Ex.P-2 is the genealogical tree; Ex.P-3 is the property extract regarding the property No.216; Ex.P- 4 is the property extract of the property No.156 which was issued on 05.11.2008; Ex.P-5 is the property extract regarding Property No.217; Ex.P-6 is the property extract of the property No.159 issued on 04.02.2008, which is the suit schedule property; Ex.P- 7 is the tax paid receipt which discloses that one Govindappa has paid tax regarding the property No.216 on 05.11.2008; Exs.P-8 to 10 are the tax paid receipts which disclose that the tax was paid on 05.11.2008 regarding property Nos.156, 217 and - 12 - HC-KAR NC: 2025:KHC:27159 RSA No. 1833 of 2013 133/169. Ex.P-11 is the tax paid receipt which discloses that the plaintiff has paid tax regarding property No.159, on 05.11.2008; during the pendency of the suit, which was filed on 03.03.2008; Ex.P12 and 13 are the tax paid receipts which were paid on 05.02.2008 and 04.09.2007; Ex.P-14 is the building construction permission which was renewed on 05.11.2008; 25. Ex.P-15 is the building construction permission which was issued on 04.09.2007 regarding property No.159, wherein the measurement of the property is shown as 31 feet x 26 feet, whereas the measurement of the property is shown, at para 2 of the plaint as 26 feet x 40 feet. Hence, the measurement in the plaint does not tally with the measurement shown in Ex.P-15. The plaintiff has also produced Ex.P-22, i.e., the sketch, which discloses the measurement of the property No.159 as 26 feet x 40 feet. This rough sketch is not supported with any revenue records or - 13 - HC-KAR NC: 2025:KHC:27159 RSA No. 1833 of 2013 with the survey records. The defendants have denied that the plaintiff is in possession of the suit schedule property. The measurement shown in Ex.P-22 does not tally with the measurement shown in Ex.P-15, there is a discrepancy regarding the measurement of the suit schedule property. 26. In rebuttal, defendant No.1 was examined as DW-2 and deposed that the plaintiff is not in possession and enjoyment of the suit schedule property. On the contrary, the defendants are in possession and enjoyment of the suit schedule property. The defendants to prove their defence, produced the documents marked as Ex.D1 to Ex.D.21 27. From the perusal of the records produced by the plaintiff, it is clear that except Ex.P-15, which was issued before filing of the suit, the plaintiff has not produced any other records to show that the plaintiff was in possession of the suit schedule property before filing of the suit. - 14 - HC-KAR NC: 2025:KHC:27159 RSA No. 1833 of 2013 28. The First Appellate Court has recorded its finding, only on the ground that the defendants have not challenged Ex.P-15. The records produced by the plaintiff have come into existence during the pendency of the suit. The said records cannot be considered for the purpose of recording a finding that the plaintiff is in possession of the suit schedule property. 29. However, the First Appellate Court has decreed the suit based on the weakness of the case of the defendants. The First Appellate Court has failed to consider the well established principle of law that the plaintiff is required to prove his case independently and cannot depend on the weakness of the defendants. In view of the law laid down by the Hon’ble Apex Court in the case of Jagdish Prasad Patel (D) through LR's and another vs Shivnath and others reported in (2019) 6 SCC 82 The judgment and decree passed by the First Appellate Court is arbitrary, and is contrary to the records. - 15 - HC-KAR NC: 2025:KHC:27159 RSA No. 1833 of 2013 Thus, I am of the considered view that the judgment and decree passed by the First Appellate Court is perverse, arbitrary, and erroneous and as such, the same is liable to be set aside. 30. In view of the above discussion, I answer the substantial question of law No.1 in the negative and the substantial question of law No.2 in the affirmative. 31. In the result, I proceed to pass the following: ORDER (i) The Regular Second Appeal is allowed. (ii) The judgment and decree dated 16.09.2013 passed in R.A. No.75/2011 by the learned Senior Civil Judge and JMFC, Kadur, is set aside. (iii) The judgment and decree passed in O.S. No.79/2008 dated 04.03.2011 by the learned Principal Civil Judge, Kadur, is restored. - 16 - HC-KAR NC: 2025:KHC:27159 RSA No. 1833 of 2013 (iv) The Office is directed to draw the decree accordingly. (v) No order as to the costs. (vi) In view of the disposal of the appeal, pending interlocutory applications, if any, stand disposed of. (vii) Learned counsel for the plaintiff submits that liberty may be reserved to the plaintiff to file a comprehensive suit regarding the suit schedule property. (viii) Submission is placed on record. The Liberty is reserved to the plaintiff to file a comprehensive suit, if so, advised. Sd/- (ASHOK S.KINAGI) JUDGE RK Ct: KVH List No.: 1 Sl No.: 12