- 1 - HC-KAR NC: 2025:KHC:49535 RSA No. 304 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.304 OF 2025 (DEC/INJ) BETWEEN: 1. SRI. K.V. BOJANATH, S/O K. VENKATAPPA, AGED ABOUT 63 YEARS, RESIDING AT HOUSE NO.K-8, 3RD MAIN ROAD, LAKSHMINARAYANAPURA, SRIRAMAPURA, BENGALURU-560 021. 2. SRI. V. CHANDRASHEKAR, S/O K. VENKATAPPA, AGED ABOUT 60 YEARS, R/AT HOUSE NO.7, MUNISWAMY ROAD, SHIVAJINAGAR, BENGALURU-560 051. …APPELLANTS (BY SRI. LEELADHAR H.P., ADVOCATE) AND: 1. SMT. RUDRAMMA, W/O LATE NYANACHARI, AGED ABOUT 73 YEARS, RESIDING AT KENDATTI VILLAGE, VOKKALERI HOBLI, KOLAR TALUK, KOLAR DISTRICT-563101. …RESPONDENT Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:49535 RSA No. 304 of 2025 THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 13.12.2024 PASSED IN R.A.NO.140/2022 ON THE FILE OF ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC-1 (POCSO), KOLAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 05.04.2022 PASSED IN O.S.NO.477/2011 ON THE FILE OF II ADDITIONAL CIVIL JUDGE AND JMFC, KOLAR. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission. Heard the learned counsel for the appellants. 2. This second appeal is filed against the concurrent finding. 3. The factual matrix of the case of the plaintiff before the Trial Court is that she is the absolute owner of the suit schedule property and having peaceful possession and enjoyment of the same. The defendants are trying to make road in the suit schedule property inspite of not having any rights over the same. It is specifically pleaded that the defendants are interfering with the plaintiff's peaceful - 3 - HC-KAR NC: 2025:KHC:49535 RSA No. 304 of 2025 possession and enjoyment of the suit schedule property. Hence, she is entitled for the relief of declaration and permanent injunction. The defendant Nos.2 and 3 appeared and filed the written statement denying the very title of the plaintiff and also denied the averments made in the plaint. The defendants took the contention that land bearing Sy.No.14/1 originally belongs to one Chikka Bychappa S/o Muniyappa and on 09.04.1958, the said Chikka Bychappa sold the suit schedule property in favour of Eshwarachari under a registered sale deed for valuable consideration. Again the said Eshwarachari has purchased Sy.No.14/3A measuring 31 guntas under a registered sale deed. On 07.10.2006, the said Eshwarachari sold the property to Shashidharachari under a registered sale deed for valuable consideration. The land bearing Sy.No.14/1 was sub-divided and re-numbered as Sy.Nos.14/1, 14/7 and 14/8 as per the order dated 08.10.2010. The defendants further contended that on 20.06.2011, the said Shashidharachari sold the property bearing Sy.No.14/7 measuring 30.12 guntas in favour of defendant Nos.2 and 3 under a registered sale - 4 - HC-KAR NC: 2025:KHC:49535 RSA No. 304 of 2025 deed for valuable consideration. After purchase of the said property, defendant Nos.2 and 3 are in possession and enjoyment of the suit schedule property and they have put up the compound and dug the borewell in Sy.No.14/7. 4. The Trial Court having considered the pleadings of the parties, framed the issues and allowed the parties to lead evidence. The Trial Court considering both oral and documentary evidence available on record, taken note of the area claimed by the plaintiff in paragraph No.25 with regard to Sy.No.14/1 and southern boundary is shown as Puttachari, whereas the northern boundary in Sy.No.14/1 is shown as property belonging to Nyanappa, the husband of the plaintiff. On perusal of the description, it is clear that the boundary with respect to Sy.No.14/6 on the southern side is mis-described. In paragraph No.26, the evidence of D.W.1 was taken note of and the defendants claim right based on the document Ex.D.17. On perusal of Ex.D.17, it can be seen that on the northern boundary, the property belonging to the plaintiff is situated. Further, during the course of cross-examination, D.W.1 was clearly questioned with - 5 - HC-KAR NC: 2025:KHC:49535 RSA No. 304 of 2025 respect to the boundaries of the property and he has clearly stated that he has no rights in Sy.Nos.14/1 and 14/6 and the same is the suit schedule property. In paragraph No.27, taken note of the admission on the part of D.W.2 that the boundaries given in the plaint belongs to the plaintiff and they are neither in possession nor they have any rights over the said property with specific boundaries. 5. The Trial Court having considered this admission and also relying upon the judgments, in paragraph No.30 comes to the conclusion that the boundaries of the property prevails over the measurement and D.W.2 has clearly admitted that the plaintiff is the owner of the property with respect to boundaries given in the plaint and also admits that they are neither in possession nor they have any rights over the said property and hence, answered issue No.1 in the affirmative. However, while answering issue No.2 with regard to the allegation of formation of road is concerned, an observation is made that no evidence is led and no iota of documents is produced to substantiate the said contention and answered the same in the negative. While answering - 6 - HC-KAR NC: 2025:KHC:49535 RSA No. 304 of 2025 issue No.3, the Trial Court observed that defendant Nos.2 and 3 have appeared and filed the written statement denying the very ownership of the plaintiff in respect of the suit schedule property. However, during the course of cross- examination, categorically admitted the ownership as well as possession of the plaintiff and hence, answered issue No.3 in the affirmative and granted the relief of the declaration and permanent injunction when the defendants are not claiming any right over the suit schedule property and also clearly admitted the boundaries, which is mentioned in the plaint as well as they are not having any right over the property and also they are not claiming any possession over the property. 6. The First Appellate Court also having re-assessed both oral and documentary evidence available on record, in paragraph Nos.23 and 24, extracted the admission on the part of D.W.1, wherein he admitted that the defendants are not having any right over Sy.Nos.14/1 and 14/6 and in paragraph Nos.25 and 26 extracted the cross-examination of D.W.3. The First Appellate Court having re-assessed both oral and documentary evidence placed on record, comes to - 7 - HC-KAR NC: 2025:KHC:49535 RSA No. 304 of 2025 the conclusion that there is no dispute with regard to the right of the plaintiff. It is also not disputed by the plaintiff that the property of the defendants is situated to the southern side of her property after R.S.No.14/1. The only grievance of the plaintiff herein is that the defendants are interfering into the possession of the suit schedule property and also attempted to dispossess her denying her title over the land in question. Having considered all these factors, the First Appellate Court confirmed the judgment of the Trial Court. 7. Being aggrieved by the concurrent finding, the present second appeal is filed before this Court. 8. The main contention of the learned counsel for the appellants before this Court is that both the Courts committed an error, when in fact, the documents of Exs.P.2 and 3 produced by the plaintiff has no common boundary, thereby misinterpreting the documents Exs.P.1 and 2 relied upon the plaintiff. The Trial Court also did not take note of the fact when the sale deeds are mentioned, different survey - 8 - HC-KAR NC: 2025:KHC:49535 RSA No. 304 of 2025 numbers, but common boundary is given and ought not to have granted the relief of declaration and permanent injunction. The learned counsel also vehemently contend that when the Trial Court comes to the conclusion while answering issue No.2 is concerned that there was no any attempt to form the road as contented by the plaintiff, ought not to have granted the relief of declaration and permanent and hence, this Court has to admit the appeal and frame substantial question of law. 9. Having heard the learned counsel for the appellants and considering the reasoning of the Trial Court and also the pleadings of the parties, it is very clear that the plaintiff categorically pleaded with regard to the title is concerned as well as the possession is concerned and the defendants though denied in the written statement with regard to the title of the plaintiff, the same is also taken note of by the Trial Court. In the cross-examination, the answer which is elicited from the mouth of D.W.1 is extracted in paragraph No.26 and so also the admission on the part of D.W.2. The Trial Court even considered the boundaries - 9 - HC-KAR NC: 2025:KHC:49535 RSA No. 304 of 2025 mentioned in Ex.D.17, wherein the northern boundary is shown as the property belonging to the plaintiff i.e., the suit schedule property. When there is no any dispute with regard to the identification of the property and also no dispute with regard to title is concerned and when there is a clear admission on the part of the witnesses that not having any claim in respect of Sy.Nos.14/1 and 14/6, I do not find any error on the part of the Trial Court in granting the relief of declaration and permanent injunction, since the defendants are also not claiming any possession in respect of the suit schedule property and title is also admitted. 10. The First Appellate Court also re-assessed both oral and documentary evidence available on record and particularly extracted the answers elicited from the mouth of the witnesses in paragraph Nos.23, 24, 25, 26 and reasoning is given in paragraph No.29. When there is no any perversity in the finding of both the Courts with regard to granting of relief of declaration and permanent injunction and when both question of fact and question of law was considered by the Trial Court and the First Appellate Court, - 10 - HC-KAR NC: 2025:KHC:49535 RSA No. 304 of 2025 not a case to invoke Section 100 of CPC to admit the appeal and to frame substantial question of law. 11. In view of the discussions made above, I pass the following: ORDER The second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 43