- 1 - HC-KAR NC: 2025:KHC:27378 RSA No. 1424 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1424 OF 2016 (INJ) BETWEEN: 1. SMT. B.M.SUSHEELAMMA, W/O LATE B MUDDAPPA, SINCE DEAD HER LRS, SMT. JAYASHREE, W/O LATE B M VEERESH, AGED ABOUT 56 YEARS, 2. SRI B V HARSHA, S/O LATE B M VEERESH, AGED ABOUT 56 YEARS, SINCE DEAD BY HIS LRS, 2(A). SMT. DEVEERAMMA HARSHA, W/O LATE B.V. HARSHA, AGED ABOUT 35 YEARS, 2(B). KUM POORVIKA H BELLUDI, D/O LATE B.V. HARSHA, AGED ABOUT 13 YEARS, 2(C). PAVAN H. BELLUDI, S/O LATE B.V. HARSHA, AGED ABOUT 11 YEARS, SINCE 2(B) AND (C) ARE MINORS, REPRESENTED BY THEIR MOTHER I.E., 2(A) SMT. DEVEERAMMA HARSHA, Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:27378 RSA No. 1424 of 2016 A2(A) TO (C) ARE ALL RESIDING AT NO.992, LAWYERS ROAD, K.B. EXTENSION, DAVANAGERE-577 002. 3. SRI B.V.NAVEEN, S/O LATE B.M.VEERESH, AGED ABOUT 31 YEARS, A1 TO 3 ARE R/AT KUVEMPU ROAD, K B EXTENSION, DAVANAGERE-577 001. 4. SMT. SULOCHANA, W/O LATE B.M.PRASANNA, AGED ABOUT 61 YEARS, 5. SRI GANESH, S/O LATE B.M.PRASANNA, AGED ABOUT 30 YEARS, A4 AND A5 ARE R/AT NO.426, 1ST MAIN, 10TH ‘A’ CROSS, 2ND STAGE, NAGARABHAVI, BENGALURU-560 072. 6. SMT. PUSHPA, W/O SRI KUMARASWAMY, AGED ABOUT 52 YEARS, NO.289, 36TH CROSS,7TH BLOCK, JAYANAGAR, BENGALURU-560 070. B.M.VEERESH, S/O LATE B.MUDDAPPA, DEAD AND APPELLANT Nos. 1 TO 3 ARE HIS LRS B. MALLESHAPPA, S/O LATE B.CHANNAVEERAPPA, SINCE DEAD BY HIS LRS *Page No. 2 is retyped and replaced vide Court order dated 06.02.2026 - 3 - HC-KAR NC: 2025:KHC:27378 RSA No. 1424 of 2016 7. SMT. ANNAPURNAMMA, W/O LATE B.MALLESHAPPA, DEAD AND APPELLANT NO.8 TO 14 ARE HIS LRS 8. SMT. PARVATHAMMA, W/O LATE RAJASHEKARAPPA, AGED ABOUT 61 YEARS, R/AT VIJAYALAKSHMI ROAD, DAVANAGERE-577 001. 9. SRI B.VEERANNA S/O LATE B MALLESHAPPA AGED ABOUT 54 YEARS 10. SRI B.M.DAYANANDA S/O LATE B MALLESHAPPA AGED ABOUT 51 YEARS A9 AND A10 BOTH ARE R/AT N.649/2, S.K.P ROAD, DAVANAGERE-577 001. 11. SMT. SUVARNA, W/O SRI MOTHI VEERESH, AGED ABOUT 49 YEARS, R/AT BEHIND VISHVESWARAIAH PARK, P J EXTENSION, DAVANAGERE-577 001. 12. SRI B.ARUN, S/O LATE SRI B.MALLESHAPPA, AGED ABOUT 46 YEARS, 13. SRI B.M.SHAMBULINGAPPA, S/O LATE SRI B MALLESHAPPA, AGED ABOUT 42 YEARS, 14. RENUKESHA V., S/O LATE SRI B.MALLESHAPPA, AGED ABOUT 39 YEARS, - 4 - HC-KAR NC: 2025:KHC:27378 RSA No. 1424 of 2016 A12 TO A14 ARE R/AT NO.649/2, S.K.P ROAD, DAVANAGERE-577 001. …APPELLANTS (BY SRI. JAGADEESH MUNDARAGI., ADVOCATE, V/O DATED 18.12.2024 A8 TO A14 ARE TREATED AS LR’S OF A7) AND: 1. THE STATE OF KARNATAKA, BY ITS CHIEF SECRETARY, VIDHANA SOUDHA, BENGALURU-560 001. 2. THE DIRECTOR GENERAL AND INSPECTOR GENERAL OF POLICE, GOVERNMENT OF KARNATAKA, POLICE HEAD QUARTERS, NRUPATHUNGA ROAD, BENGALURU-560 001. 3. THE INSPECTOR GENERAL OF POLICE EASTERN RANGE, DEVARAJ URS LAYOUT, C BLOCK, DAVANAGERE-577 001. 4. THE SUPERINTENDENT OF POLICE, DAVANAGERE DISTRICT, DEVARAJ URS LAYOUT, C BLOCK, DAVANAGERE-577 001. 5. THE DEPUTY COMMISSIONER, DAVANAGERE DISTRICT, OPP. KSRTC BUS STATION, P B ROAD, DAVANAGERE-577 001. …RESPONDENTS (BY SRI. K. KIRAN KUMAR, HCGP FOR R1 TO R5) - 5 - HC-KAR NC: 2025:KHC:27378 RSA No. 1424 of 2016 THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 02.04.2016 PASSED IN RA NO.54/2010 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE, DAVANAGERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 19.04.2010 PASSED IN OS NO.527/2001 ON THE FILE OF THE ADDL. CIVIL JUDGE (JR.DN.) DAVANGERE. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This regular second appeal is filed by the appellants challenging the judgment and decree dated 02.04.2016 passed in RA.No.54/2010 by the learned II Additional Senior Civil Judge, Davangere and the judgment and decree dated 19.04.2010 passed in OS No.527/2001 by the learned Additional Civil Judge, (JR DN), Davangere. 2. For convenience, the parties are referred to based on their ranking before the trial Court. The appellants were the plaintiffs and the respondents were the defendants. 3. Brief facts leading rise to the filing of this appeal are as follows: - 6 - HC-KAR NC: 2025:KHC:27378 RSA No. 1424 of 2016 The plaintiffs filed a suit against the defendants for a permanent and mandatory injunction to demolish the illegal construction made on the suit schedule property. It is the case of the plaintiffs that the suit schedule property belongs to plaintiff No.3 and his brother, late Sri.B.Muddappa, who is the husband of plaintiffs No.1 and father of plaintiff No.2. Both were absolute owners and in peaceful possession and enjoyment of land bearing Survey No. 63/2 of Davangere measuring 4 acres and 7½ guntas. About 40 years ago, the Government of Mysore had acquired 2 acres 31 guntas of land, out of 4 acres 7½ guntas of land for the construction of Police Quarters and the Government of India, acquired 36 guntas of land, in the same survey number for the construction of a telephone exchange and microwave station. Out of 4 acres 7½ guntas of land, 03 acres and 27 guntas of land was acquired and the remaining 20½ guntas belong to plaintiff No.3 and his brother Muddappa. It is contended that after the acquisition of the major portion in suit survey number, - 7 - HC-KAR NC: 2025:KHC:27378 RSA No. 1424 of 2016 because of the phodi, the survey number was given as 63/2A to the remaining land. It is contended that, the revenue record stands in the name of plaintiffs. The defendants have no right, title or interest over the suit schedule property and are making an illegal and unlawful attempt to encroach upon the suit schedule property. Hence, a cause of action arose for the plaintiffs to file a suit for a permanent injunction and a mandatory injunction. Accordingly, pray to decree the suit. 4. The defendants filed a written statement denying the averments made in the plaint and it is contended that there is no existence of 20½ guntas of land in Sy.No.63/2A, as alleged by the plaintiffs in the plaint. It is contended that the plaintiffs have not produced any records regarding which portion of the land was acquired by the State Government and Central Government and the plaint is not supported by the rough sketch, disclosing the existence and location of the suit schedule property. Hence, pray to dismiss the suit. - 8 - HC-KAR NC: 2025:KHC:27378 RSA No. 1424 of 2016 5. The trial Court, based on the pleadings of the parties, has framed the relevant issues as below; “ISSUES: 1. Whether the plaintiffs prove that they are in lawful possession and enjoyment over suit schedule property as on date of suit? 2. Whether the plaintiffs further proves that the defendants disturbing possession of plaintiffs illegally by putting up construction over suit schedule property without having any right, title and interest? 3. Whether the defendants prove that the suit is bad for non joinder of necessary parties as contended in para 10(L) of W.S.? 4. Whether defendants prove that the market value of suit property is more than Rs. One lakh as on date of suit? 5. To what relief the parties to the suit are entitled to? 6. What order or decree? ADDITIONAL ISSUES 1. Whether the plaintiffs prove that during the pendency of the suit the - 9 - HC-KAR NC: 2025:KHC:27378 RSA No. 1424 of 2016 defendants particularly defendant No.3 and 4 have constructed a school building illegally without any authority? 2. Whether the suit of the plaintiffs is bad for non compliance of provisions U/Sec.80 of CPC? 3. Whether the plaintiffs are entitle for mandatory injunction? 4. Whether the plaintiffs proves that the defendants were made construction towards western portion of the schedule property during the pendency of the suit illegally?” 6. The plaintiffs, to substantiate their case, plaintiff No.2 was examined as PW1 and examined two witnesses as PW2 and PW3, and marked 27 documents as Exs.P1 to P27. An officer of the defendants, was examined as DW1 and no documents were marked. The trial Court, after recording the evidence, hearing on both sides and assessing the verbal and documentary evidence, answered issues Nos.1 to 3 and additional issues in the negative, issue No.4 does not arise and issue Nos.5 and 6, as per - 10 - HC-KAR NC: 2025:KHC:27378 RSA No. 1424 of 2016 the trial order. Consequently, the Trial Court dismissed the suit of the plaintiffs. 7. The plaintiffs, aggrieved by the judgment and decree passed in O.S. No.527/2001, preferred an appeal in R.A. No.54/2010 on the file of the learned II Additional Senior Civil Judge, Davangere. The First Appellate Court, after re-assessing the verbal and documentary evidence, dismissed the appeal with costs, vide judgment dated 02.04.2016. The plaintiffs, aggrieved by the impugned judgments, filed this regular second appeal. 8. Heard the arguments of the learned counsel for the plaintiffs. 9. Learned counsel for the plaintiffs submits that the plaintiffs have shown the boundaries of the suit schedule property and also about the existence and location of the suit schedule property. Both courts below have not properly considered the said aspect and passed the impugned judgments. He also submits that the plaintiffs - 11 - HC-KAR NC: 2025:KHC:27378 RSA No. 1424 of 2016 have filed an application in IA No.2/2023, for the appointment of the Taluka Surveyor, Davanagere as a Court Commissioner to make boundary of the suit schedule property and mark the area of construction. Hence, on these grounds, he prays to allow the appeal and IA No.2/2023. 10. Perused the records and considered the submission of learned counsel for the plaintiffs. 11. The plaintiffs claim to be the owners of the land bearing in Sy.No.63/2A measuring 20½ guntas. Though, originally Sy.No.63/2 measuring 4 acres 7½ guntas, out of this, some portions of the land were acquired by the State Government and Central Government. The plaintiffs, to substantiate as to which portion of the land was acquired by the State Government and Central Government, have not produced any records. Both courts below, have recorded a finding that the plaint is not supported by a rough sketch, disclosing the existence and location of the suit schedule property. The suit schedule property cannot - 12 - HC-KAR NC: 2025:KHC:27378 RSA No. 1424 of 2016 be identified in the sketch submitted by the Court Commissioner. The Court Commissioner was appointed by the trial Court and the Court Commissioner has submitted a report regarding the suit schedule property, which cannot be identified on the spot report, submitted by the court commissioner. As the suit schedule property cannot be identified on the spot, the question of passing the decree in favour of the plaintiffs would not arise. Both courts below have concurrently recorded a finding of fact that the plaintiffs have failed to prove that they are in lawful possession and enjoyment of the suit schedule property, and as on the date of the suit, the defendants are disturbing the possession of the plaintiffs over the suit property. Further, the plaintiffs failed to prove that the defendants have illegally put up the construction over the suit schedule property, without having any right, title or interest. Both courts below have concurrently recorded the findings of fact against the plaintiffs. - 13 - HC-KAR NC: 2025:KHC:27378 RSA No. 1424 of 2016 Hence, I do not find any error in the impugned judgments or any substantial question of law that arises for consideration in this appeal. 12. The plaintiffs filed IA No.2/2023 for the appointment of a Taluka surveyor as Court Commissioner, to fix the boundaries of the suit schedule property and mark the area of construction. In support of an application, appellant No.10 filed an affidavit stating that the Court Commissioner was appointed in the trial Court and he submitted a sketch and a report, but the Court Commissioner has not marked the suit schedule property in his sketch. He also has not marked and given the report as to how much portion of the suit property was acquired by the respondents and they have put up the construction/building. To correct the defect/mistake done by the earlier Court Commissioner, the appointment of the Court Commissioner is very much necessary in the present case to decide the real dispute in this matter. - 14 - HC-KAR NC: 2025:KHC:27378 RSA No. 1424 of 2016 13. The trial Court appointed a Court Commissioner and the Court Commissioner after issuing a notice to both parties, visited the spot and submitted a report. The plaintiffs have not filed any objection to the Commissioner’s report. The Commissioner, in his report, has recorded a finding that there is no existence of the suit schedule property. The trial Court, considering the Commissioner’s report, has rightly recorded a finding that there is no existence of the suit schedule property on the spot. Hence, question of fixing and marking the boundaries of the suit schedule property does not arise. The plaintiffs have not made out a ground to entertain n I.A.No.2/2023. In view of the above discussion, I proceed to pass the following order; ORDER (i) The Regular Second Appeal is dismissed. (ii) The impugned judgments and decrees passed by both the courts below are hereby confirmed. - 15 - HC-KAR NC: 2025:KHC:27378 RSA No. 1424 of 2016 (iii) IA No.2/2023 is hereby rejected. (iv) No order as to the costs. (v) In view of the dismissal of the appeal, pending IA’s, if any, do not survive for consideration and are accordingly disposed of. Sd/- (ASHOK S.KINAGI) JUDGE AKV List No.: 1 Sl No.: 32