- 1 - HC-KAR NC: 2025:KHC:52703 RSA No. 803 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.803 OF 2025 (DEC/POS) BETWEEN: 1. KALLAPPA S/O MAHADEVAPPA AGED ABOUT 74 YEARS AGRICULTURIST 2. B.M.VIJAYAKUMAR S/O MAHADEVAPPA AGED ABOUT 70 YEARS AGRICULTURIST 3. B.S.YUVARAJ @ YUVARAJAPPA S/O MAHADEVAPPA AGED ABOUT 64 YEARS AGRICULTURIST ALL ARE R/O BUSSENAHALLI VILLAGE CHANNAGIRI TALUK DAVANAGERE DISTRICT-577213 …APPELLANTS (BY SRI. SANNANNANVAR SHIVANANDA DUNDAPPA, ADVOCATE) AND: 1. CHANDRAMMA W/O LATE B.SIDDARAMAPPA Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:52703 RSA No. 803 of 2025 AGED ABOUT 67 YEARS 2. DEVARAJA D.S. S/O LATE B.SIDDARAMAPPA AGED ABOUT 44 YEARS 3. DARSHAN D.S. S/O LATE B.SIDDARAMAPPA AGED ABOUT 41 YEARS 4. D.MAHARUDRAPPA S/O SIDDAPPA AGED ABOUT 66 YEARS 5. D.S. MALLESHAPPA S/O SIDDAPPA AGED ABOUT 61 YEARS 6. D.S. SHIVAKUMAR S/O SIDDAPPA AGED ABOUT 63 YEARS 7. K.B.NAGARAJAPPA S/O BASAPPA @ KARIBASAPPA AGED ABOUT 66 YEARS ALL ARE AGRICULTURIST R/O BUSSENAHALLI VILLAGE CHANNAGIRI TALUK DAVANAGERE DISTRICT-577213 …RESPONDENTS THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 03.03.2025, PASSED IN R.A.NO.44/2024 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, CHANNAGIRI AND ETC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:52703 RSA No. 803 of 2025 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT The second appeal is filed against the concurrent finding of the Trial Court as well as the First Appellate Court. 2. This matter is listed for admission. Heard the learned counsel appearing for the appellants. 3. The factual matrix of the case of plaintiffs before the Trial Court while seeking the relief of declaration, possession and permanent injunction is that plaintiffs are the absolute owners of the suit schedule properties as per partition deed dated 18.03.2000 and they are in possession of the suit schedule properties as on the date of suit and also contend that there is an encroachment by the defendants in respect of the suit schedule properties. Defendants appeared and filed the written statement denying all the contentions of the plaintiffs. It is contended in the written statement that - 4 - HC-KAR NC: 2025:KHC:52703 RSA No. 803 of 2025 plaintiff No.1 had sold 5 guntas 8 ana to Sidramappa, son of Channabassappa B.K. of Buseenahalli village in suit schedule ‘A’ property. Said purchaser had constructed dwelling house in it and residing there since 6 years. Thus plaintiff No.2 has no possession of the entire suit schedule ‘A’ property. The plaintiffs sold out the properties to the defendants and at that time, the plaintiffs left 18 feet road to access the purchasers to reach their respective properties. The defendants are accessing their property through the said 18 feet road left by the plaintiffs in the suit properties. 4. It is also contended that the description given by the plaintiffs is not correct. Plaintiff No.1 had sold 5 guntas, 4 anas to D. B. Nagaraja vide sale date dated 27.03.2008 and sold 10 guntas 8 anas to Subadramma on 27.03.2008. In both the sale deeds, they had mentioned northern boundary as 18 feet road which was left by them in their land to the use of purchasers to - 5 - HC-KAR NC: 2025:KHC:52703 RSA No. 803 of 2025 enjoy their properties suitably. The purchasers have built up the residential houses in their respective properties and are enjoying the 18 feet road till today. It is further contended that the plaintiffs have filed this suit with an intention to block the said road which is in existence in the suit schedule properties. Hence there is no cause of action to file the suit. 5. The Trial Court having considered the pleadings of the parties, framed the Issues and allowed the parties to lead their evidence. The Trial Court considered both oral and documentary evidence placed on record particularly, the admission on the part of PW1 in paragraphs 21 and 22 as well as 27 wherein, PW1 admitted with regard to the existence of road is concerned and also categorical admission is given that cannot say the extent of encroachment made by the defendants. In paragraphs 41 to 44 also taken note of the admission of PW1 that no measurement has taken - 6 - HC-KAR NC: 2025:KHC:52703 RSA No. 803 of 2025 place after the Order passed by the DDLR as per Ex.P52. No specific encroachment identified by the Survey Authority in all three properties of plaintiffs referred as suit schedule properties. PW1 has also admitted that defendant No.1 did construction of dwelling house in the area which he purchased from his vendor. He also admits that defendant No.1 assured that if the measurement of properties will be done through the court, he would hand over the excess area if he possessed than he purchased. All these materials were taken note of by the Trial Court and dismissed the suit of the plaintiffs. Being aggrieved by the judgment of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.44/2024. 6. The First Appellate Court also having considered the grounds urged in the appeal, formulated the Points for consideration and having reassessed both oral and documentary evidence placed on record, in - 7 - HC-KAR NC: 2025:KHC:52703 RSA No. 803 of 2025 paragraph 24 held that PW1 admitted that plaintiff Nos.1 to 3 are in possession of their respective properties. The plaint is silent about exact extent of encroachment so allegedly made by the defendants herein. Admittedly, till date, no measurement work is done by the survey officials in order to conclude that the defendants or other landowners of Sy.No.90/6 being encroached the suit schedule properties. The First Appellate Court comes to the conclusion that there is no sufficient material with regard to the encroachment and identity the properties is concerned, thus, question of granting the relief does not arise. Hence, confirmed the judgment of the Trial Court. Being aggrieved by the concurrent finding of both the Courts, the present second appeal is filed before this Court. 7. The learned counsel appearing for the appellants would vehemently contend that both Courts have not justified in appreciating Exs.P17, P18 and P19 - 8 - HC-KAR NC: 2025:KHC:52703 RSA No. 803 of 2025 while dismissing the suit. The counsel also would vehemently contend that both the Courts are not justified in appreciating Ex.P52 by which ADLR ordered and cancelled all the phodies in Sy.No.90/6 in Appeal No.176/2010-11. Hence, this Court has to admit the appeal and to frame substantial question of law. 8. Having heard the learned counsel appearing for the appellant and also on perusal of the material on record, it discloses that when the suit is filed for the relief of declaration, at the first instance, sought for the relief of permanent injunction and subsequently, also sought for the relief of possession in respect of the encroached portion is concerned. Having taken note of both oral and documentary evidence placed on record, the Trial Court answered all the Issues as negative considering the admission on the part of PW1 that he cannot say the extent of land which was encroached by the defendants. The materials were considered by the - 9 - HC-KAR NC: 2025:KHC:52703 RSA No. 803 of 2025 trial Court particularly in paragraphs 41 to 44 and even admissions also extracted in the judgment. 9. Apart from that, the First Appellate Court also taken note of admission on the part of PW1 while seeking the relief of declaration and possession particularly in paragraph 24 with regard to the measurement is concerned and held that there is no any accurate material with regard to the encroachment is concerned and plaintiffs also sought for the relief of possession in respect of plaint ‘A’, ‘B’ and C schedule properties. They have claimed that the defendants have encroached plaint A, B, C schedule properties. However, admittedly, no survey records being placed by the plaintiffs to fortify said aspect. All these factors were also taken note of in paragraph 26 of the Judgment of the First appellate court. The First Appellate Court also taken note of document Ex.P52 and held that despite specific direction given by the DDLR as per Ex.P52, the - 10 - HC-KAR NC: 2025:KHC:52703 RSA No. 803 of 2025 ADLR, Channagiri not made any survey work in order to make necessary correction in respect of RTC Extracts as well as possession of the land records and owners in Sy.No.90/6 of Bussenahalli village. Ex.P52 is also very clear that RTC extracts of Sy.No.90/6 are not in consonance with the possession of the land holders. The Trial Court and First Appellate Court considered both oral and documentary evidence placed on record in a proper perspective and this Court does not find any perversity in the findings of both the Courts. When the relief is sought for the relief of declaration as well as permanent injunction and so also for encroachment and possession is concerned, the same ought to have been proved by placing cogent evidence but no such material is found. In the absence of particular and cogent evidence with regard to the encroachment is concerned, the case of the plaintiffs cannot be considered. Hence, I do not find any ground to admit the appeal and to frame substantial question of law invoking Section 100 of CPC. - 11 - HC-KAR NC: 2025:KHC:52703 RSA No. 803 of 2025 10. In view of the discussions made above, I pass the following: ORDER The second appeal is dismissed. In view of dismissal of the main appeal, I.A. if any, does not survive for consideration and the same stands dismissed. Sd/- (H.P.SANDESH) JUDGE SN