- 1 - HC-KAR NC: 2025:KHC:37304 RSA No. 958 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO.958 OF 2021 (DEC/INJ) BETWEEN: SMT. G. R. LAKSHMINARASAMMA @ R. LAKSHMI, W/O P. NAGARAJ, AGED ABOUT 47 YEARS, R/AT RAYAPPANAHALLI VILLAGE, KASABA HOBLI, CHICKBALLAPUR TALUK, CHICKBALLAPUR DISTRICT. …APPELLANT (BY SRI. CHOWDAREDDY T. M., ADVOCATE) AND: 1. SRI. NARASAPPA, S/O LATE YERRAPPA, AGED ABOUT 72 YEARS, 2. SRI. SOMAPPA, S/O LATE YERRAPPA, AGED ABOUT 62 YEARS, 3. SRI. NARAYANAREDDY, S/O LATE YERRAPPA, AGED ABOUT 58 YEARS, ALL ARE RESIDENTS OF RAYAPPANAHALLI VILLAGE, KASABA HOBLI, Digitally signed by MADHUSHREE H Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:37304 RSA No. 958 of 2021 CHICKBALLAPURA TALUK AND DISTRICT - 562 101 …RESPONDENTS (BY SRI. NARAYANAPPA H. V., ADVOCATE - ABSENT) THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 14.08.2021 IN R.A.NO.118/2019 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE & CJM AT CHICKKABALLAPUR DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 12.07.2019 PASSED IN O.S.NO.603/2012 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE & JMFC, AT CHICKBALLAPUR, DISMISSING THE SUIT, SUIT BE DECREED AS PRAYED FOR AND THIS APPEAL BE DECREE AS THIS HON’BLE COURT MAY DEEM FIT IN THE CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri.Chowda Reddy T.M., learned counsel for the appellant. 2. None appears for the respondents. 3. The unsuccessful plaintiff is the appellant in the second appeal challenging the judgment and decree in O.S.No.603/2012 whereby, suit of the plaintiff for - 3 - HC-KAR NC: 2025:KHC:37304 RSA No. 958 of 2021 permanent injunction came to be dismissed in respect of the following property (hereinafter referred as 'suit property') which has been confirmed in R.A.No.118/2019:- "Property bearing H.L.No.24/B, measuring East to West 36 feet and North to South 34 feet, situated at Rayappanahalli Village, Kasaba Hobli, Chickballapur Taluk, bounded on:- East by : Plaintiff’s own property, West by : Road, North by : Road, South by : Property of defendants No.1." 4. Facts in brief which are utmost necessary for disposal of the present appeal are as under:- 4.1 A suit for permanent injunction came to be filed by the plaintiff in respect of the suit property contending that she is the Donee in the gift deed executed by her father, in view of the fact that her father had no male issues in respect of the suit property. 4.2 It is further contention of the plaintiff that based on the gift deed, she is in possession and enjoyment of the - 4 - HC-KAR NC: 2025:KHC:37304 RSA No. 958 of 2021 property. Defendant Nos.1 to 3 being uncles of the plaintiff, without having any right, title or interest over the suit schedule property are interfering with the suit property. 4.3 Thus, suit is filed seeking an order of permanent injunction against the defendants in respect of the suit property. 5. Pursuant to the suit summons, the defendants entered appearance and took a specific contention that in the suit, which was filed earlier in O.S.No.94/2011, which was filed for partition and separate possession, father of plaintiff did not include the suit property. Therefore, the same is not subject matter of the O.S.No.94/2011 and all the parties including the father of the plaintiff are having right in the suit property and thus, registered the suit. 6. Learned Judge after framing necessary issues and additional issues, recorded the evidence of the parties and - 5 - HC-KAR NC: 2025:KHC:37304 RSA No. 958 of 2021 dismissed the suit of the plaintiff inter alia holding in paragraph Nos.32 to 34 as under: "32. Further, at this stage it is essential to refer Ex.D2 and 3 which are the house list of property in No.24 and measurement is 12 yards towards East to West and 32 ½ yards towards North to South and Ex.D3 also contains the same measurement and at this stage it is essential to refer Para 2(a) of amended plaint, wherein the plaintiff has clearly stated the total measurement of house list No.24 and also the measurement of properties allotted to father of plaintiff and defendants in family partition and the total measurement of property in house list No.24' is 12 X 32 ½ yards (36x97½ feet) and he has also recited boundaries, but DW.1 in his cross examination has admitted the boundaries as correct and for that reason the same will be not discussed in length. 33. Further, the property is divided as A,B,C,D and 'A' schedule property is allotted to defendant No.1 and the extent is 36X16.8 and also to an extent of 36X11.6, 'B' schedule property is allotted to father of plaintiff and the measurement is 36 X 34 feet, 'C' schedule property is allotted to defendant No.2 and the measurement is 36 X 31 feet and finally 'D' schedule property measures 36 X 22, but in the plaint it is not mentioned that, to whom the said property is allotted, but however the only person left among defendant is defendant No.3 and for that reason for the sake of convenience let us consider that, the said property is allotted to defendant No.3. 34. 34. On the above discussion it is clear that, the property allotted to father of plaintiff and defendant No.1 to 3 is 36 feet towards East to west and the said fact is not in dispute, the next thing is that, property allotted to defendant No.1 towards North-South is 16.8 11.6 = 28.4, property allotted to father of plaintiff towards north-south is 34 feet, property allotted to defendant No.2 towards north-south is 31 feet and finally property allotted to defendant No.3 towards north south is 22 feet and let us add the said measurement of each parties towards north-south, then it will be 115.4 feet towards North- south and the total property is 97.5 towards north-south and for that reason it is clear that from plaint averments itself there is a difference of 17.9 feet and at this stage it is relevant to refer the Xerox copy of order in G.P.A. 18/2012-13', before Court of Executive Officer, Taluk Panchayath, dated 18/7/2013 and it is relevant to extract para No.3 of the order. - 6 - HC-KAR NC: 2025:KHC:37304 RSA No. 958 of 2021 “¸ÀzÀj ªÉÄîä£À« ¥ÀæPÁgÀ ¢§ÆâgÀÄ UÁæªÀÄ ¥ÀAZÁ¬ÄÛ C©üªÀÈ¢Þ C¢üPÁjAiÉÆA¢UÉ PÁAiÀÄð¤ªÁðºÀPÀ C¢üPÁj vÁ®ÆèPÀÄ ¥ÀAZÁ¬ÄÛ aPÀ̧¼Áî¥ÀÄgÀ ¢£ÁAPÀ 29.08.2012 ¸ÀܼÀ ¥Àj²Ã®£É ಾಡಾ ಮೂಲತಃ ಾ ಪಾಗಳ ಾ ಬುಚಮ ಾೆಯ ಪ-ಪ 12 ಗಜ (36 C!) ಉ-ದ 32 1/2 ಗಜ ಇದು% ಅಂನ )ಾಮ ಪಂ*ಾ+ ,ಾಯ-ದ.- /ಾ0ಾಸ2ದಾ ಉ-ದ3ಣದ /5+ೕಣ-,ೆ7 8ೆಚುವ:;ಾ 17 ಅ! ಾೆ ಾ!ರುವ=ದು ಕಂಡು ಬರುತ+0ೆ. ಉ- ದ3ಣದ ಮೂಲ/5+ೕಣ-,ೆ7 /ಾ0ಾಸ2ದಾ 17 ಅ! ?ೇ:5ರುವ=ದನು@ ರ?ೆ+ ಾA-B CಟುE ಅಳೆ ಾ!0ಾಗ ಾಸ+ಾಂಶಾ ಎHಎI ನಂ.105 C JೆಡೂKI Lಾಗದ ಬರುತ+0ೆ. ನಂ.105 ಸ8ಾ /ಾ0ಾಸ2ದಾ )ಾಮಪಂ*ಾ+ಯ ನಮೂ0ಾರುತ+0ೆ. ಾ ಪಾಗಳN ತಮ ಾ;ಾದ ಬುಚಮಳ 8ೆಸ:ನ ಾೆಯ ಮೂಲ /5+ೕಣ-ದ ಸಮOಾಗ ಾ!,ೊಳPQೇRತು+. ಸದ: /ಾ0ಾಸ2ದ ಪಕರಣ 5/I SಾK;ಾಲಯದ jà ನಂ.364:2012 gÀAvÉ £ÀqÉAiÀÄÄwÛgÀÄvÀÛzÉ. ಾ ಪಾಗT)ೆ ಮೂಲ0ಾಖೆ)ೆ Sಾಂಕ 10.5-2005 gÀ «¨sÁUÀ ¥ÀnÖ ºÁdgÀÄ¥Àr¸À®Ä ಸೂVಸಾ 8ಾಜರುಪ!5ರುವ=ಲ. and as per the observation of the court of Executive officer also there is a difference of 17 feet and it is essential to extract the order portion as follows. "ಾ ಪಾಗಳ ಾದ /ಾದ ಆಸಾತು ಮತು+ 0ಾಖೆಗಳನು@ ¥Àj²Ã°¸À¯Á¬ÄvÀÄ. ¢§ÆâgÀÄ UÁæªÀÄ ¥ÀAZÁ¬ÄÛ ªÁå¦ÛAiÀÄ gÁAiÀÄ¥Àà£ÀºÀ½î UÁæªÀÄzÀ ಎHಎI ನಂ.24 ಪ-ಪ 12 ಗಜ (36 C!) ಉ-ದ 32 (97 1/2 C!) ಮೂಲ ಾೆ0ಾರXಾದ ಬುಚಮರವರ 8ೆಸ:ನYೕ ¹Ý:ೕಕ:5 ಪಾ 3 (a, b, c ರವರು ¢£ÁAPÀ 10.2.2005 gÀAದು /ಾ0ಾಸ2ದಾ 8ೆಚುವ: /5+ೕಣ- ?ೇ:5 ಾ!ರುವ ಾೆಗಳನು@ 24a.24b.24c.24d) ಮತು+ /ಾ0ಾಸ2ದಾ ನಮೂದು ಾ!ರುವ ಎHಎI ನಂ.105 ವLಾ ಾಡಲು ಪಾ 3 (a,b,c) ರವ:)ೆ ಸೂV5 ಮತು+ 8ೆಚುವ: /5+ೕಣ-/ರುವ ಈ ¸ÀéwÛUÉ ಲಗಾ+ದ ಾ Lಾಗಮ [ಯಾನು?ಾರ ಮೂಲ ಾೆ0ಾರ:)ೆ /ೇಾ: - 7 - HC-KAR NC: 2025:KHC:37304 RSA No. 958 of 2021 ಾಡಲು ಸೂV5 ಈ ಪಕರಣವನು@ ಈ SಾK;ಾಲಯದ ಮು,ಾ+ಯ)ೊTಸಾತು". and as per the order the katha standing in the name of plaintiff has been set-aside and on the above appreciation it is clear that the plaintiff is claiming more than17 feet in the property of defendants, which supports the argument of learned Advocate for defendants. Further, I am relying on the judgment of Hon'ble Karnataka High court reported in ILR 2005 KAR 884 between T.L.Ngendra Babu VS Manohar Rao Pawar, wherein, it is held as follows... "(c) SUIT FOR DECLARATION AND INJUNCTION-REQUIREMENT OF EVIDENCE-DUTY OF THE COURT-HELD-unless the court is satisfied with regard to material details in the light of the material evidence with regard to the identification of the property, no declaration and injunction can be granted". "Further held that, Grant of injunction is serious in nature. It affects the rights of the parties. The Court must be very careful in evaluating the pleadings and evidence in the matter of injunction. Unfortunately, this basic principle has not been properly noticed/appreciated by the learned Judge in the case on hand". and on the above discussion and also relying on the ratio of Hon'ble Karnataka High Court it is clear that, the plaintiff has failed to prove her title and possession over suit schedule property as to the extent mentioned in Gift deed at Ex.Pl and accordingly, Issue No.1, 2 and Additional Issue No.1 answered in the Negative." 7. Being aggrieved by the same, plaintiff filed an appeal before the First Appellate Court in R.A.No.118/2019. - 8 - HC-KAR NC: 2025:KHC:37304 RSA No. 958 of 2021 8. Learned Judge in First Appellate Court after securing the records, heard the arguments of the parties in detail and on re-appreciation of the oral and documentary evidence placed on record, dismissed the appeal inter alia holding in paragraph Nos.28 to 30 as under:- "28. It is no doubt that DW1 in his cross- examination has deposed that the father of the plaintiff and defendants have been residing separately and they have been enjoying the properties separately and accordingly their names were mutated in the record of rights of properties. As per the version of DW1, it could be make out that there was a partition between the father of plaintiff and defendants. But, nothing has been elicited from the mouth of DW1 that extent shown in the gift deed was allotted to the share of the father of the plaintiff. 29. As rightly observed by the learned trial judge at Para 33 and 34 of judgment, the property allotted to father of plaintiff and defendants No.1 to 3 is 36 feet towards East to West which is not in dispute. The property allotted to defendant No.1 towards North-South is 16.8 + 11.6 = 28.4. property allotted to father of plaintiff towards North-South is 34 feet, property allotted to defendant No.2 towards North- South is 31 feet and property allotted to defendant No.3 towards North-South is 22 feet. If the said measurement towards North-South is added then it comes to 115.4 feet towards North-South but in fact there exists 97.5 towards North-South. From this it is clear that as per the alleged division an excess extent of 17.9 feet was shown. Adding to that, as observed by the Executive Officer at Ex.D8, North-South 17 feet excess measurement was mutated in the names of plaintiff and defendants measurement of 97.5 feet. As per the Order at Ex.D8. katha as against actual which stands in the name of plaintiff and defendants with - 9 - HC-KAR NC: 2025:KHC:37304 RSA No. 958 of 2021 aforesaid measurement was set aside, now the katha of the house list No.24 measuring East-West 36 feet and North-South 97.5 feet stands in the name of grandmother of the plaintiff. 30. As observed supra, even if the case of the plaintiff were accepted as true then also the property divided between the father of the plaintiff and defendants No.1 to 3 is an excess to an extent of 17.5 feet towards North to South which is not available to the family of plaintiff and defendants since her grandmother had possessed only to an extent of 36 feet towards East to West and 97.5 feet towards North to South but not 115.4 feet towards North-South. But, under th Me alleged partition, 17.5 feet towards North to South is i excess. Be that as it may be." 9. Being further aggrieved by the same, plaintiff is before this Court in this appeal on the following grounds and substantial questions of law:- "The impugned judgment and decree passed by the courts below are opposed to law, facts and evidence in the case. The courts below have failed to consider both oral and documentary evidence in proper perspective and have failed to draw proper inferences from admitted and proved facts and those drawn are erroneous. The courts below have committed serious error in dismissing the suit for declaration and permanent injunction. The courts below have rightly held that gift deed is proved. Having held that the gift deed is proved, the courts below have committed serious error of law in holding that the plaintiff has failed to prove that she is the absolute owner of the suit schedule property. - 10 - HC-KAR NC: 2025:KHC:37304 RSA No. 958 of 2021 DW-1 has admitted in his evidence that, Buchamma made partition among her children and as per the partition, they are in peaceful possession and enjoyment over their respective shares allotted to them and that there is severance of status and he has also admitted the boundaries. In place of this material on record, the courts below have are not justified in drawing an adverse inference against the appellant for having not produced the partition deed. The courts below have grossly erred in not properly appreciating the cross-examination of DW-1 where he states that he has nothing to do with the suit schedule property. When that is the evidence, the courts below have failed in not decreeing the suit as prayed for. Ex.P1 coupled with evidence of DW-1, oral evidence of PW-1 to PW-3 would prove the case of the appellant with regard to the suit schedule property. The courts below have committed error of law in dismissing the suit filed by the appellant. The appellant humbly submits that she is denied sufficient opportunity to substantiate her case supported with materials. The appellant submits that partition deed in respect of lands and house and vacant sites there was a separate partition deed. The respondents have kept those partition deeds to themselves and father of the appellant was not provided with the same. There is document in the Gram Panchayat, Dibbur containing measurements of the house list property to each of the sharers. The said documents are There is also a village Mahazar about the partition of the house list property. The appellant wanted to produce the said documents. However, the said documents were not produced and thus there is denial of opportunity to produce the said documents. material to prove the case of the appellant. The appellant has produced the said documents as additional documents in this appeal. There is no reason to doubt the partition and share allotted in favour of father of appellant. - 11 - HC-KAR NC: 2025:KHC:37304 RSA No. 958 of 2021 The lower appellate court has failed to note that order passed by the Executive Officer, Taluk Panchayat is not binding on the civil court. The lower appellate court has relied upon the said document instead of independently deciding the controversy between the parties. Thus there is an error on the part of the appellate court. The order passed by the Executive officer, Taluk Panchayat is not marked in evidence and it is a Xerox copу-The said document is not entitled to be looked into. There is an error on the part of the lower appellate court in this regard. Viewed from any angle, the impugned judgment and decree are not sustainable, liable to be set aside. VI. SUBSTANTIAL QUESTIONS OF LAW The following substantial questions of law that arise for consideration:- 1. Having held that gift deed in favour of the appellant is proved, whether the courts below have committed an error of law in holding that the plaintiff has failed to prove that she is the absolute owner of the suit schedule property? 2. DW-1 has admitted that Smt. Buchamma made partition among her children and as per the partition they are in peaceful possession and enjoyment over their respective shares allotted to them and that there is severance of status and he has also admitted boundaries, on the face of these materials, whether the courts below are justified n drawing an adverse inference against the appellant for having not produced the partition deed? 3. Whether the courts below have committed an error of law in not properly appreciating the cross- examination of DW-1, when he states that he has nothing to do with the suit schedule property, thus admitting the case of the appellant? - 12 - HC-KAR NC: 2025:KHC:37304 RSA No. 958 of 2021 4. Ex.P1 coupled with evidence of DW-1 prove case of the appellant with regard to suit schedule property. In the circumstances, whether the courts below have committed an error of law in dismissing the suit of the appellant? 5. Whether the courts below have committed an error of law in placing reliance on Xerox copy of the order passed by the Executive Officer, Talk Panchayat dated 18.7.2013 which is not binding on the civil court without independently deciding the case? 6. Whether the courts below have committed an error in not noticing the fact that whether the defendants have constructed houses and are in possession in respect of the their extent of share out of larger extent of house list Katha? 10. Sri.T.M.Chowda Reddy, learned counsel for the appellant reiterating the grounds urged in the appeal memorandum contended that in respect of the suit property is concerned, at an undisputed point of time, revenue entries were entered in the name of the father of the plaintiff as could be seen from the documents placed on record by the defendants themselves vide Ex.D.9 wherein, the suit property to the extent of 36 feet x 34 feet is mentioned in the name of the father. - 13 - HC-KAR NC: 2025:KHC:37304 RSA No. 958 of 2021 11. Therefore, dismissal of the suit by the trial Court on the ground that the suit property was not subject matter of the earlier suit for partition in O.S.No.94/2011 has resulted in miscarriage of justice and sought for admitting the appeal on the aforesaid substantial questions of law. 12. Learned counsel for the respondents remained absent. 13. In the light of the arguments put forth on behalf of the appellant, this Court perused the material on record meticulously. 14. On such perusal of the material on record, it is crystal clear that the suit property is not subject matter of the suit for partition filed between the father of the plaintiff and defendants in O.S.No.94/2011. 15. Admittedly, suit property is ancestral property even according to the plaintiff. If it is not subject matter of the O.S.No.94/2011, the contention urged on behalf of - 14 - HC-KAR NC: 2025:KHC:37304 RSA No. 958 of 2021 the plaintiff that her father had the right to execute gift deed in favour of the plaintiff in respect of the suit property cannot be countenanced in law which has been rightly observed by both the Courts to establish that plaintiff is in exclusive and lawful possession over the suit property; especially in a suit for bear injunction. 16. However, the plaintiff is of the opinion that she has become owner of the suit property by virtue of gift deed executed by her father. She can always establish in a comprehensive suit seeking for the declaration of the title that she is the owner of the suit property by virtue of the gift deed executed by her father. With that liberty, this Court is of the considered opinion that the suit for bare injunction dismissed by both the Courts in equivalent judgments and needs no interference. 17. Accordingly, following:- - 15 - HC-KAR NC: 2025:KHC:37304 RSA No. 958 of 2021 ORDER The appeal is merit less and hereby dismissed. Sd/- (V SRISHANANDA) JUDGE MH/- List No.: 1 Sl No.: 30