Research › Search › Judgment

High Court of Karnataka · body

2025 DAILYLAW 75933 (KAR)

LATE SHIVAPPA v. SRI NAGENDRAPPA

RSA/547/2024 · 2025-10-13

H P Sandesh

Original Suitbody2025

Judgment text

Extracted from the PDF above. The PDF is authoritative.

- 1 - HC-KAR NC: 2025:KHC:40455 RSA No. 547 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO. 547 OF 2024 (INJ) BETWEEN: 1. LATE SHIVAPPA, SINCE DECEASED BY LRS. SMT. BHAGYAMMA, W/O LATE SHIVAPPA, AGED ABOUT 52 YEARS. 2. SRI. SURESH, S/O LATE SHIVAPPA, AGED ABOUT 22 YEARS. 3. SRI. OBALESH, S/O LATE SHIVAPPA, AGED ABOUT 21 YEARS. 4. SRI. KUMARAPPA, S/O LATE OBALAPPA, AGED ABOUT 48 YEARS. ALL THE APPELLANTS ARE R/O CHIRADONI VILLAGE, CHENNAGIRI TALUK, DAVANAGERE DISTRICT. …APPELLANTS (BY SRI. PAWAN KUMAR, ADVOCATE FOR SRI. H. DEVENDRAPPA, ADVOCATE) Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:40455 RSA No. 547 of 2024 AND: 1. SRI. NAGENDRAPPA, S/O GUDDAHALLI SIDDAPPA, AGED ABOUT 56 YEARS, R/O CHIRADONI VILLAGE, BASAVAPATTANA HOBLI, CHENNAGIRI TALUK, DAVANAGERE DISTRICT. …RESPONDENT (BY SMT. SARITHA KULKARNI, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 11.09.2023 PASSED IN R.A.NO.4/2023 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, CHANNAGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 18.11.2022 PASSED IN O.S.NO.15/2018 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, CHANNAGIRI. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT 1. Heard the learned counsel for the appellants and also the learned counsel for the respondent. 2. This second appeal is filed against the concurrent finding. The Trial Court dismissed the suit filed by the plaintiff and First Appellate Court confirmed the same. - 3 - HC-KAR NC: 2025:KHC:40455 RSA No. 547 of 2024 3. The factual matrix of case of plaintiff before Trial Court while seeking the relief of permanent injunction is that suit schedule property is the open site bearing No.528 measuring East-West 21 feet and North-South 15 feet situated at Chiradoni Village. Mother of the plaintiffs constructed the house thereon and was residing therein and her name was appearing in the DCB of the year 1993- 2014 and was paying the taxes in respect of the schedule property and plaintiffs have succeeded in respect of the suit schedule property after the death of their mother. The house was too old and hence they have demolished the same as per the instructions of the PDO. Thereafter, the defendant did start the obstructions to the plaintiffs possession of the suit property and claiming the title on the suit property and hence Panchayath authority confirmed the title of the plaintiff through the resolution in that regard. It is asserted that the C.E.O of Zilla Panchayath had made spot inspection and passed an order on 10.07.2017, wherein he opined that, the suit property - 4 - HC-KAR NC: 2025:KHC:40455 RSA No. 547 of 2024 belongs to the plaintiffs. While doing so he gave the directions to the plaintiffs to leave 6 feet way amidst, the suit property and the property of defendant bearing No.527. That, after the Chiradoni Grama Panchayath had passed resolution and gave the license to the plaintiffs for construction of house in suit schedule property. Even after, the defendant tried to interfere into the possession of the suit schedule property and hence, complaint was lodged and suit is filed for the relief of permanent injunction. The defendant appeared and filed written statement denying all the averments made in the plaint and defendant has categorically contended that suit property is vacant site situated on the southern side of the property of defendant bearing No.527 after the said property, there is a panchayath road. The defendant and his brothers owning the houses adjoining to each other in the site bearing No.527 and to reach the southern panchayath road from their respective houses, they are using the suit property as road. Therefore, the defendant - 5 - HC-KAR NC: 2025:KHC:40455 RSA No. 547 of 2024 has got easementary right of way by necessity in the suit property. The suit property belongs to the panchayat which had not been granted in favour of the plaintiffs or their mother at any point of time and hence claims that the plaintiff is not entitled for any relief. 4. The Trial Court having considered the grounds urged before the Trial Court, framed the issues with regard to the possession and interference of the defendant and whether entitled for the relief. The plaintiff No.2 himself examined as P.W.1 and also got marked 24 documents as Ex.P.1 to Ex.P.24 and also got examined witnesses as P.W.2 and P.W.3 and the other hand defendant himself entered into witness box and examined as D.W.1 and got marked document Ex.D.1 to Ex.D.15. The Trial Court having considered both oral and documentary evidence particularly in paragraph No.20 taken note of document of Ex.P.18 wherein a reference was made that it was an ancestral property of the plaintiff. On the other hand, defendants claims that Ex.D.3 is the - 6 - HC-KAR NC: 2025:KHC:40455 RSA No. 547 of 2024 notice of the Taluk Panchayath CEO dated 18.01.2018 wherein Executive Officer had directed to the PDO Gram Panchayath not to change the mutation in respect of the suit schedule property till the pending enquiry by the Executive Officer. Even the plaintiffs have not produced or laid any foundation that the enquiry which is pending as per Ex.D.3 concluded in their favour. The Trial Court having considered the admissions on the part of the P.W.1 with regard to the possession and also the documents wherein categorically admitted that the same is a vacant site and the house constructed thereon was demolished and also taken note of both the plaintiffs are residing separately at other properties and not residing in the said property and also taken note of evidence of P.W.2 who categorically admitted during the course of cross- examination that the plaintiffs have removed the hut situated in the suit schedule property in the year 2015-16. The Trial Court also taken note that suit was filed in the year 2018 as on the date of filing of the suit, no - 7 - HC-KAR NC: 2025:KHC:40455 RSA No. 547 of 2024 documents are standing in the name of the plaintiff and hence dismissed the suit. 5. Being aggrieved by the said judgment and decree of dismissal of the suit, an appeal is filed in R.A.No.4/2023. The First Appellate Court also having re-assessed the material available on record, particularly in paragraph No.25 taken note of discussion made by the Trial Court with regard to the fact that the defendants have constructed two portion houses facing their house towards southern side where the suit schedule property. After the southern side of the suit schedule property, the Panchayath road is situated. The defendant claims that there is no any structure in the suit schedule property and using the suit schedule property as a way to ingress his property. 6. It is also important to note that defendant also not claiming any right in respect of the suit schedule property and only their claim is that they are making use - 8 - HC-KAR NC: 2025:KHC:40455 RSA No. 547 of 2024 of the same to ingress their property bearing No.527 and defendants have also not made any claim particularly in respect of the suit schedule property, but the fact is that when the plaintiff has not proved the possession by placing on record the First Appellate Court also having re- assessed both oral and documentary evidence, comes to the conclusion that Trial Court rightly appreciated all the materials available on record and comes to the conclusion that it does not requires any interference and dismissed the appeal. 7. Being aggrieved by the concurrent finding, present second appeal is filed before this Court. 8. The learned counsel for the appellants would vehemently contend bringing to the Court notice the substantial question of law suggested by the counsel in the second appeal that both the Courts have failed to consider the entries made in the relevant revenue records showing the name of the plaintiffs and the plaintiffs are the owners - 9 - HC-KAR NC: 2025:KHC:40455 RSA No. 547 of 2024 of the schedule property bearing property Nos.528 and fails to take note of the resolution passed by the Grama Panchayath dated 19.12.2017 holding that the schedule property belongs to the appellants/plaintiffs and that the licence was issued for construction of the house and inspite of it, committed an error in dismissing the suit in coming to the conclusion that the plaintiffs have not established the possession as on the date of filing of the suit. 9. The learned counsel for the respondent submits that though the defendant is not claiming any right in respect of the suit schedule property, the defendant is having property bearing Nos.527 and the same is adjacent to the suit schedule property, but they are making use of the same to ingress their property and both the Courts have not committed any error. 10. Having heard the learned counsel for the appellants and the learned counsel for the respondent and - 10 - HC-KAR NC: 2025:KHC:40455 RSA No. 547 of 2024 considering the material available on record, though it is the claim of the plaintiffs in the earlier original suit that the property belongs to their mother, in order to prove the factum that the property belongs to their mother, nothing is placed on record. The only contention is that they were in possession from 1993 to 2014 and they were paying taxes and the building was very old and hence they have removed the same. No doubt, the plaintiffs relied upon the tax paid receipts as per Ex.P.1, building licence dated 27.12.2017, copy of the DCB register extract panchayath property survey report, Grama Panchayath order, Grama Panchayath property survey report, mutation registers and tax paid receipts, but in order to prove the factum of possession of the plaintiffs, nothing is placed on record. It is important to note that the matter was pending before the authority and enquiry was pending. In order to prove that the enquiry was concluded and the same was held in favour of the plaintiffs as ordered in terms of Ex.D.3, no material is placed before the Court. - 11 - HC-KAR NC: 2025:KHC:40455 RSA No. 547 of 2024 11. The Trial Court while considering the material on record, taken note of the documents prior to 2018 in paragraph No.20 i.e., Ex.P.18, wherein a reference was made that property belongs to the plaintiffs ancestors and as per the resolution No.4 dated 15.12.2017, it is resolved to mutate the name of the plaintiffs in the records of the suit schedule property and the same is disputed. When such material is available before the Court, when the suit is filed in the year 2018 i.e., on 24.01.2018, the plaintiffs ought to have placed on record the documents to show that the property stands in the name of the plaintiffs as on the date of filing of the suit and the same is not established and hence the Trial Court rightly comes to the conclusion that in order to prove the possession as on the date of filing of the suit, nothing is placed on record. The Trial Court in paragraph Nos.23 and 24 in detail discussed the same and also taken note of the admission on the part of P.W.1 to P.W.3 that the schedule property is vacant site and the plaintiffs are not enjoying their property and they - 12 - HC-KAR NC: 2025:KHC:40455 RSA No. 547 of 2024 are residing elsewhere and not in the suit schedule property and hence comes to the conclusion that they have not proved the possession. When such finding is given by the Trial Court, nothing is placed on record to establish that the plaintiffs are in possession of the suit schedule property as on the date of filing of the suit. 12. The First Appellate Court in paragraph Nos.25, 26 and 27 considered the same and comes to the conclusion that the Trial Court has not committed any error in the absence of any material before the Court that the plaintiffs are in possession of the property as on the date of filing of the suit to establish the possession. It is settled law that when the suit is filed for the relief of permanent injunction, the plaintiff must prove that the plaintiff is in possession of the property as on the date of filing of the suit and no such documents are placed before the Court and hence I do not find any ground to admit the appeal and frame any substantial question of law to consider the second appeal. - 13 - HC-KAR NC: 2025:KHC:40455 RSA No. 547 of 2024 13. In view of the discussions made above, I pass the following: ORDER The second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE RHS,MD List No.: 1 Sl No.: 46