- 1 - HC-KAR NC: 2025:KHC:34435 RSA No. 1812 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 1812 OF 2021 (INJ) BETWEEN: SRI. D N ASHWANATHANARAYANA REDDY S/O LATE DODDA NARAYANAREDDY AGED ABOUT 69 YEARS, R/AT PERESANDRA VILLAGE, MANDIKAL HOBLI, CHICKBALLAPUR TALUK - 562 104. …APPELLANT (BY SRI. SRINIVASA REDDY R.V., ADVOCATE) AND: 1. SMT. NAGARATHNAMMA W/O N. RAMEGOWDA AGED ABOUT 61 YEARS, 2. N. RAME GOWDA S/O NARASAPPA AGED 71 ABOUT YEARS, 3. SURENDRA S/O N. RAME GOWDA AGED 41 ABOUT YEARS, ALL ARE R/AT SULIBELE, HOSAKOTE TALUK, BENGALURU DISTRICT - 562 129. …RESPONDENTS (BY SRI. A.G. NAGARAJA, ADVOCATE FOR R1 TO R3) Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:34435 RSA No. 1812 of 2021 THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 15.01.2021 PASSED IN R.A.NO.172/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE, (ITINERARY COURT ) GUDIBANDE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 08.08.2016 PASSED IN OS.NO.168/2009 ON THE FILE OF THE CIVIL JUDGE AND JMFC, GUDIBANDE. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT 1. Heard Sri Srinivasa Reddy R.V., learned counsel for the appellant and Sri. A.G. Nagaraja, learned counsel for the respondents. 2. Present second appeal is by the unsuccessful plaintiff challenging the judgement in O.S.No.168/2009 confirmed in R.A.No.172/2016 whereby suit for permanent injunction came to be dismissed. 3. Facts in the nutshell for disposal of the present appeal are as under: - 3 - HC-KAR NC: 2025:KHC:34435 RSA No. 1812 of 2021 In respect of following immovable property (hereinafter referred to as 'suit schedule property'), plaintiff has filed a suit for bare injunction claiming that he is the absolute owner in possession of the suit schedule property: SUIT SCHEDULE PROPERTY aPÀ̧¼Áî¥ÀÄgÀ vÁ®ÆèPÀÄ, ªÀÄArPÀ®Äè ºÉÆç½, ¥ÉgÉøÀAzÀæ UÁæªÀÄzÀ ¸ÀªÉð £ÀA.302/2 E°è 20 UÀÄAmÉ d«Ää£À ¥ÉÊQ 10 UÀÄAmÉ d«ÄäUÉ F PɼÀPÀAqÀAvÉ ZÀPÀÄ̧A¢ ¥ÀƪÀðPÉÌ - gÁ¶ÖçÃAiÀÄ ºÉzÁÝj 7 ¥À²ÑªÀÄPÉÌ - ªÀiÁ.ªÀÄĤ±Á«Ä d«ÄãÀÄ GvÀÛgÀPÉÌ - ZÉ£ÀßPÉñÀªÀ¸Áé«Ä zÉêÀ¸ÁÜ£À zÀQëtPÉÌ - ¥ÀæwªÁ¢ £ÁUÀgÀvÀߪÀÄä¼À ¸ÀévÀÄÛ 4. It is contended by the plaintiff that suit schedule property is an ancestral property and he acquired the same under partition deed and on and from the said acquisition, he is peaceful possession and enjoyment of the suit property. - 4 - HC-KAR NC: 2025:KHC:34435 RSA No. 1812 of 2021 5. First defendant is the sister and second defendant is the brother-in-law of the plaintiff and third defendant is their son. Suit property is a converted property for non agricultural purpose and documents produced by the plaintiff establishes that he is in possession of the property. 6. When the matter stood thus, first defendant who received 0-10 guntas of land in the very same partition had tried to trespass into the suit property in the first week of December 2009 which necessitated the plaintiff to file suit for bare injunction. 7. Upon the service of suit summons, defendants entered appearance and a detailed written statement came to be filed. In the written statement, the plaint averments were denied except admitting the fact that that at an undisputed point of time, suit properties are ancestral properties. - 5 - HC-KAR NC: 2025:KHC:34435 RSA No. 1812 of 2021 8. It is further contended in the written statement that land bearing Sy.No.302 totally measure 0-20 guntas which was originally the property of the mother of the plaintiff and first defendant. Out of love and affection, their mother Byamma gifted the 0-10 guntas of land out of 0-20 guntas in favour of the first defendant through registered Gift Deed dated 10.01.1994, registered as document No.1479/1993-94 and she has occupied the 0-10 guntas of land by getting the revenue entries transferred to her name in HL No.683/141/2. 9. There was an objection to the same and thereafter, matter got concluded in RRT (CR.3/1994-95). They further contended that the first defendant has already constructed a building 20 feet away from the boundary of the suit property which clearly shows the plaintiff has filed the suit only with an intention to obstruct further construction by the first defendant. - 6 - HC-KAR NC: 2025:KHC:34435 RSA No. 1812 of 2021 10. A suit was also filed in O.S. No.247/2007 before the Civil Judge (Senior Division), Chikkaballapura for seeking relief of partition and separate possession against the plaintiff and first defendant by other family members. In the said suit, first defendant has sought her share. 11. Based on the rival contentions, learned Trial Judge raised necessary issues and recorded the oral evidence of the parties. 12. Court Commissioners were also appointed by name Sri. P.R. Srinivasa Reddy and Sri. Santosh Madhu who have furnished their respective reports and also deposed before the Court. 13. Since the earlier Court Commissioner Sri. Santosh Madhu had failed to identify the land and showing it to the parties, Sri. P.R. Srinivasa Reddy was again appointed as a Court Commissioner who has visited the spot and not only identified the respective portions of the - 7 - HC-KAR NC: 2025:KHC:34435 RSA No. 1812 of 2021 property possessed by plaintiff and defendant and furnished a Sketch with colour codification. 14. Based on the oral and documentary evidence placed on record, learned Judge in the Trial Court dismissed the suit of the plaintiff holding that the plaintiff failed to prove lawful possession of the suit property. 15. Being aggrieved by the same, plaintiff filed an appeal before the First Appellate Court in R.A. No.172/2016. 16. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and on re-appreciation of the factual and legal aspects, dismissed the appeal. 17. Being further aggrieved by the same, plaintiff filed the present appeal, on the following grounds :  That the judgment and decree passed by the trial courts below are contrary to law, evidence on record and without considering the probabilities of - 8 - HC-KAR NC: 2025:KHC:34435 RSA No. 1812 of 2021 the case and as such the judgment and decree passed by the courts below are liable to be set- aside.  The first appellate court failed to consider the application filed by the appellant/petitioner under order 41, Rule 47 of Code of Civil Procedure and without considering the same and not passing any orders on the said application has dismissed the appeal. Thus the first appellate court committed a serious error of law and therefore, the judgement and decree passed by the first appellate court is liable to be set-aside.  As could be seen from the judgment and decree passed by the courts below, the trial court has passed the judgment and decree apart from considering the irrelevant documents produced and evidence adduced by the respondent No.2 and his witnesses, has also taken into consideration, the false evidence and irrelevant documents produced by the CW1, however the first appellate court while dismissing the appeal by confirming the judgment and decree of the court below has taken into consideration the evidence of one Sri. Santhosh Madhu, the Taluk Surveyor and who has been appointed as a court commissioner and whose evidence has been ignored by the trial court. This clearly shows that, both the courts below have passed the judgment and decree without - 9 - HC-KAR NC: 2025:KHC:34435 RSA No. 1812 of 2021 considering the facts, documents and evidence on record. Hence, same are liable to be set-aside.  The courts below ought to have seen that, though the had produced number of appellant/petitioner documents in support of his case and also adduced detailed evidence by producing the witnesses, however both the courts below without appreciating the same, on an erroneous consideration of the evidence and documents produced by the 2nd respondent have passed the impugned judgment and decree and as such the same are liable to be set-aside.  The courts below ought to have seen that, the Taluk surveyor is not the competent authority to conduct phodi under the Karnataka Land Revenue Act and the entire issue regarding phodi of their respective extent in Sy. No.302/2 is pending before the competent revenue authorities and as such the courts below ought not to have taken into consideration, the incompetence evidence of the Taluk surveyor, who did not conduct the phodi in accordance with law. Hence the courts below are not justified in passing the impugned judgment and decree as such the same are liable to be set-aside.  The courts below while passing the judgment and decree, have travelled beyond the scope of facts and circumstances of the case and courts below are - 10 - HC-KAR NC: 2025:KHC:34435 RSA No. 1812 of 2021 not justified in taking into consideration different evidence adduced by different taluk surveyors who have been appointed as court commissioners, which is absolutely illegal and hence the impugned judgment and decree are liable to be set-aside. 18. In the appeal, following substantial questions of floor raised : (a) Whether under the facts and circumstances of the case, the first appellate court is justified in passing the impugned judgment and decree, without passing any order on the application filed under order 41 rule 27 of C.P.C. b) Whether the first appellate court is justified in passing the judgment and decree by confirming the judgment and decree passed by the trial court by taking into consideration the evidence of the taluk surveyor which has been ignored by the trial court. c) Whether the courts below are justified in passing the judgment and decree in the absence of any legal phodi done by the competent revenue authorities under the Karnataka Land Revenue Act. d) Whether, under the facts and circumstances of the case, the courts below are justified in dismissing the suit - 11 - HC-KAR NC: 2025:KHC:34435 RSA No. 1812 of 2021 without considering the pleadings appellant/petitioner. and documents of the appellant/petitioner. 19. Sri. Srinivas Reddy R.V., learned counsel for the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that both the Courts have not properly appreciated the material on record and sought for admitting the appeal on the aforesaid substantial questions of law. 20. He would further contend that Court Commissioner did not properly execute the Commission Warrant and second Court Commissioner also fell in line with the first Court Commissioner and filed practically similar report and Sketch resulting in miscarriage of justice to the appellant and sought for admitting the appeal for further consideration. 21. Per Contra, Sri. Nagaraja, learned counsel for the respondent support the impugned judgement. - 12 - HC-KAR NC: 2025:KHC:34435 RSA No. 1812 of 2021 22. He would further contend that based on the Gift Deed executed by her mother first defendant was in possession of suit property. Therefore there is no question of she interfering with the possession and enjoyment of the property to the extent of 0-10 guntas that has fallen to the share of the plaintiff who being the brother of the first defendant and sought for dismissal of the appeal. 23. Having heard the arguments of both sides, this Court perused the material on record meticulously. 24. On such perusal of the material on record, it is crystal clear that 0-20 guntas of land was the property of mother of plaintiff and first defendant. 25. The mother of the plaintiff and first defendant executed a registered Gift Deed in favour of in favour of the first defendant on 10.01.1994. After the Gift Deed came to be executed, relationship between plaintiff and first defendant was not cordial. - 13 - HC-KAR NC: 2025:KHC:34435 RSA No. 1812 of 2021 26. They fought before the revenue authorities in respect of transfer of revenue entries and ultimately revenue entries were mutated in the name of the first defendant, but enmity did not end. 27. When the first defendant has put up construction, little away from the property of the plaintiff, there was an objection. When first defendant wanted to further construct the property, suit came to be filed. However it is also to be noted that question of the gift was also a defence that has been taken by the first defendant in another suit which was filed for partition and separate possession in O.S. No.247/2007 before the Civil Judge (Senior Division) at Chikkaballapura wherein plaintiff was the defendant. 28. Taking note of these aspects of the matter, when both the parties did derive title in respect of 0-20 guntas of the property of their mother, the suit for bare injunction filed by the plaintiff stating that defendant has - 14 - HC-KAR NC: 2025:KHC:34435 RSA No. 1812 of 2021 encroached the suit property could not have been decided only on the oral and documentary evidence placed on record by both the parties. 29. Therefore, Court appointed Sri. Santosh Madhu as a Court Commissioner. Since he didn't fix the boundaries as per the Commission Warrant, a second Court Commissioner by name Sri. P.R. Srinivas Reddy was appointed. 30. Learned Trial Judge while considering the effects of these aspects of the matter, in paragraphs No.12 and 13 has held as under: "12. It is important to note that to support of plaintiff case, he filed I.A.No.2 U/o 26 rule 9 of CPC to survey the both properties of plaintiff and defendants. The said application was allowed based on both the parties have consented to survey the property. Thereafter, the survey report received by the court and summons to commissioner issued and appeared before the court and examined as C.W.1, got marked as Ex.C.1 to 5. In his chief examination of witness deposed that, as per the court order surveyed the 10 guntas each property of plaintiff and defendants by prepared sketch with fixed the - 15 - HC-KAR NC: 2025:KHC:34435 RSA No. 1812 of 2021 boundaries. During the course of survey, there is no temple seen on any side of schedule property of plaintiff and also no documents was availed and got marked Ex.C1 is copy of commissioner warrant, Ex.C2 is issued notice to both parties to appear for survey, Ex. C3 is conducted mahazar after over survey, Ex.C4 & C5 are survey sketch and report drawn by the surveyor and CW.1 tendered for cross examination nothing would dis-believed from his mouth by evidence of Cw.1 in his evidence and tendered for cross the plaintiff. I have gone through the oral and documentary examination by the plaintiff and it is an clinches issue between parties regards boundaries. Before two times commissioner submitted his report and once again, The commissioner documents in hand itself clearly goes to show that, as per court order the commissioner was surveyed and fixed the boundaries without any bias and drawn the mahazar as per Ex.C.4. but even presented the plaintiff did not signed on Ex.C.4 by refused the same. Which clearly shows that, the plaintiff having malafide intention to harass without any trespass or illegal construction by the defendants as per commissioner report in the plaint schedule property. Hence, the evidence of Cw.1 is fully against the case of plaintiff. 13. It is pertinent to note that, since from 1994 the plaintiff is quarreling with defendants without any reasons GUDIRA after mother of defendant No.1 has gifted 10 guntas property and also the defendant No.1 also purchased another property from plaintiff as per Ex.D.2 - 16 - HC-KAR NC: 2025:KHC:34435 RSA No. 1812 of 2021 and also after gifted the property to the defendant No.1, she filed application to transferred katha. At immediately the plaintiff filed his objections to katha and later on Deputy Tahasildar of mandikal passed order as per Ex.D.7 and also the defendant No.1 filed a complaint before police against the plaintiff for making illegal acts and said police also suggested to survey the lands, but the plaintiff did not co-operate. Own sister of plaintiff and defendant No.1 by name Rathnamma has filed partition suit against them before the SR. DN in O.S.No.247/2007 with respect of suit property and other properties, as such the tacts of plaintiff to compel to withdraw the said suit filed by their own sister and also The said enmity was also clearly admits by plaintiff in his cross examination and The learned counsel for the defendants addressed argument that, the suit schedule property was already 0-3.08 guntas alienated by the plaintiff in favor of PA.Venkataramaih S/o Anneppa as per Ex.D12 to 15. Therefore, he lost his ownership and lawful possession with respect of schedule property and not entitled any relief from this Hon'ble court. On the other hand, the learned counsel for the plaintiff denied the said facts by oversight mutated in the revenue records, but not question before the Revenue authority and lawful possession lies on the shoulder of the plaintiff. I have gone through only attitude of plaintiff since from very long back by materials on records, It clearly disclosed that, the plaintiff has intentionally done this all acts for the knock of the property and harass to defendants since from 2½ decades. Moreover that, admittedly the plaintiff - 17 - HC-KAR NC: 2025:KHC:34435 RSA No. 1812 of 2021 and defendants are closed relatives. It not maintainable against relatives. The plaintiff has utterly failed to prove that he is in lawful peaceful possession and enjoyment of the suit schedule property as my findings given on issue No.1. Hence question of interference by the defendants does not arise. Hence, there is no interference by the defendants as pleaded by the plaintiff. Therefore this court comes to the conclusion that there is no alleged interference by the defendants as stated by the plaintiff. Hence I answer to issue No.3 in the negative." 31. It is noticed by the Trial Court that plaintiff refused to sign Ex.C4. These aspects would only go to show that the plaintiff is somehow interested in the litigation being pending for one reason or the other. In fact, in the examination-in-chief itself, the second Commissioner who was also examined as CW-1 who is a Taluk Surveyer has specifically stated that he has not only measured the land, but also shown with colour codification as to how much of the land has been lost in property of the plaintiff as well as the first defendant for the purpose of National Highway. - 18 - HC-KAR NC: 2025:KHC:34435 RSA No. 1812 of 2021 32. He has also fixed the boundaries represented by alphabets. In the said Sketch, the land which is denoted as 'J', 'F', 'H', 'G' has been shown to be belonging to first defendant whereas lands within the boundaries alphabets 'A', 'B', 'C', 'D', 'E' and 'F' is the property belonging to plaintiff. 33. The area that has been lost for the purpose of National Highway in the property of the plaintiff as well as the first defendant is also shown in the Sketch with specific and different colour codification as per Ex.C4. These aspects of the matter makes it clear that there is no question of the defendant encroaching upon the suit property or interfering with the suit property of the plaintiff. 34. Whereas the defendant is in possession with the remaining property after the portion has gone to the National Highway and dismissal of suit based on such a factual aspects which has been rightly appreciated by the - 19 - HC-KAR NC: 2025:KHC:34435 RSA No. 1812 of 2021 learned Judge in the First Appellate Court needs no interference in this appeal. 35. Accordingly, following Order: ORDER (i) Substantial questions of law raised in the appeal memorandum do not merit for further consideration. (ii) consequently appeal is meritless and hereby dismissed. SD/- (V SRISHANANDA) JUDGE SNC List No.: 1 Sl No.: 43