- 1 - NC: 2025:KHC-D:2537 RSA No. 100188 of 2021 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100188 OF 2021 (MON-) BETWEEN: SHRI. LAXMAN S/O. YALLAPPA KHANAGAVI, AGE. 64 YEARS, OCC. COOLIE, R/O. RAYAPUR GALLI, NANDGAD, TQ. KHANAPUR, DIST. BELAGAVI – 590002. …APPELLANT (BY SRI. SADIQ N. GOODWALA, ADVOCATE) AND: SHRI. MARUTI S/O. YALLAPPA KHANAGAVI, AGE. 59 YEARS, OCC. COOLIE, R/O. RAYAPUR GALLI, NANDGAD, TQ. KHANAPUR, DIST. BELAGAVI. …RESPONDENT (BY SRI. PRUTHIVIRAJ P. HITTALAMANI, ADVOCATE) THIS RSA IS FILED U/SEC.100 OF CPC, 1908 PRAYING TO SET ASIDE JUDGMENT AND DECREE DATED 26.03.2021 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC., KHANAPUR, IN R.A.NO.14/2017 CONFIRMING THE JUDGMENT AND DECREE DATED 07.02.2017 PASSED BY THE ADDL. CIVIL JUDGE AND JMFC., KHANAPUR IN O.S.NO.02/2014, IN THE INTEREST OF JUSTICE. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: V N BADIGER Digitally signed by V N BADIGER Location: High Court of Karnataka, Dharwad Bench Date: 2025.02.11 16:19:17 +0530 - 2 - NC: 2025:KHC-D:2537 RSA No. 100188 of 2021 CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by the defendant challenging the judgment and decree dated 26.03.2021 in R.A.No.14/2017 on the file of the Senior Civil Judge and JMFC at Khanapur1 dismissing the appeal and confirming the judgment and decree dated 07.02.2017 in O.S.No.2/2014 on the file of the Additional Civil Judge and JMFC at Khanapur2 decreeing the suit of the plaintiff. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiff that the plaintiff and defendant are brothers and have purchased open space as per the registered sale deed dated 29.12.1983 from its erstwhile owner - Sitaram Mahadev Padvad of Nandagad and in the said open space, the plaintiff had constructed two houses which have been numbered by the Panchayat Nos.1682 and 1683. It is also stated in the 1 hereinafter referred to as ‘First Appellate Court’ 2 hereinafter referred to as ‘Trial Court’ - 3 - NC: 2025:KHC-D:2537 RSA No. 100188 of 2021 plaint that the plaintiff is residing in the aforementioned suit property and suit house No.1683 was kept vacant. It is also stated in the plaint that the panchayat had given house No.1681 in respect of the property purchased by the defendant. Thereafter, there was a rift in the family and as such, the plaintiff came to know that the defendant has encroached the land belonging to the plaintiff and as such the plaintiff has filed O.S.No.2/2014 before the Trial Court seeking relief of recovery of possession of the suit property. 4. After service of notice, the defendant entered appearance and filed detailed written statement denying the averments made in the plaint. It is the specific case of the defendant that the property bearing Panchayat Nos.1682 and 1683 have been allotted to the share of the defendant as per the family agreement and accordingly sought for dismissal of the suit. 5. The Trial Court based on the pleadings on record, has framed issues for its consideration. In order to - 4 - NC: 2025:KHC-D:2537 RSA No. 100188 of 2021 establish their case, the plaintiff has examined himself as PW.1 and produced 23 documents and the same were marked as Exs.P.1 to P.23. The defendant was examined himself as DW.1 and produced 19 documents and the same were marked as Exs.D.1 to D.19. 6. The Trial Court after considering the material on record, by its judgment and decree dated 07.02.2017 decreed the suit and as such directed the defendant to deliver the vacant possession of the suit property within three months. Feeling aggrieved by the same, the defendant has preferred R.A.No.14/2017 on the file of the First Appellate Court and the same was resisted by the plaintiff. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated 26.03.2021, dismissed the appeal, consequently confirmed the judgment and decree in O.S.No.2/2014. Feeling aggrieved by the same, the defendant has preferred this Regular Second Appeal. - 5 - NC: 2025:KHC-D:2537 RSA No. 100188 of 2021 7. I have heard Sri.Sadiq N Goodwala, learned counsel appearing for the appellant and Sri.Pruthviraj P Hittalamani, learned counsel appearing for the respondent. 8. Sri.Sadiq N Goodwala, learned counsel appearing for the appellant/defendant submitted that the Trial Court has not properly framed issues relating to the ownership insofar as the subject land and also contended that the Trial Court has committed an error in arriving at a conclusion that the appellant is not residing in the said land. He further contended that since the appellant is residing in the suit schedule property for more than 30 years and as such the finding recorded by the Trial Court requires interference in this appeal. 9. Per contra, Sri.Pruthviraj P Hittalamani learned counsel appearing for the respondent sought to justify the impugned judgment and decree passed by the Courts below. - 6 - NC: 2025:KHC-D:2537 RSA No. 100188 of 2021 10. In the light of the submission made by the learned counsel appearing for the parties, on careful examination of the finding recorded by the Trial Court would indicate that the plaintiff along with the defendant have purchased open space measuring 2 acres 39 guntas in land bearing Sy.No.55A/3 of Nandagad village and thereafter the plaintiff has constructed two houses bearing Panchayat Nos.1682 and 1683. The defendant also constructed a house in Panchayat No.1681 and thereafter the defendant with mutual arrangement with the plaintiff and another brother by name Arjun, had transferred the house bearing Panchayat No.1681 in favour of his brother – Arjun. 11. In that view of the matter, taking into consideration the fact that the plaintiff had purchased the open space as per the registered sale deed referred to above and also in view of the judgment and decree passed in O.S.No.110/2010 filed by the appellant/defendant herein which came to be decreed on 03.10.2013 and - 7 - NC: 2025:KHC-D:2537 RSA No. 100188 of 2021 further taking into consideration the finding recorded by the Trial Court at para No.9 of the impugned judgment, I am of the view that no interference is called for in this appeal as the Trial Court after considering the material on record, rightly come to the conclusion while answering issue relating to subject matter of the suit. 12. Taking into consideration the decree in O.S.No.110/2010 (Ex.D.2) and as the Trial Court rightly decreed the suit in favour of the plaintiff and same was considered by the First Appellate Court as required under Order 41 Rule 31 of CPC, I am of the opinion that, no interference is called for in this appeal. 13. Accordingly, the appeal is dismissed at the stage of admission as the appellant herein has not made out a case for framing substantial question of law as required under law. Hence, appeal fails. 14. After dictating the order, learned counsel appearing for the appellant submitted that the Trial Court - 8 - NC: 2025:KHC-D:2537 RSA No. 100188 of 2021 has granted three months time to the appellant/defendant to deliver the vacant possession of the suit schedule property to the plaintiff and accordingly he sought for similar prayer. 15. Having taken note of the factual aspects on record, three months time is granted from today to the appellant/defendant to vacate the suit schedule property and hand over the same to the plaintiff. Sd/- (E.S.INDIRESH) JUDGE SH List No.: 1 Sl No.: 8