- 1 - HC-KAR NC: 2025:KHC:52593 RSA No. 818 of 2022 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.818 OF 2022 (DEC/INJ) BETWEEN: 1. NAGARAJU S, S/O LATE SIDDALINGAIAH AGED ABOUT 63 YEARS R/AT SEEBU TOTA VYASARAYA PALYA HANUMANTHAPURA TUMAKURU. …APPELLANT (BY SRI. YASHWANTH NETHAJI N.T., ADVOCATE FOR SRI. K.V. NARASIMHAN, ADVOCATE) AND: 1. THE PRESIDENT GOVERNMENT D-EMPLOYEES (GRUHA NIRMANA) ASSOCIATION TUMAKURU. 2. THE SECRETARY GOVERNMENT D-GROUP EMPLOYEES ASSOCIATION OFFICE SITUATED AT NEAR DEPUTY COMMISSIONER OFFICE TUMAKURU. 3. RAMASWAMY PRESIDENT GOVERNMENT D-GROUP EMPLOYEES ASSOCIATION WORKING AT ATTENDER GENERAL HOSPITAL TUMAKURU. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:52593 RSA No. 818 of 2022 4. PUTTEERAMMA W/O LATE YELLAPPA SINCE DIED BY LRS RESPONDENTS NO.5 TO 7 WHO ARE ALREADY ON RECORD 5. SIDDALINGAIAH S/O LATE YELLAPPA AGED ABOUT 60 YEARS 6. RAMAKRISHNAIAH @ RAJANNA S/O LATE YELLAPPA AGED ABOUT 59 YEARS R4 TO R6 ARE R/AT HANUMANTHAPURA (CYCLE SHOP) 1ST MAIN, NEAR BYLANAJANEYA SWAMY TEMPLE TUMAKURU TOWN. 7. SIDDAGANGAMMA @ PUTTI W/O GANGAHANUMAIAH D/O LATE YELLAPPA AGED ABOUT 56 YEARS R/AT SRIGIRI PURA @ POST KUDUR HOBLI, MAGADI TALUK RAMANAGARA DISTRICT-562120. …RESPONDENTS (BY SRI. V.B. SIDDARAMAIAH, ADVOCATE FOR R3; SRI. P.M.GOPI, ADVOCATE FOR SRI. P.M.SIDDAMALLAPPA, ADVOCATE FOR R5, R6 AND R7; NOTICE TO R1 IS HELD SUFFICIENT, VIDE ORDER DATED 25.11.2025; VIDE ORDER DATED 25.11.2025, R5 TO R7 ARE TREATED AS LRS OF DECEASED R4; R2 IS SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 05.01.2022 PASSED IN R.A.NO.49/2021 (OLD NO.44/2020) ON THE FILE OF THE VII ADDITIONAL DISTRICT JUDGE, TUMAKURU, - 3 - HC-KAR NC: 2025:KHC:52593 RSA No. 818 of 2022 DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 22.06.2020 PASSED IN O.S.NO.145/1997 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, TUMAKURU. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission. I have heard learned counsel for the appellant and learned counsel for respondent No.3 and learned counsel for respondent Nos.5, 6 and 7. 2. This second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court. 3. The factual matrix of case of the plaintiff while seeking the relief of declaration and injunction in respect of 4 guntas of land which is morefully described in the schedule is that portion of land bearing Sy.No.272/3.B.1.A measuring 4 guntas shown as ‘CBGH’ portion in the rough sketch showing the boundaries belongs to the family of plaintiff. The said land totally measures 1 acre 27 guntas, out of which western portion of 1 gunta had been acquired by the Government for the benefit of the defendant Nos.1 and 2-Association. The - 4 - HC-KAR NC: 2025:KHC:52593 RSA No. 818 of 2022 acquisition proceedings have taken place on 12.01.1983. Accordingly, the mutation was accepted in favour of defendant No.1-Association on 13.02.1991. The said portion is marked as ‘ABCD’ in the rough sketch. The remaining portion of 26 guntas has been in possession and enjoyment of plaintiff. Out of which, 1 gunta has been reserved for road which is marked as ‘CFJI’ in the rough sketch. Further, plaintiff has sold 20 guntas of land to one Shivanna on the eastern side of the remaining land which is marked as ‘GEFH’ in the rough sketch. As such, remaining 5 guntas of land in the said survey number is now in actual physical possession and enjoyment of the plaintiff which is marked as ‘BCHG’ in the rough sketch. The land acquired by the Government is phoded as Sy.No.272/3-B-1B and remaining land is Sy.No.272/3-B1-A. It is contented that defendant Nos.1 to 3 are not having any manner of right over the suit schedule property and without any reasonable cause or excuse are attempting to interfere with plaintiff’s peaceful possession and enjoyment of the suit schedule property. It is also the contention that immediately, the plaintiff has made an application for measurement of the land in his possession and also requested the defendants to resist themselves also from - 5 - HC-KAR NC: 2025:KHC:52593 RSA No. 818 of 2022 interference. Later, the plaintiff obtained the sketch of the entire Sy.No.272/3.B.1.A and Sy.No.3B.1.B and approached the concerned Police for protection. However, the Police have not taken any action. Hence, an argument is made that defendant No.3 is trying to put up construction over the suit schedule property. Hence, filed the suit. 4. The defendant Nos.1 to 3 appeared and filed the written statement denying the case of the plaintiff and also survey was conducted. In the survey, came to know that defendant Nos.1 to 3 are not in encroached portion and other person is in possession and subsequently, defendant No.4 is also impleaded and sought for the relief against him and also relief is sought, in case if the Court comes to the conclusion that plaintiff is not in possession of the property grant the relief of possession. 5. The Trial Court having considered the pleadings of the parties framed the issues and allowed the parties to lead evidence. The Trial Court, particularly considering the material available on record and the evidence of P.Ws.1 and 2, in paragraph No.20 comes to the conclusion that later, after - 6 - HC-KAR NC: 2025:KHC:52593 RSA No. 818 of 2022 receipt of Court Commissioner’s report, he got amended the plaint and sought for the relief. The sketches are marked as Exs.D3 and D4. On perusal of the both the sketches and pleadings, it is clear that plaintiff is claiming possession of different pieces of land. Initially, he claimed the possession of 5 guntas of land which is in between the Government acquired land and land of Shivanna. In other words, he claimed possession over 5 guntas of land which was bounded by Shivanna’s land on eastern side and on western side by Government acquired land. But, later, i.e., after receipt of Court Commissioner's report, he amended his plaint and pleaded that he is in possession of 5 guntas of land which is situated at the eastern side of Sy.No.272/3B. The Trial Court also taken note of admission on the part of P.W.1 in paragraph No.21 and also taken note of further admission in paragraph Nos.23 and 24 and comes to the definite conclusion that in respect of the extent what the plaintiff claims, nothing is placed on record. Even otherwise, there is confusion regarding identity of the property in question and on the basis of material available on record, the plaintiff has not proved the very existence of his property and the same is observed in - 7 - HC-KAR NC: 2025:KHC:52593 RSA No. 818 of 2022 paragraph No.27 and particularly, even extracted evidence of the Commissioner. Hence, comes to the conclusion that plaintiff has not made out any case for granting the relief of declaration and injunction. The very identity of the property is in dispute and dismissed the suit. 6. Being aggrieved by the judgment and decree, an appeal is filed before the First Appellate Court in R.A.No.49/2021. The First Appellate Court also considering the grounds which have been urged in the appeal memo, formulated the point. The First Appellate Court also on re- appreciation of both oral and documentary evidence, particularly discussed in paragraph No.20 i.e., total sub- numbers of Sy.No.272 is stated and also taken note of acquisition of 1 acre 1 gunta of said survey number by the Government i.e., defendant Nos.1 to 3 and also the claim is in respect of 4 guntas of land. Further in paragraph No.22 also taken note of the fact that when already 1 acre 1 gunta was in the name of defendant No.1, there was no question of changing 1 acre 5 guntas into the name of the plaintiff in 1993-94 as per Ex.P2. The appellant only relied upon the partition deed and - 8 - HC-KAR NC: 2025:KHC:52593 RSA No. 818 of 2022 other than the partition deed, not produced any other document to the extent of 1 acre 5 guntas. Hence, the First Appellate Court comes to the conclusion that plaintiff has not made out any ground to interfere with the findings of the Trial Court. Being aggrieved by the said judgment and decree of both the Courts, the present second appeal is filed before this Court. 7. The main contention of learned counsel appearing for the appellant before this Court is that both the Courts below were not justified in passing the impugned judgment and decree. Hence, this Court has to admit the second appeal and frame substantial question of law. 8. Per contra, learned counsel for respondent No.3 and learned counsel for respondent Nos.5, 6 and 7 would contend that at the first instance, the suit is filed against them for the relief of declaration and injunction and when they came to know about the fact that there is no encroachment by respondent Nos.1 to 3, subsequently added respondent No.4 and particularly, the Court taking note of title as well as existence of the property rightly comes to the conclusion that - 9 - HC-KAR NC: 2025:KHC:52593 RSA No. 818 of 2022 there is no title in respect of the property which the plaintiff claims and also in respect of the identity of the property is also concerned the plaintiff has not proved the very existence of the property for which he claims possession subsequent to the Commissioner’s report and Commissioner’s report is also taken note of by the Trial Court. 9. Having heard learned counsel for the appellant and learned counsel for respondent No.3 and learned counsel for respondent Nos.5, 6 and 7 and also the reasoning of the Trial Court and the First Appellate Court, it is the contention of the learned counsel for the respondents that there is no title in respect of the property which the plaintiff claims and also in respect of the identity of the property is also concerned, the plaintiff has not proved the very existence of the property for which he claims possession. Both the Courts have also taken note of Commissioner’s report and Commissioner is also not firm about the very encroachment made by defendant No.4. Apart from that, the appellant also not disputes the very execution of sale deed in favour of respondent No.4 in the year 1939 to the extent of 55 x 50 yards and when the very - 10 - HC-KAR NC: 2025:KHC:52593 RSA No. 818 of 2022 existence of property and identity of the property is not proved by the appellant/plaintiff, question of granting the relief does not arise. Hence, I do not find any error on the part of the Trial Court and the First Appellate Court in considering the material on record with regard to title as well as the claim made by the appellant. Hence, not a case to invoke Section 100 of CPC to admit the second appeal and frame substantial question of law. 10. In view of the discussion made above, I pass the following: ORDER The regular second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 42