- 1 - HC-KAR NC: 2025:KHC:40121 RSA No. 1115 of 2009 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MRS. JUSTICE M G UMA REGULAR SECOND APPEAL NO. 1115 OF 2009 (INJ) BETWEEN: 1. MUSALAPPA AGED ABOUT 64 YEARS, RETIRED TAHSILDAR, 2. BAKSHI AGED ABOUT 42 YEARS, RICE MERCHANT, 3. RAGHU S/O. SIDDAPPA, AGED ABOUT 37 YEARS, 4. SRINIVASA S/O. SIDDAPPA, AGED ABOUT 32 YEARS, 5. T. LOKANATH, EDITOR, SIDDINETRA WEKLY, CHALLAKERE - 577 522 6. SMT. HANUMAKKA AGED ABOUT 67 YEARS, 7. K. SHIVAKUMAR, S/O. KUPPASWAMY, CHAKRAVARTHI WEEKLY, CHALLAKERE - 577 522 RESPONDENTS 3 TO 9 ARE RESIDENTS OF GANDHINAGAR, CHALLAKERE - 577 522 …APPELLANTS Digitally signed by PRASHANTH N V Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:40121 RSA No. 1115 of 2009 (BY SRI. B.M. SIDDAPPA, ADVOCATE) AND: 1. SHAKIRA BI, W/O. CHMAN, AGED ABOUT 37 YEARS, RESIDENT OF GANDHINAGAR, CHALLAKERE TOWN - 577 522 2. TOWN MUNICIPAL COUNSEL, CHALLAKERE, R/BY CHIEF OFFICER, TOWN MUNICIPAL COUNCIL, CHALLAKERE. 3. A.S. THIPPESWAMY S/O SIDDAPPA AGED ABOUT 45 YEARS, EX. MUNICIPAL COUNCILOR, GANDHINAGAR, CHALLEKERE …RESPONDENTS (BY SRI. K. RAM BHAT, ADVOCATE FOR R1 (AB) R2 & 3 - SD/-) THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED: 20.06.2009 PASSED IN R.A.129/2007 ON THE FILE OF THE CIVIL JUDGE, (SR. DN.), CHALLAKERE, ALLOWING THE APPEAL SETTING ASIDE JUDGMENT AND DECREE DATED: 29.09.2007 PASSED IN O.S.157/2005 ON THE FILE OF THE ADDL. CIVIL JUDGE (JR. DN.), CHALLAKERE. THIS RSA, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE M G UMA - 3 - HC-KAR NC: 2025:KHC:40121 RSA No. 1115 of 2009 ORAL JUDGMENT Defendant Nos. 3 to 9 in O.S.No.157/2005 on the file of the learned Additional Civil Judge (Jr.Dn.) Challakere (hereinafter referred to as the 'Trial Court') are impugning the judgment and decree dated 20.06.2009 passed in R.A.129/2007 on the file of the learned Civil Judge (Sr. Dn.) Challakere (hereinafter referred to as the 'First Appellate Court'), allowing the appeal by setting aside the judgment and decree dated 29.09.2007 passed by the Trial Court and thereby decreeing the suit of the plaintiff granting permanent injunction restraining the defendants from interfering with the peaceful possession of the plaintiff. 2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court. 3. Brief facts of the case are that, the plaintiff filed the suit against defendant Nos. 1 to 9, seeking permanent injunction in respect of the property fully described in the schedule as site No.50 bearing Khatha No.698/658/641 with assessment No.1671 situated in III block, Gandhinagara, Challakere, measuring 27x40 feet, with the boundaries mentioned therein (hereinafter referred to as the 'schedule - 4 - HC-KAR NC: 2025:KHC:40121 RSA No. 1115 of 2009 property'). It is contended by the plaintiff that the scheduled property was originally belonging to one Thippeswamy s/o Kamajji. The said Thippeswamy sold the property in favour of one Jagadeesh under registered sale deed dated 21.11.2000. The said Jagadeesh son of Hanumanthappa sold the scheduled property in favour of one Smt.Veena wife of T.Veerendra under the registered sale deed dated 28.04.2003. The said Smt. Veena sold the scheduled property in favour of the plaintiff under the registered sale deed dated 05.12.2003. The khatha in respect of the scheduled property mutated in the name of the plaintiff in the records maintained by defendant No.1. 4. It is contended that, the plaintiff wanted to construct a residential house and got the plan approved, and the building license was also issued on 18.05.2005. Accordingly the plaintiff started putting up the foundation on the basis of license that was issued in her favour. The defendants in collusion with one another started interfering with the peaceful possession and enjoyment of the property. Defendant No.1 being the Town -Municipal Council, started interfering with the plaintiff's possession and enjoyment, without any basis and therefore, the cause of action for the suit arose and - 5 - HC-KAR NC: 2025:KHC:40121 RSA No. 1115 of 2009 accordingly, the plaintiff filed the suit seeking permanent injunction against the defendants. The defendants have appeared before the Trial Court. Defendant No.1 filed the written statement denying the contentions taken by the plaintiff in the plaint. It is contented that, an area measuring 30 x 40 feet referred to in the schedule was a public road. Thippeswamy s/o Kamajji with an intention to grab the valuable property, concocted the documents in collusion with the municipality officials. They managed to get the sale deed registered, khatha changed in their names. Since the khatha was standing in the names of the private persons and subsequently in the name of the plaintiff, the building license was issued in her favour by oversight. When the other defendants raised the objection for construction of the building by the plaintiff, defendant No.1 issued the notice and revoked the building license. Therefore, it is contented that the plaintiff is not entitled for permanent injunction. 5. Defendant Nos. 2 to 5, 7, 8 and 9 have filed the common written statement denying the contentions taken by the plaintiff regarding the ownership of the scheduled property. It is contented that, there is no existence of any scheduled - 6 - HC-KAR NC: 2025:KHC:40121 RSA No. 1115 of 2009 property as alleged. The property referred to by the plaintiff is not at all in existence and under such circumstances, the plaintiff is not entitled for any relief. Accordingly, he prays for dismissal of the suit. 6. On the basis of these pleadings, the Trial Court framed following issues: 1) Whether the plaintiff proves that she is in possession and enjoyment of the suit schedule property as on the date of suit? 2) Whether the plaintiff proves the alleged interference of defendants as stated in her plaint? 3) Whether the plaintiff is entitled for relief of permanent injunction as sought for? 4) What order or decree? 7. The plaintiff examined PWs1 to 3, got marked Ex.P1 to 22 in support of her contention. The defendants examined DWs 1 to 3 and got marked Exs.D1 to 11 in support of their defence. The Trial Court after taking into consideration all these materials on record, came to the conclusion and answered issue No.1 affirmative, issue Nos.2 and 3 in the negative and accordingly, dismissed the suit of the plaintiff. Being aggrieved - 7 - HC-KAR NC: 2025:KHC:40121 RSA No. 1115 of 2009 by the same, the plaintiff had preferred R.A..No.129/2009. The First Appellate Court on re-appreciation of materials on record passed the impugned judgment, allowing the appeal, by setting aside the judgment and decree passed by the Trial Court and consequently decreeing the suit of the plaintiff. Being aggrieved by the same, defendant Nos. 3 to 9 are before this Court. 8. As per the order dated 28.11.2012, the following substantial question of law was framed by this Court: "Whether the lower appellate court is justified in allowing the appeal of the plaintiff and reversing the said judgment and decree of the Trial Court thereby granting permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiff over the suit schedule property when dismissal of suit by the Trial Court is based on the oral evidence of PWs 1 to 3, that the suit schedule property is in public road in which the plaintiff has constructed the house by obstructing the users of the road as observed in para No.22 of the judgment of the Trial Court and to consider any other substantial question of law that may arise for consideration while hearing the appeal." - 8 - HC-KAR NC: 2025:KHC:40121 RSA No. 1115 of 2009 9. Heard Sri B.M. Siddappa, learned counsel for the appellants. Learned counsel for the respondents remained absent and has not addressed any arguments inspite of providing sufficient opportunity. Hence, his arguments is taken as nil. Perused the materials including the Trial Court records. 10. It is the contention of plaintiff that, the schedule property is the house site which she has purchased from the vendor under the registered sale deed. To prove this contention, plaintiff produced Ex.P5-sale deed dated 21.11.2000 executed by one Thippeswamy s/o Kamajji. Ex.P1 is the sale deed dated 28.04.2003 executed in favour of Smt. Veena, who in turn sold the schedule property in favour of the plaintiff under the sale deed dated 05.12.2003 marked as Ex.P2. Thus, it is the contention of the plaintiff, that the schedule property is the house site which she has purchased for a valuable consideration. The registered sale deeds produced as per Ex.P1, 2 and 5 are not disputed by the defendants. Admittedly, the TMC records show the name of Thippeswamy, Susheelamma, Jagadeesha, Veena and the plaintiff as owners in possession of the property from time to time. Ex.P6 is the assessment register extract mutating the property in the name - 9 - HC-KAR NC: 2025:KHC:40121 RSA No. 1115 of 2009 of the plaintiff. But, there is an endorsement that no such property is in existence. If no such property is in existence, why defendant No.1 mutated the name of the plaintiff as owner of the same is not explained. There is also an endorsement that change of khatha is subject to the civil litigation. But there is no reference to any civil litigation with regard to the schedule property prior to filing of the present suit in the year 2005. It is pertinent to note that Ex.P7 is the approved plan, Ex.P8 is the license issued by defendant No.1 permitting the plaintiff to construct the building. Ex.P9 is the demand notice issued by defendant No.1 calling upon the owner to pay the tax. Ex.P10 to 20 are the tax paid receipts in respect of the schedule property. If at all there is no site in existence, or if the schedule property is a public road, there is absolutely no explanation as to why defendant No.1 has entered the name of the plaintiff and her predecessors in title as owners in possession of the property, why the plan was approved as per Ex.P7 and why license as per Ex.P8 was issued, why demand notice as per Ex.P9 was issued and why it collected tax as per the Ex.P10 to 20. - 10 - HC-KAR NC: 2025:KHC:40121 RSA No. 1115 of 2009 11. It appears that defendant No.1 has taken the contention that, Thippeswamy s/o Kamajji colluded with the officials of defendant No.1 and concocted certain documents. If that is the case, nothing prevented defendant No.1 to initiate action against them, but till date, no such action was initiated at any point of time against anybody. 12. The defendants place reliance on the sketch - Ex.D1. Ex.D1 is prepared by the Chief Officer of defendant No.1 during the pendency of suit. No sanctity could be attached to the same, when the plaintiff is relying on the admitted documents. 13. When the defendants contend that, the schedule property is part of the public road, definitely defendant No.1 will have some documents to establish the same. It is the contention of learned counsel for the defendants that, no such documents are available with the defendants. It is very strange to contend that, even in respect of public road, defendant No.1 is not having any document. Strangely, defendants never sought for appointment of Court Commissioner in support of their contention that, the scheduled property described by the - 11 - HC-KAR NC: 2025:KHC:40121 RSA No. 1115 of 2009 plaintiff is part of a public road and it could be made out by visiting the spot. On the other hand, few photographs were produced as per Exs.D6 and 11. On the basis of these photos, no opinion could be formed by the Court. In the absence of any document, it is hard to believe the contentions taken by the defendants. 14. It is pertinent to note that, DW1, the Chief Officer of defendant No.1, TMC, deposed that by oversight, building license as per Ex.P8 was issued and the plan as per Ex.P.7 was issued. That shows the irresponsibility of a public servant. When there is no basis to contend that the schedule property is a public road, when the plaintiff has produced cogent material to show that she has purchased the property under the registered sale deed, got the name mutated in the revenue records and got the plan approved and license for building, I do not find any reason to reject the claim made by the plaintiff. 15. I have gone through the impugned judgment and decree passed by the Trial Court. The Trial Court casually proceeded to accept the contention taken by the defendants, even though there are no documents in support of the same, - 12 - HC-KAR NC: 2025:KHC:40121 RSA No. 1115 of 2009 and proceeded to dismiss the suit. But the First Appellate Court on proper appreciation of the materials on record arrived at the right conclusion. I do not find any reason to interfere with the impugned judgment passed by the First Appellate Court. The First Appellate Court is fully justified in allowing the appeal and setting aside the judgment passed by the Trial Court and granting the reliefs sought by the plaintiff. 16. Accordingly, I answer the above substantial question of the law in favour of the respondent and against the plaintiff and proceed to pass the following: ORDER The appeal is dismissed. Registry is directed to send back the Trial Court records along with copy of this judgment. Sd/- (M G UMA) JUDGE SPV CT:VS List No.: 3 Sl No.: 5