- 1 - HC-KAR NC: 2025:KHC:43082 RSA No. 971 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.971 OF 2021 (DEC/POS) BETWEEN: 1. SRI. H.B.MALLIKARJUNAPPA, S/O LATE BASAVALINGAPPA, AGED ABOUT 70 YEARS, AGRICULTURIST, R/O KHB COLONY, HOLALKERE, HOLAKERE TALUK, CHITRADURGA DISTRICT-577 501. …APPELLANT (BY SRI. ONKARAPPA N.D., ADVOCATE) AND: 1. SRI. P.S.MAHARUDRAPPA, S/O POOJAR SIDDAPPA, AGED ABOUT 64 YEARS, AGRICULTURIST, R/O NEAR GOPALASWAMY TEMPLE, JAIN ROAD, HOLALKERE TOWN AND TALUK, CHITRADURGA DISTRICT-577 501. …RESPONDENT (BY SRI. PRAVEEN KUMAR N.K., ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 22.12.2020 PASSED IN R.A.NO.27/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HOLALKERE, DISMISSING THE APPEAL Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:43082 RSA No. 971 of 2021 AND CONFIRMING THE JUDGMENT AND DECREE DATED 18.09.2019 PASSED IN O.S.NO.179/2013 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE, HOLALKERE. 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. Heard the learned counsel for the appellant and the learned counsel for the respondent. 2. The main contention of the learned counsel for the appellant before this Court is that both the Courts committed an error in not granting the relief of declaration and also the relief of encroachment made by the defendant. The learned counsel would vehemently contend that the Courts below are not justified in holding that the respondent has not encroached the suit land, even though the Court Commissioner report and sketch is very clear about the encroachment made by the respondent. The learned counsel contend that the Courts below erred in not considering the entries made in the RTC pahani, which reflects about the possession of the suit land by the appellant to the extent of 1 acre 7 guntas as per the - 3 - HC-KAR NC: 2025:KHC:43082 RSA No. 971 of 2021 registered partition deed dated 09.05.2002, which is marked as per Ex.D.1, in view of presumption under Section 133 of the KLR Act. The learned counsel also contend that both the Courts committed an error in not granting the relief of declaration and also with regard to encroachment is concerned, committed an error and hence it requires interference of this Court. 3. The learned counsel for the respondent submits that even though there is no dispute with regard to the title of 1 acre 7 guntas of land of the plaintiff, the plaintiff clandestinely did not place on record the title document of partition deed under which he got the property of 1 acre 7 guntas and made an attempt before the Trial Court to get the decree for more than what he got in the partition deed and the same is taken note of by the Trial Court while dismissing the suit in paragraph No.19. When the document of Ex.D.1 partition deed was confronted to the plaintiff by the defendant, the Trial Court made an observation in the end of paragraph No.19 that the said boundaries affixed in Ex.D.1 to the property allotted in favour of the plaintiff differs that of the boundary shown towards the western side of the suit schedule property. - 4 - HC-KAR NC: 2025:KHC:43082 RSA No. 971 of 2021 The learned counsel would submit that the plaintiff by showing the wrong boundaries, made an attempt to knock off the property of the defendant and hence the Trial Court rightly dismissed the suit. The learned counsel submits that the First Appellate Court also while dismissing the appeal, taken note of the admission on the part of the appellant in paragraph No.30, wherein he categorically admitted that the defendant is in possession to the extent of 1 acre 6 guntas which he had purchased and his vendor is in possession to the remaining extent of 1 acre 6 guntas. When the Commissioner gave the report erroneously, statement of objection was filed and the Commissioner was also summoned before the Court and the Commissioner in the cross-examination categorically admitted that, in terms of the report, the plaintiff is in excess possession of 3 guntas of land and further he categorically admits that when he visited the spot and surveyed the land, he found excess 3 guntas of land in possession of the plaintiff. The same is rightly taken note of by the First Appellate Court. 4. Having heard the learned counsel for the appellant and the learned counsel for the respondent and also on perusal - 5 - HC-KAR NC: 2025:KHC:43082 RSA No. 971 of 2021 of the material available on record, no doubt, the plaintiff got the property to the extent of 1 acre 7 guntas under a registered partition deed. Though the plaintiff has not produced the said document, but the defendant himself confronted the document of Ex.D.1. An attempt was made by the appellant before the First Appellate Court by producing the document of registered partition deed and the First Appellate Court did not receive the same coming to the conclusion that the document is already marked before the Trial Court as Ex.D.1. It is important to note that the plaintiff filed a suit for the relief of declaration contending that the defendant has encroached to the extent of 35 guntas, but the admission given by the plaintiff in the cross- examination is clear that the defendant is in possession to the extent of 1 acre 6 guntas, which he had purchased and his vendor is in possession to the extent of 1 acre 6 guntas, which he had retained. Hence, the Trial Court rightly comes to the conclusion that the plaintiff has not proved the encroachment of 35 guntas by answering issue No.2 in the negative. 5. The First Appellate Court re-assessed the evidence available on record extracting the admission of the plaintiff in - 6 - HC-KAR NC: 2025:KHC:43082 RSA No. 971 of 2021 paragraph No.30 and admission of the Commissioner in paragraph No.31. The plaintiff in an ingenious method made an attempt to get the decree showing the western boundary of the schedule property different from the boundary which is mentioned in Ex.D.1. The same is also observed by the Trial Court in paragraph No.19. The plaintiff did not approach the Court with clean hands seeking the relief of declaration in respect of the property which he got the title in terms of the Ex.D.1 partition deed and an attempt is made showing different boundary in the western side making an allegation that the defendant has encroached to the extent of 35 guntas. But the Commissioner who has been examined before the Trial Court as C.W.1, categorically admits that the plaintiff is in excess possession of 3 guntas of land what he has got under the Ex.D.1. When such admission is given, both the Courts taken note of the fact that the plaintiff made an attempt to enrich the extent of the land more than what he has got by showing the western boundary different from the boundary which is shown in Ex.D.1. The plaintiff has not approached the Court with clean hands with specific boundaries and apart from that, the plaintiff did not produce the document before the Court and the - 7 - HC-KAR NC: 2025:KHC:43082 RSA No. 971 of 2021 defendant took the pain to produce the document of partition deed of the plaintiff and got clarified that the western boundary shown in the plaint is different from Ex.D.1. When such being the case, the appellant is not entitled for any relief before the Court in respect of the boundary shown in the plaint, which is not in accordance with Ex.D.1 partition deed. Both the Trial Court as well as the First Appellate Court rightly dismissed the suit of the plaintiff and hence I do not find any ground to admit the second appeal and frame any substantial question of law. 6. In view of the discussions made above, I pass the following: ORDER The second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 22