- 1 - HC-KAR NC: 2025:KHC:28883 RSA No. 2577 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.2577 OF 2017 (INJ) BETWEEN: SHIVASHANKARA S/O LATE MUDDEGOWDA AGED ABUOT 44 YEARS R/O UPPARA HOSAHALLY VILLAGE, SHANTHIGRAMA HOBLI, HASSAN TALUK HASSAN DISTRICT-573 201 …APPELLANT (BY SRI. ROOPESHA B., ADVOCATE) AND: DINESH S/O MUDDEGOWDA AGED ABOUT 40 YEARS R/O UPPARA HOSAHALLY VILLAGE, SHANTHIGRAMA HOBLI, HASSAN TALUK HASSAN DISTRICT-573 201 …RESPONDENT (BY SRI. S. RAJU, ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., PRAYING AGAINST THE JUDGMENT AND DECREE DTD 10.04.2017 PASSED IN R.A.NO. 6/2014 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AT HASSAN., ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DTD 23.11.2013 PASSED IN OS.NO.202/2010 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC., HASSAN. Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:28883 RSA No. 2577 of 2017 THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH JUDGMENT This appeal is filed by the appellant assailing the judgment and decree dated 10.04.2017 passed in RA No.06/2014 on the file of the Additional Senior Civil Judge and JMFC, Hassan, allowing the appeal and setting aside the judgment and decree dated 23.11.2013 passed in O.S.No.202/2010 on the file of the Principal Civil Judge and JMFC, Hassan, decreeing the suit of the plaintiff. 2. For the sake of convenience, parties are referred as per their ranking before the Trial Court. 3. The facts in nutshell for the purpose of adjudication of the appeal, as averred in the plaint are that, the plaintiff has filed a suit seeking relief of permanent injunction against the defendant in respect of the schedule property. It is the case of the plaintiff that, - 3 - HC-KAR NC: 2025:KHC:28883 RSA No. 2577 of 2017 the plaintiff is the owner and is in possession of the suit property, as he acquired the suit property through Partition Deed dated 13.11.2006. It is also stated that the mutation has been changed pursuant to the Partition Deed dated 13.11.2006. It is further averred in the plaint that the defendant, who is the brother of the plaintiff is interfering with the suit schedule property and as such the plaintiff has filed O.S.No.202/2010 before the Trial Court seeking relief of permanent injunction. 4. After service of notice, the defendant entered appearance and filed detailed written statement denying the averments made in the plaint. The defendant specifically disputing the boundary in respect of the schedule property further contended that, the defendant and his mother were in possession and enjoyment of land bearing Sy.No.112, measuring 32 guntas and his mother, has made an application seeking confirmation of unauthorized occupation in respect of the subject land. It is stated in the written statement that, the suit deserves - 4 - HC-KAR NC: 2025:KHC:28883 RSA No. 2577 of 2017 to be dismissed, as the averments made in the plaint, are false and baseless. 5. Based on the pleadings on record, the Trial Court has formulated issues for its consideration. 6. In order to establish his case, the plaintiff has examined himself as PW.1 and produced four documents, which were marked as Exhibits P1 to P4. The defendant has examined himself as DW.1 and produced eleven documents, which were marked as Exhibits D1 to D11. 7. The Trial Court, after considering the material on record by its judgment and decree dated 23.11.2013 decreed the suit. Feeling aggrieved by the same, the defendant has preferred RA No.6/2014 before the First Appellate Court and the same was resisted by the plaintiff. The First Appellate Court, after considering the material on record, by its judgment and decree dated 10.04.2017, allowed the appeal, and consequently, set aside the judgment and decree passed in O.S.No.202/2010 dated 23.11.2013. Feeling aggrieved by the same, the plaintiff - 5 - HC-KAR NC: 2025:KHC:28883 RSA No. 2577 of 2017 has presented this Regular Second Appeal under Section 100 of CPC. 8. I have heard, Sri.Roopesha B, learned counsel appearing for the appellant and Sri.S.Raju, learned counsel appearing for the respondent. 9. Sri.Roopesh B, learned counsel appearing for the appellant submitted that, the First Appellate Court has committed an error by not following the procedure contemplated under Order XLI Rule 31 of CPC. He further submitted that, the First Appellate Court has committed an error in not understanding the factual aspects of the case on merits with regard to 20 guntas of land, which is the subject matter of the suit. He further contended that, though the Trial Court has decreed the suit based on the documents on record, and the same was erroneously interfered with by the First Appellate Court. Accordingly, he sought for interference of this Court. 10. Per contra, Sri. S. Raju, learned counsel appearing for the respondent, invited the attention of the - 6 - HC-KAR NC: 2025:KHC:28883 RSA No. 2577 of 2017 Court that the entire case of the plaintiff is based on the Partition Deed, however, the said document has not been produced by the plaintiff before the Trial Court to establish his right over the property. He further contended that, there was a registered Partition Deed between the parties on 26.07.2017 and thereafter, the plaintiff has sold 20 guntas of the land, which is the subject matter of the suit, as per the registered Sale Deed dated 15.11.2024. Therefore, these subsequent events makes it clear that the finding recorded by the First Appellate Court is just and proper. Accordingly, he sought for dismissal of the appeal. 11. In the light of the submission made by the learned counsel appearing for the parties, it is not in dispute that the plaintiff and the defendant are brothers. The entire case of the plaintiff, seeking relief of permanent injunction is based on the Partition Deed dated 13.11.2006. Admittedly, no such documents were produced before the Trial Court, except the mutation - 7 - HC-KAR NC: 2025:KHC:28883 RSA No. 2577 of 2017 entries made by the Revenue Authorities. Taking into consideration, the Registered Partition Deed dated 26.07.2017 executed between the parties, wherein the said aspects, would make it clear that, the plaintiff has not proved the Partition Deed dated 13.11.2006, in view of the registered Partition Deed dated 26.07.2017, which has been produced by the defendant before this Court. 12. It is also to be noted that, as per the registered Sale Deed dated 15.11.2024, the plaintiff has sold the schedule land to an extent of 20 guntas of land in favour of one B. Ningaraju S/o Basavegowda residing at Bommenahalli Village, Hassan Taluk and District. 13. In that view of the matter, as the plaintiff has parted with the suit schedule property, I am of view of that, the appellant/plaintiff is not entitled for relief of permanent injunction, as claimed before the Trial Court and also before this Court. In that view of the matter, as the appellant/plaintiff has not established any finding recorded by the First Appellate Court has erroneous, I am - 8 - HC-KAR NC: 2025:KHC:28883 RSA No. 2577 of 2017 of the view that, the appeal is liable to be dismissed, as the appellant/plaintiff has not made out a case for formulation of the substantial question of law, as required under Section 100 of CPC. 14. Accordingly, the appeal is dismissed. SD/- (E.S.INDIRESH) JUDGE SMC List No.: 1 Sl No.: 40