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2025 DAILYLAW 82037 (KAR)

ANNAIAH v. KENCHAMMA

RSA/1431/2025 · 2025-11-28

H P Sandesh

body2025

Judgment text

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- 1 - HC-KAR NC: 2025:KHC:49678 RSA No. 1431 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.1431 OF 2025 (INJ) BETWEEN: 1. ANNAIAH S/O LATE MUDDEGOWDA AGE ABOUT 54 YEARS 2. KARIGOWDA S/O LATE MUDDEGOWDA AGE ABOUT 49 YEARS 3. SANNAKAMMA W/O LATE MUDDEGOWDA AGE ABOUT 79 YEARS ALL ARE R/AT HULKERE VILLAGE KASABA HOBLI PANDAVAPURA TALUK MANDYA DISTRICT - 571439 …APPELLANTS (BY SRI SREENIVASAN M Y, ADVOCATE) AND: KENCHAMMA W/O LATE JAVAREGOWDA AGE ABOUT 81 YEARS R/AT HULKERE VILLAGE KASABA HOBLI PANDAVAPURA TALUK MANDYA DISTRICT - 571439 …RESPONDENT Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:49678 RSA No. 1431 of 2025 THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.07.2025 PASSED IN R.A.NO.21/2023 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, PANDAVAPURA AND ETC. 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 second appeal is filed against the concurrent finding of the Trial Court as well as the First Appellate Court. 2. This matter is listed for admission. Heard the learned counsel appearing for the appellants. 3. The factual matrix of the case of plaintiff before the Trial Court while seeking the relief of permanent injunction is that plaintiff is the absolute owner and peaceful possession and enjoyment of the suit schedule property. Except the plaintiff, other persons did not have any right and possession over the suit schedule property. The suit schedule property is a Mangalore tiled house. Now, the said house is in poor condition. Therefore, the plaintiff intended to repair the said house. By that time, defendant No.4 and his children i.e., defendant Nos.1 - 3 - HC-KAR NC: 2025:KHC:49678 RSA No. 1431 of 2025 to 3 are interfering and restraining the plaintiff to repair the said house. Though the defendants are not having any manner of right, title and possession over the suit schedule property, are trying to interfere with the possession of the suit schedule property and they are influenced to panchayath, therefore, the panchayath has not issued license to the plaintiff and also defendants are interfering with the suit schedule property. The plaintiff has issued a legal notice to the defendants and also to the panchayat office on 21.05.2015. Even though defendants are interfering with the possession of the plaintiff, hence, filed the suit. 4. In pursuance of the suit summons, the defendants appeared and filed written statement denying the entire averments of the plaint. It is further contended that the grandfather of defendant No.1 has acquired 13 ankanas property from his ancestors. On 05.02.1935, Boregowda, adopted the son by name Kempanna has purchased 11 ankanas house from Motegowda by virtue of the sale deed. Said Boregowda is the grandfather of defendant Nos.1 to 3. From the date of purchase, grandfather of the defendants was - 4 - HC-KAR NC: 2025:KHC:49678 RSA No. 1431 of 2025 in absolute ownership of 24 ankanas house. Thereafter, defendants are in possession of 24 ankanas of house. The Panchayath has also issued a khatha for measuring 39x51 feet in favour of the defendants. Western side of the house, there is vacant site No.36A2 measuring east to west 10 feet and north to south 50 feet. Said vacant site belongs to defendant No.4. The plaintiff is relative of the defendants and she is not have any issues and she is also a widow and old aged. Hence, defendants have given permission to the plaintiff to reside in one ankana house out of 24 ankanas. The defendants only taking care of the plaintiff. Presently, she is in possession of one ankana house with permission of the defendants. The plaintiff has taken advantage of the possession and obtained the tax assessment register from the Panchayath in the year 2005 and filed the present false suit against the defendants to grab the said suit property. 5. The Trial Court considering the pleadings of the parties, framed the Issues and allowed the parties to lead their evidence. The Trial Court considering both oral and documentary evidence placed on record, comes to the - 5 - HC-KAR NC: 2025:KHC:49678 RSA No. 1431 of 2025 conclusion that though defence was taken that the extent is only a smaller extent but PW1 categorically deposed that the extent is east-west 22 feet and south-north 30 feet. DW1 claims that the same is an ancestral property and produced the document. Defendants also subjected for examination and DW1 in the cross-examination admits the location of the property and also admits that the plaintiff is in possession of the house and the same is in a dilapidated condition and also admits that permission is given to repair the said house. DW1, DW2 and DW3 all have admitted the same. The Trial Court considering these admissions comes to the conclusion that the plaintiff has established her possession and defendants are interfering with the possession of the plaintiff over the suit property since, they contend that the extent of the possession with the plaintiff is lesser than what the plaintiff is claiming and granted the relief of permanent injunction. 6. Being aggrieved by the judgment of the Trial Court, an appeal was preferred before the First Appellate Court in R.A.No.21/2023. The First Appellate Court also having considered the grounds urged in the appeal, formulated the - 6 - HC-KAR NC: 2025:KHC:49678 RSA No. 1431 of 2025 Points that whether the plaintiff has established her possession over the suit schedule property and whether the Trial Court erred in holding that the plaintiff is in actual possession of the suit property and there is an interference by the defendants. The First Appellate Court having reassessed both oral and documentary evidence placed on record, extracted the admission of DW1, DW2 and DW3 in paragraph 21 and discuss the same in paragraph 22 and also taken note of the application filed before the Court for additional evidence and held that no need to receive any additional evidence while answering Point No.3 and so also comes to the conclusion that the defendants would contend that the extent of possession given to the plaintiff is only to the extent of east-west 12 feet and north-south 26 feet instead of measurement of the suit schedule property east-west 22 feet and north-south 30 and except taking that defence, nothing is placed on record. Hence, comes to the conclusion that in view of the said defence, they are interfering with the possession of the plaintiff and confirmed the judgment of the Trial Court. Being aggrieved by the concurrent finding of both the Courts, the present second appeal is filed before this Court. - 7 - HC-KAR NC: 2025:KHC:49678 RSA No. 1431 of 2025 7. The learned counsel appearing for the appellants would vehemently contend that finding of both the Courts is perverse since not considered both oral and documentary evidence placed on record and Trial Court is not justified in appreciating the evidence of PW3 and Trial Court also not justified in decreeing the suit on the basis of demand register extract – Ex.P1. The counsel also contend that the First Appellate Court failed to consider the document which is produced before the Court and also contend that both oral and documentary evidence are not properly appreciated by the First Appellate Court. The counsel also vehemently contend that appellants also filed a separate suit for the relief of permanent injunction. If this appeal is dismissed confirming the judgment of both the Courts, it affects their right to the extent and only dispute is with regard to the plaintiff's possession over the suit property since the plaintiff is claiming more than what they have given permission. 8. Having heard the learned counsel for the appellants and also on perusal of the material on record, it discloses that the Trial Court taken note of the admission on the part of DW1 - 8 - HC-KAR NC: 2025:KHC:49678 RSA No. 1431 of 2025 to DW3 and the same is extracted in paragraphs 16 to 20 wherein each witnesses have admitted the possession of the plaintiff. But the contention of the appellants that they are in lesser the possession i.e., only to the extent of house property and Ex.P9 also confronted to the defendants witnesses and they have also admitted the same. DW2 and DW3 also admitted the plaintiff's possession over the suit schedule property. When suggestions were made to all these witnesses, they agreed that plaintiff is in possession of the suit schedule property and not to the extent what the appellants now claiming. Thus, their own admission is very clear that plaintiff is in possession of the suit schedule property. When such being the case, the very contention that they are in possession of only to the extent of house property cannot be accepted. 9. The admission on the part of DW1, DW2 and DW3 are unequivocal to the extent of the suit schedule property is concerned. When schedule is shown in the suit to the extent of 22 x 30 feet and when there is an admission on the part of DW1 to DW3 in this regard, now the appellants cannot find fault with the appreciation of both oral and documentary - 9 - HC-KAR NC: 2025:KHC:49678 RSA No. 1431 of 2025 evidence on the part of Trial Court and the First Appellate Court. The First Appellate Court also while reconsidering the material on record, in paragraphs 21 and 24, taken note of the admission and when suggestion was made to the witnesses to the extent that east to west 12 feet and north to south 26 feet, the same was denied by PW1. On the other hand, defendant Nos.1 to 3 have admitted with regard to the possession of plaintiff over suit schedule property in entirety and not in respect of any of the portions as what the appellants’ counsel has canvassed now and nothing is elicited from the mouth of PW1 to the extent what now counsel contend that the injunction granted by the Trial Court and First Appellate Court is more than the extent what they are in possession and said contention cannot be accepted when an unequivocal admission is given by DW1 to DW3 in respect of the suit schedule property is concerned and they have not stated while giving evidence that they are in the extent of 12 x 26 feet. Under the circumstances, I do not find any perversity in the finding of both the Trial Court and the First Appellate Court. Hence, it is not a case to invoke Section 100 of CPC. - 10 - HC-KAR NC: 2025:KHC:49678 RSA No. 1431 of 2025 10. In view of the discussions made above, I pass the following: ORDER The second appeal is dismissed. In view of dismissal of the main appeal, I.A. if any, does not survive for consideration and the same stands dismissed. The finding given by this Court shall not affect the right of the appellants in the suit in O.S.No.61/2023 and the Trial Court is directed to dispose of the same on its merits. Sd/- (H.P.SANDESH) JUDGE SN