- 1 - HC-KAR NC: 2025:KHC:35140 RSA No. 1167 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 1167 OF 2022 (INJ) BETWEEN: SRI.GOVINDARAJU S/O THIPPANNA DASAYA HATTI AGED ABOUT 42 YEARS R/O KPCL, T4-10/2, QUARTERS, HOSANAGARA TALUK-577418 SHIVAMOGGA DISTRICT …APPELLANT (BY SRI. MURALI B.S., ADVOCATE) AND: 1. M/S KARNATAKA POWER CORPORATION LTD REP BY ITS EXECUTIVE ENGINEER(CIVIL) MR PRAKASH S/O ANTHAYYA POOJARI AGED ABOUT 45 YEARS RESIDENT OF MASTHIKATTE HOSANAGARA TALUK-577418 SHIVAMOGGA DISTRICT 2. SRI K B KRISHNA MURTHY S/O BOMME GOWDA AGED ABOUT 42 YEARS EX-GRAMA PANCHAYATH PRESIDENT, R/O KAIRAGUNDA, HULIKAL POST, HOSANAGARA TALUK-577418 SHIVAMOGGA DISTRICT …RESPONDENTS (BY SRI. BHARGAVA D BHAT, ADVOCATE FOR R-1; R-2 - SERVED) Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:35140 RSA No. 1167 of 2022 *** THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 27.05.2022 PASSED IN R.A.NO.37/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HOSANAGARA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 28.02.2020 PASSED IN O.S.No.138/2018 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, HOSANAGARA. THIS RSA, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri.Murali B.S., learned counsel for appellant and Sri. Bhargava D. Bhat, learned counsel for respondent No.1. 2. Defendant No.2 in O.S.No.138/2018 is the appellant, challenging the order of the first appellate Court in R.A.No.37/2020, whereby the suit came to be decreed by reversing the judgment and decree passed by the Trial Court. - 3 - HC-KAR NC: 2025:KHC:35140 RSA No. 1167 of 2022 3. The facts in nutshell which are utmost necessary for disposal of the present appeal are as under: A suit for bare permanent injunction came to be filed in respect of the property situated at Shivamogga District, Hosanagara Taluk, Nagara Hobli, Kairagunda Village, in Sy.No.137/c, measuring 25.00 acres and another property in the same area in Sy.No.145/A, measuring 60.00 acres, (hereinafter referred to as 'the suit property'). 4. Plaintiff further contended that the plaintiff is a Government Undertaking Company involved in generation of electricity and other related activities. Suit properties were granted to the plaintiff/Corporation by the Government as per the order dated 16.01.1989 passed in No.RD 70 SGS 87. Based on the said order, revenue entries were mutated in the name of the plaintiff/Corporation. 5. Plaintiff further contended that, an application was submitted to the Deputy Commissioner, Shivamogga, - 4 - HC-KAR NC: 2025:KHC:35140 RSA No. 1167 of 2022 seeking permission to carryout construction of residential houses in the schedule properties. The Deputy Commissioner, by order dated 22.02.1988 granted permission for construction of residential quarters in the suit properties. 6. It is also contended by the plaintiff that the plaintiff/Corporation carried out construction of residential quarters in the suit properties as per the plan and the name of plaintiff/Corporation is shown in the RTC extract in respect of the suit schedule properties. 7. It is further contended by the plaintiff that the defendants, who have no manner of right, title or interest over the suit properties, started interfering with the suit properties on the ground that they are the owners of the property by virtue of an agreement entered into by the erstwhile owner of the land in their favour, which necessitated the plaintiff to file a suit for permanent injunction. - 5 - HC-KAR NC: 2025:KHC:35140 RSA No. 1167 of 2022 8. Pursuant to the suit summons, the defendants entered appearance and filed detailed written statement, stating that they are the agreement holders in respect of portion of suit property through earlier owner. Therefore, they have got every right for objecting for the activities being conducted by the plaintiff in a portion of the suit schedule properties to an extent of four guntas. 9. The learned Trial Judge, based on the rival contentions, framed necessary issues and after hearing both parties and going through the oral and documentary evidence on record, dismissed the suit of the plaintiff. 10. Being aggrieved by the same, the plaintiff Corporation filed an appeal before the first appellate Court in R.A.No.37/2020. 11. Learned Judge in the first appellate Court, after securing the records and re-appreciation of the material on record, reversed the dismissal of the suit and decreed the suit of the plaintiff. - 6 - HC-KAR NC: 2025:KHC:35140 RSA No. 1167 of 2022 12. Being aggrieved by the same, the second defendant is in this appeal with the following grounds and substantial questions of law: GROUNDS The impugned judgment and decree dtd:27.05.2022, passed by the First Appellate Court is illegal, arbitrary, besides being opposed to the facts, circumstances and evidence on record, both oral and documentary, and hence unsustainable. The 1st appellate court has seriously erred in allowing the appeal by recording a finding that the defendant had not stated in his written statements regarding construction of the house in the suit property but for the first time stated so in the cross examination of PW-1 which was also admitted by PW-1, by producing Exhibit-D1 Hadbasth Sketch, in order to prove the factum of construction of house by the 2nd defendant as well as other villagers and thus having encroached suit schedule property, in as much as notwithstanding the fact that Exhibit D1 was prepared in the year 2019 after the filing of the suit by the plaintiff, what is to be seen is whether the plaintiff has proved the lawful possession over the suit property and when once it has come to the notice of the court and also being admitted by PW-1 - 7 - HC-KAR NC: 2025:KHC:35140 RSA No. 1167 of 2022 that there are encroachment either by the defendants or by the villagers, having put up construction of houses, the suit for bare injunction, without seeking the relief of declaration and possession, was not maintainable. Hence on this ground alone, the suit was liable to be dismissed, by confirming the Judgment of the Trial Court. However, the 1st Appellate Court has committed a serious error in allowing the Appeal. The 1st appellate court has failed to appreciate that the defendant as a matter of fact, can set up any number of inconsistent defense but the plaintiff cannot change its stand and hence the impugned judgment and decree of the 1st appellate court is unsustainable. The 1st appellate court has not examined the veracity of the witnesses examined by the defendants in support of their case and has not considered any of their evidence which proved that the defendant no.2 and many other villagers were in possession over the portion of the suit schedule property. The 1st appellate court has seriously failed in not appreciating the very pleading of the plaintiff in its plaint, in as much as the alleged title of the - 8 - HC-KAR NC: 2025:KHC:35140 RSA No. 1167 of 2022 plaintiff over the suit property is the Government Order dated 16.01.1989 under which the suit properties were allegedly granted. However, it is further pleaded by the plaintiffs that the Deputy Commissioner by an order dated 22.02.1988, had granted permission for the plaintiff to put up construction of residential quarters in the suit properties. Even before the land was granted by the Government in favour of the Plaintiff corporation, it is not known as to how the Deputy Commissioner granted permission on 22.02.1988 when the grant was allegedly made on 16.01.1989, almost one year after the alleged permission by the Deputy Commissioner. Thus, the very title of the plaintiff over the suit property and its possession being fragile, the plaintiff had not locus to file the suit for bare injunction without seeking the relief of permanent injunction. The 1st appellate court, having verified the above aspect and having reiterated the contents of the plaint in Para 4 of the impugned judgment, has however failed to appreciate the above aspect regarding the discrepancy in the alleged title, possession of the plaintiff over the suit properties. The 1st appellate court has failed to appreciate that the defendant in his written - 9 - HC-KAR NC: 2025:KHC:35140 RSA No. 1167 of 2022 statements had clearly stated that there was a residential house measuring 5 Guntas in Sy.No.137 and 1 Acre 15 Guntas in Sy.No.145 belonging to the 2nd defendant and has also clearly mentioned its boundaries as contained in Para 5 of the judgment of the Trial Court. It was also contended that larger extents of land i.e., 56 Acres 3 Guntas in Sy. No.137 and 59 Acres 1 Gunta in Sy.No.145 was reserved by the Government for grazing purposes. Thus, the claim of the plaintiff regarding grant was incorrect, illegal and illogical. Thus the impugned judgment of the 1st appellate court has caused injustice. The 1st appellate court has failed to appreciate that the plaintiff having sought for injunction over the two items of the suit properties, has mentioned the survey number and its extent only, but importantly, the boundaries to the schedule properties was never mentioned which is the crucial aspect in any suit seeking relief involving immovable properties so as to identify the said property. All that the plaintiff has mentioned is that the said lands measuring 25 Acres in SY.No.137/C and 60 Acres in Sy.No.145/A are bounded by "boundary stones", and hence the absence of very identity of the property, grant of any relief, much less relief of permanent injunction, does not arise - 10 - HC-KAR NC: 2025:KHC:35140 RSA No. 1167 of 2022 and hence the suit being defective, was liable to be dismissed without going into the merits of the case. Failure to appreciate this important aspect which goes to the root of the matter by the 1st appellate court has rendered miscarriage of justice to the defendants and hence the same is unsustainable. SUBSTANTIAL QUESTIONS OF LAW a) Whether the Judgment & Decree of the 1st Appellate Court and the reasoning assigned there under are unsustainable on the ground that the suit for the relief of bare injunction without seeking relief of declaration and possession was not maintainable ? b) Whether and Judgment & Decree of the 1st Appellate Court and the reasoning assigned there under are illegal and perverse for the reason that the suit of the plaintiff was defective for want of identification of the said properties, plaintiff having not provided the boundaries ? c) Whether the Judgment and decree of the 1st Appellate court is contrary to Section 58 of Evidence Act, in view of the clear admission made by the plaintiff in his cross examination regarding - 11 - HC-KAR NC: 2025:KHC:35140 RSA No. 1167 of 2022 possession of the 2nd defendant and other villagers over the portion of the suit schedule property ? 13. Sri. Murali B.S., learned counsel for the appellant, reiterating the grounds urged in the appeal, vehemently contended that the defendants are entitled to oppose the injunction granted in favour of the plaintiff Corporation on account of the fact that they are the agreement holders of four guntas of land in Sy.No.137/C and the same has not been taken note of by the first appellate Court, while decreeing the suit of the plaintiff Corporation and reversing the finding recorded by the Trial Court and sought for admitting the present appeal on the aforesaid substantial questions of law. 14. Per contra, learned counsel for the respondent No.1 supports the impugned judgment passed by the first appellate Court. 15. Having heard the argument of both sides, this Court has perused the material on record, meticulously. - 12 - HC-KAR NC: 2025:KHC:35140 RSA No. 1167 of 2022 16. On such perusal of the material on record, it is crystal clear that the claim of the defendants is based on the agreement of sale. 17. It is settled principles of law that an agreement holder does not possess a title over the suit properties unless the same is brought to logical end by filing necessary suit or getting the sale deed executed otherwise than the Court proceedings. 18. It is also pertinent to note that the alleged vendor of the defendants is not even examined as a witness to establish that there was an agreement of sale in respect of the suit item No.1 of the schedule property in Sy.No.137/c to the extent of four guntas. 19. It is the contention of the appellant that the suit property is not properly described, inasmuch as there are no boundaries mentioned in the suit properties, whereas in the plaint itself, the plaintiff/Corporation has stated that the area mentioned in the plaint to the extent of 25.00 - 13 - HC-KAR NC: 2025:KHC:35140 RSA No. 1167 of 2022 acres and 60.00 acres is bound by boundary stones and the same is granted by the Government in favour of the plaintiff/Corporation. 20. If at all the defendants have got any right, title or interest in respect of four guntas of land situated in Sy.No.137/c of the suit schedule properties, it is for the defendants to establish by filing an appropriate suit including the suit for specific performance and seek necessary reliefs. 21. With that observation, this Court is of the considered opinion that the grounds urged in the memorandum of appeal are not sufficient to admit the appeal for further consideration. 22. Hence, the following: ORDER i) Appeal is dismissed. ii) No order as to costs. - 14 - HC-KAR NC: 2025:KHC:35140 RSA No. 1167 of 2022 iii) In view of disposal of appeal, pending I.A.No.1/2023 does not survive for consideration. Sd/- (V SRISHANANDA) JUDGE BMV* List No.: 1 Sl No.: 41