1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH REGULAR SECOND APPEAL NO.280/2021 (INJ) BETWEEN: 1 . SRI. HANUMANTHAPPA S/O HANUMAPPA AGED ABOUT 77 YEARS 2 . SMT. SIDDAMMA W/O HANUMANTHAPPA AGED ABOUT 72 YEARS BOTH ARE RESIDING AT MAHADEVAPURA VILLAGE PARASHURAMPURA HOBLI CHALLAKERE TALUK CHITRADURGA DISTRICT-577538. … APPELLANTS (BY SRI. G.N.SUBRAMANI & SRI. J.R.JAGADISH, ADVOCATES) AND: 1 . VARALAKSHMI W/O THIMMAPPA AGED ABOUT46 YEARS RESIDING AT MAHADEVAPURA VILLAGE PARASHURAMPURA HOBLI CHALLAKERE TALUK CHITRADURGA DISTRICT-577538. … RESPONDENT (BY SMT. JYOTHI S.KEMPAGOUDAR, ADVOCATE FOR SRI. G.S.PRASANNA KUMAR, ADVOCATE) 2 THIS R.S.A. IS FILED UNDER ORDER 42 RULE 1 OF CPC, R/W SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 02.12.2020 PASSED IN R.A.NO.15/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, CHALLAKERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 11.02.2020 PASSED IN O.S.NO.117/2014 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, CHALLAKERE. THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 17.07.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE H.P.SANDESH CAV JUDGMENT Heard learned counsel for appellants and learned counsel for the respondent. 2. This second appeal is filed against concurrent finding of the Trial Court and the First Appellate Court granting the relief of permanent injunction by the Trial Court and confirming the same by First Appellate Court. 3. The factual matrix of the plaintiff before the Trial Court is that she had purchased the suit schedule property from defendant No.1 and thereafter, she obtained license and constructed building in the said property. It is the specific 3 contention of the plaintiff that house property, wherein towards the western side of the house at the time of construction, 6 feet space was left out. It is the case of plaintiff that she had purchased the suit schedule property on 30.05.1996 from one H. Hanumanthappa i.e., defendant No.1 to an extent of East – West 40 feet, North – South 30 feet and towards southern side of the suit property, there is 3 feet space. The plaintiff has acquired 3 feet space as per the sale deed dated 29.08.1999, at the time of constructing the house, the plaintiff has put up compound towards northern and southern side of the house and left 6 feet space towards western side of the house, by putting up stone pillars. As the house constructed in the suit schedule property belongs to the plaintiff, the plaintiff is paying taxes to the concerned authority and also white washing the house for every festival. The defendant, who being neighbourer of the plaintiff, who has no right, title, much-less possession over the suit schedule property, when the plaintiff was white washing the house for the festival, the defendant has restrained the plaintiff from white washing the house in the schedule property. The defendant has destroyed the stone pillars, compound towards 4 the western side of the suit schedule property and has dumped cardboard sheet, stones and boxes in the said space of the plaintiff. When the plaintiff questioned the same, the defendant had denied the right of the plaintiff over the said portion of the property and contended that it belongs to the defendant. Hence, the plaintiff has filed the suit. 4. The defendants have appeared through their counsel and filed the written statement contending that the second plaintiff has purchased site in Sy.No.43/c belonging to the defendant through a sale deed on 29.08.1999 adjacent to Site No.2, there is Site No.3, wherein the plaintiff has got purchased 3 feet from the defendant and for the said consideration towards the southern side of the suit schedule property, the compound wall has been got constructed, as per the agreement dated 29.08.1999. As per the agreement, the plaintiff has give up the right in the compound to the defendant. The defendant has got filed O.S.No.79/2014 with respect to the compound wall by seeking declaration and consequential relief of injunction against 5 the plaintiff and plaintiff made the false allegations and averments and prayed to dismiss the suit. 5. The Trial Court having considered the pleadings of the parties, framed the following issues: “1. Whether the plaintiff proves that, she is in lawful possession of the suit property as on the date of the suit? 2. Whether the plaintiff proves that, the alleged interference caused by the defendants? 3. Whether the plaintiff is entitled for perpetual injunction as sought for? 4. What order or decree?” 6. The plaintiff in order to prove her case, examined herself as P.W.1 and got marked the documents as P.W.1 and examined two witnesses as P.Ws.2 and 3 and got marked the documents as Exs.P1 to P21. On the other hand, the defendant No.1 has examined himself as D.W.1 and got marked the documents as Exs.D1 to D4. 6 7. The Trial Court having considered pleadings as well as material available on record, answered issue Nos.1 to 3 as ‘affirmative’ and extracted answer elicited from the mouth of defendant No.1 in paragraph No.20 of the judgment. Having considered the same, the Trial Court comes to the conclusion that very case of defendant is contrary to his own admissions and even he admitted that he is ready to give remaining extent to which he has got right i.e., 30 x 40 feet which is on the western side of the plaint property. Hence, answered point No.1 as ‘affirmative’ and also observed that he has been in possession of the same. 8. The judgment and decree of the Trial Court is challenged before the First Appellate Court in R.A.No.15/2020. The First Appellate Court also considering the grounds urged in the appeal and also material available on record comes to the conclusion that the Trial Court has not committed any error and taken note of construction made by the plaintiff and observed that Ex.P2-house list extract and Exs.P3 to P5 are sufficient to hold that title of the plaintiff is in peaceful possession and 7 enjoyment of the suit schedule property. The Trial Court also comes to the conclusion that plaintiff has proved her lawful possession over the suit schedule property and alleged interference by defendant No.1 is very clear in view of defence taken in the written statement and confirmed the judgment of the Trial Court. Being aggrieved by the judgments of both the Courts, the present second appeal is filed before this Court. 9. This Court, having considering the grounds urged in the second appeal, admitted the same and framed the following substantial question of law: “When the plaintiff filed the suit for injunction based on title, was the plaintiff entitled to claim relief of injunction in respect of larger area than what was mentioned in the title deed?” 10. Learned counsel for the appellants would contend that property purchased by the plaintiff is only 40 x 30 feet and suit decreed by the Trial Court is above the extent of title deed. Hence, this Court has framed substantial question of law whether the plaintiff is entitled for permanent injunction in respect of larger area that than what was mentioned in the title 8 deed. Learned counsel would contend that the appellants also filed the suit for comprehensive relief of declaration and injunction which is pending before the Trial Court and this matter also may be remanded to the Trial Court to consider both the suit filed by the respondent herein for injunction which has been decreed and confirmed and also suit filed by the appellants herein for comprehensive relief to be considered together. Learned counsel would vehemently contend that Ex.P17-sale deed is very clear that respondent had purchased the property to the extent of 40 x 30 feet and also constructed house. Learned counsel would vehemently contend that when schedule mentioned in the plaint itself clearly disclose that already building was constructed in 40 x 33 feet, question of leaving 6 feet space on the western side does not arise and if the same is taken into consideration, it would amount to measurement of more than what had been purchased. Learned counsel also would contend that Ex.P12-license is very clear that permission is taken to construct building in the property measuring 40 x 33 feet and already constructed building in the property measuring 9 40 x 33 feet, question of leaving 6 feet space on the western side does not arise. 11. Per contra, learned counsel for the respondent would vehemently contend that Ex.P15 is very clear that construction was made only to the extent of 34 feet and not entire extent and Ex.P15 clearly discloses that construction was made on the western side and photographs clearly disclose that stone compound was put on the western side which was left by the plaintiff to the extent of 6 feet. Learned counsel would contend that there is clear admission on the part of defendant No.1 during the course of cross-examination with regard to leaving 6 feet space by the plaintiff and the same has been considered by the Trial Court and the First Appellate Court and it does not require any interference. 12. Having heard learned counsel for the appellants and learned counsel for the respondent and also having considered substantial question of law framed by this Court, this Court has to examine when the plaintiff has filed the suit for injunction based on the title, whether the plaintiff is entitled to claim relief 10 in respect of larger area than what was mentioned in the title deed. Having considered respective submissions and also on perusal of material available on record, no dispute that Ex.P17 is sale deed executed by defendant No.1 in favour of the plaintiff and no dispute that defendant No.1 sold the property to the extent of 30 x 40 feet. It is also important to note that, it is the case of the plaintiff that defendant No.1 also sold the property to the extent of 3 feet and it is the claim of plaintiff that she made the payment of Rs.15,000/-. On the other hand, it is the contention of the defendant No.1 that he had given 3 feet space on the southern side to the plaintiff, but the same is in respect of compound which was given to the defendant No.1 for which no consideration was received. 13. It has to be noted that learned counsel for the appellants mainly brought to notice of this Court that averment is made in the plaint schedule that when building is constructed to the extent of 40 x 43 feet, there is no question of leaving any space on the western side i.e., 6 feet, but Court has to take note of answer elicited from the mouth of defendant No.1 in the 11 cross-examination that he has given 3 feet space on the southern side to the plaintiff, but says that he has not received any consideration. But for having given 3 feet space, compound was given to the defendant No.1. It is also important to note that D.W.1 categorically admitted that, in view of giving 3 feet space on the northern side in the year 1999, the plaintiff has got mutated the property in her name to the extent of 40 x 33 feet. Hence, it is very clear that area of the plaintiff is enlarged from 40 x 33 feet. The crux of the issue is that defendant No.1 took specific contention that plaintiff has not left any space on the western side, but when there is a clear admission on the part of D.W.1 in his cross-examination that plaintiff has left 6 feet vacant space on the western side of plaintiff’s property and when the crux of the issue is with regard to leaving 6 feet vacant space on the western side and when there is clear admission, the counsel contend that there is no such space left by the plaintiff cannot be accepted. 14. It is also important to note that very fact is contrary to the contention raised by defendant No.1 and throughout the 12 defendant No.1 has taken the contention that no such space was left out and during the course of argument before this Court also, the very same contention was raised. But, it is very clear that on the western side of the property, he has also got 30 x 40 feet site. But, further he gave admission that he is ready to give right in respect of remaining extent, if it exceeds 30 x 40 feet which is on the western side of the plaintiff’s property. When such admission was given, the same was taken note by the Trial Court in paragraph No.20 of the judgment and in paragraph No.21, the Trial Court taken note of the fact that towards west and northern side, the property belongs to defendant No.1. It is also important to note that defendant No.1 has contended that plaintiff has relinquished her right on the southern side of his compound wall, as he had been given 3 feet of excess vacant space in Site No.3 belonging to him. It is also an admitted fact that, to that effect, he had already filed comprehensive suit and the same is still pending before the Court. However, learned counsel for the appellants would contend that this matter also may be clubbed along with the suit which is already filed by the appellants before the Trial Court in O.S.No.79/2014 and when 13 there is an unequivocal admission on the part of defendant No.1, question of setting aside the judgment and decree of the Trial Court does not arise and both the Courts have taken note of admission on the part of D.W.1 that he did not dispute the fact that he has given 3 feet space and he was also having knowledge about plaintiff having got transferred khatha to the extent of 40 x 33 feet. But, learned counsel for the appellants would vehemently contend that entire extent of 40 x 33 feet was constructed. The plaintiff has produced document of Ex.P13- photo i.e., stone pillar on the western side and apart from that, there is a clear admission on the part of D.W.1 that plaintiff has left 6 feet space on the western side of her property and the same is the crux of the issue in the appeal and there is an unequivocal admission on the part of defendant No.1. Though, counsel for the appellants brought to notice of this Court the schedule mentioned in the plaint, but the very admission takes away the defence of the defendant No.1. 15. No doubt, this Court has framed substantial question of law whether plaintiff can claim more than the title what she 14 has got, but admitted fact is that said site i.e., 40 x 30 feet was sold to defendant No.1, but defendant No.1 categorically admitted that he had given 3 feet space on the southern side and he was having knowledge that plaintiff has got transferred khatha to the extent of 40 x 30 feet. When such being the case, claim of the plaintiff is also to the extent of 40 x 33 feet. Apart from that, claim is that on the western side of the property, 6 feet space was left and when such admission is also given by D.W.1 that plaintiff left 6 feet space, now cannot contend that it is excess than what is claimed. Hence, the very contention of learned counsel for the appellants cannot be accepted and Ex.P12-license is very clear that after the defendant No.1 gave 3 feet space on the southern side of his property to the plaintiff, it is an admitted fact that 40 x 33 feet is in the occupation of plaintiff and there is a clear admission on the part of the plaintiff that while constructing the building, she has left 6 feet space on the western side and said admission takes away the case of the defendant No.1. Hence, both the Courts taken note of material available on record and in detail discussed in paragraph Nos.21 and 22 of the judgment of the Trial Court and the First Appellate 15 Court also having considered the extent of building constructed by the plaintiff, in paragraph No.27 taken note of Ex.P1-DCB Register Extract, Ex.P2-house list extract and also Exs.P3 to P5 and comes to the conclusion that plaintiff is in lawful possession of the property and there is a clear admission that plaintiff left 6 feet space on the western side and the Trial Court rightly held that plaintiff proved her lawful possession over the suit schedule property and also alleged interference is concerned and comes to the conclusion that defendant No.1 contend that he is having right to compound and to that effect, suit is filed for comprehensive relief of declaration in respect of compound is concerned. Hence, the First Appellate Court also taken note of the very material available on record and therefore, I do not find any error committed by the Trial Court and the First Appellate Court in granting the relief of permanent injunction with regard to the claim made by the plaintiff. 16. Though while mentioning in the plaint, it is mentioned that house is constructed in 40 x 33 feet, but specific case of the plaintiff is that on the western side, she had left 6 16 feet space and the same is admitted by the defendant. Hence, I do not find any ground to reverse the findings of the Trial Court and the First Appellate Court while answering substantial question of law and there is a clear admission, even though site was sold to the extent of 30 x 40 feet and defendant No.1 himself has left 3 feet space on the southern side and not disputed the same, but only disputes the fact that plaintiff has not left 6 feet space, however, the same is admitted in his cross- examination. Hence, no ground is made out to reverse the findings of the Trial Court and the First Appellate Court. Hence, I answer substantial question of law accordingly. 17. In view of the discussion made above, I pass the following: ORDER The regular second appeal is dismissed. Sd/- (H.P. SANDESH) JUDGE ST