- 1 - HC-KAR NC: 2025:KHC:41320 RSA No. 1167 of 2009 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MRS. JUSTICE M G UMA REGULAR SECOND APPEAL NO. 1167 OF 2009 (INJ) BETWEEN: HANUMANTHAPPA S/O MELUR MUNISWAMY AGED ABOUT 56 YEARS RESIDING AT SUBBARAYANAPET (CHORAPPALLI) AMBAJIDURGA HOBLI, CHINTHAMANI TALUK - 563125 …APPELLANT (BY SRI: R. BHADRINATH, ADVOCATE) AND: KRISHNAPPA S/O BHOOMAIAH AGED ABOUT 48 YEARS RESIDING AT CHORAPPALLI AMBAJIDURGA HOBLI CHINTHAMANI TALUK - 563 125 …RESPONDENT (BY SRI: N. AMARESH, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 04.07.2009 PASSED IN R.A.NO.19/2002 ON THE FILE THE CIVIL JUDGE (SR.DN) & JMFC., CHINTAMANI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 29.01.2002 PASSED IN O.S.NO.179/1998 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) & JMFC., CHINTAMANI. THIS RSA, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE M G UMA Digitally signed by PRASHANTH N V Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:41320 RSA No. 1167 of 2009 ORAL JUDGMENT The defendant in OS No.179 of 1998 on the file of the learned Principal Civil Judge (Jr.Dn.) and JMFC, at Chintamani (hereinafter referred to as 'the Trial Court' for short) is impugning the judgment and decree dated 04.07.2009 passed in RA No.19 of 2002 on the file of the learned Civil Judge (Sr.Dn.) and JMFC, Chintamani, (hereinafter referred to as 'the First Appellate Court' for short), allowing the appeal by setting aside the judgment and decree dated 29.01.2002 passed by the Trial Court and thereby decreeing the suit of the plaintiff for permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit schedule property. 2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court. 3. Facts of the case in brief are that, the plaintiff filed the suit against the defendant seeking permanent injunction in respect of the schedule property. The property described in the schedule is the agricultural land measuring 6 guntas in Sy.No.2/4 situated at Subbarayapete, Amboji Durga Hobli, - 3 - HC-KAR NC: 2025:KHC:41320 RSA No. 1167 of 2009 Chintamani taluk, with the boundaries mentioned therein. It is the contention of the plaintiff that he is the owner in possession and enjoyment of the schedule property since the date of its purchase by him under the sale deed dated 07.02.1984. Prior to purchase by the plaintiff, the vendor was in exclusive possession and enjoyment of the said property. The plaintiff started cultivating the land by growing crops. The schedule property is adjacent to Sy.No.3/1. The defendant has no manner of right, title or interest over the schedule property, but he started interfering with the peaceful possession and enjoyment of the property by the plaintiff. The cause of action of the suit arose when the defendant tried to trespass over the schedule property. Therefore, he prays for decreeing the suit of the plaintiff restraining the defendant from interfering with the possession and enjoyment of the schedule property. 4. The defendant has appeared before the Trial Court and filed his written statement denying the contention taken by the plaintiff. It is contended that the suit schedule property and Sy.No.3/1 originally belonged to one Shanbhog Krishnamurthy and Hanumantharayappa, who are the sons of Shanbhog Subbrayappa. The said Krishnamurthy and - 4 - HC-KAR NC: 2025:KHC:41320 RSA No. 1167 of 2009 Hanumantharayappa executed the sale deed dated 26.09.1957 in favour of one Munishamappa, son of Ramappa in respect of 6 guntas of land in Sy.No.2/4 and 1 acre 12½ guntas out of 2 acres and 33 guntas in Sy.No.3/1. Since both the properties are adjacent to one another, there were common boundaries and on the same day, the vendor had executed another sale deed in favour of one Giriyappa, son of Ramanna in respect of the property measuring 1 acre 20½ guntas in Sy.No.3/1 situated on eastern side of the schedule property. Munishamappa in turn executed the sale deed dated 07.02.1984 in favour of the plaintiff by giving wrong boundaries and wrong extent. In fact, vendor of the plaintiff was having only 1 acre 12½ guntas in Sy.No.3/1 and proceeded to execute the sale deed in respect of 1 acre 16½ guntas, which was in excess of the actual land held by him. 5. It is also contended that Giriyappa had sold the remaining 1 acre 20½ guntas in Sy.No.3/1 in favour of Patel Venkatarayappa, who in turn, sold the same in favour of Narayanaswamy and the said Narayanaswamy sold the property measuring 1 acre 20½ guntas in favour of father of the defendant and thereafter, the defendant was in exclusive - 5 - HC-KAR NC: 2025:KHC:41320 RSA No. 1167 of 2009 possession and enjoyment of the property. It is the contention of the defendant that the plaintiff has given wrong boundaries to seek an order of permanent injunction suppressing real facts of the case and prays for dismissal of the suit. 6. On the basis of these pleadings, the Trial Court framed the following issues: "1) Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as on the date of suit? 2) Whether the plaintiff proves the alleged interference of the defendant? 3) What order or decree?" 7. The plaintiff examined PWs.1 to 3 and got marked Exs.P1 and 2 in support of his contention. The defendant got examined DWs.1 to 3 and got marked Exs.D1 to D14. The Trial Court after taking into consideration all these materials on record, came to the conclusion that the plaintiff has not proved his possession and enjoyment of the schedule property and therefore, dismissed the suit. Being aggrieved by the same, the plaintiff has preferred an appeal in RA No.19 of 2002. The - 6 - HC-KAR NC: 2025:KHC:41320 RSA No. 1167 of 2009 First Appellate Court on re-appreciation of the materials on record, allowed the appeal and thereby decreed the suit of the plaintiff. Being aggrieved by the same, the defendant is before this Court. 8. Heard Sri R Bhadrinath, learned counsel for the appellant and Sri N Amaresh, learned counsel for the respondent. Perused the materials including the Trial Court records. 9. This Court vide order dated 14.07.2010 has framed the following substantial questions of law for consideration: "1) Whether the First Appellate Court was right in reversing the judgment of the Trial Court in O.S.No.179/98 in the absence of substantial proof regarding title of the plaintiff in respect of the land described in the schedule? 2) Whether the First Appellate Court was right in reversing the finding of the Trial Court with regard to the title and factum of possession in the absence of any substantial evidence established in the suit?" 10. Before going into the merits of the case, my attention was drawn by the learned counsel for the appellant to - 7 - HC-KAR NC: 2025:KHC:41320 RSA No. 1167 of 2009 the impugned judgment passed by the First Appellate Court. The plaintiff who was the appellant before the First Appellate Court filed an application under Order 41 Rule 27 of CPC producing additional documents. The First Appellate Court answered point No.1 in the affirmative, thereby, permitted the plaintiff to produce additional documents. But, however, no evidence was adduced in support of the said additional document and without evidence, the First Appellate Court appears to have placed reliance on the same and proceeded to allow the appeal. The procedure adopted by the First Appellate Court is not in accordance with law, rather, it is against the procedure as contemplated under Order 41 Rule 27 of CPC. 11. Learned counsel for the appellant submits that he has even filed the application for appointment of Commissioner for identification of the property, but the same came to be rejected. 12. Prima facie, from these materials on record, I am of the opinion that there is serious dispute with regard to the identification of the property. Unless the property is identified, it is not just and proper to give a finding with regard to - 8 - HC-KAR NC: 2025:KHC:41320 RSA No. 1167 of 2009 possession of the property, since the plaintiff and defendant are adjacent land owners. 13. Learned counsel for the appellant and the respondent concede that the matter requires to be remanded back to the Trial Court for fresh consideration, in view of the fact that First Appellate Court allowed the application filed under Order 47 Rule 27 of CPC and permitted the plaintiff to produce additional documents but the plaintiff has not identified the schedule property either by producing the sketch or by getting the Commissioner appointed. I do find considerable force in the said submission and I find it just and proper to allow the appeal and to remand the matter for fresh consideration by the Trial Court. Therefore, I do not express any opinion on merits of the case and remand the matter to the Trial Court for fresh consideration. 14. Accordingly, I proceed to pass the following: ORDER (i) The appeal is allowed. - 9 - HC-KAR NC: 2025:KHC:41320 RSA No. 1167 of 2009 (ii) The judgment and decree dated 04.07.2009 passed in RA No.19 of 2002 on the file of the learned Civil Judge (Sr.Dn.) and JMFC, Chintamani, is hereby set aside. (iii) The matter is remanded back to the Trial Court with a direction to provide an opportunity to both the parties to lead evidence and to dispose of the same on merits as expeditiously as possible. Sd/- (M G UMA) JUDGE *bgn/- CT:VS List No.: 3 Sl No.: 1