- 1 - HC-KAR NC: 2025:KHC-D:14849 RSA No. 5508 of 2009 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 31ST DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI REGULAR SECOND APPEAL NO. 5508 OF 2009 BETWEEN: 1. VIRABHARDA S/O. APPAYYA SHINTRE, SINCE DECEASED BY HIS LR IS ARRAYED AS RESPONDENT NO.3. 2. ANNASAHEB S/O. APPAYYA SHINTRE, AGE: 57 YEARS, , OCC. AGRICULUTRE, R/O. SOUNDALAGA, TQ. CHIKODI, DIST. BELAGAVI. 3. KASHINATH S/O. APPAYYA SHINTRE, AGE: 54 YEARS, , OCC. AGRICULUTRE, R/O. SOUNDALAGA, TQ. CHIKODI, DIST. BELAGAVI. 4. SUBHASH S/O. APPAYYA SHINTRE, AGE: 52 YEARS, , OCC. AGRICULUTRE, R/O. SOUNDALAGA, TQ. CHIKODI, DIST. BELAGAVI. 5. SHIVAPUTRA S/O. APPAYYA SHINTRE, AGE: 49 YEARS, , OCC. AGRICULUTRE, R/O. SOUNDALAGA, TQ. CHIKODI, DIST. BELAGAVI. 6. JAGADISH S/O. BABURAO SHINTRE, SINCE DECEASED REPRESENTED BY HIS LR. 6A. MRS. ROOPALI W/O. ATUL KULKARNI, AGE: 46 YEARS, OCC. HOUSEHOLD, YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Date: 2025.11.04 10:19:31 +0530 - 2 - HC-KAR NC: 2025:KHC-D:14849 RSA No. 5508 of 2009 R/O. SONAGE, TQ. KAGAL, DIST. KOLHAPUR. …APPELLANTS (BY SRI. RAVI S. BALIKAI, ADVOCATE) AND: 1. THE VILLAGE GRAM PANCHAYATH SOUNDALAGA, REPRESENTED BY ITS SECRETARY, TQ. CHIKODI, DIST. BELAGAVI. 2. THE ADHYAKSHA, VILLAGE RAM PACHAYATH, SOUNDALAGA-591234, TQ. CHIKODI, DIST. BELAGAVI. …RESPONDENTS (BY SRI. J.S. SHETTY, ADVOCATE FOR R1 AND R2; R3-NOTICE SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CPC, 1908, PRAYING TO SET ASIDE THE JUDGMENT & DECREE DATED 18/08/2009 PASSED IN R.A.NO.50/2004, ON THE FILE OF THE FAST TRACK COURT-I, CHIKODI AND RESTORE THE JUDGMENT AND DECREE DATED 23.02.2024 PASSED IN O.S.NO.95/2000 PASSED BY THE CIVIL JUDGE (JR.DN.) NIPPANI AND ALLOW THIS APPEAL WITH COSTS, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:14849 RSA No. 5508 of 2009 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE C M JOSHI) Heard the learned counsel appearing for the appellants. Being aggrieved by the divergent findings in O.S.No.95/2000 by the learned Civil Judge, Junior Division, Nippani and R.A.No.50/2004 by the learned District Judge, Fast Track Court-I, Chikkodi. The plaintiffs are before this Court in appeal. 2. The factual matrix that are relevant for the purpose of this appeal is as follows: a) The suit schedule property is a house property and open space bearing V.P.C.No.229 at Soundalaga Village measuring east-west 65 feet and the north-south 50 feet, which includes an open space on the northern side in the form of a strip measuring 17 feet width and 65 feet in length. The said property is bound by a public - 4 - HC-KAR NC: 2025:KHC-D:14849 RSA No. 5508 of 2009 road on east and north and other properties on the remaining sides. b) The plaintiffs/appellants herein contended that they are in possession of the said property including the open space which is described as Schedule-A and the entire property was earlier owned by one Subhash Nanchand Shaha @ Shedaji and Jawahar Nanchand Shaha @ Shedaji and they executed a registered sale deed in favour of the plaintiffs on 06.04.1978. Therefore, plaintiff Nos.1 to 5 being brothers and plaintiff No.6 being nephew, constituted a joint family and they are the owners in title of the property. c) They contended that in the open space measuring 17 feet north south and 65 feet east west, there is a parkatta (tomb) which was constructed by the original vendors in the name of their deceased mother in the year 1845 and the plaque with inscription is affixed. - 5 - HC-KAR NC: 2025:KHC-D:14849 RSA No. 5508 of 2009 d) The defendants being in no way connected to the suit schedule property are attempting to carry out construction unauthorisedly and despite the plaintiffs resisting the same, they continue the illegal acts and therefore, the plaintiffs were constrained to file this suit for injunction. 3. The defendants who are the panchayat and its President appeared before the Trial Court and resisted the suit on the ground that the plaintiffs are not the title holders of the suit schedule property and there is no such parkatta as alleged by the plaintiffs. They contended that the sale deed etc., relied by the plaintiffs are fabricated and the plaintiffs are not entitled for any relief. It is contended that the plaintiffs possessed only a house property of a small extent without any open space and the entire open space abutting their house belongs to the Panchayat, i.e Defendant No.1 and therefore, there is no merit in the suit of the plaintiffs. Inter alia they also contended that the suit is hit by Section 295 of the Karnataka Panchayat Raj Act, - 6 - HC-KAR NC: 2025:KHC-D:14849 RSA No. 5508 of 2009 1993 for non-issuance of prior notice and therefore, the suit be dismissed. 4. On the basis of the pleadings, the following issues and additional issues were framed by the Trial Court. “ISSUES: 1. Whether the plaintiff proves that he is in lawful possession of the suit property? 2. Whether plaintiff proves the alleged interference and illegal act of defendants? 3. Whether defendants proves that suit is not maintainable without prior sanction? 4. What order or decree? ADDITIONAL ISSUES: 1. Whether the plaintiffs prove the title over the suit property? 2. Whether the defendants proved that they are entitle for the compensatory cost as contended in their written statement? 3. Whether suit is maintainable in the present form?” 5. After the trial, the Trial court held issue No.1 and additional issue No.1 in the affirmative and rest of the issues in the negative and proceeded to decree the suit restraining the defendants from interfering with the possession and enjoyment of the suit schedule property - 7 - HC-KAR NC: 2025:KHC-D:14849 RSA No. 5508 of 2009 6. Being aggrieved, the defendants approached the First Appellate Court contending that the Trial Court had not considered their resolutions produced against Ex.D1 to D4. After hearing the parties, the First Appellate Court allowed the appeal and dismissed the suit. Being aggrieved, the plaintiffs are before this Court in appeal. During pendency of this appeal, appellate Nos.1 and 6 died and their legal heirs are brought on record. 7. The learned counsel appearing for the appellants would submit that the First Appellate Court erred in holding that the material evidence on record including the title deed of the property of the plaintiffs was not properly considered by the First Appellate Court. He submitted that at an undisputed point of time i.e., in the year 1978, the plaintiffs had purchased the suit schedule property from their vendor and accordingly, defendant No.1/Panchayat had recorded the sale transaction in their records and the Panchayat Tax Assessment Extract reflected the name of the plaintiffs. It is contended that at the time of such entry in the Panchayat records, no objections were raised regarding the measurement of the property mentioned in the same. It is contended that at certain point of time, due to local political rivalry, the defendants started disputing the ownership - 8 - HC-KAR NC: 2025:KHC-D:14849 RSA No. 5508 of 2009 and title of the plaintiffs over the suit schedule property and started to allot the open space to some third parties. It is contended that the First Appellate Court has not considered the fact that Ex.D1 to D4 which has the resolutions passed by the Panchayat do not mention any property number and the boundaries of such property allotted to one Jagatsingh Balasingh Rajpoot. Therefore, the defendants could not have taken umbrage under Ex.D1 and Ex.D4 in unsettling the well reasoned judgment of the Trial Court. In this regard, he places reliance on the judgment in the case of Balwant Singh and another and another vs. Daulat Singh (dead) by Lrs., and others1. 8. Per contra, the learned counsel for the respondents/ defendants contended that the defendants have disputed the title of plaintiff for the suit schedule property and in pursuance to it, the Trial Court had framed the additional issues in the suit for injunction which could not have been done. He submits that the resolutions of the Panchayat show that in the year 1969 the open space was leased to one Jagatsingh Balasingh Rajpoot and therefore, the plaintiffs could not have claimed any possession 1 (1997) 7 SCC 137 - 9 - HC-KAR NC: 2025:KHC-D:14849 RSA No. 5508 of 2009 over the suit schedule property. It is contended that the Exs.D1 to D4 pertain to the suit schedule property as per the deposition of DW.1 and this material would be sufficient enough to hold that the plaintiffs cannot claim the right, title, or the interest in the suit schedule property. 9. It is his contention that a bare suit for injunction would not be maintainable when the defendant-Panchayat had disputed the title of the suit schedule property. 10. This Court had framed the following substantial question of law on 07.02.2014: “Whether the First Appellate Court has committed a serious error in dismissing the suit by ignoring the material evidence on record in regard to possession of the suit schedule property and thereby the judgment of the First Appellate Court is perverse and capricious?” 11. It is pertinent to note that in a suit for injunction, the material question that arises would be regarding the lawful possession over the property. The plaintiffs had filed a suit for bare injunction based on the title deed which is produced at Ex.P2. The sale deed of the year 1978 clearly mentions that the - 10 - HC-KAR NC: 2025:KHC-D:14849 RSA No. 5508 of 2009 property was purchased by them under the registered deed. When the suit for injunction has been filed, they were justified in placing their reliance regarding title and possession on Ex.P2 and seek the relief. It was the defendants who had for the first time claimed that the plaintiffs do not have the title over the suit schedule property only after they were served with the summons. 12. Learned counsel for the respondents fails to explain as to why the defendants had not raised any objection when the copy of the sale deed was submitted to the respondents while making entries in its records. Under these circumstances, the contention that a bare injunction suit is not maintainable cannot be accepted when the plaintiffs have relied on a registered sale deed in their favour. There is absolutely no material produced on behalf of the respondents to establish that they have any iota of title in respect of the suit schedule property prior to the sale deed at Ex.P2. Therefore, this contention is bereft of any merits. 13. The second aspect to be noted is that the Ex.P2-Sale deed, clearly mention the measurement of the property purchased by the plaintiffs. It mentions the boundaries in clear terms. It also mention that on the northern side of the house - 11 - HC-KAR NC: 2025:KHC-D:14849 RSA No. 5508 of 2009 property, there is a open space and a parkatta. The photographs produced by the plaintiff at Exs.P4 and P5 show that the parkatta exists with inscriptions over it. It is pertinent to note that the Trial Court, basing its reasoning on Ex.P2 and other documents produced by the plaintiff came to the conclusion that the plaintiff is the title holder of the suit schedule property and he is in the possession. It disbelieves the Exs.D1 to D4 on the ground that these resolutions of the Panchayat do not mention the boundaries or the identification mark, number etc., of the property. It also held that the provisions of Sections 295 of the Zilla Panchayat Act do not come in the way of entertaining the suit, since it is a suit for injunction. In this regard, it has placed reliance on a decision in the case reported in AIR 1972 SC 2685. 14. Per contra, the perusal of the judgment of the First Appellate Court would show that it relies upon Exs.D1 to D4- the resolutions passed by the Panchayat. On a careful perusal of Exs.D1 to D4, it is evident that these resolutions are bereft of any property details. It simply mention that infront of the Panchayat office, there is a space of 18 feet x 10 feet and that has been allotted to one Jagatsingh Balasingh Rajpoot. Nothing prevented the Panchayat, which was the possessor of the entire - 12 - HC-KAR NC: 2025:KHC-D:14849 RSA No. 5508 of 2009 records of the Panchayat to mention the Panchayat number. Curiously, the resolutions do not mention the boundaries also. Therefore, a resolution which is devoid of any particulars and specifications cannot be construed to be that they are applicable to the suit property itself. The President of the Panchayat who has been examined as DW1 tries to connect Ex.D1 to D4 to the suit property. But in the absence of any documentary evidence, of which the defendants are in possession, the Court has to draw an adverse inference that though the best evidence was available with the defendants, they did not produce it. The same analogy also applies to their contention that the plaintiff has no title over the suit schedule property. When the defendants are in possession of the entire Panchayat records, nothing prevented them to produce the earlier records of the suit schedule property to show that there was any variation in the measurement. The best evidence which could have been produced by the defendants, has not been produced by them. 15. Therefore, it is evident that the First Appellate Court has clearly erred in deciphering the documents produced by the plaintiff and the probative value of the documents produced by the defendants. Obviously, the resolutions could not have been - 13 - HC-KAR NC: 2025:KHC-D:14849 RSA No. 5508 of 2009 relied by the First Appellate Court in unsettling a well-reasoned judgment of the Trial Court. In view of the ratio laid down by the Hon’ble Supreme Court in the case of Santhosh Hazari V/s Puroshottam Tiwari2, the First Appellate Court has to respect the views of the Trial Court and only if it is perverse and illegal, then only it has to interfere in the judgment of the Trial Court, which has the benefit of seeing the demeanor of the witnesses. Obviously, seeing the demeanor of the witnesses was not available with the First Appellate Court. Hence, the impugned judgment of the First Appellate Court is not sustainable in law. In the result, the substantial question of law raised by this Court is answered in ‘affirmative’. 16. In the light of the above, the appeal is allowed. The judgment of the First Appellate Court is set-aside and the judgment of the Trial Court is confirmed. SD/- (C M JOSHI) JUDGE SSP: Para 1 to 7 RKM: Para 8 to end CT:PA, LIST NO.: 1 SL NO.: 16 2 2001(3) SCC 179