- 1 - HC-KAR NC: 2025:KHC:32366 RSA No. 844 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 844 OF 2022 (INJ) BETWEEN: SRI. P.T. RAMACHANDRA, AGED ABOUT 70 YEARS, S/O K. THIMMEGOWDA R/AT PARASAIAHNAHUNDI VILLAGE, MANANDAVADI ROAD, MYSURU TALUK AND DISTRICT - 570 023 …APPELLANT (BY SRI. P. NATARAJU, ADVOCATE) AND: B. NARASINGA RAO SINCE DEAD BY LRS 1. SMT. SHANTHA BHAI, AGED ABOUT 73 YEARS, W/O LATE NARASINGA RAO, 2. SRI. YASHWANTH RAO, AGED ABOUT 58 YEARS, S/O LATE NARASINGA RAO, R/AT YADAHALLI VILLAGE, RAYANAKERE POST, JAYAPURA HOBLI, MYSURU TALUK AND DISTRICT - 570008 3. SMT. JAYA BHAI, AGED ABOUT 56 YEARS, W/O LAKSHMAN RAO KUDDAM, D/O LATE NARASINGA RAO, Digitally signed by SWAPNA V Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:32366 RSA No. 844 of 2022 R/AT NO.35, R.P. COLONY, HUNSUR TALUK, MYSURU DISTRICT - 571 105 4. SRI. YOGANANDA RAO, AGED ABOUT 17 YEARS, S/O LATE NARASINGA RAO, R/AT KOTE HUNDI VILLAGE, JAYAPURA HOBLI, RAYAAKERE POST, MYSURU TALUK AND DISTRICT - 570 008. REP. BY MINOR GUARDIAN, RESPONDENT NO.1/MOTHER SHANTHA BAI 5. SRI NAGOJI RAO AGED ABOUT 45 YEARS, S/O LATE NARASINGA RAO, 6. SMT. DHAMAYANTHI, AGED ABOUT 43 YEARS, D/O LATE NARASINGA RAO, 7. SRI. BABU RAO, AGED ABOUT 40 YEARS, S/O LATE NARASINGA RAO, 8. SRI. N. MOHAN RAO, AGED ABOUT 38 YEARS, S/O LATE NARASINGA RAO, 9. SRI. N. SHIVARAJI RAO, AGED ABOUT 36 YEARS, S/O LATE NARASINGA RAO, RESPONDENTS NO. 1 AND 5 TO 9 ARE R/AT NO.5, PARASAIAHNAHUNDI VILLAGE, SRIRAMPURA POST, MYSURU - 570 008. …RESPONDENTS - 3 - HC-KAR NC: 2025:KHC:32366 RSA No. 844 of 2022 THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 23.12.2021 PASSED IN RA.NO.98/2021 ON THE FILE OF THE VI ADDL. DISTRICT AND SPECIAL JUDGE, MYSURU. DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 06.11.2020 PASSED IN O.S.NO.537/2008 ON THE FILE OF THE I ADDL. II CIVIL JUDGE AND JMFC., MYSURU. 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. P.Nataraju, learned counsel for the appellant. 2. Unsuccessful plaintiff is the appellant in this second appeal who had filed a suit for injunction in respect of the immovable property, which is a property bearing Janjar No.46 measuring East to West 44 feet on Southern side, 39 feet on Northern side and South to North 80 feet, (hereinafter referred to as 'the suit property'). Out of which 13x10/44 feet, which is the encroached portion specifically described in schedule 'B' to the plaint. - 4 - HC-KAR NC: 2025:KHC:32366 RSA No. 844 of 2022 3. Suit was numbered as O.S.No.537/2008. Suit on contest came to be dismissed recording the categorical finding that plaintiff failed to prove the lawful possession over the 'B' schedule property to establish that there was an encroachment by the defendants on the 'B' schedule property. 4. Aggrieved by the same, plaintiff filed an appeal in RA.No.98/2021 on the file of VI Additional District and Sessions Judge, Mysuru. Learned Judge in the First Appellate Court, after securing the records, heard the arguments of the parties in detail and on re-appreciation of the factual and legal facts, dismissed the appeal of the plaintiff holding that plaintiff has failed to prove that the defendants have encroached 'B' schedule property nor there was any lawful possession established by the plaintiff over the 'B' schedule property. 5. Being further aggrieved by the same, plaintiff is before this Court in this appeal, on following grounds: - 5 - HC-KAR NC: 2025:KHC:32366 RSA No. 844 of 2022 GROUNDS The judgment and decree passed by the Trial Court and First Appellate Court are contrary to law, facts and evidence on record; The Trial Court and First Appellate Court grossly erred in giving much of weight to the in consistent oral and documentary evidence produced by the respondent ignoring the cogent and consistent oral and documentary evidence produced by the appellant; The Trial Court and First Appellate Court grossly erred in not properly considering Ex.P11 to Ex.P21 produced by the appellant to prove his title and measurement over the suit schedule property; The Trial Court and First Appellate Court failed to notice that the respondent taking the advantage of the earlier decree passed in O.S.No.298/1993 in respect of the property measuring 30"30 trying to encroach the property of the appellant measuring East to West 44 feet and South to North 13 feet; The Trial Court and the First Appellate Court grossly erred in drawing adverse inference against the appellant just because Dw.1 was not cross- examined; - 6 - HC-KAR NC: 2025:KHC:32366 RSA No. 844 of 2022 The judgment and decree passed by the Trial Court and the First Appellate Court are only on assumptions and presumptions and not on the basis of proper appreciation oral and documentary evidence produced by the appellant; The judgment and decree passed by the Trial Court and the First Appellate Court are arbitrary, illegal and other wise opposed to law, facts and probabilities of the case; The appellant seeks leave of this Hon'ble Court to urge additional grounds if any at the time of hearing. 6. In the appeal, following substantial questions of law are raised for consideration: "i. Whether the findings recorded by the Courts below on issue No.1 to 3 are just and proper? ii. Whether the courts below committed an error in law in drawing adverse inference against the appellant just because he has not cross-examined DW.1? iii. Whether the courts below committed an error in law in properly considering the oral and documentary evidence produced by the appellant? - 7 - HC-KAR NC: 2025:KHC:32366 RSA No. 844 of 2022 7. Sri. P. Nataraju, learned counsel for the appellant re-iterating the grounds urged in the appeal memorandum categorically contended that both the Courts have failed to appreciate the oral evidence placed on record by examining the plaintiff as PW.1 and the documentary evidence placed on record vide Exs.P1 to P21 whereby plaintiff has successfully established that there was an encroachment by the defendants in respect of 'B' schedule property. 8. He would further contend that oral evidence of PWs.2 and 3 sufficiently corroborated the oral testimony of PW.1 in establishing the fact that there was an encroachment and photographs produced vide Exs.P1 to P3 and certified copy of the judgment passed in O.S.No.289/1993 and probative value thereof has not been considered by both the Courts in its proper perspective resulting in miscarriage of justice and sought for admitting the appeal on the aforesaid substantial questions of law. - 8 - HC-KAR NC: 2025:KHC:32366 RSA No. 844 of 2022 9. This Court did not deem it fit to issue notice to the respondents in light of the arguments put forward on behalf of the appellant. 10. The grounds urged and the substantial questions of law raised in the appeal memorandum would not merit consideration for the simple reason that the Trial Court did consider the effect of judgment and decree passed in O.S.No.289/1993. In paragraph No.22 of the judgment of the Trial Court, it has specifically assigned the reasons by stating that in respect of site No.64/1 measuring '30x30' feet, and 'A' schedule described in the said suit would go to show that on the eastern side, there was land of Tulasidasappa; on the western side, Manandavadi Road; on the northern side the property of P.T.Ramachandra, who is the plaintiff in the suit and on the southern side, there existed the house of B.Narasinga Rao who was the plaintiff in O.S.No.289/1993. 11. Learned Trial Judge also took into consideration the cross-examination of PW.1 on behalf of the defendants - 9 - HC-KAR NC: 2025:KHC:32366 RSA No. 844 of 2022 in this regard, wherein the plaintiff has categorically admitted that the defendants had filed a suit for permanent injunction and the present plaintiff who suffered a decree, did not challenge the same. 12. PW.1 further admitted that the property is in dilapidated condition which belongs to him and compound wall shown in Ex.D9 belongs to the defendants. Again in the Cross-examination of PW.1 it is elicited that PW.1 has admitted that the defendants have filed the suit against him in respect of 'B' schedule property and the same was decreed and there was no appeal filed by the present plaintiff who was the defendant in the suit filed by the respondent in the present appeal. 13. Under such circumstances, when the plaintiff has suffered an order of injunction, against which, he did not file the appeal, he could not have filed a separate suit again for the relief of permanent injunction to nullify the benefit of the decree of injunction obtained by the respondent in an earlier suit. - 10 - HC-KAR NC: 2025:KHC:32366 RSA No. 844 of 2022 14. Taking note of the same, the learned Judge in the First Appellate Court on re-appreciation, dismissed the appeal of the plaintiff. 15. In view of the above factual aspects, there is no merit in any one of the substantial questions of law even for issuance of notice to the respondent and for further consideration. 16. Accordingly, the following: ORDER Appeal is meritless and hereby dismissed. Sd/- (V SRISHANANDA) JUDGE MKM CT:VS