- 1 - HC-KAR NC: 2025:KHC:32525 RSA No. 1102 of 2025 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.1102 OF 2025 (DEC/INJ) BETWEEN: SRI SHIVAMURTHY SON OF KARI SIDDE GOWDA, AGED ABOUT 65 YEARS, RESIDING AT NO.108, SHIVAMURTHY BLOCK, BELVADI VILLAGE, YELLAVALA HOBLI, MYSURU -571 186 …APPELLANT (BY SRI YUKTHA ANIL FOR SRI H S KUMAR, ADVOCATES) AND: 1. SRI C N NARASIMHA MURTHY SON OF LATE S.K. NAGAPAIAH AGED ABOUT 72 YEARS, RESIDING AT CHILLAKUNDA VILLAGE, HUNSUR TALUK, MYSORE DISTRICT-571 105 SRI. B.S. PRATEEP DEAD BY LRS 2. SMT. BHAGAYA WIFE OF SHIVAMURTHY AGED ABOUT 60 YEARS, RESIDING AT NO.108, SHIVAMURTHY BLOCK, BELVADI VILLAGE, YELLAVALA HOBLI, MYSURU TALUK-571 186 3. NEHA K.S. WIFE OF LATE PRATEEP Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:32525 RSA No. 1102 of 2025 AGED ABOUT 34 YEARS, 4. YANVI PRATEEP DAUGHTER OF LATE PRATEEP AGED ABOUT 10 YEARS, 5. SAHITHI PRATEEP DAUGHTER OF LATE PRATEEP AGED ABOUT 10 YEARS, RESPONDENT NO.4 AND 5 SINCE MINORS, ARE REPRESENTED BY THEIR GUARDIAN MOTHER NEHA.K.S, I.E., RESPONDENT NO.3 RESPONDENT NOS.3 TO 5 ARE RESIDING AT NO.3136, 1ST CROSS, NEAR HEAL FITNESS ZONE, VIJAYANAGAR, MYSURU CITY, MYSURU -570 017 …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 23.04.2025 PASSED IN RA NO.108/2021 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSURU., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 3.03.2021 PASSED IN O.S NO.686/2012 ON THE FILE OF LEARNED II ADDITIONAL CIVIL JUDGE AND JMFC, MYSURU. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:32525 RSA No. 1102 of 2025 CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Ms.Yuktha, learned counsel for appellant. 2. Defendant No.1 is the appellant in this Second Appeal who suffered the decree in O.S No.686/2012 dated 03.03.2021 on the file of the II Addl. II Civil Judge, Mysuru, in respect of immovable property which is a vacant site bearing No.35, Khatha No.22, Assessment No.546 measuring 2 acres 35 guntas situated at Lingadevaru Koppalu Village, Yelwala Hobli, Mysuru Taluk measuring East to West 60 feet and North to South 40 feet bounded on the East by vacant site bearing No. 17, West by vacant space for the civic amenity, North by Road, South by vacant site bearing Nos.34 and 35. 3. In the suit, plaintiff had been declared as the owner of the said property after due contest and defendants were restrained from interfering with the peaceful possession and also defendants were required to demolish the compound wall within period of 3 months from the date of decree and hand over the vacant possession to the plaintiff by mandatory injunction. - 4 - HC-KAR NC: 2025:KHC:32525 RSA No. 1102 of 2025 4. Validity of the said judgment and decree was questioned in RA No.188/2021 on the file of the II Addl. Senior Civil Judge and CJM, Mysuru. 5. Learned Judge in the First Appellate Court, after securing the records, heard the arguments of the parties and on re- appreciation of the legal and factual aspects, dismissed the appeal of the first defendant. 6. Being further aggrieved by the same, first defendant has preferred the present Second Appeal on the following grounds:  The impugned Judgments of the Court below are on an erroneous and illegal appreciation of the evidence available on record, perverse and therefore, liable to be set aside and the suit of the Plaintiff dismissed.  The Court below failed to appreciate that the Sale Deed dated 20.07.1992 purported to be executed by D.J. Arun Kumar in favour of the Plaintiff appears on the face of it be materially altered on the 1st page, and the Site Number and Boundaries on the East, North and South as also the measurements are altered and inserted.  The Courts below have failed to appreciate that Ex. P3 the General Power of Attorney said to have been executed by S.P. Krishnaswamy in favour of D.J. Arun Kumar refers to the boundaries of Site No. 36 and it is - 5 - HC-KAR NC: 2025:KHC:32525 RSA No. 1102 of 2025 evident that in the Sale Deed executed nearly 20 years later, the numbers and boundaries are sought to be tallied by alteration and incorporation.  The Courts below after noticing that certain corrections are there in Ex. P2 and P3 with regard to the description, in light of the specific defense take by the Appellant could not have brushed it aside and said that the same had not been disputed.  In fact, the Written Statement when read clearly indicates that the Plaintiff was trying to claim a portion of the property belonging to the Defendants as the Plaint Schedule property.  The Courts below failed to appreciate that though the Plaintiffs had averred that a layout plan had been prepared the same has been suppressed in order to cover up the misfeasance done by the Plaintiff.  The Courts below could not have come to the conclusion based on Ex. P2 and Ex.P3 that the Plaintiff has proved ownership over the Suit Property when the Defendants had also produced documents to show that they were the owners of a larger extent of 80 feet x 100 feet.  The Courts below failed to appreciate that in Ex. P2 and Ex. P3, the suit schedule property is described as being in Khatha No. 22 and Assessment No. 546. Whilst the documents produced by the Defendants such as Exhibit D2 show that the Old Number was Khatha No. 22 and the New Number was 22/6 and that the Old Assessment - 6 - HC-KAR NC: 2025:KHC:32525 RSA No. 1102 of 2025 No. was 546 and New No. 99. The Courts below erred in coming to the conclusion that the Subject matter of the Power of Attorney Ex.D1 did not cover the property claimed by the Defendants.  The Courts below failed to appreciate that the Sale Deed relied upon by the Plaintiff does not contain the Survey Number out of which the residential sites were carved. The Plaintiff has also sought for permission to put up a house on industrial land, the Courts below failed to appreciate that this document contradicts the theory of the Plaintiff as narrated in the Plaint.  The suit being one for declaration and possession, the burden was on the Plaintiff to prove the location and description of the Suit property ad remove all other doubts regarding his title and not cast burden on the Defendant to disprove it.  The Courts below failed to appreciate that the Plaintiffs claiming a portion of a larger site by giving it a Number has cleverly suppressed the layout plan which if it had been produced would have negated the case of the Plaintiff. On account of the failure of the Plaintiff to produce the layout plan, adverse inference would have to be drawn against him. 7. Following substantial questions of law are raised for consideration: (A) Whether the courts below were justified in declaring the title of the Plaintiff without a Layout Plan being - 7 - HC-KAR NC: 2025:KHC:32525 RSA No. 1102 of 2025 produced to show location and dimensions merely because the Defendant was held as not being able to show where his property was? (B) Whether the courts below were justified in affirming the version of the Plaintiff without appointing a Commissioner and conducting a survey since there was serious dispute as to the location and identity of the suit schedule property? (C) Whether the Courts below have erred by failing to take judicial notice of the fact that there is over-writing and tampering of the Sale Deed (Ex. P2) and Registered Power of Attorney (Ex. P3)? (D) Whether the Courts below have erred in casting burden on the Defendant to prove ownership and title over the suit schedule property? (E) Whether the appreciation of the evidence by the courts below was perverse and liable to be set aside? (F) Whether the courts below have failed to notice that the suit was barred by limitation? 8. Ms. Yukta, learned counsel for the appellant reiterating the grounds urged in the appeal memorandum contended that, both the Courts have not properly appreciated the material evidence on record and wrongly decreed the suit of the plaintiff. - 8 - HC-KAR NC: 2025:KHC:32525 RSA No. 1102 of 2025 9. She also contended that both the Courts failed to consider that the suit was bad for non-joinder of necessary party namely S.P. Krishnaswami, who is the owner and Sri D.G. Arun Kumar, General Power of Attorney Holder. 10. It is also contended by her that both the Courts failed to understand the probative value of the documentary evidence placed on record by the parties and wrongly concluded that plaintiff has established title over the suit property resulting in miscarriage of justice and sought for admitting the appeal on the aforesaid substantial questions of law. 11. This Court perused the material on record meticulously in the light of the arguments put forth on behalf of the appellant. 12. As could be seen from the material on record, plaintiff has laid the claim over the suit property on the basis of the sale deed dated 20.07.1992 and purchased the suit site from the GPA holder of the owner of the land who got converted the agricultural land for non agriculture purpose by the Government Order dated A.L.O 2179/83-84 dated 23.05.1984. - 9 - HC-KAR NC: 2025:KHC:32525 RSA No. 1102 of 2025 13. Thereafter, he was in physical possession and enjoyment of the suit property. But the defendants, who are influential both in muscle and money, high handedly encroached upon the suit property and constructed the compound wall, which resulted in filing the suit. 14. Learned Trial Judge has taken into consideration the sale deed and the documents that has been placed on record and came to the conclusion that the plaintiff has established the title over the suit property. 15. It is also pertinent to note that in the cross-examination of DW-1(appellant), he has specifically admitted that the site purchased by the plaintiff is bearing No.36 and he has seen the documents which has been produced by the plaintiff to established title over the suit property. He has also admitted that the Ex.P-2 is the sale deed which is in his favour. 16. Since there is a categorical admission in the cross- examination of D.W.1 with regard to the title and extent of suit property and defendant having seen the documents filed by the plaintiff and verified its veracity, what was required to be - 10 - HC-KAR NC: 2025:KHC:32525 RSA No. 1102 of 2025 considered by the learned Trial Judge was to the effect that the defendant taking a stand that they had also obtained a power of attorney from the owner viz., Krishnaswami to the extent of 80 feet x 100 feet and the suit property would get telescoped in the said land. 17. 17. To substantiate the said aspect of the matter, the defendant has produced the General Power of Attorney executed by the owner in their favour which is marked at Ex. D-1. 18. In the cross-examination of DW-1, there is a specific admission to the effect that he had been given the General Power of Attorney by the owner only with regard to 5 sites as is mentioned in Ex.D-1. He also admits that, in Ex.D-1 itself, there is measurement of those 5 sites which were sought to be alienated by the first defendant by its original owner. 19. In other words, measurement of the suit property or the details or boundaries of the suit property do not tally with Ex. D-1. Therefore, learned Trial Judge was justified in decreeing the suit of the plaintiff and directing the defendants to demolish - 11 - HC-KAR NC: 2025:KHC:32525 RSA No. 1102 of 2025 the compound wall constructed by the defendants in respect of the suit property. 20. Learned Judge in the First Appellate Court on re- appreciation of the material on record did not find any good ground to interfere with the well reasoned order passed by the learned Trial Judge which is based on the admissions elicited in the cross-examination of the DW-1(appellant). 21. Before this Court, learned counsel for the appellant to buttress her stand and the grounds, placed on record the judgment delivered by the High Court of Judicature Madras in the case of Raja and another vs. Paramanathan and another reported in 2014-2-L.W.301 and wanted to contend that when there is a serious dispute as to the identity of the property, both the Courts ought not to have taken into consideration the question of granting the declaration and mandatory injunction. 22. This Court bestowed its best attention to the legal principles enunciated in the decision relied on by the counsel for appellant. - 12 - HC-KAR NC: 2025:KHC:32525 RSA No. 1102 of 2025 23. In the case on hand, having regard to the categorical admission that the measurements of the sites which are sought to be alienated by the defendant No.1 by virtue of Ex.D-1/ General Power of Attorney executed by the very same vendor of the plaintiff namely S.P. Krishnaswami and the suit site is different from the five sites which are mentioned in Ex.D-1, the principles of law enunciated in the Judgment of Hon'ble High Court of Judicature at Madras in the case of Raja referred to Supra is not applicable to the case on hand. There is no confusion as to identity of suit property and five sites involved in Ex.D.1. 24. Accordingly, none the grounds urged in the appeal memorandum would be sufficient enough to consider the substantial questions of law raised in the appeal, for further consideration. 25. Accordingly, the following: ORDER Appeal is meritless and hereby dismissed. Sd/- (V SRISHANANDA) JUDGE kcm List No.: 1 Sl No.: 72