- 1 - HC-KAR NC: 2025:KHC:53222 RSA No. 1655 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.1655 OF 2025 (INJ) BETWEEN: 1. SRI. S.A. WAMIQ BEIG S/O. LATE B.S. AMIR BEIG AGED ABOUT 75 YEARS R/O 3RD CROSS, CLERKPET SHIVAMOGGA – 577 202. …APPELLANT (BY SRI. SHRAVAN S. LOKRE, SENIOR COUNSEL FOR SRI. SHRAVAN S. LOKRE, ADVOCATE) AND: 1. SRI. SRINIVAS S/O. VELU PILLAI AGE: MAJOR R/O TIPPUNAGAR K.K. COMPLEX FRONT ROAD TUNGA CHANNEL LEFT BEHIND JANATHA QUARTERS SHIVAMOGGA – 577 201. …RESPONDENT THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 21.07.2025, PASSED IN R.A.NO.48/2023 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, SHIVAMOGGA, DISMISSING THE APPEAL AND COMFIRMING THE JUDGMENT AND DECREE DATED 21.04.2023 PASSED IN O.S.NO.661/2017 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, SHIVAMOGGA. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:53222 RSA No. 1655 of 2025 THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission and I have heard learned counsel for the appellant. 2. This second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court, wherein the relief of possession and mandatory injunction is sought for demolishing illegal structure put up on the suit property and also for mean profits based on the sale deed dated 16.01.1987. 3. It is the averment of the plaintiff that after purchase of the property, plaintiff formed private revenue layout making sites in the said property and also sold some of the sites to different persons. Earlier, road was proposed to be made immediate to the west of Tunga channel after providing 30 feet for the same. Later, the said plan was abandoned and road was formed in between 2 lanes of Site Nos.31 to 50 on one side and Site Nos.51 to 67 on the other side. In view of the later development at the spot of forming the road in between 2 - 3 - HC-KAR NC: 2025:KHC:53222 RSA No. 1655 of 2025 lanes, there remained strip of land in the survey number and that belongs to plaintiff. But even now, khatha of the property purchased by the plaintiff stands in his name and sites which are not sold out are in his ownership. In April 2017, when survey was conducted, it is found that defendant is in illegal occupation of one of the sites belonging to plaintiff and he constructed structure therein. Inspite of warning, defendant did not vacate the property. Hence, filed the suit. 4. The defendant was duly served and unrepresented. To prove his case, the plaintiff examined his GPA holder as P.W.1 and got marked the documents as Exs.P1 to P7. The documents which have been relied upon are Special Power of Attorney, Certified Copy of Sale Deed, Legal Notice, Postal Acknowledgement, RTC and Layout Sketch. The Trial Court did not accept these documents on the ground that very identity of the property is in dispute and sketch cannot be relied upon, since the same is not an authenticated document and in detail discussed the same in paragraph No.9 of the judgment of the Trial Court and dismissed the suit. - 4 - HC-KAR NC: 2025:KHC:53222 RSA No. 1655 of 2025 5. Being aggrieved by the same, an appeal is filed in R.A.No.48/2023. The First Appellate Court also having considered the grounds urged in the appeal memo, formulated to the point whether the plaintiff established illegal possession of the defendant over the suit schedule property. The First Appellate Court also having reassessed the material, particularly taking note of document of sale deed Ex.P2 dated 16.01.1997 purchased by him from its previous owner, wherein the last page of the sale deed shows that he has purchased 1 acre 27 guntas as remaining land has been acquired for Tunga channel. Ex.P3 shows that plaintiff gave legal notice to vacate the suit schedule property. Ex.P4 shows that it has been served on the defendant. Ex.P5 RTC shows that the total extent of the suit schedule survey number shows that 7 guntas is in the name of plaintiff and remaining extent is in the name of several persons. Considering all these documents, particularly, Ex.P6- sketch prepared by the Private retired Survey Superintendent, Shivamogga, the same was not taken note of and particularly comes to the conclusion that Exs.P6 and P7 are not prepared by competent authority. The plaintiff has not chosen to produce relevant documents to show that after purchase of revenue - 5 - HC-KAR NC: 2025:KHC:53222 RSA No. 1655 of 2025 land, he has formed the revenue layout and sold some of the sites in favour of the several persons and identity of the property is not proved. Hence, confirmed the judgment of the Trial Court. 6. Learned counsel for the appellant would vehemently contend that both the Courts have committed an error that even though defendant has not contested the matter, not considered both oral and documentary evidence in a proper perspective. The counsel also would vehemently contend that both the Courts below failed to take note of the fact that when the relief is sought for mandatory injunction along with decree of possession, ought to have granted the same. 7. Having considered this ground which has been urged, when the property is not identifiable and also when the sites are formed and some of the sites are sold and some of the sites have remained unsold, the plaintiff ought to have proved the very existence and identification of the property and the same has not been proved. Hence, the documents which have been relied are also not the authenticated documents issued by the competent authority and therefore, I do not find any - 6 - HC-KAR NC: 2025:KHC:53222 RSA No. 1655 of 2025 ground to admit the second appeal and frame any substantial question of law. 8. At this juncture, learned counsel for the appellant would submit that liberty may be granted to file a comprehensive suit to prove the identity of the property. Hence, liberty is given to file a suit for comprehensive relief of declaration and other consequential relief, in order to prove the identity of the property. With these observations, the regular second appeal is disposed of. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 52