- 1 - HC-KAR NC: 2025:KHC:36542 RSA No. 223 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 223 OF 2020 (POS) BETWEEN: P. PRABHAKAR SHETTY S/O LATE K. RAGHUNATH SHETTY R/AT NO. 5TH CROSS ROAD NODU ROAD, BEJAL MANGALURU - 575 003. …APPELLANT (BY SRI G. B ALAKRISHNA SHASTRY, ADV.) AND: BHUJANGASHETTY S/O. MUNNA SHETTY R/AT NO. BHRAMARI D/NO.1-65/C, PADUPANAMBURU VILLAGE, HALEYNGADY POST MANGALURU TALUK - 574 146. …RESPONDENT (BY SRI K. CHANDRANATH ARIGA, ADV.) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.09.2019 PASSED IN RA NO.145/2017 ON THE FILE OF THE III ADDL.SENIOR CIVIL JUDGE AND ACJM., MANGALURU D.K. (ITINERARY AT MODDABIDARI) DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 08.08.2017 PASSED IN OS NO.140/2012 ON THE FILE OF THE CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, MOODBIDRI. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:36542 RSA No. 223 of 2020 ORAL JUDGMENT 1. Heard Sri G Balakrishna Shastry, learned counsel for the appellant and Sri. K Chandranath Ariga, learned counsel for the respondent. 2. Present second appeal is by the plaintiff challenging the judgment passed by the Trial Court in O.S.No.140/2012, whereby the suit of the plaintiff came to be dismissed confirmed in R.A.No.145/2017. 3. Facts in the nutshell for the disposal of the present appeal are as under: A suit came to be filed in respect of following properties:- "SCHEDULE "A" Description of the property Immovable property situated in Bellairu Village of Mangalore Taluk and comprised in:- Item No. R.S.No. Kissam Extent Remarks A.C. 1. 43-9 Dry 0-30 Whole 2. 43-4A Wet 0-09 Middle western portion" Boundaries of Item No.2:- North : The remaining portion of the same Sy.No. South: S.D. Line of item No.1 East: Approach path way in the same Sy. No. West: S.D. Line of item No.2. - 3 - HC-KAR NC: 2025:KHC:36542 RSA No. 223 of 2020 together with all contents, easementary and mamool rights or way, water, etc. appertaining thereto. SCHEDULE "B" Description of the property Immovable property situated in Bellairu Village of Mangalore Taluk and comprised in:- R.S.No. Kissam Extent Remarks A.C. 43-9 Dry 0-30.75 - Boundaries of Item No.2:- North : Road. South : Portion of the defendant's land. East : Property retained by the plaintiff and property Sold to Venkatesh Pai in Sy.No.43-9. West : Portion of the defendant's land in Padupanambur Village. together with all contents, easementary and mamool rights of way, water, etc. appertaining thereto. 4. The suit is one for decree seeking possession of 'B' schedule property which is part of 'A' schedule property. Plaintiff contended that he is the owner of plaint 'A' and 'B' schedule property, the plaintiff and in 'B' schedule property he had permitted the defendant to occupy the same on the understanding that he would take it on lease. But the defendant did not adhere to the terms of the said oral lease but continued in possession of 'B' schedule property - 4 - HC-KAR NC: 2025:KHC:36542 RSA No. 223 of 2020 unauthorisedly. Thus plaintiff sought for decree of possession of 'B' schedule property. 5. Defendant, pursuant to the suit summons appeared before the Trial Court and filed a written statement. In the written statement, defendant took specific contention that he is not in occupation of 'B' schedule property. 6. Relevant paragraph of the written statement in this regard is at paragraph No.5, which is culled out hereunder for ready reference. "5. It is respectfully submitted that the barbed wire fence of the plaintiff to his property is on the boundary of plaintiff's land. The plaintiff does not have any property touching the property of the defendant. The alleged "B" schedule property does not belong to the plaintiff. It's description is not correct or proper or accurate. In fact the western portion S.No.43/9 is already sold to Sri. Venkatesh Pai and it does not therefore belong to the plaintiff. Any how the defendant is not in possession or enjoyment of the alleged "B" schedule property or any land of the plaintiff and the question of surrendering of possession therefore does not arise. The land claimed by the plaintiff is not productive. It has no income whatsoever and his claim of mesne profits is baseless. The sketch produced by the - 5 - HC-KAR NC: 2025:KHC:36542 RSA No. 223 of 2020 plaintiff is also not correct or proper. The plaintiff has no title over the property claimed." 7. Despite such written statement, the Trial Court framed necessary issues and after adjudication of the suit on merits dismissed the suit. In the appeal filed by plaintiff Learned Judge in the First Appellate Court after re-appreciation on the material on record ignoring the specific plea taken by the defendant mechanically upheld the dismissal of the suit by dismissing the first appeal filed by the plaintiff in R.A.No.145/2017. 8. Being further aggrieved by the same, the plaintiff is before this Court in this second appeal on the following grounds and substantial question of law. GROUNDS • The judgment and decree under appeal is opposed to law, facts and evidence in the case. • The lower appellate Court has failed to consider both oral and documentary evidence in a proper perspective. The lower appellate Court has failed to draw proper inferences from admitted and proved facts and those drawn are erroneous. - 6 - HC-KAR NC: 2025:KHC:36542 RSA No. 223 of 2020 • The title of the plaintiff is established by virtue of the registered partition deed dated 23/03/1961 Ex.D1. Under Ex.D1, the Suit schedule 'A' property and the land purchased by the defendants were allotted to the share of the vendor. Further, the sale deed dated 17/04/1997 Ex.P6 shows that the plaintiff has purchased the A-schedule property from his vendor Venkappa Shetty. When the title of the plaintiff is established the court below ought to have directed the defendant to deliver possession of B-Schedule property which forms part of A-schedule property by virtue of the registered Sale Deed Ex. P6. That suit B- schedule property forms part of Sy.No.43/9 is established by the survey and report made by the Court Commissioner. • Trial Court has simply extracted the plaint averments, the depositions of the plaintiff and defendant and the arguments of the counsels. Thereafter it proceeded to hold that, plaintiff has failed to examine the commissioner and therefore the report of the commissioner cannot be accepted and proceeds to dismiss the suit. The First Appellate Court on the very same reasoning has confirmed the Judgement of the Trial Court. The Judgement and Decree of both the courts below are arbitrary and perverse. • Out of the 30 cents of land owned by the plaintiff in RS No.43/9, 7.70 cents was sold to one Venkatesh Pai by the plaintiff. This aspect was established by - 7 - HC-KAR NC: 2025:KHC:36542 RSA No. 223 of 2020 Ex.P7 Sale Deed dated 05/08/2010. This sale deed described the property sold with the boundary to the West as remaining portion of Sy.No.43/9. Remaining 3 cents in Sy.No.43/9 on the southern portion was given on lease to one Shivananda. The Commissioner has shown as 17.75 cents including 3 cents given to Shvananda on lease and the B-schedule property consisting of 4 cents. Thus, the total extent is 29.25 cents. The Trial Court and First Appellate Court have wrongly come to the conclusion that the plaintiff is in possession of 39 cents in Sy.No.43/9 and thereby erroneously rejected the case of the plaintiff. • A commissioner was appointed by the Trial Court who went to the spot and conducted local investigation. With the help of the surveyor, property of the plaintiff and defendant were identified and demarked. The plaint B-schedule property was also identified. The trial court and the First Appellate Court have erred in failing to appreciate the report of the Commissioner and failing to act upon the report of the commissioner. • There is no dispute that Sy.No.43/9 measures 30 cents which is shown in the partition deed Ex.D1 as belonging to the vendor of the plaintiff and defendants. The eastern boundary of Sy.No.38/1C in Ex.D1 is described as "Venkappa Shetty which is Sy.No.43/9". Similarly, western boundary of Sy.No.49/9 is shown as Sy.No.38/1C is allotted to the vendors of the defendant. Thus, it is an - 8 - HC-KAR NC: 2025:KHC:36542 RSA No. 223 of 2020 established fact that the property of the defendant, Sy.No.38/1C is situated to the west of the property of the plaintiff. • The Courts below and in particular, the trial court have committed serious error in rejecting the report of the commissioner and on the ground that, court commissioner was not examined. Though the defendant filed objections to the report of the commissioner, defendant failed to summon the commissioner and failed to cross-examine the commissioner. Even in the objections filed did not raise any objections as regards the measurement done by the commissioner. The commissioner visited the property in the presence of plaintiff, Advocate for plaintiff, defendant and in the presence of Advocate for defendant measurement was done in the presence of the counsels and parties with reference to the Sale Deed of the party and that of Venkatesh Pai. • The court has rejected the commissioner's report on the ground that, parties on the plaintiff, and plaintiff should have examined the commissioner. This Hon'ble Court in the decision reported in ILR 2008 KARNATAKA 1840 has held that, report of the commissioner forms part of the record and report of the commissioner need not be marked as an Exhibit. This Hon'ble Court further held that commissioner need not be examined to prove the contents of the - 9 - HC-KAR NC: 2025:KHC:36542 RSA No. 223 of 2020 report. It is the duty of the objector to substantiate his objections by examining the commissioner. • Defendant has no property in Bellairu Village. Defendant has not purchased any land in Bellairu Village. Survey line 353 (30+215+108) is the village boundary bifurcating Bellairu and Padupanambaburu villages in the sketch prepared by the surveyor this boundary lines is clearly fixed. In the cross- examination of PW-1 it was elicited that these two villages are touching each other. Defendant has no land in Bellairu village towards east sub-division line 353 is clear from Ex.P23(a) and Ex.P24(a) and Ex.D10 sketches. All the aforesaid 3 documents are one and the same. These sketches Ex.D10 is attached to the conversion order obtained by the defendant. These sketches also show that, defendant do not owned any land in Bellairu Village beyond the village boundary 353 of the two villages. • The fact that, defendant is in possession of only 45 cents in RS No.38/1C is no ground to hold that, B- schedule property from part of RS No.43/9 belongs to the defendant. • The evidence on record clearly establish that B- schedule property is a property owned by the defendant and there is no legal justification for the defendant to continue in possession of the said property owned by the plaintiff. - 10 - HC-KAR NC: 2025:KHC:36542 RSA No. 223 of 2020 SUBSTANTIAL QUESTIONS OF LAW: 1. Whether the courts below have erred in law in holding that, plaintiff has failed to prove that the defendant is in possession of B-schedule property owned by the plaintiff and the said findings of the court below are arbitrary, perverse and illegal and is opposed to the evidence on record Ex.D1 partition deed, Ex.P7 Sale Deed in favour of Venkatesh Pai, Ex.P6 sale deed in favour of the plaintiff, report of the court commissioner and Ex.D10, Ex.P23(a) and Ex.P24(a)? 2. Whether the courts below have erred in ignoring of the court the report of the court commissioner/surveyor and the decision of the court below in this regard is arbitrary and perverse being opposed to the law laid down by this Hon'ble Court in ILR 2008 KAR 1840?" 9. Sri G Balakrishna Shastry, learned counsel for the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that both the Courts have utterly failed to understand the real lis between the parties and wrongly dismissed the suit of the plaintiff and sought for admitting the appeal on the aforesaid substantial questions of law. - 11 - HC-KAR NC: 2025:KHC:36542 RSA No. 223 of 2020 10. Per contra, Sri K Chandranath Ariga, learned counsel for the respondent vehemently contended that when there is a specific plea taken by the defendant that he is not in occupation of the 'B' schedule property, dismissal of the suit by the both the Courts is just and proper and sought for dismissal of appeal. 11. Having heard the arguments on both sides, this Court is of the considered opinion that since there is a specific stand taken by the defendant that he is not in possession of 'B' schedule property, all that the plaintiff is required to do is to go and occupy 'B' schedule property and fence it for his protection. 12. With that liberty for the plaintiff, this Court is of the considered opinion that appeal need not be considered on any other aspects of the matter. 13. Accordingly, the following :- ORDER (i) The appeal stands disposed of with permission for the plaintiff to occupy the 'B' - 12 - HC-KAR NC: 2025:KHC:36542 RSA No. 223 of 2020 schedule property for which the defendant shall not have any objection. (ii) No order as to costs. Sd/- (V SRISHANANDA) JUDGE NMS List No.: 1 Sl No.: 33