- 1 - HC-KAR NC: 2025:KHC:26426 RSA No. 1653 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.1653 OF 2023 (DEC/INJ) BETWEEN: 1. JAYAMMA W/O LATE T. JAVARAIAH AGED ABOUT 62 YEARS R/O KUPPALLI VILLAGE KASABA HOBLI HASSAN TALUK HASSAN-573 201. 2. SANTHOSHA S/O LATE T. JAVARAIAH AGED ABOUT 36 YEARS R/O KUPPALI VILLAGE KASABA HOBLI HASSAN TALUK HASSAN-573 201. …APPELLANTS (BY SRI. GIRISH B. BALADARE, ADVOCATE) AND: 1. J. NALINAKSHI SINCE DEAD BY HER LRS. RAGHU M, S/O MAHADEVU AGED ABOUT 41 YEARS R/O HOUSE NO.572, SHRI RAMA MANDIRA Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:26426 RSA No. 1653 of 2023 VAKKALAGERI NANGANGUD TOWN MYSURU DISTRICT-570 001. 2. NANDAN R, S/O RAGHU M, AGED ABOUT 10 YEARS R/O HOUSE NO.572 SHRI RAMA MANDIRA VAKKALAGERI NANGANGUD TOWN MYSURU DISTRICT-570 001. 3. GAGAN R, S/O RAGHU M, AGED ABOUT 8 YEARS R/O HOUSE NO.572 SHRI RAMA MANDIRA VAKKALAGERI NANGANGUD TOWN MYSURU DISTRICT-570 001. RESPONDENTS NO.2 AND 3 ARE MINORS, REPRESENTED BY THEIR FATHER AND NATURAL GUARDIAN - RAGHU M, (RESPONDENT NO.1). …RESPONDENTS (BY SRI. DEEPAK M., ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 17.08.2022 PASSED IN R.A.NO.87/2016 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC AT HASSAN, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 19.08.2016 PASSED IN O.S.NO.482/2012 ON THE FILE OF IIND ADDITIONAL CIVIL JUDGE AND JMFC, HASSAN. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:26426 RSA No. 1653 of 2023 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission and I have heard learned counsel for the appellants and learned counsel for the respondents. This appeal is filed against concurrent finding. 2. The factual matrix of case of the plaintiff before the Trial Court is that suit schedule property belongs to Grama Panchayath i.e., Kandali Grama Panchayath. The said Panchayath acquired the land bearing Sy.Nos.42 and 43 situated at Doddamandignahalli and thereafter, by laying plots in the said land, distributed the said plots to the people. In the said distribution of plots, plaintiff’s father late Javarayya purchased plot bearing No.3 from the Panchayath under a registered sale deed dated 12.08.1972. Thereafter, the father of the plaintiff late Javarayya came into possession of the said plot and mutated his name in respect of the said plot in the revenue records. The measurement of the property is 60 x 82 feet. The plaintiff is the third daughter of late Javarayya. The late Javarayya, father of the plaintiff gifted out the said property to the extent of East-West 30 feet and North-South 82 - 4 - HC-KAR NC: 2025:KHC:26426 RSA No. 1653 of 2023 feet in the plot no. 3 i.e., the suit schedule property. The said suit schedule property is gifted to the plaintiff by her father on 26.06.2004 by way of a registered gift deed. From the date of the gift, she is in possession and enjoyment of the suit property and paying tax to the concerned department. This being the fact, the defendant without having any right title and interest over the suit schedule property, taking undue advantage that plaintiff is residing in Halebeedu, trespassing the suit schedule property started construction of residential house. When the same is objected by the plaintiff, the defendant No.1 stated that she is the second wife of Javarayya and defendant No.2 stated that he is the son of late Javarayya. Thereafter, the plaintiff registered the FIR against the defendants and filed the suit in O.S.No.312/2011 for the relief of permanent injunction and thereafter, plaintiff withdrew the earlier suit and filed on that ground of technicality and filed the present suit against the defendants. 3. The defendant No.2 appeared and filed the written statement partly admitting the contention of the plaintiff. It is admitted fact that late Javarayya purchased the said Plot No.3 - 5 - HC-KAR NC: 2025:KHC:26426 RSA No. 1653 of 2023 out of land bearing Sy.Nos.42 and 43 to the extent of East- West 60 feet and North-South 82 feet under a registered sale deed. It is contended that late Javarayya is the husband of defendant No.1 and father of defendant No.2. Therefore, they are also entitled for equal right and share in the suit property. Further, defendant contends that the gift deed executed by late Javarayya in favour of the plaintiff in respect of suit schedule property on 26.06.2004 is not binding on these defendants. Further, defendants contend that late Javarayya is not having right to gift the suit schedule property in favour of plaintiff. It is also the contention that said Javarayya was having two wives i.e. mother of plaintiff and this defendant No.1. Late Javarayya during his lifetime had portioned equally all his properties including suit schedule property between first wife and second wife. It is the contention of defendants that late Javarayya partitioned Plot No.3 equally between first wife Nanjamma and second wife Jayamma i.e. defendant No.1. The said plot is divided into two parts measuring 30 x 82 and one is allotted to the first wife and second part is allotted to defendants No.1. The said partition effected before the Panchas in the year 2005. Accordingly, possession of the said properties is also handed - 6 - HC-KAR NC: 2025:KHC:26426 RSA No. 1653 of 2023 over to the respective parties. Thereafter, the defendants are in possession of the suit schedule property from the date of partition. 4. The Trial Court having considered the pleadings of the plaintiff and defendants, framed the issues whether the plaintiff is the absolute owner of the suit schedule property, whether the plaintiff is in possession and enjoyment of the suit schedule property, whether the defendants constructed their building illegally in the suit schedule property and whether the plaintiff is entitled for the mandatory injunction. 5. In order substantiate her case, the plaintiff examined herself as P.W.1 and got marked the documents as Exs.P1 to P14 and examined one witness as P.W.2. On the other hand, defendant No.1 examined herself as D.W.1 and also examined two witnesses as D.Ws.2 and 3 and got marked the documents as Exs.D1 to D4. 6. The Trial Court having considered the documents which are placed on record, particularly the documents of Encumbrance Certificate, Tax paid receipt, Katha Extract - 7 - HC-KAR NC: 2025:KHC:26426 RSA No. 1653 of 2023 Certified copy of order sheet in C.C.No.157/2011, order sheet in O.S.No.310/2011, Sale Certificate, Gift deed and photos have been produced to show that the defendants have illegally constructed the building. The Trial Court having considered these documents comes to the conclusion that there was a gift in favour of the plaintiff and the Sale Certificate issued earlier in respect of the property purchased by Javarayya was taken note of and though D.Ws.1 to 3 have been examined on behalf of the defendants and produced the documents of Patta Receipt Book, RTC extract and deposition of witnesses P.Ws.1 to 9 in C.C.No.157/2011, comes to the conclusion that plaintiff has established the case for the relief of declaration and also proved the factum of possession and document which has been relied upon by the defendants i.e., depositions in criminal case, evaluated the same and the fact that Javarayya died in the year 2014 was also admitted by the defendants and according to D.W.2 the suit schedule property is self-acquired of late Javarayya. When the property belongs to Javarayya and he had executed a gift deed and to that effect, documents are also produced before the Court, when such being the case, the very contention of the defendant that he was not having any - 8 - HC-KAR NC: 2025:KHC:26426 RSA No. 1653 of 2023 exclusive right cannot be accepted, once the property is a self- acquired property of late Javarayya. Though, it is contented that it was divided in two portions, half of the portion was given to the defendants is not established by placing any document before the Trial Court. Hence, the Trial Court decreed the suit and granted the relief of permanent injunction and directed to remove the constructions made by the defendants which has been established by producing the documents Exs.P11 and 13. 7. Being aggrieved by the said judgment, an appeal is filed before the First Appellate Court. The First Appellate Court also having considered the grounds which have been urged and also the arguments canvassed before the First Appellate Court, framed the points for consideration whether the Trial Court committed an error in granting the relief, whether Trial Court was justified in decreeing the suit declaring the plaintiff as absolute owner and also whether the Trial Court committed an error in granting mandatory injunction. Having reassessed the material available on record, particularly taking note of the very defence taken in the written statement, in paragraph No.25 made an observation that defendants have constructed a house - 9 - HC-KAR NC: 2025:KHC:26426 RSA No. 1653 of 2023 in the suit schedule property without there being any exclusive right over the same. Under the circumstances, the construction of house being constructed by defendants in suit property is held to be illegal and without having any right and title over the suit property and in order to prove that they were having right, nothing is placed on record and though contend that the same is already divided by Javarayya in favour of the defendant and 50% was given, nothing is placed on record and hence, taking into note of material available on record, the First Appellate Court also confirmed the judgment of the Trial Court. 8. 8. Now the main contention of learned counsel for the appellants before this Court is that in the criminal proceedings there was an admission and both the Courts failed to take note of the evidence of D.Ws.1 to 3 and also the documents Exs.D1 to D4 and also would contend that specific contention was taken that there was a partition of the scheduled property equally among defendant No.1 and plaintiff’s mother and the same was also not considered by the Trial Court as well as the First Appellate Court. The counsel also vehemently contend that there was a partition and both Courts failed to consider - 10 - HC-KAR NC: 2025:KHC:26426 RSA No. 1653 of 2023 relevancy of Section 40 of the Indian Evidence Act. Hence, it requires reconsideration by admitting this second appeal and framing substantial question of law. 9. Per contra, learned counsel for the respondents would vehemently contend that the Trial Court and the First Appellate Court having considered the material available on record particularly, the documents which have been produced before the Court and though contend that there was a partition and half portion was given to the defendant, nothing is placed on record and the same has been considered and there is a concurrent finding, that too based on the material available on record. Hence, it does not require interference of this Court and no ground is made out to admit and frame substantial question of law. 10. Having heard learned counsel for the appellants and learned counsel for the respondents, even appellants also not dispute the fact that property belongs to Javarayya, who had purchased the same from the Panchayath and Sale Certificate is also produced before the Court. Apart from that, gift deed executed by Javarayya in favour of the plaintiff is also produced - 11 - HC-KAR NC: 2025:KHC:26426 RSA No. 1653 of 2023 as Ex.P8. It has to be noted that gift deed executed by Javarayya in favour of the plaintiff was not challenged and only contention was taken that they are the son of second wife and said Javarayya and in order to substantiate that dividing of the same in two parts i.e., 30 x 82, nothing is placed on record and only relies upon the deposition of witnesses i.e., P.Ws.1 to 9 in C.C.No.157/2011 and the same cannot be a material to consider in a civil suit to decide the issue between the parties and apart from that, no documents are placed before the Court, even with regard to the division is concerned. Though taken the defence that the same was divided during the lifetime of Javarayya, no such material is placed before the Court. When such material is available on the record, I do not find any error committed by the Trial Court and First Appellate Court in appreciating the material available on record, particularly the documents of Exs.P7 and P8 i.e., Sale Certificate and gift deed that Javarayya was the absolute owner of the property and during his lifetime, he had executed document of Ex.P8. Hence, I do not find any ground to admit and frame any substantial question of law. - 12 - HC-KAR NC: 2025:KHC:26426 RSA No. 1653 of 2023 11. In view of the discussion made above, I pass the following: ORDER The regular second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 53