- 1 - HC-KAR NC: 2025:KHC-K:2952 RSA No. 200182 of 2019 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 9TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO.200182 OF 2019 (INJ) BETWEEN PRABHAKAR RAO S/O DATTATRAYA RAO, ITAGAMPALLI SINCE DECEASED THROUGH HIS LRS., 1. SAMATHA W/O LATE PRABHAKAR RAO ITAGAMPALLI, AGE: 73 YEARS, OCC: AGRICULTURE & HOUSEHOLD, R/O: BEHIND MALAKREDDY HOSPITAL, ANAND NAGAR, COURT ROAD, KALABURAGI – 585 102. 2. PRAVEEN S/O LATE PRABHAKAR RAO ITAGAMPALLI, AGE: 53 YEARS, OCC: AGRICULTURE & BUSINESS, R/O: BEHIND MALAKREDDY HOSPITAL, ANAND NAGAR, COURT ROAD, KALABURAGI – 585 102. 3. PAVAN S/O LATE PRABHAKAR RAO ITAGAMPALLI, AGE: 47 YEARS, OCC: AGRICULTURE & BUSINESS, R/O: BEHIND MALAKREDDY HOSPITAL, ANAND NAGAR, COURT ROAD, KALABURAGI – 585 102. 4. PALLAVI W/O SUBRAMANYA AKALWADI, AGE: 44 YEARS, OCC: TEACHER, R/O: DHARWAD. NOW R/O: AT BEHIND MALAKREDDY HOSPITAL, ANAND NAGAR, COURT ROAD, KALABURAGI – 585 102. Digitally signed by RAMESH MATHAPATI Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC-K:2952 RSA No. 200182 of 2019 5. PRONATHI W/O GOWTAM KAVERI, AGE: 51 YEARS, OCC: DENTIST, R/O: COURT ROAD, KALABURAGI – 585 102. ...APPELLANTS (BY SRI AJAYKUMAR A.K., ADVOCATE) AND 1. SIDRAMAPPA R.WALKERI AGE: 68 YEARS, OCC: EX-MAYOR GULBARGA, R/O: ATTAR COMPOUND GAZIPUR, KALABURAGI, DIST: KALABURAGI – 585 102. 2. GANESH S/O SIDRAMAPPA WALKERI, AGE: 43 YEARS, OCC: EX-CORPORATOR, R/O: ATTAR COMPOUND GAZIPUR, KALABURAGI, DIST: KALABURAGI – 585 102. 3. MALLAMMA W/O SIDRAMAPPA WALKERI, AGE: 63 YEARS, OCC: HOUSEHOLD, R/O: ATTAR COMPOUND GAZIPUR, KALABURAGI, DIST: KALABURAGI – 585 102. 4. ANURADHA W/O JAGADISH WALKERI AGE: 48 YEARS, OCC: HOUSEHOLD, R/O: BHIMANAGAR JAGAT AREA, KALABURAGI, DIST: KALABURAGI – 585 102. 5. JAGADISH S/O BASAWANTHRAO WALKERI AGE: 56 YEARS, OCC: SOCIAL WORK, R/O: BHIMANAGAR JAGAT AREA, KALABURAGI, DIST: KALABURAGI – 585 102. RESPONDENTS (BY SRI DEEPAK V. BARAD, ADVOCATE FOR R2 TO R4; v/o dated 03.07.2024, APPEAL ABATED AGAINST R1 & R5) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO ALLOW THE APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE DATED 28.10.2015 PASSED IN O.S.NO.08/2011 BY THE I-ADDITIONAL CIVIL JUDGE, KALABURAGI AND VIDE JUDGMENT AND DECREE DATED 22.04.2019 PASSED IN R.A.NO.90/2015 BY THE I-ADDITIONAL SENIOR CIVIL JUDGE, KALABURAGI AND CONSEQUENTLY, DECREE THE SUIT OF THE PLAINTIFFS. - 3 - HC-KAR NC: 2025:KHC-K:2952 RSA No. 200182 of 2019 THIS REGULAR SECOND APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI ORAL JUDGMENT Though appeal is listed for admission, with consent of learned counsel for parties, it is taken up for final disposal. 2. Challenging judgment and decree dated 22.04.2019 passed by I-Additional Senior Civil Judge, Kalaburagi, in R.A.no.90/2015 and judgment and decree dated 28.10.2015 passed by I-Additional Civil Judge, Kalaburagi, in O.S.no.8/2011, this appeal is filed. 3. Sri Ajaykumar A.K., learned counsel submitted that appeal was by plaintiffs in suit filed for permanent injunction. In plaint, it was stated that plaintiffs were owners of property bearing Sy.no.38 measuring 25 Acres 23 guntas of Kusnoor village, Taluk and District Kalaburagi, having purchased same under registered sale deed dated 20.09.1972. It was stated, names of plaintiffs were mutated in revenue records. Subsequently, by order dated 07.08.1998 passed by Deputy Commissioner, suit property was converted for non-agricultural - 4 - HC-KAR NC: 2025:KHC-K:2952 RSA No. 200182 of 2019 purposes. When value of land went up as a result of conversion, defendants intended to grab it and therefore, began interfering with plaintiffs’ possession. When interference did not stop despite registration of police complaint, suit was filed. 4. On service of summons, defendants entered appearance and filed written statement denying plaint averments. They claimed to be owners of house property bearing no.122A/1 situated on southern side. When they intended to construct compound around their property, dug trench to lay foundation and collected construction material, plaintiffs filed false complaint and suit. It was stated suit was filed without proper boundary description of suit property. It was contended that suit was filed by plaintiffs without getting their land surveyed. 5. Based on rival contentions, Trial Court framed following issues: a. “Whether the plaintiff proves that, he is in lawful possession of the suit property as on the date of the suit ? b. Whether the plaintiff proves the alleged interference by the defendants? - 5 - HC-KAR NC: 2025:KHC-K:2952 RSA No. 200182 of 2019 c. Whether the plaintiff is entitled for the relief as sought for? d. What order or decree?” 6. Thereafter, plaintiff no.2(b) examined himself as PW.1 and got marked Exs.P1 to P40. In rebuttal, four witnesses were examined as DWs.1 to 4 and got marked documents as Exs.D1 to D24. 7. On consideration, Trial Court answered issues no.1 to 3 in negative and issue no.4 by dismissing suit. 8. Aggrieved plaintiffs filed R.A.no.90/2015 on various contentions. First Appellate Court framed following points for its consideration: a. “Whether the appellants established that they are in possession and enjoyment of the suit property as on the date of suit? b. Whether the appellants established that application filed U/s.151 of CPC for framing additional issue deserve to be allowed? c. Whether the impugned judgment and decree of the Trial Court does call for interference by this court? d. What order or decree?” - 6 - HC-KAR NC: 2025:KHC-K:2952 RSA No. 200182 of 2019 9. By answering points no.1 to 3 in negative, it answered point no.4 by dismissing appeal. 10. Against concurrent erroneous findings, plaintiffs had filed this second appeal. 11. It was contended that dismissal of suit and appeal by Trial Court and first appellate Court respectively were on ground of inconsistencies about extent of land mentioned in sale deed, suit schedule and revenue records. It was submitted, said discrepancy was due to fact that an extent of 29 guntas of pot-kharab was in existence in plaintiffs’ land, but not included in sale deed as well as suit schedule. It was further submitted, plaintiffs had in fact filed application for amendment of plaint before first appellate Court which had allowed said application, but not remanded matter back to Trial Court. Same had given rise to impugned judgment and decree. It was submitted that Trial Court and first appellate Court were having ample powers to mould relief. By same, Trial Court ought to have granted relief insofar as suit property is concerned. Failure would give rise to following substantial questions of law: - 7 - HC-KAR NC: 2025:KHC-K:2952 RSA No. 200182 of 2019 a. “Whether courts below was justified in law in mis- directed itself on mere assumption and presumption while considering the recitals of the register sale deed about phot Kharab land and land sold to the appellants under Ex-P-39? b. Whether courts below was justified in law has failed to consider the well established principles of law that "where the sale deed mentioned the boundaries specifically and clearly to identify the property, the actual extent of the land not being clear, the recitals as to boundaries should prevail"? c. Whether courts below were justified in law has failed to draw presumption in regard to survey records & revenue records, when the said records have attained finality? d. Whether the lower appellate court has committed serious error in not remitting the matter to the trial court, when it has allowed an application for amendment of leading for leading evidence in regard to amended portion?” 12. On above grounds, sought for allowing appeal. 13. Sri Deepak V.Barad, learned counsel for respondents no.2 to 4/defendants no.2 to 4, on other hand opposed appeal. It was submitted that present appeal was against concurrent findings of Trial Court and first appellate Court leaving no scope for interference. It was submitted, there was apparent discrepancy or inconsistencies in measurement of plaintiffs’ land in Ex.P39-sale deed when compared with ROR at Ex.P22, survey sketch map at Ex.P40 and suit schedule. It is - 8 - HC-KAR NC: 2025:KHC-K:2952 RSA No. 200182 of 2019 settled law that plaintiffs would not be entitled for relief in case of improper description of suit property. In any case, findings being proper would not give rise to any substantial question of law and therefore, sought for dismissal of appeal. 14. Heard learned counsel. Perused impugned judgment and decree. 15. This appeal is by unsuccessful plaintiffs in suit for injunction. Main grounds urged are that both Courts proceeded on assumption and presumptions about pot-kharab land while referring to recitals in registered sale deed. Secondly, on ground that, in case of inconsistency between extent mentioned and boundary description, if property is identifiable with boundaries, same would prevail. And both Courts failing to take note of presumption available in respect of revenue entries and finally, about first appellate Court erring in not remanding matter back to Trial Court after allowing application for amendment of plaint. 16. While passing impugned judgment and decree, Trial Court took note of rival pleadings and evidence led. It - 9 - HC-KAR NC: 2025:KHC-K:2952 RSA No. 200182 of 2019 observed, plaintiffs were relying upon Ex.P39 to establish lawful possession over suit property, wherein extent of demised property mentioned was 24 Acres 36 guntas. It observed measurement of Sy.no.38 mentioned in Exs.P3 to P18-RORs was 25 Acres 23 guntas with 29 guntas shown as kharab land. It observed that Ex.P39 did not mention about kharab land. On ground that entry of plaintiffs’ name over 29 guntas of excess land did not have proper basis and as such, plaintiffs could not claim to be in lawful possession, it dismissed suit. 17. First Appellate Court also adverted to rival pleadings and evidence led. On re-appreciation wherein it referred to deposition of PW.1 and admissions elicited from him in light of contents of Ex.P39 and revenue records at Exs.P3 to P18 and noticing inconsistencies about extent, drew adverse inference against plaintiffs for failure to produce title deed of his vendor. Considering same, in light of defendants’ claim that they were owners of adjacent property in possession of plot measuring 150x100 ft., it held plaintiffs had failed to establish possession of entire extent of 25 Acres 23 guntas in Sy.no.38 and proceeded to dismiss appeal. - 10 - HC-KAR NC: 2025:KHC-K:2952 RSA No. 200182 of 2019 18. Above findings would indicate that there is apparent inconsistency insofar as extent of land mentioned in Ex.P39- sale deed, Exs.P3 to P18 RORs and description of suit property in plaint, while defendants who are owners of adjacent land are claiming to be in possession of extent of 150x100 ft. Admittedly, findings impugned herein are given in suit for injunction. In case, plaintiffs apprehends that defendants are laying claim over any extent of plaintiffs’ property, it would always be available for them to file comprehensive suit for declaration of title. Alternatively, in case, defendants interfere with any particular portion of plaintiffs’ property, it would be open for plaintiffs to file fresh suit for injunction by giving proper description of suit property. Since findings arrived at by both Courts are on due appreciation and by assigning proper reasons, though technical, no substantial question of law would arise for consideration. Hence, appeal is dismissed at stage of admission without being admitted, but with above observations. Sd/- (RAVI V HOSMANI) JUDGE NB/List No.: 1 Sl No.: 55, Ct: VK