- 1 - HC-KAR NC: 2026:KHC-D:1043 RSA No. 100813 of 2019 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 28TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR SECOND APPEAL NO. 100813 OF 2019 (POS) BETWEEN: 1. THE EXCISE DEPUTY COMMISSIONER, BAGALKOT DISTRICT, BAGALKOT, SECTOR NO.7, NAVANAGAR, BAGALKOT-587103. 2. THE DEPUTY COMMISSIONER, MINI VIDHANA SOUDHA, NAVANAGAR, BAGALKOT-587103. …APPELLANTS (BY SRI KESHAV REDDY, ADDITIONAL ADVOCATE GENERAL FOR SRI DAYANAND SANGRESHI, HCGP.) AND: SATYADHYANA MADHWACHARYA MALAGI, AGE: ABOUT 62 YEARS, OCC: SECRETARY, R/O. SHRIMAN MADHWARCHARYA INDUSTRIAL TRAINING CENTRE, BADAMI ROAD, SECTOR NO.7, BAGALKOT, PINCODE-587205. …RESPONDENTS (BY SRI H. M. DHARIGOND, ADVOCATE.) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO CALL FOR RECORDS AND ALLOW THE APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE DATED 11.02.2019 PASSED IN R.A.NO.15/2018 BY PRINCIPAL SENIOR CIVIL JUDGE, Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2026:KHC-D:1043 RSA No. 100813 of 2019 BAGALKOT AND THE JUDGMENT AND DECREE DATED 07.04.2018 IN O.S.NO.177/2011 PASSED BY THE ADDITIONAL CIVIL JUDGE AND JMFC, BAGALKOT, IN THE INTEREST OF JUSTICE. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) Heard the arguments of learned counsel for appellants and the learned counsel for respondent. 2. Though this appeal is listed for admission, taken up for disposal with the consent of learned counsels appearing for both the sides as the matter was heard on merits of the case. 3. This Regular Second Appeal is filed by the defendants calling in question the judgment and decree dated 11.02.2019, passed in R.A.No.15/2018, by the Principal Senior Civil Judge, Bagalkote (First Appellate Court), which confirms the judgment and decree dated 07.04.2018, passed in O.S.No.177/2011, by the Additional - 3 - HC-KAR NC: 2026:KHC-D:1043 RSA No. 100813 of 2019 Civil Judge and JMFC, Bagalkote (Trial Court), whereby the suit filed by the plaintiff for possession and mandatory injunction is decreed. 4. For the purpose of convenience and easy reference, ranking of the parties is referred to as per their status before the trial Court. 5. The case of the plaintiff stated in brief is that the Bagalkote Town Development Authority (BTDA) has allotted 02 acres 20 guntas of land in Sector No.7, Navanagar, Bagalkote, to the plaintiff. Further, the said BTDA has allotted 02 acres of land to the 1st defendant Excise Department, which is adjacent to the land of the plaintiff. It is the case of the plaintiff that when the 1st defendant was constructing compound wall, has encroached the property of the plaintiff to the extent of 1810.5 sq.feet and also dug bore well, which is in the land of the plaintiff. Therefore, it is the allegation of plaintiff in the plaint that defendant No.1 had encroached the land of the plaintiff to the extent of - 4 - HC-KAR NC: 2026:KHC-D:1043 RSA No. 100813 of 2019 1810.5 sq.feet. Therefore, the plaintiff has issued legal notice and requested the defendants, but the defendants have not removed the encroachment. Hence, the plaintiff filed a suit for possession and for mandatory injunction. 6. The defendants have admitted that the lands were granted by the BTDA to plaintiff to the extent as pleaded in the plaint but denied the encroachment made by defendant No.1. Defendant No.1 is contending that it has not encroached the land of the plaintiff and in this regard there is no evidence to prove the encroachment. Therefore, prays to dismiss the suit. 7. The Trial Court based on the oral and documentary evidence placed on record by both the sides has decreed the suit for possession and issued mandatory injunction against defendant No.1 to remove encroachment. 8. Defendant No.1 being aggrieved has preferred Regular Appeal before the First Appellate Court and the First Appellate Court has concurred with the finding of fact made - 5 - HC-KAR NC: 2026:KHC-D:1043 RSA No. 100813 of 2019 by the Trial Court. Thus, dismissed the appeal by confirming the judgment and decree of the Trial Court. 9. Being aggrieved by the judgment and decree passed by both the Trial Court and the First Appellate Court, which concurrently held that the defendant had encroached the portion of land of the plaintiff, the defendant has preferred this Regular Second Appeal by raising various grounds and contended that the appeal involves substantial questions of law and thereby prays to entertain the appeal. 10. Upon considering the pleadings of the plaintiff and defendants in the plaint and the written statement, the entire case is based on the facts. Both the Trial Court and the First Appellate Court have concurrently held by appreciating the evidence on record that Ex.P.1 is the copy of notice, by which the plaintiff requested the defendant to remove encroachment, but as per Ex.P.2, the defendant No.1 had given reply admitting encroachment. Further, upon appreciating the evidence Ex.P.3 which is the note - 6 - HC-KAR NC: 2026:KHC-D:1043 RSA No. 100813 of 2019 issued by the defendant BTDA that it is confirmed that the defendant had encroached the property of the plaintiff. 11. Further, upon appointing the Court Commissioner and obtained Commissioner’s report, on a perusal of Court Commissioner’s report at Ex.C.1 and sketches Exs.C.2 and C.3, it is proved that defendant No.1 had encroached the property of the plaintiff. Therefore, both the Trial Court and the First Appellate Court have concurrently held that defendant No.1 had encroached the property to the extent of 1600.55 sq.feet. Therefore, the Trial Court has granted decree and it is confirmed by the First Appellate Court. 12. The plaintiff has led evidence as PW.1 and his pleadings, which substantiated by documentary evidence and Ex.P.1 is the copy of legal notice issued under Section 80 of the CPC requesting the defendant No.1 to remove encroachment, but for which defendant No.1 had replied as per Ex.P.2 that defendant No.1 has issued letter to the PWD department to rectify the error that encroachment is made - 7 - HC-KAR NC: 2026:KHC-D:1043 RSA No. 100813 of 2019 over the land of the plaintiff. Therefore, upon appreciating Ex.P.2 reply to the plaintiff, defendant No.1 had admitted that there was encroachment of the plaintiff’s land and thus requested the PWD department to remove the same. Therefore, in this regard both the Trial Court and the First Appellate Court have correctly appreciated the evidence on record. 13. Ex.P.3 is a note prepared by the BTDA, in which it is observed that since there is long standing dispute between plaintiff and defendant No.1 that defendant No.1 had encroached the property of the plaintiff and constructed compound wall and also dug the bore well and for resolving this problem, necessary steps would be taken. Therefore, from this document it is proved that defendant No.1 had encroached the property of the plaintiff. 14. One of the official is examined as DW.1 and has produced the document Ex.D.1, which is the document that PWD department has handed over possession of the land to - 8 - HC-KAR NC: 2026:KHC-D:1043 RSA No. 100813 of 2019 defendant No.1. Further, during the course of trial in the Trial Court in the suit, a Court Commissioner was appointed and he submitted report as per Ex.C.1 along with sketch as per Ex.C.2 and C.3 that the Court Commissioner has submitted report that defendant No.1 had encroached the property of the plaintiff. 15. The Court Commissioner is examined CW.1. As per the Court Commissioner’s report, defendant No.1 had encroached the property of the plaintiff on triangle area with the 48.50 meters towards east-west and 07 meters towards north-south. Therefore, it is reported that defendant No.1 had encroached 187.5 sq.meters which is 1600.55 sq.feet. Therefore, from all the above discussed evidence and as is well appreciated by the Trial Court and confirmed by the First Appellate Court, there is no perversity found in appreciating the evidence on record by both the Trial Court and the First Appellate Court. - 9 - HC-KAR NC: 2026:KHC-D:1043 RSA No. 100813 of 2019 16. Therefore, both the Trial Court and the First Appellate Court have concurrently held that defendant No.1 has encroached 1600.55 sq.feet land of the plaintiff and this finding of fact on re-appreciating the evidence on record is found to be correct and justifiable one and do not suffer from perversity. Except this, there is no other substantial questions of law involved in the appeal. Therefore, the appeal deserves to be dismissed with costs. Therefore, it is dismissed with costs of Rs.10,000/- (Ten Thousand Rupees only) payable by the defendant Deputy Commissioner for Excise, Bagalkote District, to the plaintiff. 17. In view of disposal of the appeal, pending interlocutory applications, if any, stand disposed of as they do not survive for consideration. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE MRK CT-AN List No.: 1 Sl No.: 28