Karnataka High Court
Sanjeeva Kulala vs Sri. Umakanth Kamath on 13 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:46323
RSA No. 396 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 396 OF 2024 (POS)
BETWEEN:
1. SANJEEVA KULALA,
AGED ABOUT 52 YEARS,
2. BHASKAR KULAL,
AGED ABOUT 50 YEARS,
3. KUSUMA KULAL,
AGED ABOUT 47 YEARS,
4. SUDHAKAR KULAL,
AGED ABOUT 45 YEARS,
ALL ARE CHILDREN OF
LATE PADDU HANDTHI,
R/AT NO. 38, KALATHUR VILLAGE,
SANTHEKATTE POST, BRAHMAVARA TALUK,
Digitally UDUPI DISTRICT - 576213.
signed by C ...APPELLANTS
HONNUR
(BY SRI PRASAD HEGDE K B, ADVOCATE)
SAB
Location: AND:
HIGH
COURT OF SRI UMAKANTH KAMATH,
KARNATAKA AGED ABOUT 60 YEARS,
S/O A VAMANA KAMATH,
R/AT NO. 38, KALATHUR VILLAGE,
SANTHEKATTE POST,
UDUPI DISTRICT - 576105.
...RESPONDENT
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NC: 2025:KHC:46323
RSA No. 396 of 2024
HC-KAR
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 13.10.2023
PASSED IN RA.No.51/2022 ON THE FILE OF THE ADDITIONAL
SENOR CIVIL JUDGE AND ACJM, UDUPI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 16.11.2022 PASSED IN OS No.1/2015 ON THE FILE OF
THE PRINCIPAL CIVIL JUDGE AND JMFC, UDUPI.
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. I have heard the counsel appearing for the appellants. This second appeal is also filed against the concurrent finding.
2. The factual matrix of the case of the plaintiff before the Trial Court is that, late Paddu Handthi and the defendants have been in possession and enjoyment of the land bearing Survey No.38/16. The specific case of the plaintiff before the Court is that, item Nos.1 and 2 of plaint 'A' schedule properties and other properties were granted on occupancy right to A. Vamana Kamath who is the father of the plaintiff. He has executed a registered settlement deed dated 02.08.2007 in favour of the plaintiff pertaining -3- NC: 2025:KHC:46323 RSA No. 396 of 2024 HC-KAR to plaint 'A' schedule properties and other properties. The plaintiff purchased item No.3 of plaint 'A' schedule property from Sanjeeva Kamat and Vrinda Kamanth through a registered sale deed dated 08.11.2003. Since the date of acquisition by the plaintiff, he has been in actual possession and enjoyment of the plaint 'A' schedule property.
3. It is contended that the portion of survey No.38/16 of Kalathur village measuring 1.75 acres and 25 cents, now bearing Survey No.38/31 (1.15 acres) and Survey No.38/32 (85 cents), situated immediately next to item No.1 of the plaint 'A' schedule properties belongs to the defendants who are the children of late Paddu Handa and Linga Handa.
4. It is further contended that, taking undue advantage of the non availability of a boundary wall or fence which separates the defendants properties and item No.1 of the plaint 'A' schedule property, the defendants started raising boundary disputes in the -4- NC: 2025:KHC:46323 RSA No. 396 of 2024 HC-KAR year 2013 and scheming to trespass into a portion of the said item No.1 of plaint 'A' schedule properties. Therefore, the plaintiff filed an application before the Survey department for measurement of item No.1 of plaint 'A' schedule properties. After knowing about the visit of Surveyor, the defendants, with the help of their henchmen, trespassed into the portion of item No.1 of the plaint 'A' schedule property on 01.12.2014 by using old fencing materials and forcibly started erecting a sort of fence separating the plaint 'B' schedule property from the remaining portion of item No.1 of plaint 'A' schedule properties.
5. It is also contended that on the basis of application, the Surveyor appointed by the Survey department visited the Plaint 'A' schedule properties on 02.12.2014, fixed the boundary marks of the plaint 'A' schedule property and made it clear to the defendants that they had in fact trespassed into the plaint 'B' scheduled properties. In spite of repeated requests, the -5- NC: 2025:KHC:46323 RSA No. 396 of 2024 HC-KAR defendants refused to stop erecting the fence. Hence, plaintiff gave a petition to the jurisdiction police. But the police declined to interfere in the matter, since it is a civil matter. Thereafter, the defendants also threatened to trespass into item Nos.2 and 3 of the plaint 'A' schedule property and also the remaining portion of item No.1. Since the defendants claim possession of those properties or claim any right over the same, prayed to grant the relief.
6. The defendants in the written statement contend that they have been in possession to the extent of 3.40 acres from time immemorial, continuously, peacefully without any interference by any person. In the Hadbust sketch of the Tahsildar clearly shows that the defendants have been in possession and enjoyment of 3.40 acres of land in Survey No.38/16. In the said sketch, to the south-western side of the above property, Survey No.38/25 measuring 18 cents is situated, -6- NC: 2025:KHC:46323 RSA No. 396 of 2024 HC-KAR which is also in the exclusive possession and enjoyment of the defendants from time immemorial.
7. From the sketch and topography of the land, it is clear that no person can enter Survey No.38/16 measuring 3.40 acres and Survey No.38/25 measuring 18 cents, as there are clear boundaries. Between the mud dhare with fence and remaining portion of the said survey number, in the eastern side to bifurcate the property of the plaintiff, there exists a tar road called Nalkuru, Muddoor road. To the eastern side of the said road, the property of the plaintiff exists, and hence, the defendants contend that they are in exclusive possession from time immemorial and pray the Court to dismiss the suit.
8. The Trial Court considering the pleadings of the parties, framed the issues with regard to the claim made by the plaintiff and also issues with regard to the defendants that they have been in possession and enjoyment of 3.40 acres of land. The Trial Court considering the material on record, answered the -7- NC: 2025:KHC:46323 RSA No. 396 of 2024 HC-KAR issue Nos.1 and 2 finding that defendants had trespassed into the plaint 'B' schedule properties, and answered issue No.3 in the negative and answered the other issues in the affirmative, came to the conclusion that, based on the evidence of PW-1 discussed in paragraph No.20 and also the evidence of DW-1 to 5 discussed the same in paragraph No.1 to 26, and particularly in paragraph No.32, came to the conclusion that defendants are in possession of the 'B' schedule property along with granted land of 2 acres to their mother Paddu Handthi. However, since the defendants failed to produce any piece of document to show their possession of the Plaint 'B' schedule property, the Court granted the relief, ordering them to surrender the Plaint 'B' scheduled property by removing the fence erected by them within three months.
9. The judgment was challenged before the Appellate Court and the Appellate Court also having considered the grounds urged in the appeal -8- NC: 2025:KHC:46323 RSA No. 396 of 2024 HC-KAR memo, formulated the point, whether the Trial Court considered both oral and documentary evidence in a proper perspective and whether the finding requires interference from this Court. The First Appellant Court, having re-assessed the material on record particularly the cross-examination which has been narrated in paragraph No.17 in respect of PW-1 has also taken note of the admission on the part of DW-1 that Surveyor issued notice to him before conducting the survey. It is also the specific case of the plaintiff that they put up a fence in the year 2013 and immediately when they came to know about the encroachment of 'B' schedule property, they approached the police and lodged a complaint. The First Appellate Court in paragraph No.19, came to the conclusion that when the attempt was made, they approached the police. Further, In the cross examination, DW-1 also admitted that they did not erect a new fence but they only repaired the existing fence. A copy of the endorsement Ex.P-25 was -9- NC: 2025:KHC:46323 RSA No. 396 of 2024 HC-KAR also marked with regard to the encroachment is concerned. The recitals of Exs.P23 to 25 clearly show that the appellants were interfering with the possession, and hence, Appellate Court confirmed the judgment of the Trial Court.
10. Being aggrieved by the concurrent finding, the present second appeal is filed before this Court. The counsel appearing for the appellants vehemently contends that the plaintiff cannot ask any mandatory injunction without seeking the relief of possession of the land, which is admittedly with the defendants. The counsel further contends that the direction given by the Trial Court to surrender the possession of the 'B' schedule property cannot be granted without seeking the relief of declaration and mandatory injunction. The counsel also vehemently contends that the Courts below erred in not framing proper and necessary issues based on the pleadings. Hence, this Court has to admit and frame the substantial questions of law.
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NC: 2025:KHC:46323 RSA No. 396 of 2024 HC-KAR
11. Having heard the appellants counsel and also perused the pleadings of the plaintiff and defendants which have been narrated above. It is the specific case of the plaintiff that defendants had encroached the property. The property was surveyed, and a notice was also issued. It is also the claim of the defendants that they are in possession to the extent of 3.46 acres of Kalathuru village.
12. It is the specific case of the plaintiff that when the surveyor visited and surveyed the land, particularly on 02.12.2014, an attempt was made to trespass into the plaint 'B' schedule property. Despite requests, the defendants did not stop the same. In this regard, a police complaint was given, and police replied by directing them to go to the civil Court, as the dispute was civil in nature. Considering the material available on record, particularly the hadubast sketch Ex.P22 and also the endorsement issued by the police Ex.P25 when the complaint was lodged with regard to the trespassing of
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NC: 2025:KHC:46323 RSA No. 396 of 2024 HC-KAR the property, the Trial Court took note of the admission on the part of DW-1 to 5 also wherein, they categorically admitted that they are in excess possession of the property, as the property allotted to them was only to the extent of 2 acres, but they claim 3.40 cents of the land. When such material was considered by the Trial Court in paragraph No.20, the evidence of PW-1 and also the evidence of witnesses DW-1 to 5 in paragraph No.21, 22, 23, 24, 25 and it also took note of cross examination of each witness. It came to the conclusion in paragraph No.30, 31 and 32 that the extent of land allotted is only to the extent of 2 acres to their mother Paddu Handthi but they failed to produce any piece of document to show their possession in the plaint 'B' schedule property, and considering the documents placed before it particularly the complaint, the Trial Court came to the conclusion that defendants have to surrender the possession.
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NC: 2025:KHC:46323 RSA No. 396 of 2024 HC-KAR
13. Now the contention of the appellants counsel that without seeking the relief of declaration, suit for mandatory injunction cannot be maintainable. The said contention also cannot be accepted since the defendants are not claiming any right in respect of the property which the plaintiff has sought and the claim of the plaintiff that the said property belongs to them. When such being the case, since the defendants not disputing the title of the plaintiff but only claim that they are in possession, and in order to substantiate the same, nothing is placed on record.
14. On the other hand, plaintiff placed the documents before the Court, particularly document Ex.P22 hadubast apart from that Ex.P25 endorsement issued by the police when the attempt was made to trespass the property of the plaintiff. The documents Exs.P23, 24 also disclose that the plaintiff has opposed the claim. When such being the case, I do not find any ground to admit and frame substantial questions
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NC: 2025:KHC:46323 RSA No. 396 of 2024 HC-KAR of law. There is no perversity in the finding of both the Trial Court as well as the First Appellant Court in appreciating both oral and documentary evidence. Hence, the question of invoking Section 100 of CPC does not arise. Since both questions of fact and questions of law were considered by the Trial Court and the Appellate Court, there is no ground to admit and frame the substantial questions of law.
15. In view of the discussions made above, I pass the following;
ORDER
i) The Regular Second appeal is dismissed.
Sd/-
(H.P.SANDESH) JUDGE CHS List No.: 1 Sl No.: 35 ...