Karnataka High Court
Sri Laxminarayana G S vs Sri Sudhakara on 19 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:47698
RSA No. 29 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.29 OF 2024 (INJ)
BETWEEN:
1. SRI. LAXMINARAYANA G.S.,
S/O SRI. SHIVAJI RAO,
AGED ABOUT 77 YEARS,
RESIDING AT MARKET ROAD,
SAGARA TOWN-577401,
SHIVAMOGGA DISTRICT.
...APPELLANT
(BY SRI. SHREERAM T. NAYAK, ADVOCATE)
AND:
1. SRI. SUDHAKARA,
S/O GAJANANA RAO,
Digitally signed AGED ABOUT 58 YEARS,
by DEVIKA M
OCCUPATION: TAILOR.
Location: HIGH
COURT OF
KARNATAKA 2. SRI. KIRAN,
S/O GAJANANA RAO,
AGED ABOUT 48 YEARS,
OCCUPATION: TAILOR.
3. SMT. SUDHA BAI,
W/O GAJANANA RAO,
AGED ABOUT 78 YEARS,
OCCUPATION: HOUSE WIFE.
ALL ARE RESIDING AT
OPPOSITE VITOBA TEMPLE,
-2-
NC: 2025:KHC:47698
RSA No. 29 of 2024
HC-KAR
JINGADE TAILOR SHOP,
SAGARA TOWN,
SHIVAMOGGA DISTRICT-577401.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 31.10.2023
PASSED IN R.A.NO.02/2022 ON THE FILE OF ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC, SAGAR, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 2.10.2021 PASSED IN O.S.NO.247/2016 PASSED ON
THE FILE OF PRL. CIVIL JUDGE AND JMFC, SAGAR.
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. Heard the learned counsel for the appellant.
2. This second appeal is filed by the plaintiff against the concurrent finding. The Trial Court granted the relief in respect of only 'B' schedule property is concerned. The relief with regard to restraining the defendants from causing any sort of construction on the northern side of the wall of the plaintiff as alleged, is declined. The same is declined only based on the admission on the part of P.W.1, which has been extracted in paragraph No.16, that the said common wall belongs to the -3- NC: 2025:KHC:47698 RSA No. 29 of 2024 HC-KAR plaintiff and the defendants and the same is located in between the properties of the plaintiff and the defendants and a categorical admission was given that the defendants have constructed the house in their property. The Trial Court taken note of the right which was given to the plaintiff in terms of the partition deed of the year 1967 with regard to the well is concerned and hence granted the relief in respect of the well is concerned, which is morefully described as 'B' schedule property for drawing of water.
3. Being aggrieved by the said order of the Trial Court declining to grant the relief, an appeal is filed before the First Appellate Court. The First Appellate Court also having considered the grounds urged in the appeal memo, formulated the point whether the Trial Court has erred by declining the relief of restraining from causing any sort of construction on the northern side of the wall by the respondents as alleged in the plaint. The First Appellate Court having considered both oral and documentary evidence available on record, re-assessed the same in paragraph No.18 and taken note of the plaintiff is relying upon a complaint which is marked as Ex.P.5, which was -4- NC: 2025:KHC:47698 RSA No. 29 of 2024 HC-KAR made to the Municipality by the plaintiff that defendant Nos.1 and 2 are trying to repair the wall without obtaining the permission from the Municipality. Only on the basis of the complaint which was made by the plaintiff against defendant No.1 and 2 to the Municipality, the Court cannot come to conclusion that the wall exclusively belongs to the plaintiff, as there are no substantial evidence to support the same. Except mere self-serving affidavit of the plaintiff, there are no oral or documentary evidence available on record to substantiate that the wall has been constructed by the plaintiff and it exclusively belongs to him. The First Appellate Court also taken note of the recital of the document Ex.P.1 in paragraph No.20 and also taken note of the evidence of P.W.1 and D.W.1 and comes to the conclusion that the Trial Court has not committed any error in appreciating both oral and documentary evidence and confirmed the judgment of the Trial Court and dismissed the appeal.
4. Being aggrieved by the said concurrent finding, the present second appeal is filed by the appellant/plaintiff contending that the very approach of both the Courts are -5- NC: 2025:KHC:47698 RSA No. 29 of 2024 HC-KAR erroneous and committed an error in holding that the certified copy of the partition deed produced at Ex.P.1 is not in accordance with law and committed an error in considering the building construction permission obtained by the plaintiff has not included the disputed wall. Hence, this Court has to admit the appeal and frame substantial question of law.
5. Having heard the learned counsel for the appellant and also on perusal of the material available on record, particularly the relief claimed in the plaint as well as the evidence available on record, the evidence of P.W.1 and the answer given in the cross-examination, he categorically admits that there is a common wall and the common wall belongs to both of them and both of them are having exclusive right in respect of the common wall is concerned. P.W.1 also categorically admits that the defendants have constructed the house in their property and the same is narrated in paragraph No.16 of the Trial Court judgment and the Trial Court comes to the conclusion that there is no need of much discussion on this aspect and the plaintiff cannot claim that the said wall -6- NC: 2025:KHC:47698 RSA No. 29 of 2024 HC-KAR exclusively belongs to him and the same is a common wall and hence declined to grant the relief.
6. The First Appellate Court also having re-assessed the material available on the record, comes to the conclusion that the Trial Court has not committed any error and particularly taking note of document Ex.P.1 recitals, which is discussed in paragraph No.20 of the judgment of the First Appellate Court. The First Appellate Court also observed that in the present case, no foundation having been laid for the production of certified copy and hence Ex.P.1 cannot be accepted as evidence. Though Ex.P.1 is not having evidentiary value, if it is taken just for the sake of discussion, there is an averment in Ex.P.1 that the party to the partition deed has to build the wall in between the property contributing equally and the same is also admitted by P.W.1 in the cross-examination. When such material is considered by both the Trial Court as well as the First Appellate Court and when the plaintiff is not having any exclusive right in respect of the said common wall, rightly declined to grant the relief and hence, I do not find any ground to admit the appeal and frame any substantial question -7- NC: 2025:KHC:47698 RSA No. 29 of 2024 HC-KAR of law. Both the question of fact and question of law are considered by both the Courts and hence not a case to invoke Section 100 of CPC.
7. In view of the discussions made above, I pass the following:
ORDER The second appeal is dismissed.
Sd/-
(H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 15