Karnataka High Court
Smt Munivenkatamma vs Sri Gangadhara on 25 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:48875
RSA No. 290 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.290 OF 2025 (DEC/INJ)
BETWEEN:
1. SMT. MUNIVENKATAMMA
W/O LATE DRIVER MUNIYAPPA
AGED ABOUT 84 YEARS
2. SMT. SHARADAMMA
W/O LATE DRIVER MUNIYAPPA
AGED ABOUT 74 YEARS
3. SRI. M. SHIVAKUMAR
S/O LATE DRIVER MUNIYAPPA
AGED ABOUT 51 YEARS
4. PADMAVATHI
Digitally signed W/O M. SHIVAKUMAR
by DEVIKA M AGED ABOUT 39 YEARS
Location: HIGH
COURT OF 5. KUSHAL
KARNATAKA
S/O M. SHIVAKUMAR
AGED ABOUT 19 YEARS
6. KARTHIK
S/O M. SHIVAKUMAR
AGED ABOUT 17 YEARS
APPELLANT NO.6 IS A MINOR
REPRESENTED BY HIS NATURAL GUARDIAN
HIS FATHER NAMELY M.SHIVAKUMAR.
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NC: 2025:KHC:48875
RSA No. 290 of 2025
HC-KAR
7. SMT. PADMAVATHI
D/O LATE DRIVER MUNIYAPPA
W/O CHANDRAPPA
AGED ABOUT 58 YEARS
8. SMT. MANJULA
D/O LATE DRIVER MUNIYAPPA
W/O VENKATESH
AGED ABOUT 48 YEARS
ALL ARE RESIDING AT
OLD HOUSE NO.2359/2139,
NEW MUNICIPAL NO.57/2635/2465,
WARD NO.1, KORAMARA BEEDHI,
DEVANAHALLI TOWN
BENGALURU RURAL DISTRICT
PIN CODE 562110.
...APPELLANTS
(BY SRI. S.N.ASHWATHNARAYANA, SENIOR COUNSEL FOR
SRI. CHANDRAPPA V., ADVOCATE)
AND:
1. SRI. GANGADHARA
S/O LATE KANIVE KARIBASAPPA
AGED ABOUT 62 YEARS
RESIDING AT WARD NO.1
KORAMARA BEEDI
TALUK OFFICE ROAD
DEVANAHALLI TOWN
BENGALURU RURAL DISTRICT
PIN CODE: 562110.
...RESPONDENT
(BY SRI. K. CHETHAN KUMAR A/W
SRI. N. BALAJI, SRI. PRASANNACHARI K.B., AND
SRI. PRASHANTH K.H., ADVOCATES FOR C/R)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 29.11.2024
PASSED IN R.A.NO.15010/2023 ON THE FILE OF V
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NC: 2025:KHC:48875
RSA No. 290 of 2025
HC-KAR
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU
RURAL, SITTING AT DEVANAHALLI., ALLOWING THE APPEAL
AND SETTING ASIDE AND REVERSE THE JUDGMENT AND
DECREE DATED 25.11.2022 PASSED IN O.S.NO.84/2011 ON
THE FILE OF PRL. SENIOR CIVIL JUDGE AND JMFC,
DEVANAHALLI.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. This matter is listed for admission. Heard the learned counsel for the appellants and also the learned counsel for the respondent. Though there is a divergent finding with regard to the possession is concerned that the Trial Court even though answered the Issue No.6 as affirmative, while granting the relief of permanent injunction held that plaintiffs are entitled for protection of their possession over the suit schedule property by way of permanent injunction till the defendant obtains the recovery of possession of the suit schedule property by following procedure established under the law. The said judgment was challenged by the respondent before the Appellate Court in R.A.No.15010/2023. The First Appellate -4- NC: 2025:KHC:48875 RSA No. 290 of 2025 HC-KAR Court having taken note of the reasoning given in respect of point No.6 is concerned that when the relief of possession is sought for by virtue of counter claim by the defendant, made an observation that Trial Court has committed an error and the same is not sustainable and ought to have granted the relief of possession in the very suit itself and hence, allowed the appeal by setting aside the said judgment and the suit in its entirety and counter claim is decreed and directed to hand over the possession within three months.
2. Being aggrieved by the said judgment, present second appeal is filed. The counsel appearing for the appellants would vehemently contend that First Appellate Court committed an error in granting the relief of counter claim and directing the appellants to hand over the possession and Courts below are not justified in considering the disputed document and accepting the case of the respondent and not considering the material evidence supporting the case of the appellants. -5-
NC: 2025:KHC:48875 RSA No. 290 of 2025 HC-KAR
3. The counsel appearing for the respondent would vehemently contend that there is no any divergent finding. Since, the Trial Court answered Issue No.6 as affirmative in favour of the respondent, but committed an error in approaching the Court by filing a separate suit by payment of Court fee and the said payment of Court fee also paid in the counter claim and relief of possession is also sought in the counter claim and in the very same suit, ought to have been granted but, on misconception, directed to approach the Court by filing a separate suit and same has been set up right by the First Appellate Court and hence, question of admitting the second appeal and framing substantive question of law does not arise.
4. Having heard the learned counsel for the appellants and the counsel appearing for the respondent and also the considering the material available on record and also particularly reasoning given by the Trial Court in respect of Issue No.6 is concerned, though answered the same as affirmative, but fails to take note of the fact that -6- NC: 2025:KHC:48875 RSA No. 290 of 2025 HC-KAR a counter claim was made and also separate Court fee is also paid to the counter claim and rightly pointed out by the counsel appearing for the respondent that by misconception without looking into the counter claim, an erroneous order has been passed and First Appellate Court also considering the point No.6, rightly held that Trial Court already comes to a conclusion that respondent is entitled for possession since already sought for the relief of possession by way of counter claim and Court fee is also paid and the same amounts to an illegality. When such finding is given and the same is not divergent and the same is also a concurrent finding and only an error has kept in by the Trial Court giving the protection and directing to seek the appropriate relief in a separate suit and the same is erroneous. When there is no divergent finding and only misconception as rightly contended by the counsel appearing for the respondent. Hence, I do not find any ground to admit and frame substantive question of law.
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NC: 2025:KHC:48875 RSA No. 290 of 2025 HC-KAR
5. At this juncture the learned counsel for the appellants seeks six months time to vacate the premises. The counsel appearing for the respondent submits that already execution petition is filed. Having taken note of the said fact into consideration, it is appropriate to grant three months time from today. The appellants are directed to file an undertaking affidavit that going to vacate the premises within three months from today and not to seek any further time in the matter. If undertaking affidavit is not filed within one week from today, the appellants will not enure the benefit of this order of granting three months. Accordingly, the second appeal is disposed of.
Sd/-
(H.P.SANDESH) JUDGE RHS List No.: 1 Sl No.: 40