[Cites 2, Cited by 0]
Karnataka High Court
Sri N B Satyanarayana Rao vs K S Subanna Char on 1 December, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1604 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1604 OF 2025 (DEC)
BETWEEN:
1. SRI. N.B. SATYANARAYANA RAO
S/O LATE N.S. BHEEMA RAO
AGED ABOUT 73 YEARS
OCC: AGRICULTURE
R/AT SUBHADRA NILAYA
KALLASAGARA ROAD
CHANNAGIRI TOWN AT POST AND TALUK
DAVANAGERE DISTRICT
PIN CODE: 577213.
2. SRI. N.B. RAGHAVENDRA RAO
S/O LATE N.S. BHEEMA RAO
AGED ABOUT 65 YEARS
Digitally signed OCC: AGRICULTURE AND
by DEVIKA M DEED WRITER
Location: HIGH R/AT NO.101/120, NADIGARA BEEDI
COURT OF KALLESHWARA TEMPLE ROAD
KARNATAKA CHANNAGIRI TOWN AT POST AND TALUK
DAVANAGERE DISTRICT
PIN CODE: 577213.
3. SRI. N.B. SUBRAMANYA RAO
S/O LATE N.S. BHEEMA RAO
AGED ABOUT 63 YEARS
OCC: AGRICULTURE AND
DEED WRITER
R/AT SUBHADRA NILAYA
KALLASAGARA ROAD
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NC: 2025:KHC:50062
RSA No. 1604 of 2025
HC-KAR
CHANNAGIRI TOWN AT POST AND TALUK
DAVANAGERE DISTRICT
PIN CODE:577213.
NOTE: THE APPELLANT NOS.1 TO 3 ARE
BEING REPRESENTED BY THEIR
DULY CONSTITUTED GPA HOLDER
SRI. SUPRITH R.,
S/O SRI. N.B.RAGHAVENDRA RAO
VIDE DULY NOTARISED GPA DATED
18.09.2025/19.09.2025
...APPELLANTS
(BY SRI. CHIKKANAGOUDAR L.S., ADVOCATE)
AND:
K.S. SUBANNA CHAR
S/O LATE N. SETHU RAO
SINCE DECEASED BY HIS LR
1. SRI. S. RAVI KUMAR
S/O LATE K.S. SUBBANNA CHAR
AGED ABOUT 48 YEARS
OCC: NOT KNOWN
R/AT BHAVANI NILAYA
BEHIND POLICE QUARTERS
CHANNAGIRI TOWN AT POST AND TALUK
DAVANAGERE DISTRICT
PIN CODE: 577213.
N.S. ANANTHA RAM
S/O LATE N. SETHU RAO
SINCE DECEASED BY HIS LRS
2. SRI. NAGARAJ N.A.,
S/O LATE N.S. ANANTHA RAM
AGED ABOUT 50 YEARS
OCC: NOT KNOWN
R/AT DOOR NO.4,
KALLASAGARA ROAD
CHANNAGIRI TOWN AT POST AND TALUK
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NC: 2025:KHC:50062
RSA No. 1604 of 2025
HC-KAR
DAVANAGERE DISTRICT
PIN CODE: 577213.
3. SMT. BHAVANI N.A.,
D/O LATE N.S. ANANTHA RAM AND
W/O SRI. PRASANNA K.S.
AGED ABOUT 34 YEARS
OCC: NOT KNOWN
R/AT NO.870/10,
NEW CHIKKANAHALLI EXTENSION
NITTUVALLI, DAVANAGERE
PIN CODE: 577004.
4. SRI. N. S. KRISHNAMURTHY
S/O LATE N. SETHU RAO
AGED ABOUT 63 YEARS
OCC: NOT KNOWN
R/AT KALLASAGARA ROAD
CHANNAGIRI TOWN
AT, POST AND TALUKA
DAVANAGERE DISTRICT
PIN CODE: 577213.
5. SRI. N.S. RAMESH
S/O LATE N. SETHU RAO
AGED ABOUT 61 YEARS
OCC: NOT KNOWN
R/AT DOOR NO. 4
KALLASAGARA ROAD
CHANNAGIRI TOWN
AT, POST AND TALUKA
DAVANAGERE DISTRICT
PIN CODE: 577213.
6. SMT. SHANTHA KUMARI
@ SHANTHA D. DESAI
D/O LATE N. SETHU RAO &
W/O SRI. D.N.DESAI
AGED ABOUT 77 YEARS
R/AT GUTTUR COLONY
GUTTUR, HARIHARA TOWN & TALUKA
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RSA No. 1604 of 2025
HC-KAR
DAVANAGERE DISTRICT
PIN CODE: 577002.
7. SMT. MANJULA @ MANJULA S. DESAI
D/O LATE N. SETHU RAO &
W/O SRI. S.N. DESAI
AGED ABOUT 64 YEARS
R/AT DOOR NO.856/284
4TH MAIN, 4TH CROSS,
VINOBA NAGAR,
DAVANAGERE TOWN
AT, POST, TALUKA AND DISTRICT
PIN CODE: 577002.
...RESPONDENTS
(BY SRI. MADHUKARA NADIG &
SRI. V.S. RAVINDRA HOLLA, ADVOCATES)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 05.08.2025
PASSED IN R.A.NO.2/2024 ON THE FILE OF SENIOR CIVIL
JUDGE AND JMFC, CHANNAGIRI, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
31.10.2023 PASSED IN O.S.NO.168/2010 ON THE FILE OF
PRINCIPAL CIVIL JUDGE AND JMFC, CHANNAGIRI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 1604 of 2025
HC-KAR
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 respondents.
2. This appeal filed is against the concurrent
finding. The factual matrix of case of plaintiff before the
Trial Court while seeking the relief of declaration and
possession that the plaintiff is the owner of the suit 'A'
schedule property and 'B' schedule property is the part
and parcel of 'A' schedule property and the plaintiff
specifically pleaded that defendants encroached the suit 'B'
schedule property to the extent of 35 guntas of land and
also contend that defendant interfering with peaceful
possession and enjoyment of the suit schedule property.
The defendants have appeared and filed written statement
contending that suit is bad for non-joinder of necessary
parties and also contend that suit is barred by limitation
and also contend that the plaintiffs only based on the
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private survey, seeking for the possession and the same
cannot be considered. The Trial Court having considered
the pleadings of the parties, framed the issues and allowed
the parties to lead evidence before the Court and also
taken note of the material available on record and Court
Commissioner also appointed before the Court even
though earlier there was a private survey and the same
was challenged before the Deputy Commissioner and
Deputy Commissioner set-aside the same.
3. The Trial Court having taken note of the
pleadings as well as arguments canvassed by both the
parties, taken note of admitted facts which are culled out
from the pleadings. The plaintiff's claim over the suit
property on the basis of partition deed 15.12.1957 with
regard to the partition, either of parties have no dispute
and there is an admission also. The claim of the plaintiff
that his father was allotted with an area measuring 6 acres
35 guntas in Sy.No.4. It is also further contention that
portion allotted to their father is eastern most part of
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Sy.No.4 and to west of it, the share of defendant's father
is situated, this assertion is also admitted by the
defendants. In this regard, the suggestions that are posed
to P.W.1 and the admissions given by D.W.1 during the
course of cross-examination with regard to the location of
the property is concerned, there is no dispute.
4. It is also not in dispute that father of the
plaintiff had alienated 4 acres of land in Sy.No.4/P1 to one
Mohammed Sab, later, it is finally vested with Komal
Chand as per sale deed of the year 1986. The said portion
was southern part of his holding and retained 2 acres 35
guntas on northern side. It is the specific case of the
plaintiff that he is having only the possession of 2 acres
and remaining areas with the defendant and he had
encroached the same. The Trial Court having considered
the report of the Court Commissioner, comes to the
conclusion that property can be identifiable with regard to
the 30 acres 35 guntas of land is concerned and also taken
note of admission on the part of D.W.1 in the cross-
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examination in paragraph No.49 that total measurement
of land is 30 acres 35 guntas and it was partitioned among
the five brothers. In the partition, the father of the plaintiff
was allotted 6 acres 35 guntas and the same is not
disputed and other brothers have got 6 acres of land each.
He also admitted the western, southern and northern
boundaries of the said allotted property. The D.W.1 also
admitted that eastern land holder of suit property had not
been encroached. He also admitted that no survey was
conducted after the partition and no such sub-division had
taken place inconsonance with partition deed Ex.P.1. He
further admitted that sale transaction of all five brothers
including father of plaintiffs, defendant to various persons
in the integral period from 1957-2010 and sub-divisions of
alienated portions. The D.W.1 also admitted as on the date
of suit, the entire extent of Sy.No.4 is 30 acres 35 guntas,
having considered this, the Trial Court comes to the
conclusion that there is no dispute at all as to the total
extent of 30 acres 35 guntas in the year 1957 and the
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same stand still to the entire extent covering Sy.No.4/1A
to Sy.No.4/3D. He also admits eastern owner of the
property and has not encroached and also clear that
encroached portion if any is in between the plaintiffs and
defendants. He categorically admits that if any
encroachment, if any, in suit 'B' property would be in
between the plaintiffs and defendant's property alone, this
admission of D.W.1 takes away the case of plaintiff and
defendant that the property is not correctly identified. The
Trial Court taken note of the document of Ex.D.1 to
Ex.D.33 and particularly Ex.D.1 to Ex.D.6 and Ex.D.26 are
the representations of the plaintiff No.3 to the survey and
revenue authorities as to the difference of measurement in
survey records as well as RTC of respective properties
which includes the application for measurement and
correction of records in consonance with the actual area
and the registered documents, particularly Ex.D.7, Ex.D.8
and Ex.D.27 are the endorsement of the Tahasildar, order
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of Tahasildar insofar as the application of plaintiffs are
concerned.
5. It is the specific case that the plaintiffs property
which was encroached by the defendants and the
defendants are not ready to hand over the same to the
plaintiffs. Even the Trial Court also taken note of
admission on the part of D.W.1. He categorically admits
that if any excess land is going to deliver the said, but in
paragraph No.80, taken note of the survey maps produced
by the ADLR, DDLR and the Tahasildar of Chennagiri are
starting from the year 1934 and thereafter also. The entire
extent of Sy.No.4 reduces therein as 30 acres 35 guntas
and even the same can be gathered from Ex.D.228 to
Ex.D.230, which are the survey maps of Sy.No.4. The
Akarbandh also discloses the total extent of 30 acres 35
guntas, Index of RTC also taken note of in Ex.D.209
discloses the partition of said entire 30 acres and no
dispute with regard to the property was allotted in favour
of the plaintiff to the extent of 6 acres 35 guntas and also
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revenue records came into existence subsequent to the
partition and also taken note of 4 acres was sold and also
taken note of cross-examination of D.W.1 in paragraph
No.83 with regard to the sale is concerned and also in
paragraph No.86, taken note of survey conducted by
P.W.2 prior to filing of the suit, another survey namely
Thippeshappa as per Ex.P.11 have categorically come to
conclusion that the said land is available in Sy.No.4/1A
and the Court also appointed a Commissioner vide order
dated 04.08.2014 in pursuance of the application filed by
the plaintiffs and report is also submitted along with the
sketch prepared during the course of commission work as
per Ex.C10 and Ex.C.11. The Ex.C11 is the map prepared
by the Court Commissioner who examined as C.W.1 in the
case. He categorically comes to the conclusion that the
defendant's extent as per Aakarbandh is 3 acres 17 guntas
as against they are in possession of 4 acres 2 guntas. The
plaintiff's extent as per records is 2 acres 35 guntas are in
possession of 2 acres. This was also taken note of and
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particularly in paragraph No.87, taken note of even though
D.W.1 stated in his cross-examination that he is ready to
give up the excess land, if it is in his possession, the
defendant not co-operated for commission work. The
D.W.1 has also stated in the cross-examination that he
has got troublesomeness, if Commissioner is appointed
and measure the property. The D.W.1 has admitted that
entire extent of 30 acres still available and this also
extracted in paragraph No.87 and categorically admitted
that 'B' schedule property is in his possession. The very
claim of the plaintiff is that 'B' schedule property is the
extent of 35 guntas which is in possession of the
defendant.
6. The Trial Court also in detail considered both
oral and documentary evidence, both the evidence of
plaintiff, D.W.1 and Court Commissioner and also Court
Commissioner entered into witness box at the instance of
the defendant's application only and nothing is elicited
from the cross-examination of C.W.1 with regard to the
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possession which is excess with the defendant as per the
report and hence, the Trial Court comes to the conclusion
that the plaintiffs have established the ownership of the
suit schedule property through unchallenged interminable
mutation entries in partition. The Trial Court having
considered both oral and documentary evidence placed on
record, comes to the conclusion that the defendant is in
excess possession of the property which has been claimed
and also the defendant categorically admitted that he is in
possession of 'B' schedule property and claim is also made
by the plaintiff in respect of the 'B' schedule property
which is a part and parcel of the 'A' schedule property and
also the extent of 6 acres 35 guntas allotted in favour of
the plaintiff's father is also not disputed by the defendant
and hence, granted the relief of possession in respect of
the encroached portion which is in excess of land of the
defendant, the same is challenged before the Appellate
Court and Appellate court also considering the grounds
which has been urged in the appeal memo, formulated the
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point with regard to consideration of the material available
on record by the Trial Court, whether the Trial Court
committed an error in granting the relief of the plaintiff
that he is the owner and also the defendant has
encroached the suit schedule property i.e., particularly 'B'
schedule property and whether it is capricious. The First
Appellate Court having re-assessed the material on record
taken note of the extent of land allotted to the plaintiff's
father to the extent of 6 acres 35 guntas and remaining all
other five brothers allotted with 6 acres each. The Trial
Court taken note of the same is not admitted and D.W.1 in
the cross-examination admitted with regard to the
encroachment and the encroachment portion possessed by
the defendants. Hence, the Trial Court held that plaintiffs
have proved their ownership over the suit schedule
property and further observed that plaintiffs are entitled
for the relief and no evidence is produced to show that
said mutation and the revenue entries came to pass
without the knowledge of the defendants.
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7. The Trial Court having considered both oral and
documentary evidence available on the record, particularly
the evidence of D.W.1 who has categorically admitted that
he is in possession of the 'B' schedule property and the
specific case of the plaintiff also the same and even the
evidence of Commissioner also very clear that he is in
excess possession of the property. When such being the
case, First Appellate Court also taken note of the evidence
available on record and even discussed with regard to the
perfecting of possession by adverse possession since there
is no such pleading and apart from that they are the family
members and they got divided the property and hence,
comes to the conclusion that even adverse possession also
cannot be claimed and particularly in paragraph No.37
taken note of total extent of 6 acres 35 guntas in Sy.No.4
allotted in favour of the plaintiff and also sold 4 acres of
land and retained 2 acres of 35 guntas and he is in
shortfall of 35 guntas and he is in possession only to the
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extent of 2 acres and hence, confirmed the judgment of
the Trial Court.
8. Being aggrieved by the same, the present
second appeal is filed before this Court. The main
contention of the counsel appearing for the appellants
before this Court is that both the Courts are not right in
decreeing the suit of the plaintiff. Further, counsel would
vehemently contend that the property was not properly
surveyed by the Surveyor and survey report is not as per
the actual measurements of the holdings of the persons
and revenue records are also secondary documents and
not reflect the actual measurement of the lands in
question. The counsel also vehemently contend that both
the Courts failed to take note of the material available on
record.
9. Per contra, the counsel appearing for the
respondents would vehemently contend that even though
there was a earlier survey and the same was challenged
and the same is set-aside and even Court itself appointed
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the fresh Commissioner and fresh Commissioner also
given the report and specific report is also taken note of
and particularly the admission on the part of D.W.1 that
he is in possession of 'B' schedule property was also taken
note of and Commissioner report is also clear that he is in
excess of the property what he has having and all these
factors would taken note of and hence, not a case to
interfere with the findings of the Trial Court and frame
substantive question of law.
10. Having heard the learned counsel for the
appellants and also the learned counsel for the
respondents, it is a specific case of the plaintiff that his
father was allotted to the extent of 6 acres 35 guntas and
the family was having 30 acres of land and the same was
divided among the brothers is also not in dispute. It is also
admitted by the defendant that 6 acres of each land is
allotted in favour of other brothers and also not disputes
the extent of 6 acres 35 guntas was allotted in favour of
the father. It is also emerged during the course of
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evidence, 4 acres of land was sold and remaining 2 acres
35 guntas was retained by the plaintiff. It is also important
to note that before filing a suit, private survey was also
conducted and the same is disputed and an appeal was
filed before the Deputy Commissioner and the Deputy
Commissioner passed an order. When the issue involved
between the parties, Court Commissioner was appointed
and Court Commissioner was examined and he has given
the report and in terms of the report, more than the
extent what the defendant is having is in possession.
11. It is important to note that D.W.1 has
categorically admitted that he is in possession of the 'B'
schedule property. The case of the plaintiff is also that 'B'
schedule property is the part and parcel of the 'A' schedule
property. When the categorical admission is given by
D.W.1 in his cross-examination and in one breath he says
that he is ready to give up the land which is in excess, but,
again he says that he is not ready to give up that property
and also he admitted that the plaintiff was aware of he is
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in possession of excess land and all these answers takes
away the contention of the counsel appearing for the
appellants that no proper measurement was done by the
Commissioner and nothing is elicited from the cross-
examination of Court Commissioner who has been
examined before the Court and his report is also very clear
with regard to 'B' schedule property is in possession of the
defendant and also D.W.1 categorically admits that he is in
possession of the said land. When such finding is given by
the Trial Court and Appellate Court considering both oral
and documentary evidence and also considering the report
of the Commissioner as well as the admission on the part
of D.W.1 and the counsel for appellants cannot argue
against the admission on the part of D.W.1 who
categorically admitted that he is in possession of the 'B'
schedule property and direction is also given to the
defendant to hand over the vacant possession of the
property to the plaintiff in respect of the 'B' schedule
property which he is in his possession which is excess
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land. When such being the case, I do not find any
perversity in the finding of Trial Court and Appellate Court.
Both the Trial Court and Appellate Court taken note of
question of fact and question of law and hence, not a case
to invoke Section 100 of CPC.
12. In view of the discussions made above, I pass
the following:
ORDER
i) Second appeal is dismissed.
ii) In view of dismissal of the appeal, I.As., if any
do not survive for consideration, the same
stands disposed of.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
List No.: 1 Sl No.: 72
