[Cites 2, Cited by 0]
Karnataka High Court
Sri. Hanumanthappa vs G. Veerendra on 1 December, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:49914
RSA No. 881 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.881 OF 2025 (DEC/POS)
BETWEEN:
SRI HANUMANTHAPPA
S/O SIDDAPPA
AGED ABOUT 61 YEARS
AGRICULTURIST
R/O CHIRADONI VILLAGE
CHANNAGIRI TALUK
DAVANGERE DISTRICT-577231
...APPELLANT
(BY SMT. VINITA J D, ADVOCATE FOR
SRI H DEVENDRAPPA, ADVOCATE)
AND:
Digitally signed
by DEVIKA M G. VEERENDRA
Location: HIGH S/O G SATHYANARAYANA
COURT OF AGED ABOUT 42 YEARS
KARNATAKA AGRICULTURIST
R/O CHIRADONI VILLAGE
CHANNAGIRI TALUK
DAVANGERE DISTRICT-577231
...RESPONDENT
(BY SRI N RAMAKRISHNA, ADVOCATE FOR
SRI M R HIREMATHAD, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 02.12.2024 PASSED IN
-2-
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RSA No. 881 of 2025
HC-KAR
R.A.NO.28/2024 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, CHANNAGIRI AND ETC.
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 second appeal is filed against the concurrent finding
of both the Trial Court and the First Appellate Court.
2. This matter is listed for admission. Heard the
learned counsel appearing for the respective parties.
3. The factual matrix of case of the plaintiff before the
Trial Court while seeking the relief of declaration and
consequential relief of possession to the extent of 3 guntas, 2
guntas and 1 gunta in the suit schedule property is that the
survey was conducted and surveyor also given the report and
there was an encroachment by the defendant to the above
extent and hence, filed the suit for the relief of declaration and
possession. The defendant appeared and filed the written
statement contending that the suit is vexatious and suppressed
the material facts. The land comprised under Sy.No.9/2 is
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measuring 3 acres. The same is in actual, peaceful possession
of the defendant. The land bearing Sy.No.9/2 was totally
measuring 9 acres 1 guntas wherein, the defendant was having
4 acres of land and he had alienated 1 acre of land to the father
of the plaintiff in the year 1988. The defendant is in possession
of the remaining area of 3 acres in the said Sy.No.9/2. The
father of plaintiff had owned and possessed 6 acres 1 gunta of
land in Sy.No.9/2 of Chiradoni Village and totally denied that he
has encroached to the extent of 5 guntas. Hence, prayed the
Court to dismiss the suit.
4. The Trial Court considering the pleadings of the
parties, framed the Issues and allowed the parties to lead their
evidence. The Trial Court having considered both oral and
documentary evidence placed on record as well as admission on
the part of PW1 wherein PW1 also not disputes the fact that
property in Sy.No.9/2 is part of Sy.No.9/2C3 and the same is
extracted in paragraph 21 and also taken note of defence of the
defendant. In paragraph 22, PW2 categorically deposed before
the Court that consequent upon the application of plaintiff, the
surveyor did the survey and measurement also taken note of
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and found encroachment on the northern side of all the three
properties. The said encroachment was by the holder of the
property bearing Sy.No.9/2, which is on the north side of all
three properties referred supra. Even he was in detail cross-
examined but nothing is elicited. The Trial Court also taken
note of the evidence of DW1. DW1 also categorically admitted
the extent of the property purchased by the father of the
plaintiff. It is also admitted that the matter was taken before
the ADLR and the same also disposed of and same is in detail
discussed in paragraphs 24 to 26. The Trial Court also taken
note of the admission on the part of DW1 that the suit schedule
properties are the properties of plaintiff. On the north of the
same, his property is situated and even location of the property
also taken note of. He also admitted allotment of the properties
to the plaintiff in the family partition and consequently,
mutation entries also changed in favour of the plaintiff. In
paragraph 30, discussed with regard to the appeal taken before
the ADLR and finding place at Ex.D2 and the said appeal was
disposed of on the date of evidence of defendant. All the
materials were considered by the Trial Court and comes to the
conclusion that there is an encroachment by the defendant
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while answering Issue Nos.1 and 2 as affirmative and granted
the relief of declaration declaring that the plaintiff is the owner
of the suit schedule properties and directed to hand over the
possession of the suit schedule properties as demarcated in the
survey reports within the period of 3 months.
5. Being aggrieved by the judgment of the Trial Court,
an appeal was preferred before the First Appellate Court in
R.A.No.28/2024. The First Appellate Court having considered
the grounds which have been urged in the appeal, framed the
points for consideration and having reassessed both oral and
documentary evidence placed on record, in paragraph 24
comes to the conclusion that plaintiff by way of registered
partition deed dated 09.09.2015 became the absolute owner of
the suit schedule property and in paragraph 25 also discussed
that the plaintiff got haddu bastu survey from the survey
department by submitting an application dated 16.11.2019
based on the partition deed dated 09.09.2015 and also taken
note of the document of Ex.P6 survey sketch in respect of
Sy.No.9/2C2 that is Item No.2 of schedule property and as per
Ex.P9 in respect of Sy.No.9/2C1 in respect of Item No.1 of the
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schedule property and Ex.P2 is in respect of Sy.No.9/2C3 i.e.
Item No.3 of the schedule property. Wherein the surveyor
clearly recited that in Item No.3 of schedule property as per
Ex.P2, one gunta land being encroached by land holder of
Sy.No.9/2A and in detail also Ex.P3, two guntas of land being
encroached in Item No.2 schedule property and as per Ex.P9,
three guntas in Item No.1 of schedule property being
encroached by the holder of Sy.No.9/2A. Admittedly, the
defendant is in owner and possession of Sy.No.9/2A. Having
reassessed the material and record, the First Appellate Court
also taken note of each and every document and also the
report of the surveyor who has been examined as PW2 and
confirmed the judgment of the Trial Court. Being aggrieved by
the concurrent finding of both the Courts, the present second
appeal is filed before this Court.
6. The learned counsel appearing for the appellant
would vehemently contend that in respect of 6 guntas of land is
concerned, survey was not conducted. The counsel would
vehemently contend that without thereby any proper mention
of the schedule and boundaries and the extent of the
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encroachment being made by the appellant/defendant ought
not to have granted such a relief. Hence, prayed this Court to
admit the appeal.
7. Per contra, the learned counsel appearing for the
respondent would submit that both the Courts have taken note
of both oral and documentary evidence and particularly taken
note of admission on the part of witnesses and rightly decreed
the suit of the plaintiff. Hence, it does not require any
interference by this Court.
8. Having heard the learned counsel appearing for the
respective parties and also on perusal of the material on
record, it discloses that the specific case of the plaintiff that
defendant had encroached the land in 3 survey numbers to the
extent of 6 guntas and particularly, the plaintiff relies upon the
evidence of the surveyor-PW2 who conducted the survey and
he has given definite opinion that he had conducted the survey
in respect of all the three survey numbers and found that
defendant is in possession of the property which is in the
encroached portion and even DW1 also categorically admits
that he was very much present at the time of conducting the
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survey, but he refused to sign the same. When such material
available on record, taken note of the extent of land as per
Ex.P14 and also not in dispute that property was allotted to the
plaintiff in terms of the partition. In paragraph 23 to 32 in
detail discussed while answering Issue Nos.1 and 2 and definite
conclusion was given that defendant encroached the property.
With regard to the location of the property also there is a clear
admission on the part of defendant and the same also taken
note of by the Trial Court. Even First Appellate Court also
having reassessed both oral and documentary evidence placed
on record in paragraphs 24 and 25 taken note of the contention
of the respective parties and in paragraph 25, in detail taken
note of the extent of land. Admittedly, the defendant is owner
in possession of Sy.No.9/2A which is situated at northern side
of the plaint schedule property. There is a clear admission on
the part of the defendant with regard to the location of the
property. When such being the case, I do not find any error on
the part of both the Courts in appreciating both oral and
documental evidence and not found any perversity since both
question of fact and question of law also rightly considered by
both the Courts. Under such circumstances, I do not find any
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ground to admit the appeal and to frame substantial question
of law invoking Section 100 of CPC.
9. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is dismissed.
In view of dismissal of the main appeal, I.A. if any, does
not survive for consideration and the same stands dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
SN
