[Cites 2, Cited by 0]
Karnataka High Court
Yallappa vs Savariyappa on 17 December, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
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RSA No. 338 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.338 OF 2024 (DEC/INJ)
BETWEEN:
1. YALLAPPA,
S/O MUNIYAPPA,
AGED ABOUT 64 YEARS,
R/AT BALIGANAHALLI VILLAGE AND POST,
LAKKUR HOBLI,
MALUR TALUK 563130.
...APPELLANT
(BY SRI. SUDHINDRA S.A., ADVOCATE)
AND:
1. SAVARIYAPPA,
S/O NARAYANAPPA,
AGED ABOUT 72 YEARS.
Digitally signed
by DEVIKA M 2. RAVI,
Location: HIGH S/O SAVARIYAPPA,
COURT OF AGED ABOUT 44 YEARS.
KARNATAKA
3. SRIRAMA,
S/O YELLAPPA,
AGED ABOUT 62 YEARS.
4. BALAPPA,
S/O KITTAPPA,
AGED ABOUT 66 YEARS.
5. MUNENDRA,
S/O KITTAPPA,
AGED ABOUT 44 YEARS.
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RSA No. 338 of 2024
HC-KAR
6. VENKATESHAPPA,
S/O KITTAPPA,
AGED ABOUT 60 YEARS.
RESPONDENTS NO.1 TO 6 ARE
R/AT BALIGANAHALLI, LAKKUR HOBLI,
MALUR TALUK-563130,
KOLAR DISTRICT.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 27.10.2023
PASSED IN R.A.NO.29/2016 ON THE FILE OF SENIOR CIVIL
JUDGE AND JMFC, MALUR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 18.01.2016
PASSED IN O.S.NO.317/2010 ON THE FILE OF II ADDITIONAL
CIVIL JUDGE AND JMFC, MALUR.
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 against the concurrent
finding.
3. The factual matrix of the case of the plaintiff before
the Trial Court is that he is the absolute owner in possession of
suit 'A' schedule property as on the date of filing of the suit. It
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is his contention that the defendants are interfering with the
possession of the plaintiff. The defendants appeared and
contended that they are the absolute owners in possession and
enjoyment of 'B' schedule property by virtue of the sale deed
dated 07.05.1994. The defendant Nos.3 and 6 took the
contention that defendant No.1 has purchased land in
Sy.No.92/6 and land in Sy.No.92/4.
4. The Trial Court having considered both oral and
documentary evidence available on record, comes to the
conclusion that admittedly, the plaintiff is not at all in
possession of entire suit 'A' schedule property. Ex.P.14 is the
haddubasthu survey done on the request of the plaintiff on
31.08.2005, wherein it is clearly mentioned that cultivator of
the land bearing Sy.No.92/7 had encroached half guntas of
land in 'A' schedule property belonging to the plaintiff. Ex.P.15
is the mahazar and it is signed by the plaintiff and the adjacent
land owners of suit 'A' schedule property along with defendant
Nos.1 and 2, father of defendant Nos.3 and 6. From the oral
and documentary evidence of the plaintiff, no doubt it is clear
that the plaintiff is having knowledge of the encroachment as
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per Ex.P.14 in the year 2005 itself. Such being the case, till
this date he has not at all taken any steps against cultivator of
land bearing Sy.No.92/7, who encroached half guntas of land in
suit 'A' schedule property. Though the defendants have not at
all disputed that the plaintiff is not the absolute owner of the
suit 'A' schedule property and the recitals of Ex.P.2
corroborates with plaint pleadings, on the above said sole
basis, it is not correct to say that the plaintiff is the absolute
owner in possession of the suit schedule properties without
considering the oral and documentary evidence putforth by the
plaintiff. The Trial Court considering both oral and
documentary evidence, comes to the conclusion that from
Ex.P.14, it is evident that cultivator of land in Sy.No.92/7 had
encroached half guntas of land in suit 'A' schedule property and
the same is within the knowledge of the plaintiff in the year
2005 itself. On the other hand, the contention of the
defendants is that, defendant Nos.3 and 6 have constructed
their house in the year 2001, which is on the western side of
the suit schedule property. The plaintiff also admitted the
existence of Sy.Nos.92/6 and 92/4 on the northern side of suit
'A' schedule property and it belongs to defendant No.1. The
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plaintiff has not at all established to the satisfaction of the
Court that the defendants have encroached 1½ guntas in suit
'A' schedule property and he has failed to prove the identity
and existence of the boundaries of suit 'B' schedule property as
pleaded in the plaint. Hence, answered the same in the
negative and dismissed the suit.
5. Being aggrieved by the said judgment and decree,
an appeal is filed before the First Appellate Court. The First
Appellate Court having considered both oral and documentary
evidence, in paragraph No.30 comes to the conclusion that the
plaintiff has admitted about the existence of Sy.Nos.92/6 and
92/4 on the northern side of 'A' schedule property belonged to
defendant No.1. As per the plaint pleadings in 'A' schedule
property, contended interference on northern-eastern direction
of 'A' schedule property, but the plaintiff failed to establish the
said fact and the defendants having encroached 1½ guntas in
'A' schedule property is also stated to have been failed to prove
the same and failed to prove the boundaries of 'B' schedule
property as pleaded in the plaint. Hence, confirmed the
judgment of the Trial Court.
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6. The learned counsel for the appellant in this second
appeal would vehemently contend that both the Courts have
committed an error in not appreciating both oral and
documentary evidence. The learned counsel would submit that
an application was filed before the First Appellate Court for
appointment of Commissioner as Taluka Surveyor and the
same was rejected. The learned counsel also placed on record
the said order passed on I.A.No.2 by the First Appellate Court.
But the same was not challenged and it has attained its finality.
It is evident from the records that with regard to the
encroachment is concerned, survey was conducted prior to the
filing of the suit, but the defendants were not parties to the
same. During the pendency of the suit, no application was filed
to survey the land and an attempt was made before the First
Appellate Court and the application was rejected and the same
has attained its finality and the same is not challenged. When
such being the case, I do not find any ground to admit the
second appeal and frame any substantial question of law in the
absence of any material with regard to the perversity is
concerned and unless the plaintiff proves the material before
the Trial Court as well as the First Appellate Court with regard
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to the encroachment is concerned and the same is not
substantiated and the same is observed by the Trial Court as
well as the First Appellate Court. When such being the case, I
do not find any ground 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.: 47
