[Cites 2, Cited by 0]
Karnataka High Court
Lingappa vs Mark D'Lima on 18 December, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1394 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1394 OF 2024 (INJ)
BETWEEN:
1. LINGAPPA
AGED ABOUT 53 YEARS
SUMITHRA (DEAD)
AGED ABOUT 38 YEARS
2. RAMESH
AGED ABOUT 49 YEARS
HARISH (DEAD)
AGED ABOUT 47 YEARS
3. SHALINI
AGED ABOUT 34 YEARS
Digitally signed
by DEVIKA M 4. RUKMINI
Location: HIGH AGED ABOUT 32 YEARS
COURT OF
KARNATAKA
ALL ARE
CHILDREN OF LATE PONKRA MUGERA
ALL BEING RESIDENTS OF
NO.5-169, SITE NO.295, 5TH BLOCK
KRISHNAPURA KATIPALLA
MANGALURU D.K. PIN CODE: 575 014.
...APPELLANTS
(BY SMT. AKSHATHA SHARMA, ADVOCATE FOR
SRI. SHEKHAR BADIGER, ADVOCATE)
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RSA No. 1394 of 2024
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AND:
1. MARK D'LIMA
S/O LATE LUCY D'SOUZA
AGED ABOUT 79 YEARS
R/AT D'LIMA HOUSE
NEAR PANDITH HOUSE
THOKOTTU
MANGALURU TALUK
D.K.-575 017.
...RESPONDENT
(BY SRI. VISHWAJITH RAI M., ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 02.03.2024
PASSED IN R.A. NO.24/2019 ON THE FILE OF II ADDITIONAL
SENIOR CIVIL JUDGE AND CJM, MANGALURU, D.K.
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 16.11.2018 PASSED IN O.S. NO.820/2012
ON THE FILE OF PRINCIPAL CIVIL JUDGE AND C/C OF I
ADDITIONAL CIVIL JUDGE AND JMFC, MANGALURU, D.K.
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. I have heard learned
counsel for the appellants and learned counsel for respondent.
2. This second appeal is filed against concurrent
finding of the Trial Court and the First Appellate Court.
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3. The factual matrix of case of the plaintiff before the
Trial Court is that plaintiff is the absolute owner in possession
and enjoyment of the suit schedule property and defendants
are interfering with possession of the plaintiff's property. It is
also the specific case of the plaintiff that Site No.294 belongs to
the plaintiff and also contend that other children of Smt. Lucy
D'Souza have released their undivided 4/5th right, title and
interest in the suit schedule property to their brother Mark
D'lima, who is the plaintiff. It is the further case that house Site
bearing No.295 which is situated on the west of the schedule
property was allotted to one Smt. Ajjanu Hengsu, who appears
to be none other than the mother of the defendants herein as
per the proceedings of Additional Special Land Acquisition
Officer, Mangaluru. It is also contended that after acquiring
House Property No.295 by Smt. Ajjanu Hengsu, she
constructed the residential house in it and she and her family
members, including the defendants have been residing in the
said house. The said Smt. Ajjanu Hengsu died intestate leaving
behind the defendants. The western boundary of the schedule
property itself is the eastern boundary of the property in the
possession of the defendants of Site No.295 and as such, same
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is the common boundary to both the property. Apart from that,
there is a laterite stone compound wall in the aforesaid
common boundary, so as to divide both the property and
defendants have no right in respect of the suit schedule
property is concerned.
4. The defendants appeared and filed written
statement denying the averments of plaint and contend that
house site which is situated on the west of the schedule
property was allotted to one Smt. Ajjanu Hengsu, who is the
mother of the defendants and after acquiring the site, she also
constructed the residential house and she and her family
members, including the defendants have been residing therein
and defendants are in possession and enjoyment of Site
No.295. It is further contended that plaintiff was never in
possession and enjoyment of any of the site, much less the
alleged Site No.294. Admittedly, the plaintiff is residing near
Thokkottu, Mangaluru which is very far from the plaint schedule
property. As there was nobody to question the possession,
some third party had acquired Site No.294 and was in
possession and enjoyment of the same from many years. But,
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the plaintiff has deliberately suppressed regarding the existence
of drain in between the two properties which can be borne out
from the surveyors sketch. It is further contended that to the
eastern side of the plaint schedule property i.e., Site No.294,
there exists Site No.293 and to the western side of Site
No.294, there exists drain channel. The plaintiff has either
deliberately does not know about actual location of Site No.294
and its boundaries. Hence, prayed the Court to dismiss the suit.
5. The Trial Court having considered pleadings of the
parties, framed issues and allowed the parties to lead evidence.
The Trial Court, having considered both oral and documentary
evidence, answered issue Nos.1 to 3 as 'Affirmative' and while
answering the issues, discussed in paragraph No.13 with regard
to very contention of defendants in the written statement and
so also, even evidence of P.W.1 was taken note of and also
taken note of evidence of D.W.1, wherein he has deposed that
he did not know, who are in possession of schedule property
and he did not know anything whether the property has been
sold to others. Further, the evidence of D.W.1 in page No.10 is
also extracted and taken note of his evidence, wherein D.W.1
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has clearly deposed that they have no right over the suit
schedule property i.e., Site No.294 and also taken note that in
the written statement, the plaintiff has clearly contended that
the plaintiff was never in possession of the suit schedule
property, but in the evidence, D.W.1 has deposed that they did
not know anything about who are in possession of the schedule
property. Having taken note of the same, answered issue No.1
as 'Affirmative'. Even while answering issue No.2 also, in detail
taken note with regard to interference is concerned and
particularly taken note of admission on the part of D.W.1 and
extracted the same in paragraph No.15 and having extracted
the same, in paragraph No.16 made an observation with regard
to very location of Site Nos.294 and 295 and particularly,
considered Ex.P19-sketch which clearly indicates existence of
Site Nos.294 and 294 and comes to the conclusion that there
exists no 'thodu' between both the properties as contended by
the defendants and answered issue No.2 also as 'Affirmative'
considering the admission on the part of D.W.1 that there is an
interference in the property of the plaintiff's peaceful
possession and enjoyment, since the very defendants in the
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written statement have denied possession of the plaintiff and
granted the relief of permanent injunction.
6. The judgment and decree of the Trial Court is
challenged before the First Appellate Court in R.A.No.24/2019.
The First Appellate Court also having reassessed both oral and
documentary evidence, keeping in view the grounds urged in
the appeal memo formulated the points and taken note of
evidence of both the plaintiff as well as defendants and comes
to the conclusion that there is no dispute with regard to title in
respect of Site Nos.294 and 295 and also taken note that, on
perusal of sketch annexed with the release deed dated
20.10.2011, there is no mention pertaining to the drain water
channel in Ex.P7. As per Ex.P7, the boundaries to the schedule
property or the property of plaintiff shown as House Site
No.290 towards North, House Site No.293 towards East, Road
towards South and House Site No.295 towards West of
schedule property. The First Appellate Court also taken note of
Ex.P7 in terms of which the plaintiff entered his name as per
Ex.P8-khatha extract in respect the property. There is no
specific boundary shown as channel as contended by the
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defendants. Hence, the burden is on the defendants to prove
the same and the same is not proved and also taken note of
admission on the part of D.W.1 in paragraph No.20, wherein it
is observed that, on perusal of cross-examination of D.W.1, it is
ascertained that there is a compound wall situated on the
western side of the plaintiff's property and eastern side of the
defendants' property. Oral evidence is the best piece of
evidence to rely upon. Having considered both oral and
documentary evidence comes to the conclusion that there was
no 'thodu' as contended by learned counsel for the
appellants/defendants and even particularly, taken note of
document, Ex.P19 and observed that the document furnished
by the appellants without filing necessary application appears
to be fake or not a genuine document and confirmed the
judgment of the Trial Court. Being aggrieved by the concurrent
finding, the present second appeal is filed before this Court.
7. Learned counsel for the appellants would
vehemently contend that both the Courts have committed an
error in considering the material available on record
particularly, even though there was no dispute with regard to
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the title of the properties is concerned. But, the First Appellate
Court erred in not providing an opportunity to the appellants to
lead additional evidence as sought for in I.A.No.III filed under
Order XLI Rule 27 CPC and rejected the same without assigning
proper reasons and committed an error in confirming the
judgment of the Trial Court. The counsel would vehemently
contend that even documents which have been relied upon
Ex.P1 clearly discloses that there exists 'thodu' and the same is
not considered and particularly, relied upon document Ex.D1
and referring the same, the counsel would contend that there
exists 'thodu' and the same is not considered and mainly relied
upon the documents Exs.D1 to D6. Hence, matter requires
admission.
8. Per contra, learned counsel for the respondent
would vehemently contend that the Trial Court in detail
considered both oral and documentary evidence and assigned
reasons and also taken note of Ex.P7 and Ex.P19 and it is also
not in dispute that property is allotted and the defendants'
property is House Property No.295 and already construction
was made and they are residing therein. The counsel brought
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the notice of this Court the averments made in the written
statement, wherein they have categorically denied that plaintiff
is not in possession of the property. But, both the Courts have
taken note that House Property No.294 i.e., suit schedule
property belongs to the plaintiff and even taken note of
boundaries i.e., Northern, Eastern, Southern and Western
boundaries. On the western side of plaintiff's property, property
of defendants' is located and the plaintiff is not claiming any
right in respect of the property bearing Site No.294. The
counsel would contend that when there is no perversity in the
finding of Trial Court and both the Courts have taken note of
oral and documentary evidence with regard to existence and
identification of the property and even Trial Court extracted
admission on the part of D.W.1 and even document, Ex.P19
was also taken note of that there was no 'thodu' as contended
by the defendants and the same was considered, no ground is
made out to admit the second appeal and frame any substantial
question of law.
9. Having heard learned counsel for the appellants and
learned counsel for the respondent, the suit is filed only for the
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relief of permanent injunction in respect of Site No.294 which is
morefully described in the suit. The appellants are also not
claiming any right in respect of property bearing Site No.294
and the specific contention is that plaintiff is not in possession
of the said property and it is not the claim of the plaintiff also
that he is residing in Site No.294. But having considered both
Oral and documentary evidence, particularly Ex.P7 and Ex.P19
marked before the Trial Court, it clearly depicts the very
existence of the properties. It is also an admitted fact that
appellants/defendants are residing in the property bearing Site
No.295 and Ex.P19 clearly discloses very existence and
boundaries which have been shown in Ex.P19-sketch as well as
Ex.P7-release deed. When such being the case, the very
contention of learned counsel for the appellants that no
identification of property is proved cannot be accepted. Ex.P7
original release deed dated 20.10.2011 along with sketch
issued by the Assistant Commissioner of Mangaluru clearly
discloses Site Nos.294 and 295. When such identification of
property is proved and also very contention of the defendants
in the written statement is that plaintiff is not in possession,
but the Trial Court having taken note of evidence on record,
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particularly the evidence of P.Ws.1 and 2, answered issue
Nos.1 and 2 as 'Affirmative', extracted the admission on the
part of D.W.1. When such detailed discussion was made by the
Trial Court considering the same in paragraph Nos.15 and 16
with regard to identity of the property and the claim is also in
respect of the property which the appellants are not claiming
and the very contention that there existed 'thodu' in between
Site Nos.294 and 295 is not proved by substantiating any
material and particularly, Ex.P19-sketch is very clear and
document of Ex.P7 is also very clear and respective boundaries
are shown in respect of both the sites are concerned and
Exs.P7 and P19 were taken note of by the Trial Court while
considering the case of the plaintiff. The suit is also filed only
for the relief of bare injunction and while considering the suit
for injunction, the Court has to take note of identity of the
property and also whether documents stand in the name of the
plaintiff and particularly, Exs.P1, P3, P5, P6, P7, P8 and P9
disclose the very possession of the plaintiff. When such being
the case and when the possession has been established and
Ex.P19-sketch issued by the Office of Assistant Commissioner
of Mangaluru depicts with regard to the boundary and identity
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of the property, I do not find any ground to admit the second
appeal and frame any substantial question of law as contended
by learned counsel for the appellants invoking Section 100 of
CPC.
10. In view of the discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST
List No.: 1 Sl No.: 68
