[Cites 1, Cited by 0]
Karnataka High Court
Chinnappa vs Karibasappa on 19 December, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
REGULAR SECOND APPEAL NO.1046/2021 (INJ)
BETWEEN:
1. CHINNAPPA
AGED ABOUT 67 YEARS
S/O BASAVANYAPPA
R/O NELVAGILU VILLAGE
SHIKARIPURA TALUK
SHIVAMOGGA DISTRICT-577 417. ... APPELLANT
(BY SRI. CHIDAMBARA G.S., ADVOCATE)
AND:
KARIBASAPPA
S/O SHIVAPPA MARER,
SINCE DEAD BY LRS.
1. SMT. MANJAMMA
AGED ABOUT 56 YEARS
W/O LATE KARIBASAPPA
2. SHIVAKUMARA
AGED ABOUT 26 YEARS
S/O LATE KARIBASAPPA
3. SHASHIKUMAR
AGED ABOUT 28 YEARS
S/O LATE KARIBASAPPA
2
4. MADHU
AGED ABOUT 26 YEARS
S/O LATE KARIBASAPPA
ALL ARE
R/O. NELAVAGILU VILLAGE
SHIKARIPURA TALUK
SHIVAMOGGA DISTRICT-577 417.
... RESPONDENTS
(BY SRI. SRIKANTH PATIL K., ADVOCATE FOR R1 TO R3;
R4 - SERVED)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 06.08.2021
PASSED IN R.A.NO.27/2020 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, SHIKARIPURA, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
17.02.2020 PASSED IN O.S.NO.191/2013 ON THE FILE OF THE
II ADDITIONAL CIVIL JUDGE AND JMFC AT SHIKARIPURA.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 12.12.2025 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
3
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard learned counsel for the appellant and learned
counsel for respondent Nos.1 to 3.
2. This second appeal is filed against the divergent
finding. The Trial Court dismissed the suit and the same is
reversed by the First Appellate Court on appreciation of
both oral and documentary evidence placed on record.
3. The factual matrix of case of the plaintiff before
the Trial Court while seeking the relief of permanent
injunction is that he is the owner of the property which is
morefully described in the suit schedule i.e., vacant site
bearing Sl.No.242, property No.105/7 at Nelavagilu Village
Grama Panchayath, Shikaripura Taluk measuring 15 x 180
feet with boundary description as given in the schedule. It
is contented that plaintiff is the absolute owner in lawful
possession and enjoyment of the suit schedule property.
The said property initially belonged to the joint family and it
is an ancestral property of the plaintiff in the name of his
father Sri Shivappa Marer. The said Shivappa Marer is no
more and after the death of Shivappa Marer, his wife's
name i.e., Smt. Susheelamma is entered in the revenue
records. When such being the material, the consent
agreement has taken place in the family in which the
plaintiff got the suit property for his share and became the
absolute owner in possession of the suit schedule property.
Thus, all the revenue entries are mutated in his name under
M.R.No.36/1996-97 dated 09.04.1996. He has constructed
one tent house (Kottige Mane) in the suit schedule property
for agricultural purpose and enjoying the suit schedule
property by paying kandayam to the panchayath authority
from time to time. That on 28.07.2013, the defendant along
with his henchmen came to the suit schedule property and
tried to encroach the same and the same was resisted.
Hence, prayed the Court to grant the relief of permanent
injunction.
4. The defendant appeared and filed the written
statement contending that averments made in the plaint is
false. It is contended that originally, the property was
owned and possessed by Mukappa Marer. The said Mukappa
Marer had one daughter by name Basamma and a son
Basetyappa. It is contented that Shivappa Marer had two
wives. The said Shivappa Marer had one daughter by name
Kenchamma through his first wife and she also died
issueless in her husband's home. The plaintiff as well as
Rajappa are the sons of Shivappa Marer through his second
wife Susheelamma. After the death of Shivappa Marer, his
second wife Susheelamma went with one Goddanakoppada
Hanumanthappa about 39 years back and settled at
Chattanahalli Village, Honnali Taluk and they were leading
their life as a husband and wife. The said Susheelamma
took her sons i.e., plaintiff and his brother Rajappa along
with her and lived in Chettanahalli Village itself and still
they are living in the said village. Therefore, the plaintiff is
not in possession and enjoyment of the suit schedule
property nor constructed the cattle shed. It is contented
that his sister Kamalamma married one Basetyappa of
Nelavagilu Village and in the said wedlock, one daughter
was born to them and she was Radhamma and she died at
the age of 2 years old. As such, the said Kamalamma took
him to look after the agricultural work at the age of 12
years old. Since then, she is the only daughter and she
performed her marriage with him and kept him as a illoten
son-in-law. After his marriage, he is living with his wife's
family and enjoying the suit schedule property along with
other properties.
5. It is contended that on the eastern side of the
suit schedule property, his wife's another property is
situated, wherein they are living in the said house at
present. It is contended that suit schedule property was
vacant and nobody came forward claiming rights over the
same. Therefore, he constructed cattle shed in the suit
schedule property about 25 years ago and tethering the
cattle and raised two coconut trees and used the same to
keep the hay stock and firewood. It is his contention that
taking this advantage, the plaintiff and his father colluding
with the panchayath officials got entered their name in the
panchayath records behind his back and without giving any
notice to him, his wife or sister. Therefore, the entries made
in the panchayath records has no value in the eye of law. It
is further contended that neither the plaintiff nor his mother
ever raised any voice regarding his possession over the suit
schedule property for all these days. It is further contended
that since 25 years, his possession over the suit schedule
property is continuous, peaceful and without any
obstruction by any body, including the plaintiff and thereby
his possession is hostile to the real owner including the
plaintiff and his father, though they got any right on it. It is
also contended that he constructed the cattle shed in the
year 1991 in the month of April first week and he is in
continuous possession and enjoyment of the suit schedule
property by way of adverse possession. Therefore, prayed
the Court to dismiss the suit.
6. The Trial Court, based on the pleadings of the
parties, framed the following issues:
"1. Whether the plaintiff proves that he is an
absolute owner and person in possession
and enjoyment of the suit property?
2. Whether the plaintiff further proves the
alleged interference by the defendant?
3. Whether the plaintiff is entitled to the relief
as sought for?
4. What order or decree?"
7. The plaintiffs, in order to prove the case,
examined the original plaintiff as P.W.1 and later, he died
and his son is examined as P.W.2 and got marked the
documents as Exs.P1 to P18. On the other hand, defendant
examined himself as D.W.1 and got marked the documents
Exs.D1 to D3 and also examined two witnesses as D.Ws.2
and 3.
8. The Trial Court having considered both oral and
documentary evidence available on record comes to the
conclusion that plaintiff is not in possession of the property
and extracted the evidence of P.W.1 in paragraph No.18
and comes to the conclusion that dimension mentioned in
the schedule not tallies with each other and as per P.W.2,
his grand-father died 35 to 40 years ago and the house
which appears in Ex.P6 appears to be new one. There is no
pleading with regard to construction of the shed and the
same is in their possession and it is pleaded as a vacant
site and in the absence of pleadings, the case of plaintiff
cannot be believed and dismissed the suit.
9. Being aggrieved by the judgment and decree of
dismissal of suit, an appeal is filed before the First Appellate
Court in R.A.No.27/2020. The First Appellate Court, keeping
in view the grounds urged in the appeal memo, framed the
points for consideration whether the Trial Court has erred in
considering the evidence of the plaintiff and defendant and
comes to the wrong conclusion in dismissing the suit and
whether it requires interference. The First Appellate Court
on appreciation of both oral and documentary evidence,
particularly considered the documents of both the plaintiff
and the defendant in paragraph Nos.22 and 23 and with
regard to possession is also concerned, accepted the case
of the plaintiff and disbelieved the case of the defendant
and comes to the conclusion that as on the date of filing of
the suit, all records stands in the name of the plaintiff and
even taken note of the documents confronted to the
witness and particularly, the version taken by the defendant
was considered in paragraph No.9, wherein he had
contended that he had constructed the said house in the
year 1991. In paragraph No.30, the First Appellate Court
also considered the discrepancy with regard to mentioning
of measurement of the property in the tax assessment
register extract for the year 2012-13 i.e., Ex.P4 that the
property measures to an extent of 15 x 143 feet and no
other document discloses north to south measurement as
180 feet and it appears that the same is not correct and
there was a mistake. When the documentary evidence
supports the case of the plaintiff, case of the plaintiff was
accepted and granted the relief of permanent injunction and
the Court has to look into the documentary evidence as on
the date of filing of the suit. Hence, reversed the judgment
of the Trial Court.
10. This Court having considered the grounds which
have urged in the second appeal, admitted the second
appeal on 19.07.2023 and framed the following substantial
questions of law:
"1. Whether the First Appellate Court justified
in reversing the Judgment & Decree of the
Trial Court?
2. Whether the First Appellate Court justified
in decreeing the suit for permanent
injunction despite recording of specific
finding that the measurements and
boundaries shown in Ex.P.4 did not tally
with the suit schedule property?"
11. Learned counsel appearing for the appellant
would vehemently contend that First Appellate Court
committed an error in reversing the judgment and decree of
the Trial Court. The First Appellate Court is not justified in
decreeing the suit for permanent injunction, despite
recording of specific finding that measurements and
boundaries shown in Ex.P4 did not tally with the suit
schedule property. Hence, it requires interference of this
Court. The counsel also would contend that the document
at Ex.P4 discloses the measurement to an extent of 15 x
143 feet. But, suit is filed for the measurement to an extent
of 15 x 180 feet and inspite of having noticed the same, the
Trial Court committed an error in granting the relief of
permanent injunction and matter requires to be
reconsidered and set aside.
12. Per contra, learned counsel for respondent Nos.1
to 3/plaintiffs would vehemently contend that all the
documents stand in the name of plaintiff and documents
i.e., Exs.P1 to P15 clearly disclose ownership as well as
possession on the part of the plaintiff and the same has
been rightly considered by the First Appellate Court. Hence,
it does not require any interference.
Substantial Question of Law Nos.1 and 2:
13. Having heard learned counsel for the appellant
and learned counsel for respondent Nos.1 to 3 and also
keeping in view the substantial questions of law framed by
this Court, the first substantial question of law is with
regard to reversal of judgment of the Trial Court by the
First Appellate Court and second substantial question of law
is with regard to discrepancy in the document of Ex.P4 as
well as the claim made by the appellant. No doubt, the
original plaintiff is examined before the Court as P.W.1, he
was not cross-examined, since he had died during the
pendency of the suit. Hence, his son is examined as P.W.2
and he was subjected to cross-examination.
14. In view of the divergent finding, this Court has
to take note of the evidence available on record. P.W.2, in
his cross-examination admits that he is residing at a
distance of 1 km. from the place of disputed suit schedule
property. But, he claims that house which is found in Ex.P6
was constructed 6 to 7 years ago and he cannot tell the
names of coolies, who involved in construction and no door
to the said house and the said photo was taken by his
father during his lifetime. He admits that on the east of the
suit schedule property, house of Radhamma is located and
on the west, house of Danendrappa is located and now, that
is a vacant site. He admits that a small house behind the
wall which is visible in the photo belongs to Danendrappa.
But, he volunteers to state that the same was demolished 6
to 7 months ago. This witness was also subjected to further
cross-examination and he admits that while cultivating the
property, they were having ox and grand-father died 35 to
40 years and now, they are not having any ox. Ex.P6 was
confronted and watering pipes are found near the said
house and he admits the same. He claims that ox belongs
to his friend's father and suggestion was made that the
same belongs to the defendant and the same was denied.
15. On the other hand, D.W.1 was also examined
and in the cross-examination, he admits that he gave an
application for change of khatha, but the same was not
changed. But, he claims that his house is on the northern
side of the suit schedule property and again, he admits that
the suit schedule property is on the west of his property. He
also admits that he has not paid kandayam at any point of
time and also admits that there is a cattle shed which
appears in Ex.P6 and claims that water pipes are existing in
Ex.P6-house since about 15 years ago.
16. The other witness is D.W.2. He claims that
defendant is in possession of the suit schedule property. In
the cross-examination, he admits that, Kamalamma is
defendant's sister and also admits that the house in which
he is residing is purchased from the family of the
defendant. On the south, there is a road and he cannot tell,
in whose name the suit schedule property stands and he did
not make any attempt to know, who is the owner of the suit
schedule property. But, he claims that defendant is in
possession and admits that defendant himself brought him
to give evidence.
17. The other witness D.W.3 also supports the case
of the defendant. In the cross-examination, he categorically
admits that on the west of his house property, property of
plaintiff is located.
18. Having considered both oral and documentary
evidence available on record, it is very clear that property
of the plaintiff is in existence and the same is not in dispute
and location is also admitted. Further, no dispute with
regard to Ex.P6 and Ex.D2 and on the east of the suit
schedule property, property of defendant is in existence.
But, in suit schedule property, there is a small shed,
wherein things are procured and kept. In Ex.D2, no pipes
are found. But, in Ex.P6, pipes are found. When the suit is
filed for the relief of permanent injunction, the Court has to
take note that as on the date of filing of the suit, who is in
possession of the property. The documents which have
been relied upon by the plaintiff clearly discloses that the
property was earlier standing in the name of Shivappa
Marer and subsequent to his death, the property was
transferred in the name of plaintiff and Ex.P5- tax paid
receipt discloses that property stands in the name of
plaintiff and in Ex.P4 measurement of the property is
mentioned as 15 x 143 i.e., Tax Assessment Register 2012-
13. Hence, it is clear that as on the date of filing of the suit,
property stands in the name of the plaintiff. Ex.P6 and
Ex.D2 are one and the same. Ex.P8 discloses that on the
east of suit schedule property, property of Radhamma is
located and so also in Ex.P7 i.e., tax demand register,
name of the plaintiff is shown. The documents Exs.P9, P10,
P11 and P12 i.e., tax paid receipts stands in the name of
the plaintiff. Ex.P11 is the tax paid receipt of the year 2013
in which year the suit was also filed. Ex.P9 is for the year
2005 and Ex.10 is for the year 2012 i.e., for the year 2012
previous to the year in which the suit was filed. Ex.P15 is
the document of Danendrappa and on the east of his
property, property of Karibasappa i.e., plaintiff is mentioned
and the said document is confronted to the D.W.1 witness.
Ex.P16 is also the document pertaining to Dananendrappa's
property and Ex.P17 relates to the property of Radhamma,
wherein also on the west of the property of Radhamma,
property of Karibassapa stands. Hence, it is very clear that
suit schedule property belongs to the plaintiff and these are
the documents which are confronted to the D.W.1 witness
and he categorically admitted the same and identity of the
property is also not in dispute.
19. It is settled law also that Court has to look into
the document and possession of the property as on the
date of filing of the suit and all the documents stands in the
name of the plaintiff. Though, the defendant claims that he
has perfected title in respect of the suit schedule property
by adverse possession, in order to substantiate the same,
nothing is placed on record. The First Appellate Court, while
reversing the judgment, taken note of material available on
record in paragraph Nos.21 to 25 and no doubt, there is a
minor discrepancy in the evidence of P.W.1, but the
documentary evidence supports the case of the plaintiff.
The First Appellate Court also even extracted the written
statement in paragraph No.9, wherein, he contend that
cattle shed was constructed in the year 1991 in the month
of April first week and since that time, he is in continuous
possession of the suit schedule property. Hence, it is clear
that defendant is not the owner of the suit schedule
property. However, his plea is that he is in possession of
the suit schedule property and the same is discussed in
paragraph No.30 i.e., document of Ex.P4-tax assessment
register extract for the year 2012-13 is showing the
measurement of the property to an extent of 15 x 143 feet
and it stood against the measurement of the suit schedule
property in the north to south direction. Looking to the
other documents relied upon by the plaintiff, there are no
reliable documents disclosing the north to south
measurement as 180 feet. To this extent, the version of the
plaintiff as well as arguments of the plaintiff's counsel are
not acceptable. When the document clearly evidence the
measurement only to the extent of 15 x 143 feet and
though, the plaintiff claim 15 x 180 feet, but the fact is
that the existence of property stands in the name of the
plaintiff and as on the date of failing of the suit also, all the
documents stands in the name of the plaintiff, including the
tax paid receipt and D.W.1 also categorically admitted the
fact that he has not paid the tax, except claiming that he is
in possession without supported by any documentary proof.
Though D.Ws.2 and 3 claim that defendant is in possession
and D.W.2 is an interested person and he categorically
admits that D.W.1 himself brought him to the Court. D.W.3
admits the existence of property of the plaintiff and also
admits that the same belongs to the plaintiff. Hence, I do
not find any error on the part of First Appellate Court in re-
appreciating both oral and documentary evidence. On the
other hand, the Trial Court committed an error in
considering the material available on record, particularly
with regard to possession as on the date of filing of the suit
and all the materials were not considered by the Trial Court
and the same is properly considered by the First Appellate
Court. Therefore, I do not find any ground to reverse the
finding of First Appellate Court. Accordingly, I answer
substantial question of law Nos.1 and 2 as 'negative'.
20. In view of the discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
ST
