Karnataka High Court
Sri Hanumanthappa vs Varalakshmi on 25 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
REGULAR SECOND APPEAL NO.280/2021 (INJ)
BETWEEN:
1. SRI. HANUMANTHAPPA
S/O HANUMAPPA
AGED ABOUT 77 YEARS
2. SMT. SIDDAMMA
W/O HANUMANTHAPPA
AGED ABOUT 72 YEARS
BOTH ARE RESIDING AT MAHADEVAPURA VILLAGE
PARASHURAMPURA HOBLI CHALLAKERE TALUK
CHITRADURGA DISTRICT-577538.
... APPELLANTS
(BY SRI. G.N.SUBRAMANI &
SRI. J.R.JAGADISH, ADVOCATES)
AND:
1. VARALAKSHMI W/O THIMMAPPA
AGED ABOUT46 YEARS
RESIDING AT MAHADEVAPURA VILLAGE
PARASHURAMPURA HOBLI
CHALLAKERE TALUK
CHITRADURGA DISTRICT-577538. ... RESPONDENT
(BY SMT. JYOTHI S.KEMPAGOUDAR, ADVOCATE FOR
SRI. G.S.PRASANNA KUMAR, ADVOCATE)
2
THIS R.S.A. IS FILED UNDER ORDER 42 RULE 1 OF CPC,
R/W SECTION 100 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 02.12.2020 PASSED IN R.A.NO.15/2020 ON THE
FILE OF THE SENIOR CIVIL JUDGE AND JMFC, CHALLAKERE,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 11.02.2020 PASSED IN O.S.NO.117/2014
ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC,
CHALLAKERE.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 17.07.2025 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
CAV JUDGMENT
Heard learned counsel for appellants and learned counsel
for the respondent.
2. This second appeal is filed against concurrent finding
of the Trial Court and the First Appellate Court granting the relief
of permanent injunction by the Trial Court and confirming the
same by First Appellate Court.
3. The factual matrix of the plaintiff before the Trial
Court is that she had purchased the suit schedule property from
defendant No.1 and thereafter, she obtained license and
constructed building in the said property. It is the specific
contention of the plaintiff that house property, wherein towards
the western side of the house at the time of construction, 6 feet
space was left out. It is the case of plaintiff that she had
purchased the suit schedule property on 30.05.1996 from one
H. Hanumanthappa i.e., defendant No.1 to an extent of East -
West 40 feet, North - South 30 feet and towards southern side
of the suit property, there is 3 feet space. The plaintiff has
acquired 3 feet space as per the sale deed dated 29.08.1999, at
the time of constructing the house, the plaintiff has put up
compound towards northern and southern side of the house and
left 6 feet space towards western side of the house, by putting
up stone pillars. As the house constructed in the suit schedule
property belongs to the plaintiff, the plaintiff is paying taxes to
the concerned authority and also white washing the house for
every festival. The defendant, who being neighbourer of the
plaintiff, who has no right, title, much-less possession over the
suit schedule property, when the plaintiff was white washing the
house for the festival, the defendant has restrained the plaintiff
from white washing the house in the schedule property. The
defendant has destroyed the stone pillars, compound towards
the western side of the suit schedule property and has dumped
cardboard sheet, stones and boxes in the said space of the
plaintiff. When the plaintiff questioned the same, the defendant
had denied the right of the plaintiff over the said portion of the
property and contended that it belongs to the defendant. Hence,
the plaintiff has filed the suit.
4. The defendants have appeared through their counsel
and filed the written statement contending that the second
plaintiff has purchased site in Sy.No.43/c belonging to the
defendant through a sale deed on 29.08.1999 adjacent to Site
No.2, there is Site No.3, wherein the plaintiff has got purchased
3 feet from the defendant and for the said consideration towards
the southern side of the suit schedule property, the compound
wall has been got constructed, as per the agreement dated
29.08.1999. As per the agreement, the plaintiff has give up the
right in the compound to the defendant. The defendant has got
filed O.S.No.79/2014 with respect to the compound wall by
seeking declaration and consequential relief of injunction against
the plaintiff and plaintiff made the false allegations and
averments and prayed to dismiss the suit.
5. The Trial Court having considered the pleadings of
the parties, framed the following issues:
"1. Whether the plaintiff proves that, she is in
lawful possession of the suit property as on the
date of the suit?
2. Whether the plaintiff proves that, the alleged
interference caused by the defendants?
3. Whether the plaintiff is entitled for perpetual
injunction as sought for?
4. What order or decree?"
6. The plaintiff in order to prove her case, examined
herself as P.W.1 and got marked the documents as P.W.1 and
examined two witnesses as P.Ws.2 and 3 and got marked the
documents as Exs.P1 to P21. On the other hand, the defendant
No.1 has examined himself as D.W.1 and got marked the
documents as Exs.D1 to D4.
7. The Trial Court having considered pleadings as well
as material available on record, answered issue Nos.1 to 3 as
'affirmative' and extracted answer elicited from the mouth of
defendant No.1 in paragraph No.20 of the judgment. Having
considered the same, the Trial Court comes to the conclusion
that very case of defendant is contrary to his own admissions
and even he admitted that he is ready to give remaining extent
to which he has got right i.e., 30 x 40 feet which is on the
western side of the plaint property. Hence, answered point No.1
as 'affirmative' and also observed that he has been in possession
of the same.
8. The judgment and decree of the Trial Court is
challenged before the First Appellate Court in R.A.No.15/2020.
The First Appellate Court also considering the grounds urged in
the appeal and also material available on record comes to the
conclusion that the Trial Court has not committed any error and
taken note of construction made by the plaintiff and observed
that Ex.P2-house list extract and Exs.P3 to P5 are sufficient to
hold that title of the plaintiff is in peaceful possession and
enjoyment of the suit schedule property. The Trial Court also
comes to the conclusion that plaintiff has proved her lawful
possession over the suit schedule property and alleged
interference by defendant No.1 is very clear in view of defence
taken in the written statement and confirmed the judgment of
the Trial Court. Being aggrieved by the judgments of both the
Courts, the present second appeal is filed before this Court.
9. This Court, having considering the grounds urged in
the second appeal, admitted the same and framed the following
substantial question of law:
"When the plaintiff filed the suit for injunction
based on title, was the plaintiff entitled to claim relief
of injunction in respect of larger area than what was
mentioned in the title deed?"
10. Learned counsel for the appellants would contend
that property purchased by the plaintiff is only 40 x 30 feet and
suit decreed by the Trial Court is above the extent of title deed.
Hence, this Court has framed substantial question of law
whether the plaintiff is entitled for permanent injunction in
respect of larger area that than what was mentioned in the title
deed. Learned counsel would contend that the appellants also
filed the suit for comprehensive relief of declaration and
injunction which is pending before the Trial Court and this matter
also may be remanded to the Trial Court to consider both the
suit filed by the respondent herein for injunction which has been
decreed and confirmed and also suit filed by the appellants
herein for comprehensive relief to be considered together.
Learned counsel would vehemently contend that Ex.P17-sale
deed is very clear that respondent had purchased the property to
the extent of 40 x 30 feet and also constructed house. Learned
counsel would vehemently contend that when schedule
mentioned in the plaint itself clearly disclose that already
building was constructed in 40 x 33 feet, question of leaving 6
feet space on the western side does not arise and if the same is
taken into consideration, it would amount to measurement of
more than what had been purchased. Learned counsel also
would contend that Ex.P12-license is very clear that permission
is taken to construct building in the property measuring 40 x 33
feet and already constructed building in the property measuring
40 x 33 feet, question of leaving 6 feet space on the western
side does not arise.
11. Per contra, learned counsel for the respondent would
vehemently contend that Ex.P15 is very clear that construction
was made only to the extent of 34 feet and not entire extent and
Ex.P15 clearly discloses that construction was made on the
western side and photographs clearly disclose that stone
compound was put on the western side which was left by the
plaintiff to the extent of 6 feet. Learned counsel would contend
that there is clear admission on the part of defendant No.1
during the course of cross-examination with regard to leaving 6
feet space by the plaintiff and the same has been considered by
the Trial Court and the First Appellate Court and it does not
require any interference.
12. Having heard learned counsel for the appellants and
learned counsel for the respondent and also having considered
substantial question of law framed by this Court, this Court has
to examine when the plaintiff has filed the suit for injunction
based on the title, whether the plaintiff is entitled to claim relief
in respect of larger area than what was mentioned in the title
deed. Having considered respective submissions and also on
perusal of material available on record, no dispute that Ex.P17 is
sale deed executed by defendant No.1 in favour of the plaintiff
and no dispute that defendant No.1 sold the property to the
extent of 30 x 40 feet. It is also important to note that, it is the
case of the plaintiff that defendant No.1 also sold the property to
the extent of 3 feet and it is the claim of plaintiff that she made
the payment of Rs.15,000/-. On the other hand, it is the
contention of the defendant No.1 that he had given 3 feet space
on the southern side to the plaintiff, but the same is in respect of
compound which was given to the defendant No.1 for which no
consideration was received.
13. It has to be noted that learned counsel for the
appellants mainly brought to notice of this Court that averment
is made in the plaint schedule that when building is constructed
to the extent of 40 x 43 feet, there is no question of leaving any
space on the western side i.e., 6 feet, but Court has to take note
of answer elicited from the mouth of defendant No.1 in the
cross-examination that he has given 3 feet space on the
southern side to the plaintiff, but says that he has not received
any consideration. But for having given 3 feet space, compound
was given to the defendant No.1. It is also important to note
that D.W.1 categorically admitted that, in view of giving 3 feet
space on the northern side in the year 1999, the plaintiff has got
mutated the property in her name to the extent of 40 x 33 feet.
Hence, it is very clear that area of the plaintiff is enlarged from
40 x 33 feet. The crux of the issue is that defendant No.1 took
specific contention that plaintiff has not left any space on the
western side, but when there is a clear admission on the part of
D.W.1 in his cross-examination that plaintiff has left 6 feet
vacant space on the western side of plaintiff's property and when
the crux of the issue is with regard to leaving 6 feet vacant
space on the western side and when there is clear admission, the
counsel contend that there is no such space left by the plaintiff
cannot be accepted.
14. It is also important to note that very fact is contrary
to the contention raised by defendant No.1 and throughout the
defendant No.1 has taken the contention that no such space was
left out and during the course of argument before this Court
also, the very same contention was raised. But, it is very clear
that on the western side of the property, he has also got 30 x 40
feet site. But, further he gave admission that he is ready to give
right in respect of remaining extent, if it exceeds 30 x 40 feet
which is on the western side of the plaintiff's property. When
such admission was given, the same was taken note by the Trial
Court in paragraph No.20 of the judgment and in paragraph
No.21, the Trial Court taken note of the fact that towards west
and northern side, the property belongs to defendant No.1. It is
also important to note that defendant No.1 has contended that
plaintiff has relinquished her right on the southern side of his
compound wall, as he had been given 3 feet of excess vacant
space in Site No.3 belonging to him. It is also an admitted fact
that, to that effect, he had already filed comprehensive suit and
the same is still pending before the Court. However, learned
counsel for the appellants would contend that this matter also
may be clubbed along with the suit which is already filed by the
appellants before the Trial Court in O.S.No.79/2014 and when
there is an unequivocal admission on the part of defendant No.1,
question of setting aside the judgment and decree of the Trial
Court does not arise and both the Courts have taken note of
admission on the part of D.W.1 that he did not dispute the fact
that he has given 3 feet space and he was also having
knowledge about plaintiff having got transferred khatha to the
extent of 40 x 33 feet. But, learned counsel for the appellants
would vehemently contend that entire extent of 40 x 33 feet was
constructed. The plaintiff has produced document of Ex.P13-
photo i.e., stone pillar on the western side and apart from that,
there is a clear admission on the part of D.W.1 that plaintiff has
left 6 feet space on the western side of her property and the
same is the crux of the issue in the appeal and there is an
unequivocal admission on the part of defendant No.1. Though,
counsel for the appellants brought to notice of this Court the
schedule mentioned in the plaint, but the very admission takes
away the defence of the defendant No.1.
15. No doubt, this Court has framed substantial question
of law whether plaintiff can claim more than the title what she
has got, but admitted fact is that said site i.e., 40 x 30 feet was
sold to defendant No.1, but defendant No.1 categorically
admitted that he had given 3 feet space on the southern side
and he was having knowledge that plaintiff has got transferred
khatha to the extent of 40 x 30 feet. When such being the case,
claim of the plaintiff is also to the extent of 40 x 33 feet. Apart
from that, claim is that on the western side of the property, 6
feet space was left and when such admission is also given by
D.W.1 that plaintiff left 6 feet space, now cannot contend that it
is excess than what is claimed. Hence, the very contention of
learned counsel for the appellants cannot be accepted and
Ex.P12-license is very clear that after the defendant No.1 gave 3
feet space on the southern side of his property to the plaintiff, it
is an admitted fact that 40 x 33 feet is in the occupation of
plaintiff and there is a clear admission on the part of the plaintiff
that while constructing the building, she has left 6 feet space on
the western side and said admission takes away the case of the
defendant No.1. Hence, both the Courts taken note of material
available on record and in detail discussed in paragraph Nos.21
and 22 of the judgment of the Trial Court and the First Appellate
Court also having considered the extent of building constructed
by the plaintiff, in paragraph No.27 taken note of Ex.P1-DCB
Register Extract, Ex.P2-house list extract and also Exs.P3 to P5
and comes to the conclusion that plaintiff is in lawful possession
of the property and there is a clear admission that plaintiff left 6
feet space on the western side and the Trial Court rightly held
that plaintiff proved her lawful possession over the suit schedule
property and also alleged interference is concerned and comes to
the conclusion that defendant No.1 contend that he is having
right to compound and to that effect, suit is filed for
comprehensive relief of declaration in respect of compound is
concerned. Hence, the First Appellate Court also taken note of
the very material available on record and therefore, I do not find
any error committed by the Trial Court and the First Appellate
Court in granting the relief of permanent injunction with regard
to the claim made by the plaintiff.
16. Though while mentioning in the plaint, it is
mentioned that house is constructed in 40 x 33 feet, but specific
case of the plaintiff is that on the western side, she had left 6
feet space and the same is admitted by the defendant. Hence, I
do not find any ground to reverse the findings of the Trial Court
and the First Appellate Court while answering substantial
question of law and there is a clear admission, even though site
was sold to the extent of 30 x 40 feet and defendant No.1
himself has left 3 feet space on the southern side and not
disputed the same, but only disputes the fact that plaintiff has
not left 6 feet space, however, the same is admitted in his cross-
examination. Hence, no ground is made out to reverse the
findings of the Trial Court and the First Appellate Court. Hence, I
answer substantial question of law accordingly.
17. In view of the discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
(H.P. SANDESH)
JUDGE
ST
