Karnataka High Court
Mayur Ashok Potadar vs Ahmed Mohammadgous Bagwan on 10 July, 2025
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 5695 of 2013
C/W RSA No. 5694 of 2013
RSA No. 5696 of 2013
HC-KAR
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF JULY 2025
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO.5695 OF 2013 (INJ)
C/W REGULAR SECOND APPEAL NO. 5694 OF 2013 (INJ)
REGULAR SECOND APPEAL NO. 5696 OF 2013 (INJ)
IN RSA.NO.5695/2013:
BETWEEN:
1. SHRI. MAYUR ASHOK POTDAR,
AGE: 35 YEARS, OCC: AGRICULTURE AND BUSINESS,
R/O: HUKKERI - 591 309, DIST: BELAGAVI.
2. SHRI. SIDARAI ASHOK POTDAR,
AGE: 33 YEARS, OCC: AGRICULTURE AND BUSINESS,
R/O: HUKKERI - 591 309, DIST: BELAGAVI.
BOTH REPRESENTED BY P. A. HOLDER
ASHOK MAHADEV POTDAR,
AGE:64 YEARS, OCC:AGRICULTURE & BUSINESS
TQ: HUKKERI - 591 309, DIST: BELAGAVI.
...APPELLANTS
Digitally signed by (BY SRI. CHETAN MUNNOLI, ADVOCATE)
SAROJA
HANGARAKI
Location: High
Court of AND:
Karnataka,
Dharwad Bench,
Dharwad
SHRI. AHMED SHAMSHER MAKANDAR,
AGE: 64 YEARS, OCC: AGRICULTURE,
R/O: HUKKERI, DIST: BELAGAVI - 591 309.
...RESPONDENT
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 READ WITH ORDER XLII RULE 1 CPC PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 30.01.2013 PASSED BY THE
SENIOR CIVIL JUDGE HUKKERI IN R.A.NO.23/2012; SET ASIDE THE
JUDGMENT AND DECREE DATED 28.03.2012 PASSED BY THE CIVIL
JUDGE AND JMFC HUKKERI IN O.S.NO.72/2009; ALLOW THE APPEAL
WITH COSTS THROUGHOUT BY DISMISSING THE SUIT IN
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RSA No. 5695 of 2013
C/W RSA No. 5694 of 2013
RSA No. 5696 of 2013
HC-KAR
O.S.NO.72/2009 ON THE FILE OF CIVIL JUDGE AND JMF HUKKERI
AND ETC.,
IN RSA.NO.5694/2013:
BETWEEN:
1. SHRI. MAYUR ASHOK POTDAR,
AGE: 35 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O: HUKKERI - 591 309, DIST: BELAGAVI.
2. SHRI. SIDARAI ASHOK POTDAR,
AGE: 33 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O: HUKKERI - 591 309, DIST: BELAGAVI.
BOTH REPRESENTED BY P. A. HOLDER
ASHOK MAHADEV POTDAR,
AGE:64 YEARS, OCC:AGRICULTURE & BUSINESS
TQ: HUKKERI - 591 309, DIST: BELAGAVI.
...APPELLANTS
(BY SRI. CHETAN MUNNOLI, ADVOCATE)
AND:
1. SHRI. AHMED MOHAMMADGOUS BAGWAN,
AGE: 49 YEARS, OCC: BUSINESS,
R/O: HUKKERI, DIST: BELAGAVI.
2. SHRI. DAWOOD MOHAMMADGOUS BAGWAN,
AGE: 43 YEARS, OCC: BUSINESS,
R/O: HUKKERI, DIST: BELAGAVI.
...RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 READ WITH ORDER XLII RULE 1 CPC PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 30.01.2013 PASSED BY THE
SENIOR CIVIL JUDGE HUKKERI IN R.A.NO.22/2012; SET ASIDE THE
JUDGMENT AND DECREE DATED 28.03.2012 PASSED BY THE CIVIL
JUDGE AND JMFC HUKKERI IN O.S.NO.74/2009; ALLOW THE APPEAL
WITH COSTS THROUGHOUT BY DISMISSING THE SUIT IN
O.S.NO.74/2009 ON THE FILE OF CIVIL JUDGE AND JMF HUKKERI
AND ETC.,
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RSA No. 5695 of 2013
C/W RSA No. 5694 of 2013
RSA No. 5696 of 2013
HC-KAR
IN RSA.NO.5696/2013:
BETWEEN:
1. MAYUR ASHOK POTADAR,
AGE: 35 YEARS,
OCC:AGRICULTURE AND BUSINESS,
R/O: HUKKERI, DIST: BELAGAVI - 591 309.
2. SHRI. SHIDARAI ASHOK POTADAR,
AGE: 33 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O: HUKKERI, DIST: BELAGAVI - 591 309.
A1 AND A2 ARE REPRESENTED BY
THEIR GPA HOLDER,
ASHOK MAHADEV POTADAR,
AGE:64 YRS, OCC:AGRICULTURE,
R/O: HUKKERI, DIST:BELAGAVI - 591 309.
...APPELLANTS
(BY SRI. CHETAN MUNNOLI, ADVOCATE)
AND:
1. SHRI. AHMED MOHAMMADGOUS BAGWAN,
AGE: 44 YEARS, OCC: BUSINESS,
R/O : HUKKERI - 591 309.
2. SHRI. DAWOOD MOHAMMADGOUS BAGWAN,
AGE: 39 YEARS,OCC : BUSINESS,
R/O : HUKKERI - 591 309.
3. SHRI. AHAMED SHAMSHER MAKANDAR,
AGE : 64 YEARS, OCC : AGRICULTURE,
R/O: HUKKERI - 591 309, DIST: BELAGAVI.
4. SHRI. GAJABAR AHAMED MAKANDAR,
AGE : 44 YEARS, OCC:AGRICULTURE,
R/O : HUKKERI - 591 309, DIST: BELAGAVI.
...RESPONDENTS
(NOTICE TO R3 AND R4 ARE HELD SUFFICIENT)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 READ WITH ORDER XLII RULE 1 CPC PRAYING TO SET ASIDE
THE JUDGMENT AND DECREE DATED 30.01.2013 PASSED BY THE
SENIOR CIVIL JUDGE HUKKERI IN R.A.NO.25/2012; SET ASIDE THE
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RSA No. 5695 of 2013
C/W RSA No. 5694 of 2013
RSA No. 5696 of 2013
HC-KAR
JUDGMENT AND DECREE DATED 28.03.2012 PASSED BY THE CIVIL
JUDGE AND JMFC HUKKERI IN O.S.NO.66/2009; ALLOW THE APPEAL
WITH COSTS THROUGHOUT BY DISMISSING THE SUIT IN
O.S.NO.66/2009 ON THE FILE OF CIVIL JUDGE AND JMF HUKKERI
AND ETC.,
THESE APPEALS, COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)
1. These appeals are by the plaintiffs in OS
No.66/2009 who were the defendants in OS Nos.72/2009
and 74/2009. For the purpose of convenience, the
appellants herein are referred to as the plaintiffs and
respondents herein are referred to as defendants.
2. The case of the plaintiffs is that they are the
owners in possession of the property bearing CTC
No.2417/2 measuring 406 square meters bounded on the
east by: property bearing CTS No.2436 and 2437, west
by: property bearing CTS Nos.2430 and 2431, north by:
property bearing CTS No.4356 and south by: property
bearing CTS No.2417/1, which is shown by letters ABCD
(C§PÀqÀ) in the plaint hand sketch. The subject matter of the
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suit is an area shown by letters ABC
(C§PÀ) of the plaint hand sketch.
3. It is further case of the plaintiffs is that they
purchased property bearing CTS No.2417 under the deed
of sale dated 17.03.2006 which was subsequently
assigned CTS Nos.2417/1 and 2417/2. That ever since the
date of purchase plaintiffs have been in possession and
enjoyment of the said property and they being desirous of
constructing compound wall around their property,
applied for permission from the concerned authorities.
Accordingly, on 24.03.2009 they have been issued licence
to put up the construction of compound wall. That in
furtherance thereof they had collected and stored the
required aggregates for the purpose of construction of the
compound wall. That the defendants who are in possession
of properties on the western side of the property of the
plaintiffs have constructed their houses without leaving
any set back on the eastern side of their property. That
the property of the plaintiffs is surrounded by the buildings
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on the east, on the north and on the south and it is only
on the western side they are required to put up
construction of compound wall at the point shown by
letters ABC (C§PÀ). When the plaintiffs were in process of
putting up of a construction of compound wall at the point
ABC (C§PÀÀ), the defendants obstructed, prevented and
threatened the plaintiffs from putting up the compound
wall and have also thrown away cement and bricks which
were collected and kept for the said purpose by the
plaintiffs. Hence, the suit for seeking relief of permanent
injunction restraining the defendants of putting up the
construction at point letters ABC
(C§PÀ) in the plaint sketch.
4. Defendants appeared through their counsel.
Defendant Nos.1 to 3 filed written statement which was
adopted by defendant No.4 denying the averments and
allegations made by the plaintiffs and have contended that
plaintiffs obtained the permission from the concerned
Town Municipality Council, Hukkeri, (for short, 'TMC
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Hukkeri') for the purpose of construction of a house by
using political clout. That their houses are facing towards
the eastern side. Defendant Nos.3 and 4 are the owners
of the property bearing CTS No.2432, defendant Nos.1 and
2 are the owners of the property bearing CTS Nos.2430
and 2431 and there houses are facing towards the eastern
side. That towards the eastern side of their houses there is
a public road running towards north to south having width
of 13½ feet by the side of the said road there is a gutter
having width of 1½ feet. Towards the eastern side of the
said road is the property of the plaintiffs. That towards the
southern side of the property of the plaintiffs there are
some houses facing towards the western side. That by the
side of the said road there is a vacant place belonging to
defendant Nos.3 to 4. Defendants and their neighbouring
house owners are enjoying the said road from the
beginning. Defendant Nos.3 and 4 and their ancestors
were doing agarbatti business. Previously there was a mud
road. That about 7 - 8 months ago, TMC, Hukkeri,
reconstructed the said road by converting it into the
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cconcrete road by utilizing the grant by the Government
for the purpose of construction of roads. That the plaintiffs
under the political influence are attempting to put up the
building and compound wall on the said public road. If the
plaintiffs put up such construction, the defendants and
other neighbours will be put to hardship. Hence, sought for
dismissal of the suit.
5. Defendant No.3 in OS No.66/2009 namely
Ahmed Shamsher Makandar has filed a suit in OS
No.72/2009 against the said suit. Similarly, defendant
Nos.1 and 2 in OS No.66/2009 have filed suit in OS
No.77/2009 against the plaintiffs. The pleadings in the
said suits are similar to the contention taken by the parties
in OS No.66/2009. The Trial Court based on the pleadings
framed the following issues:
In OS No.66/2009:
1. Whether the plaintiff prove that they are
in lawful possession and enjoyment of suit
schedule A,B,C spot?
2. Whether the plaintiffs prove that they
are legally constructing the compound wall as
stated in the plaint?
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3. Whether the plaintiffs prove the
interference of the defendants?
4. Whether the plaintiffs are entitle for the
relief sought for in the plaint?
5. Whether the defendants are entitle for
the compensatory costs?
6. What order or decree?
In OS No.72/2009:
1. Whether the plaintiff proves the
existence of suit schedule public road?
2. Whether the plaintiff proves that himself
and his neighbours are using and enjoying the
suit schedule road as stated in the plaint?
3. Whether the plaintiff proves the
interference of defendants?
4. Whether the plaintiff is entitle for the
relief sought for in the plaint?
5. Whether the defendants are entitle for
the compensatory costs?
6. What order or decree?
In OS No.74/2009:
1. Whether the plaintiffs prove the
existence of suit schedule road as stated in the
plaint?
2. Whether the plaintiffs prove that the
defendants are trying to construct the building in
the suit schedule property?
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3. Whether the plaintiffs are entitle for the
relief sought for in the plaint?
4. Whether the defendants are entitle for
the compensatory costs as prayed for?
5. What order or decree?
6. General Power Attorney holder of the plaintiffs
examined as PW1 and 25 documents were marked as
Ex.P1 to Ex.P25 and five more witnesses have been
examined as PW1 to PW6. Five witnesses have been
examined on behalf of the defendants as DW1 to DW5 and
got marked 26 documents at Ex.D1 to D26.
7. On appreciation of the evidence, the Trial Court
answered issue Nos.1 to 5 in OS No.66/2009 in negative,
issue Nos.1 to 4 in OS No.72/2009 in the affirmative and
issue Nos.1 to 3 in OS No.74/2009 in the affirmative, while
issue Nos.5 and 4 in OS No.72 and 74 of 2009 respectively
in the negative and consequently, by its common
judgment and decree dated 28.03.2012 dismissed the suit
of the plaintiffs in OS No.66/2009 and decreed the suits in
OS No.72 and 74 of 2009 granting permanent injunction
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restraining the plaintiffs (who were the defendants in OS
No.72 and 74 of 2009) from constructing any type of
building or compound wall in any manner on the suit
schedule ABCD (C§PÀqÀ) road.
8. Being aggrieved by the aforesaid common
judgment and decree, plaintiffs preferred three regular
appeals in RA Nos.25, 22 and 23 of 2012 respectively. The
First Appellate Court framed the following common points
for its consideration in all the three appeals:
1. Whether the appellants prove the fact
that the judgment and decree passed by the
Trial court is illegal, improper and not based on
proper appreciation and oral and documentary
evidence available on record and even proper
issues are not framed by the Trial Court?
2. Whether the appellants prove the fact
that the judgment and decree passed by the
Trial Court is one sided, capricious which is
resulted in miscarriage of justice and as such
interference of this Court is required for setting
aside the same?
3. What order or the decree?
9. On re-appreciation of the matter answered
point Nos.1 and 2 in the negative and consequently,
dismissed the appeals confirming the judgment and decree
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passed by the Trial Court. Being aggrieved, the plaintiffs
are before this Court.
10. Learned counsel appearing for the appellants /
plaintiffs reiterating the grounds urged in the
memorandum of appeal submitted that neither of the
parties have produced any document to substantiate their
contention of existence of the road either on the eastern
side of the property of the defendants or on the western
side of the property of the defendants. However, he relies
upon the photographs produced at Ex.P7, P8 and P9 to
contend that the space shown in ABC (C§PÀ) of the hand
sketch belonged to the plaintiffs which is now being
claimed by the defendants as a public road.
11. He refers to Ex.P1, the sale deed under which
the plaintiffs purchased the property to point out that in
the schedule shown in the said document there is no road
on the western side of their property. That on the western
side of the property of the plaintiffs, there exist property
bearing CTS No.2431.
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12. He refers to Ex.P5 which is the sketch issued by
the City Survey authorities to contend that on the north,
south, east and west of the property belonging to the
plaintiffs there are private properties and there is no road
as contended by the defendants.
13. He also refers to the plan issued by the Pattan
Panchayat, Hukkeri, permitting construction of a house by
the plaintiffs and referring to the same he submits that on
the western side of his property there lies property bearing
CTS Nos.2430 and 2431 and there is no mention of any
road even the said document.
14. Thus, referring to the aforesaid documents and
the photographs produced as already referred to above,
the learned counsel vehemently submits that none of
these documents produced by the plaintiffs would any
manner whatsoever indicate existence of a road on the
western side of their property and submits that the Trial
Court and the First Appellate Court have not adverted to
these aspects of the matter and have thus, erroneously
come to the conclusion of existence of a road as claimed
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by the defendants. Hence, he submits that the non-
appreciation of material evidence produced by the
plaintiffs by the Trial Court and the First Appellate Court
gives rise to substantial question of law warranting
interference in the hands of this Court.
15. Heard perused the records.
16. The ownership and possession of the respective
properties by the plaintiffs and the defendants is not in
dispute. The issue is only with regard to the portion shown
at ABC (C§PÀ) of the plaint hand sketch which according to
the plaintiffs is a part of their property while according to
the defendants is a part of a public road, which is now
converted into concrete road by the TMC, Hukkeri.
17. The Trial Court and the First Appellate Court on
appreciation of the material evidence have come to the
conclusion with regard to the existence of the said
concrete road on the point ABC (C§PÀ) of the plaint hand
sketch. For the said purpose, the Trial Court and the First
Appellate Court have relied upon the documents namely,
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Ex.D17, the resolution passed by the concerned Pattan
Panchayat granting a sum of Rs.15,00,000/- for the
purpose of construction of concrete road, Ex.D18 the
estimate prepared and submitted by the said Pattan
Panchayat for the purpose of construction of concrete
road, Ex.D19 the final Bill and Ex.D20 the completion
report of the construction of the cement road. Ex.D5 to 7,
10 and 11 are the photographs wherein, the existence of
the concrete road is visible and process of construction of
compound wall by the plaintiffs is also seen.
18. That apart PW3 in his deposition has admitted
to the existence of the suit schedule concrete road as
claimed by the defendants. Thus, based on these material
evidence the trial court and the first appellate court have
come to the conclusion that the plaintiffs had indeed
attempted to put up compound wall and construction on
the concrete road formed by the panchayat authorities at
the points ABC (C§PÀ) shown in the plaint sketch.
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19. The aforesaid finding of facts and conclusion
arrived by the Trial Court based on the evidence and in the
absence of any ground made out with regard to the
perversity or absence of any material evidence, this Court
in the second appeal in the facts and circumstances of the
case is of the considered view that no error or illegality is
committed by the Trial Court or by the First Appellate
Court. No substantial question of law would therefore
arise for consideration. Accordingly, the appeals are
dismissed.
20. At this juncture, learned counsel for the
appellants/plaintiffs submits that since the plaintiffs are
claiming their ownership over the said portion of the
property marked by letter ABC (C§PÀ) of the plaint hand
sketch, they may be reserved liberty to seek substantial
relief.
21. Submission is taken on record.
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22. Plaintiffs in OS No.66/2009, who are the
appellants in these appeals, are at liberty to seek such
remedy as may be permissible and available under law.
23. All pending applications, if any, are disposed off
accordingly.
Sd/-
(M.G.S. KAMAL)
JUDGE
SMM/CT-ASC
