Karnataka High Court
Sri H V Muninarayana vs Sri Agadur Annayappa on 14 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 141 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.141 OF 2022 (INJ)
BETWEEN:
1. SRI. H.V.MUNINARAYANA,
SINCE DEAD BY HIS LRS.
1(a) SMT. H.V.SHANKUNTHALAMMA,
W/O LATE H.V.MUNINARAYANA,
AGED ABOUT 76 YEARS,
R/AT HUNGENAHLLI VILLAGE,
HUNGENAHALLI POST,
KASABA HOBLI, MALUR TALUK,
KOLAR DISTRICT-563130.
1(b) SMT. H.M.MALINI,
D/O LATE H.V. MUNINARAYANA,
W/O SUBRAMANYAM H.V.,
Digitally signed AGED ABOUT 50 YEARS,
by DEVIKA M
R/AT VENKATESHWARA NILAYA,
Location: HIGH
COURT OF ADARSHA NAGAR,
KARNATAKA ARALERI ROAD, 3RD CROSS,
WARD NO.15, MALUR TOWN,
KOLAR DISTRICT-563130.
1(c) SMT. H.M.SAVITHA,
D/O LATE H.V. MUNINARAYANA,
W/O PRASANNA KUMAR K.,
AGED ABOUT 48 YEARS,
R/AT NO.72, 2ND CROSS, HOODI,
NEAR GOVERNMENT PRIMARY SCHOOL,
K.R.PURAM HOBLI,
MAHADEVAPURA POST,
BENGALURU NORTH,
BENGALURU-560248.
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RSA No. 141 of 2022
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1(d) SMT. N. VANITHA,
D/O LATE H.V. MUNINARAYANA,
W/O NAGARAJA,
AGED ABOUT 44 YEARS,
R/AT NO.124, 8TH MAIN ROAD,
BEHIND MUNESHWARA TEMPLE,
HOSAPALYA, BOMMANAHALLI,
BENGALURU SOUTH,
BENGALURU-560068.
2. SRI. H.V. SUBRAMANYAM,
S/O LATE VENKATESHAPPA,
AGED ABOUT 62 YEARS,
RESIDING AT HONGENAHALLI VILLAGE,
KASABA HOBLI, MALUR TALUK,
KOLAR DISTRICT-563130.
...APPELLANTS
(BY SRI. RAMAIAH GOWDA L.M., ADVOCATE)
AND:
1. SRI. AGADUR ANNAYAPPA,
S/O LATE NANJAPPA,
AGED ABOUT 79 YEARS,
R/AT AGADUR VILLAGE,
KRISHNARAJAPURA HOBLI,
BENGALURU SOUTH TALUK,
BENGALURU DISTRICT-560036.
2. SRI. R.P.MANJUNATHA,
S/O PAPANNA,
AGED ABOUT 53 YEARS,
R/AT RAMANAHALLI VILLAGE,
KASABA HOBLI, MALUR TALUK,
KOLAR DISTRICT-563130.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 08.10.2021
PASSED IN R.A.NO.88/2016 ON THE FILE OF THE I
ADDITIONAL DISTRICT JUDGE, KOLAR, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
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RSA No. 141 of 2022
HC-KAR
DATED 11.02.2016 PASSED IN O.S.NO.162/2011 ON THE
FILE OF THE SENIOR 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 appellants.
2. This appeal is filed against the concurrent finding.
The suit is filed for the relief of permanent injunction in
respect of the property measuring 2 acres in Sy.No.28/P2 and
the schedule shown in the plaint is as follows:
SCHEDULE
The property situated at Hongenahalli Village,
Kasaba Hobli, Malur Taluk, bearing Sy.No.28/P/2, an
extent of 2 acres, bounded on:
East by : Land of Narayanaswamy
West by : Land of R.P.Ramesh earlier belongs
to the defendants land which he has
purchased from one Chowdappa and
his sons.
North by : Road leading to Kanivenhalli
South by : Varadenahalli Gadi.
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3. The defendants appeared and filed the written
statement and specifically contended in paragraph No.10 that
the plaintiffs have approached the Court for discretionary
relief of permanent injunction over the suit schedule property
claiming Sy.No.28/2 measuring to an extent of 2 acres and
they have given wrong boundaries towards the western side
purposely, which includes the property of defendant No.2.
The defendant No.2 is in possession and enjoyment of the
property situated towards the western side of plaint schedule,
which includes 15 tamarind trees and eucalyptus trees which
is in occupation of defendant No.2 for more than 12 years.
Since the RTC extract is standing in the name of defendant
No.1, he was claiming the said property. Though defendant
No.2 is in possession and enjoyment of the property,
defendant No.1 was interfering in the peaceful possession and
enjoyment of this defendant's property and hence defendant
No.2 had no alternative except to file a suit before the
Principal Civil Judge (Jr. Dn.), Malur in O.S.No.49/2005. After
the service of notice, it ended with compromise on the advice
of the elders and well wishers. On the basis of the
compromise decree, defendant No.2 filed an application
before the Tahasildar, Malur Taluk, for change of Khatha and
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RTC in his name and it is still pending. The defendant No.2
submits that the property claimed by him is Sy.No.28/167
measuring to an extent of 2 acres situated at Hungenahalli
Village, Kasaba Hobli, Malur Taluk, bounded on the East by
Subramanyam, West by R.P.Ramesh, North by road and
South by Varadenahalli Gadi and within the said boundaries,
there are tamarind trees.
4. Having considered the written statement filed by
defendant No.2 and also the averments made in the plaint
when the suit is filed only for the relief of bare injunction, the
issues are framed whether the plaintiffs prove that they are in
possession and enjoyment of the suit schedule property,
whether the plaintiffs prove the alleged interference by the
defendants in respect of the suit schedule property, whether
the plaintiffs are entitled for the relief of permanent
injunction. The Trial Court having considered the grounds
which have been urged and the averments made in the plaint
as well as written statement, allowed the parties to lead
evidence. The plaintiff No.1 examined himself as P.W.1 and
also examined one witness as P.W.2 and got marked
documents at Exs.P.1 to 23. On the other hand, the
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defendants examined three witnesses as D.W.1 to D.W.3 and
got marked the documents at Exs.D.1 to 6. The
Commissioner was appointed before the Trial Court and the
Commissioner was also examined as C.W.1 and the
Commissioner's report is also marked as Ex.C1. The Trial
Court having considered the exhibits and also the oral
evidence, in detail discussed in paragraph No.8 regarding the
evidence of the parties as well as Commissioner report and
when objection was raised by defendant No.2, redirected the
Commissioner to file further report and then he has filed the
further report on 13.11.2015, but against the further report of
the Commissioner, neither the plaintiffs nor the defendants
have filed any objections to report of the Commissioner and
both are admitted report of Commissioner. As per further
report of the Commissioner, he has specifically shown the
extent of Sy.No.28/P2 and extent of Sy.No.28/167 with
boundaries along with sketch. As per second report/further
report, the Commissioner has mentioned in his report that the
plaintiffs are in possession of 2 acres and they are not in
possession more than 2 acres and defendants property i.e.,
Sy.No.28/167 is situated on western side of the suit schedule
property i.e., measuring 1 acre 39 guntas and on western side
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of Sy.No.28/167 property belongs to R.P.Ramesh property
Sy.No.28 is existing. In view of the report of the
Commissioner once it is clear that whatever the boundaries
shown by the plaintiffs pertaining to the suit schedule
property on western side i.e., R.P.Ramesh property is situated
is wrong, but Sy.No.28/167 is situated the same property
claimed by the defendants.
5. Having considered the report of the Commissioner
as well as the admission on the part of P.W.1, the Trial Court
in paragraph No.9, taken note of the evidence in detail and
granted the relief of permanent injunction. But while granting
the relief, made it clear that on the western side of the suit
schedule property, Sy.No.28/167 is in existence, though the
name of R.P.Ramesh is shown in the boundary, while granting
the relief of permanent injunction shown Sy.No.28/167 as per
the Commissioner report and granted the relief.
6. Being aggrieved by the said judgment and decree
of the Trial Court, an appeal is filed before the First Appellate
Court.
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7. The learned counsel for the appellants would
contend that before the First Appellate Court, an application
was filed invoking Order 41 Rule 27 of CPC and the same was
rejected. Having considered the grounds which have been
urged in the appeal, the First Appellate Court also formulated
the points whether the plaintiffs prove that they are in
possession of the land as shown in the boundaries and
whether the application filed deserves to be allowed and
whether it requires interference of the Court? The Appellate
Court having considered both oral and documentary evidence
placed on record, particularly the Commissioner report, in
paragraph No.39, taken note of that the revenue records
produced by the plaintiffs with regard to suit Sy.No.28/2 also
shows only 2 acres of land. Thus, in the absence of proper
pleadings and evidence in support of such plea, the contention
of the plaintiffs that boundaries prevail over the extent and
they are in possession of 4 acres of land cannot be accepted.
As per the report of the Court Commissioner submitted on
13.11.2015, the plaintiffs are in possession of 2 acres of land
in Sy.No.28/P2 and the land situated on the western side is
Sy.No.28/167 measuring 1 acre 39 guntas, which is in
possession of defendant No.2. It is clarified that the
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defendants are not in possession of any excess land. The
plaintiffs have not filed any objections to the said report of the
Court Commissioner taking up any contentions to the
contrary. The First Appellate Court having considered all
these materials, confirmed the judgment of the Trial Court.
8. The learned counsel for the appellants in this
second appeal would vehemently contend that the defendants
played fraud and got compromised the suit showing the
property belongs to them and both the Courts have
committed an error in appreciating the material available on
record. It is also contended that in the absence of there
being findings that, the cloud casted on the title of the
appellants over the suit schedule property, whether the
Courts below were justified in dismissing the suit on the
ground that they have to seek the relief of declaration and the
very approach of the Trial Court as well as the Appellate Court
is erroneous and fails to take note of the material on record.
In the absence of the defendants placing any material that
western boundary shown in the suit schedule is not correct,
whether the Courts below were justified in dismissing the suit
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on the said ground. The learned counsel would contend that
this Court has to frame the substantial question of law.
9. Having heard the learned counsel for the
appellants and considering the material available on record,
the Trial Court having considered the Commissioner report,
though earlier Commissioner report was filed, the same was
questioned and disputed and subsequently re-directed the
Commissioner to file a fresh report and fresh report is
considered by the Trial Court in paragraph No.8 and comes to
the conclusion that the plaintiffs are in possession of 2 acres
of land for which they have claimed the relief of permanent
injunction and though they claim more than 2 acres, nothing
is placed on record to substantiate that they are having more
property. The Trial Court noticing that on the western side of
the suit schedule property, the property of Sy.No.28/167 is
available in terms of the Commissioner report, granted the
relief except modifying the western boundary in respect of
other three boundaries the same tallies with each other. An
observation is also made that the plaintiffs are making an
attempt to claim more extent than what they are having title
as well as possession and the possession is also confirmed
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that they are in possession of 2 acres of land and the same is
observed in paragraph No.9 extracting the answers elicited
from the mouth of P.W.1 and an observation is made that it
means that the plaintiffs are claiming more than 2 acres
though they have title and possession only to an extent of 2
acres and the plaintiffs have no right concern over
Sy.No.28/167. Further, he has also admitted that the
defendants got the said Sy.No.28/167 measuring 2 acres as
per compromise decree passed in O.S.No.49/2005 and even
the Commissioner report is also that defendant No.2 is having
only 2 acres of land i.e., actually 1 acre 39 guntas was shown
in the Commissioner report and the same is taken note of.
10. The Appellate Court also having re-assessed the
material available on record, formulated the point with regard
to 4 acres is concerned and answered the same in the
negative, since the plaintiffs have got 2 acres of land and also
the possession is established to the extent of 2 acres and a
detail discussion was made in paragraph No.39 of the
judgment of the Appellate Court having considered the
Commissioner report. The fact that the Commissioner was
appointed and re-directed to submit the Commissioner report
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also taken note of and none of the parties have filed any
objections to the second Commissioner report. Taking note of
that only an extent of 2 acres is already granted by the Trial
Court, the Appellate Court also confirmed the same. When
such being the case, the very contention that this Court has
to frame the substantial question of law with regard to both
the Courts are not justified in appreciating the material on
record and in coming to the conclusion that on the western
side, the property bearing No.28/167 remains is erroneous
and ought to have shown as the land of R.P.Ramesh cannot
be accepted. Hence, I do not find any ground to admit the
appeal and frame any substantial question of law.
11. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MD
