Karnataka High Court
Sri Karibasappa vs The Chief Secretary on 4 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 675 of 2025
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.675 OF 2025 (INJ)
BETWEEN:
1. SRI. KARIBASAPPA,
SON OF DODDAHANUMANTHAPPA,
AGED ABOUT 66 YEARS,
RESIDING AT KATTALAGERE VILLAGE,
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT,
DAVANAGERE - 577 213.
...APPELLANT
(BY SRI. SWAMY C.M., ADVOCATE FOR
SRI. C. ANANTHA KUMAR, ADVOCATE)
AND:
Digitally signed
by DEVIKA M 1. THE CHIEF SECRETARY,
STATE GOVERNMENT OF KARNATAKA,
Location: HIGH
COURT OF VIDHANA SOUDHA,
KARNATAKA BANGALORE - 560 001.
2. THE DEPUTY COMMISSIONER,
DAVANAGERE DISTRICT,
DAVANAGERE-577 213.
3. THE TAHASILDHAR AND ADLR,
CHANNAGIRI TALUK,
CHANNAGIRI-577 213.
4. SRI. LOKESH,
SURVEYOR, SURVEY DEPARTMENT
TALUK OFFICE,
CHANNAGIRI-577 213.
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5. SRI. KARIYAPPA,
SON OF SRI. NANJAPPA,
AGED ABOUT 73 YEARS.
6. SMT. PADMAMMA,
WIFE OF LATE GANESHAPPA,
AGED ABOUT 53 YEARS.
7. KUMARI. VAISHALI,
DAUGHTER OF LATE GANESHAPPA,
AGED ABOUT 26 YEARS.
8. KUMARI. CHAITRA,
DAUGHTER OF LATE GANESHAPPA,
AGED ABOUT 23 YEARS.
9. KUMARI. SHEWTHA,
DAUGHTER OF LATE GANESHAPPA,
AGED ABOUT 22 YEARS.
10. SRI. B. HANUMANTHAPPA,
SON OF BHEEMAPPA,
AGED ABOUT 36 YEARS.
RESPONDENTS NO.5 TO 10 ARE
RESIDING AT KATTALAGERE VILLAGE,
CHANNAGIRI TALUK,
DAVANAGERE DISTRICT - 577 213.
...RESPONDENTS
(BY SMT. RADHA RAMASWAMY, AGA FOR R1 TO R3)
THIS RSA IS FILED UNDER ORDER XLI RULE 1 R/W
SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 03.03.2025 PASSED IN R.A.NO.52/2024 ON THE FILE
OF SENIOR CIVIL JUDGE AND JMFC AT CHANNAGIRI,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 05.04.2024 PASSED IN
O.S.NO.206/2017 ON THE FILE OF II ADDITIONAL CIVIL
JUDGE AND JMFC, CHANNAGIRI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 675 of 2025
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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission. Heard the learned
counsel for the appellant.
2. This appeal is filed against the concurrent finding
of the Trial Court. The suit is filed for the relief of permanent
injunction. The claim of the plaintiff before the Trial Court is
that the plaintiff is in possession and enjoyment of the suit
schedule property and the defendants are interfering with the
possession of the plaintiff. It is the case of the plaintiff that
the land bearing Sy.No.165/3 totally measuring 16 acres 36
guntas situated at Kattalagere Village, Basavapattana Hobli,
Channagiri Taluk, originally belongs to one Bheemappa and he
was the owner, kathedar in possession and enjoyment of the
said land. During his lifetime, he had gifted an extent of 8
acres 18 guntas of the northern side of Sy.No.165/3 of land in
favour of his daughter Smt. Hanumavva for the welfare of her
children and the said gift deed is registered vide gift deed
dated 02.08.1943. Since then, she became the owner of the
said extent of land and remaining extent in the southern side
measuring 8 acres 29 guntas was retained by the grandfather
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of the plaintiff. Subsequent to the death of Bheemappa, the
father of the plaintiff succeeded to the said property and the
revenue entries were also changed into the name of the
father of the plaintiff under IH proceedings. Subsequently,
after the death of the plaintiff's father/Dodda
Hanumanthappa, the revenue entries changed into the name
of the plaintiff under IH proceeding vide IHC No.7/1980-81.
The plaintiff is enjoying the suit property as an absolute
owner, kathedar and successor in possession which is
described in the plaint schedule.
3. It is the further case of the plaintiff that out of the
land which was gifted to Hanumavva to an extent of 8 acres
18 guntas, 13 guntas was acquired for the formation of IT
Road and channel 3rd zone distributor of Malebennuru Branch
Channel vide Mysuru gazette dated 30.05.1968 by the
Government of Karnataka. Gurusiddappa and Kariyappa have
received the compensation amount from the Special Land
acquisition Officer, Shivamogga on 13.02.1969. The said
extent which was acquired for the IT Road and channel was
not reduced by the revenue authorities in the revenue records
and the same has been continued in the RTC's of the said
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survey number which was actually remains only to an extent
of 8 acres 5 guntas after acquisition of 13 guntas.
Subsequent to that, defendant Nos.5 to 7 had entered into
the partition deed on 12.06.2001 and in the said partition in
Sy.No.165/3B measuring 20 guntas was allotted to the share
of Kariyappa/defendant No.5 and extent of 3 acres 35 guntas
was allotted to the share of Basavarajappa and Manjunatha
jointly and as per the registered partition deed, katha was
accepted into their names in the revenue records.
4. It is the further case of the plaintiff that the
brother of defendant Nos.5 to 7 was also mentioned in the
revenue records, 4 acres 15 guntas. Thereby, totally 8 acres
30 guntas appeared in the revenue records and thereby an
extent of 25 guntas is and was not in possession with
defendant Nos.5 to 7 and an alleged partition deed created by
them to an extent of 20 guntas in Sy.No.165/3B on the
revenue records. The defendant No.5 made representation to
defendant Nos.3 and 4 for hudbasth survey of 20 guntas
appeared in Sy.No.165/3B. The defendant Nos.3 and 4 made
illegal attempts to fix the hudbasth in the land of defendant
Nos.5 to 7 on which they made representation to the
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Assistant Commissioner, Davanagere Sub-Division in
R.A.No.364/2017-18. The said Assistant Commissioner
ordered directing the Tahsildar/defendant No.3 to make an
enquiry about 13 guntas which was acquired and
subsequently after enquiry make a suitable order in that
connection on 27.10.2017. Even after the direction issued by
the higher authority to the Tahsildar, Channagiri/defendant
No.3 not initiated any proceedings and also considered the
matter. The defendant No.4 surprisingly issued the notice to
the plaintiff intimating the plaintiff to be present before the
spot on 22.11.2017. The defendant Nos.3 and 4 without
asserting and conducting enquiry straight away taken steps to
measure the land of the plaintiff and intimated to produce the
documents. The plaintiff made representation to defendant
Nos.1 to 4 regarding the actual fact and possession at this
spot. But defendant Nos.3 and 4 without considering the
plaintiff's records made illegal attempts to fix the hudbasth
boundaries.
5. It is also the case of the plaintiff that defendant
No.4 is acting on the say of defendant Nos.5 to 7. The
defendant No.3 colluding with defendant No.4 performed the
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hudbasth sketch, by violating the directions of higher
authorities. The plaintiff without any alternative approached
the Court for proper and appropriate remedy. The plaintiff
and defendant Nos.5 to 7 and their brothers divided north-
south and in between the land of the plaintiff and defendant
Nos.5 to 7 there exists kaluve width of 2 to 3 feet and on the
northern side of defendant Nos.5 to 7 there was a road which
was acquired by the Bhadra Channel Malebennur 3rd
distributor. The defendant Nos.5 to 7 have no right over the
plaintiff's land after the said kaluve on the southern side and
by suppressing the acquired land the defendants wanted to
lay in the land of the plaintiff by taking survey hudbasth
illegally.
6. In pursuance of the suit summons, the defendants
appeared and filed the written statement contending that
Sy.No.165/3 measuring 16 acres 36 guntas is wrong. The
said Sy.No.165/3 totally measures 17 acres 19 guntas within
23 guntas of kharab and net cultivable area was 16 acres 36
guntas. This kharab was brought under cultivation and as
such that total extent of the property was 17 acres 19 guntas.
However, defendant Nos.5 to 7 admitted the gift deed made
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by Bheemappa in favour of his daughter by name Hanumavva
measuring 8 acres 18 guntas, but denied that Bheemappa
intended to gift the northern half portion in Sy.No.165/3 total
extent measuring 17 acres 19 guntas and in the gift deed only
cultivable area of 16 acres 36 guntas was mentioned. But the
total extent of half portion was put in possession of
donee/Smt. Hanumavva i.e., 8 acres 30 guntas and remaining
8 acres 29 guntas remained with doner/Bheemappa. Since
the date of gift deed, the total extent of property has been
gifted as 8 acres 30 guntas to Hanumavva and the same has
been continued in the names of grandsons of Hanumavva i.e.,
defendant Nos.5 to 7 and remaining extent of 8 acres 29
guntas continued in the name of the plaintiff which includes
11 guntas of kharab. Therefore, the claim made by the
plaintiff that he is in possession of the suit schedule property
is false as he had not stated regarding kharab area of 11
guntas and hence the very approach made by the plaintiff
seeking the relief of permanent injunction is erroneous. They
admitted the execution of registered partition deed as pleaded
by the plaintiff and the hissa allotted to the parties in the said
partition deed with its extent but the defendant denies that an
extent of 25 guntas is not in possession of defendant Nos.5 to
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7. The defendants further denies the creation of revenue
records in the name of the defendant No.5 to an extent of 20
guntas of Sy.No.165/3B without possession.
7. The Trial Court having taken note of the pleadings
of the parties, framed the issues with regard to establishing
the possession of the plaintiff and interference by the
defendants and allowed the parties to lead evidence. The
Trial Court considered the evidence of both the plaintiff and
the defendants and also the documents which have been
placed on record, assessed the evidence and also taken note
of the answers elicited from the mouth of P.W.1 that there
was a gift deed in respect of Sy.No.165 and the total area is
16 acres 36 guntas. The Trial Court in paragraph No.27
extracted the admission of P.W.1, particularly in respect of
the contents of Ex.D.3. P.W.1 admitted total extent of 8
acres 18 guntas and also not produced the partition deed. In
paragraph No.29 extracted the admission of P.W.1 having
conducted the survey and in paragraph No.30 discussed
regarding admission that he has not given any application to
survey the land and dispute between himself and the
defendants is in respect of boundary. The Trial Court having
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considered the evidence of P.W.1, comes to the conclusion
that when the plaintiff has failed to produce the document to
establish the exact location of the schedule property, merely
relying upon Ex.D.3/Pakkabook entries and Ex.P.9/RTC
entries, it cannot be presumed that the schedule property
could be identified. It is held that in a suit for permanent
injunction, the plaintiff invariably has to prove the exact
location of the schedule property with its boundaries. Unless
the same is proved, the question of granting injunction does
not arise and answered point No.1 in the negative and
regarding interference answered point No.2 also in the
negative and comes to the conclusion that unless the plaintiff
proves that he is in lawful possession over the suit schedule
property with its exact identification and boundary, not
entitled for the relief of permanent injunction and dismissed
the suit.
8. Being aggrieved by the said order, an appeal is
filed and in the appeal, the First Appellate Court taken note of
both oral and documentary evidence placed on record and in
paragraph No.24 discussed with regard to the gift deed i.e.,
Ex.P.1 gifting away 8 acres 18 guntas of land at northern half
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extent of Sy.No.165/3 of Kattalagere Village. The First
Appellate Court also taken note of the revenue records were
mutated instead of 8 acres 18 guntas in respect of northern
portion of Sy.No.165/3 of Kattalagere Village, but mutated to
an extent of 8 acres 30 guntas. All along, the plaint is silent
about the discrepancies carried out by the revenue officials
since from 1943. The First Appellate Court also taken note of
the contention of the defendants that extent of share fell to
the family members of defendant Nos.5 to 7 by way of
registered partition deed held as per Ex.P.10, whereby the
defendants have clearly pleaded that 20 guntas land being
allotted to the share of defendant No.5, 3 acre 35 guntas land
being fallen to the joint share of Basavarajappa and
Manjunath and Ganeshappa was allotted to an extent of 4
acres 15 guntas. Thereafter, Basavarajappa and Manjunath
sold 35 guntas of land in favour of Ganeshappa as per Ex.D.5
and whereby, Ganeshappa is in possession of 4 acres 15
guntas + 35 guntas i.e., in total 5 acres 10 guntas in
Sy.No.165/3B. The remaining extent of 3 acres land is in
possession of the purchaser i.e., Hanumavva. 20 guntas land
allotted to the share of Kariyappa is intact with possession of
Kariyappa only and the revenue records is available in the
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name of defendant No.5 in respect of 20 guntas land as per
Ex.D.13. The Trial Court while considering the material on
record, made an observation that the plaintiff's case is also
silent as to how 8 acres 30 guntas of land being mutated even
though Bheemappa gifted away only 8 acres 18 guntas in
favour of Smt. Hanumavva as per Ex.P.1 gift deed. Having
taken note of the recitals made in Ex.D.1, the First Appellate
Court discussed in detail to the extent of land which was
available in paragraph No.25.
9. The First Appellate Court in paragraph No.26
observed that now, the question is whether the plaintiff
proved the northern side boundary of the plaint schedule
property is correct or not. Admittedly, the plaintiff has not
placed any material before the Court to fortify the boundary
details of the plaint schedule property. P.W.1 admitted that in
between the suit schedule property and Kaluve, Ex.D.13
property i.e., 20 guntas standing in the name of defendant
No.5 is situated, which supports the defence of defendant
Nos.5 to 7. P.W.1 further admitted that when survey was
conducted by the survey officials by issuing notice to that
effect as per Ex.P.8, the surveyor found that in between the
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suit schedule property and kaluve, the property of defendant
No.5 i.e., Ex.D.13 is situated. Having re-assessed both oral
and documentary evidence placed on record and the
admission on the part of P.W.1, in paragraph No.28 an
observation is made that when the suit is filed for the relief of
permanent injunction, the defendants seriously disputed the
boundary details so furnished by the plaintiff in respect of the
suit schedule property, more particularly in respect of
northern side and admission was elicited from the mouth of
P.W.1 to that effect and the same is also considered.
10. Both the Trial Court and the First Appellate Court
considered the material available on record and the
discrepancies found and also the extent which revenue entries
are got entered in the name of the plaintiff, though gift deed
is to the lesser extent. When the suit is filed for the relief of
permanent injunction, the plaintiff ought to have described
the exact schedule and also the possession and the
possession has not been proved and admissions are elicited
from the mouth of P.W.1 and the Trial Court extracted the
same in paragraph Nos.25 to 30. The First Appellate Court in
detail discussed the same in paragraph Nos.25 to 29 and
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comes to the definite conclusion that the boundaries do not
tally and also not proved the exact boundary for which the
permanent injunction is sought. When such materials are
considered, I do not find any error committed by the Trial
Court and the First Appellate Court in appreciating the same
and the question of entertaining the second appeal does not
arise unless substantial question of law is made out by the
appellant. Though it is contended that both the orders suffer
from appreciation of evidence by perversity, no such
substantial question of law is made out to admit the second
appeal even on perversity in findings. Hence, there is no
merit in the appeal and no grounds are made out to admit the
appeal and frame the substantial question of law.
11. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MD
