Karnataka High Court
Rudroji Rao vs Sri. Rudrappa on 11 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 445 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.445 OF 2025 (INJ)
BETWEEN:
1. RUDROJI RAO
S/O LATE DHARMOJI RAO
AGED ABOUT 69 YEARS,
R/O MARASHETTYHALLI VILLAGE
BHADRAVATHI TALUK-577 233.
...APPELLANT
(BY SRI. CHANDRANATH ARIGA K., ADVOCATE)
AND:
1. SRI. RUDRAPPA
AGED ABOUT 64 YEARS,
Digitally signed S/O LATE KENCHAPPA,
by DEVIKA M
Location: HIGH 2. NAGENDRAPPA
COURT OF AGED ABOUT 61 YEARS,
KARNATAKA S/O LATE KENCHAPPA,
3. HALESHAPPA
S/O LATE PARASAPPA,
AGED ABOUT 49 YEARS,
ALL ARE RESIDENTS OF
MARASHETTYHALLI VILLAGE
BHADRAVATHI TALUK-577 233.
...RESPONDENTS
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RSA No. 445 of 2025
HC-KAR
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 03.12.2024
PASSED IN R.A.NO.33/2022 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND JMFC, BHADRAVATHI, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 11.03.2022 PASSED IN O.S.NO.187/2016 ON THE FILE
OF THE II ADDITIONAL CIVIL JUDGE AND JMFC,
BHADRAVATHI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. This matter is listed for admission. Heard the
learned counsel for the appellant.
2. This second appeal is filed against the
concurrent finding of the Trial Court dismissing the suit
and confirming the same by the First Appellate Court.
3. The factual matrix of case of the plaintiff before
the Trial Court that the suit schedule property was granted
in his favour by the panchayat and to that effect they
issued the document Ex.P.1 to Ex.P.4 and defendants are
interfering with the lawful possession of the plaintiff and
hence, filed the suit seeking the relief of permanent
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injunction. The defendant appeared and filed the written
statement contending that plaintiff has no title namely
registered document to show the title over the suit
schedule property. The plaintiff has given an application to
Marashettyhalli Grama Panchayath by misleading the
authority by saying that he is in possession of the suit
schedule property. The Grama Panchayath is not the
owner of the suit schedule property and suit schedule
property is not a Grama Tana so as to make a grant in
favour of the plaintiff. Originally one Thimmanna is having
land measuring 7 acres 21 guntas in Sy.No.89 of
Marashettyhalli Village, which was purchased through sale
deed dated 03.04.1960 after the death of Thimmanna,
Panchappa and Parasappa being the legal heirs of
Thimmanna have acquired the right over the said
property, the said two persons have sold several
properties and retained only 0-18½ guntas of land in their
possession. The plaintiff has filed the application before
the panchayat without issuing any notice to these
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defendants. The P.D.O in collusion with the plaintiff had
passed the resolution without verification of the relevant
records. The defendants are having property in Sy.No.89
and it is situated towards the western side of the plaintiff's
property that means in between the property of the
plaintiff and drainage of K.K Road, the property of the
defendants is situated. The plaintiff under the guise of the
resolution has tried to form fence around the suit schedule
property and the same is resisted by these defendants.
The defendants have also issued legal notice to the
plaintiff, to the Secretary, to the Tahasildar and to the
Executive Officer, Taluk Panchayat and the plaintiff had
issued false reply. The defendants have also given the
representation before the Secretary, Grama Panchayat and
Taluk Panchayat. Hence, sought for the relief of dismissal
of the suit.
4. The Trial Court having considered the
pleadings, even an application was filed under Order 6
Rule 17 of CPC, the same was allowed. The plaintiff got
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amended the plaint and modified the extent of the suit
schedule property and defendants have also filed
additional written statement in view of the amendment.
The Trial Court having considered the pleadings of the
parties, framed the issues and answered all the issues as
negative having appreciating the material on record since
the very claim of the plaintiff that there was a grant but
not produced any resolution before the Court having
granted the land and also the order of grant also not
placed on record and only relies upon the e-Swathu record
as Ex.P.1 and assessment register extract and demand
register extract and endorsement. On the other hand
defendants have placed the document of exhibit D-series
by examining D.W.1 and D.W.2 that is copy of the sale
deed, RTC Extracts, mutation register, Akara band, copy of
the order passed by the High Court, document Ex.D.7 and
Ex.D.8-endorsement, Ex.D.9 receipt, Ex.D.10 rough
sketch, Ex.D.11 acknowledgment and copy of the order as
per Ex.D.12 and notice. The Trial Court having considered
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the oral and documentary evidence and also taken note of
the plaintiff having the knowledge about the challenge was
made before the order of grant in favour of the plaintiff
and he was also represented through counsel, but did not
place it on record the document Ex.D.12 the order passed
on 29.06.2016 and detailed order has been passed that
the plaintiff has not approached the Court with clean
hands and dismissed the suit.
5. Being aggrieved by the said judgment of
dismissal, R.A.No.33/2022 is filed. The First Appellate
Court having considered the grounds urged in the appeal
memo, extracted the grounds in paragraph No.11 and also
taken note of the pleadings and so also an I.A is filed
under Order 41 Rule 27 read with Section 151 of CPC
praying to permit him to lead further evidence before the
Court by way of appointment of Court Commissioner to
identify the existence of property of plaintiff and
defendant. The Appellate Court having considered the
pleadings and grounds urged in the appeal memo and also
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filing of an application, framed the point for consideration
particularly the application filed under Order 41 Rule 27 of
CPC and also filed an application under Order 26 Rule 9 of
CPC for appointment of Commissioner. Having re-assessed
the material available on record, answered the Point No.1
as affirmative and answered the other points for
consideration as negative in coming to the conclusion that
when the appellant/plaintiff failed to produce the grant
order resolution and also not proved the possession,
question of appointment of Commissioner doesn't arise
and dismissed the appeal in coming to the conclusion that
the appellant had filed only a suit for bear injunction based
on the documents issued by the Grama Panchayath except
producing the Grama Panchayat documents, he has not
produced any document to identify his property and
moreover Executive Officer, Taluk Panchayat cancelled
Form No.11B document issued by the Grama Panchayat
and taken note of decision of the Apex Court in the
Judgment reported in (2000) 7 JT 379 in between Sri
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Shreepat V/s Rajendra Prasad and others. Having
considered the principles laid down in the judgment that
"since there was a serious dispute with regard to that area
and boundaries of the land in question, especially with
regard to its identity, the Courts below, before decreeing
the suit should have got the identity established by issuing
a survey commission to locate the plat in dispute and find
out whether it formed part of Khasra No.257/3 or Khasra
No.257/1" and taken note of the principles laid down in
the judgment, comes to the conclusion that those
judgments are also not helpful to the appellant and
contend that Appellant has not made out any proper
ground to remand the case and permit him to appoint
Court Commissioner and dismissed the appeal.
6. Being aggrieved by the said confirmation of the
order, both the orders were challenged before this court.
The main contention of the appellant's counsel before this
Court in the second appeal that the Trial Court is not
justified in holding that the grant is cancelled and
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therefore the possession of the plaintiff over suit property
is not proved and also committed an error in rejecting the
application filed under Order 41 Rule 27 of CPC and so also
the application filed for appointment of commissioner and
the very reasoning given by the First Appellate Court that
plaintiff has not proved his possession over the suit
property is not a proper finding. Hence, this court has to
frame the substantive question of law.
7. Having heard the appellants' counsel and also
considering the pleadings of the plaintiff/appellant and
also the contention of the defendant and issues framed by
the Trial Court and also the answer elicited from the
mouth of the P.W.1 which have been extracted by the Trial
Court while passing such an order, taken note of the
boundaries and the same has been extracted in paragraph
No.12 of judgment of the Trial Court and also extracted
the admission given by the P.W.1 in paragraph No.16
wherein P.W.1 categorically admitted that when he made
an attempt to put the stone as well as fencing in respect of
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land to the extent of 29 x 50 feet of the property of the
defendant, the incident has taken place. Apart from that
he also categorically admitted that no resolution was
passed and no resolution is also placed on record, but in
e-Swathu that is document Ex.P.1 came into existence and
apart from that he is having the knowledge about
cancellation of the order passed by the Executive Officer
since he has engaged the counsel before the Executive
Officer and subsequent to the filing of suit, an order was
passed on 29.06.2016 and the same was not stated in the
affidavit which was filed on 04.12.2017 and the same was
observed by the Trial Court in paragraph No.29 that the
plaintiff has not approached the Court with clean hands.
8. The First Appellate Court having re-assessed
the material available on record taken note of the
reasoning given by the Trial Court and also taken note of
admission, particularly in paragraph Nos.30, to 33 and
also comes to the conclusion that evidence of P.W.1 and
P.W.2 is not sufficient to prove possession of appellant in
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the extent of suit schedule property and the same is
observed in paragraph No.33 and also taken note of the
document Ex.P.2 and also Ex.P.1 and also taken note of
document Ex.D.12 and comes to the conclusion that
plaintiff has failed to prove his actual possession and
enjoyment of the suit schedule property and when such
concurrent finding is given with regard to the very
possession as well as when there was no any grant order
and also there was no any resolution, only based on the
document given by the panchayat, particularly Ex.P.1 to
Ex.P.4, files the suit. When such material is considered by
the Trial Court as well as the First Appellate Court, I do
not find any error committed by both the Courts in
appreciating both factual aspects as well as when there
was no grant order and the same was cancelled, question
of granting the relief of permanent injunction unless the
property is identified with correct description of the
property and when the possession was not proved,
question of granting the relief of permanent injunction
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doesn't arise. Both the courts have applied their mind and
dismissed the suit. Hence, no question of admitting the
second appeal and framing any substantive question of
law.
9. In view of the discussions made above, I pass
the following:
ORDER
The Second Appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
