Karnataka High Court
Smt Puttamma vs Sri M Nagaraju @ M Papanna on 24 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:21968
RSA No. 482 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.482 OF 2023 (INJ)
BETWEEN:
SMT. PUTTAMMA
W/O LATE MALLIKARJUNA
PRESENTLY AGED ABOUT 76 YEARS
R/AT NO.115, 'SHIVAKRUPA',
GURUSARVABHOUMA ALSO CALLED AS
GURUSARVABHOUMA LAYOUT,
BEHIND ITI LAYOUT,
OPPOSITE TO GOPALAN ARCADE
MYSURU ROAD, BENGALURU-560098
PRESENTLY R/AT NO.225/8
1ST FLOOR, 53RD CROSS,
Digitally signed 4TH BLOCK, RAJAJINAGAR,
by DEVIKA M
BENGALURU-560010
Location: HIGH
COURT OF
KARNATAKA REP. BY HER SON AND GPA HOLDER
SRI KASHIVISHWANATH M
...APPELLANT
(BY SRI H V DEVARAJU, ADVOCATE)
AND:
SRI M NAGARAJU @ M PAPANNA
S/O LATE M MAHADEVAPPA
PRESENTLY AGED ABOUT 75 YEARS,
R/AT M L HUNDI VILLAGE,
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RSA No. 482 of 2023
HC-KAR
UKKALAGERE POST,
SOSALE HOBLI
T NARASIPURA TALUK-571124
MYSURU DISTRICT
...RESPONDENT
(BY SRI P NATARAJU, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 10.10.2022
PASSED IN R.A NO.11/2021 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC., T. NARASIPURA, MYSURU AND
ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel appearing for the
respective parties.
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2. This appeal is filed against the concurrent
finding of both the Courts wherein the relief is sought for
mandatory injunction and permanent injunction.
3. The factual matrix of the case of the plaintiff
before the Trial Court that the defendant had constructed
the toilet in the property belongs to her and hence, she is
entitled for the relief of mandatory and permanent
injunction. The defendant appeared and filed the written
statement contending that toilet has been constructed in
his own property and not in the property of the plaintiff as
contended. Hence, the plaintiff is not entitled for the
relief as sought.
4. The Trial Court having considered the pleadings
of the parties, framed the Issues and allowed the parties
to lead their evidence. In order to prove the case of the
plaintiff, the GPA holder of the plaintiff is examined as
PW1 and got marked the documents at Ex.P1 to 22. On
the other hand, the defendant examined himself as DW1
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and got marked the documents at Ex.D1 to D7(a). The
Trial Court having considered both oral and documentary
evidence placed on record particularly considering the
document of sale deed dated 28.05.1973 in which the
plaintiff is relied upon at Ex.P2 wherein the measurement
of the property shown as 42 x 48 feet and also Ex.P4 i.e.,
demand register wherein measurement of the suit
schedule property is shown as 37 x 43 feet and the Trial
Court taken note of the case of the defendant wherein he
claims that his property is measuring 35 x 43 feet and
also produced the documents at Ex.D1 and D5 - demand
registers for the period of 2011-12 and 2017-18
respectively reveal that the defendant owns the property
in the measurement of 35 x 43 feet and also taken note of
the fact that construction taken by the defendant is to the
extent of 11 x 29 feet and he has constructed the toilet
towards western side of his property and also he retained
vacant area to the extent of 24 x 14 feet after
construction of his house. The Trial Court also considered
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both oral and documentary evidence placed on record
wherein DW1 in his cross-examination though he denied
that he has constructed the toilet in the suit schedule
property, as per Ex.D1 and D5, the defendant has
retained 24 x 14 feet vacant site apart from his residential
house which is constructed in the measurement of 11 x 29
feet. The plaintiff also not denied the fact that the
defendant has not left with any vacant site with the
measurement of 24 x 14 feet after construction of his
house and the Trial Court also taken note of unequivocal
admission on the part of PW1 that defendant has
constructed the toilet in his property and the same is
sufficient to hold that the plaintiff has failed to prove her
claim and dismissed the suit.
5. The First Appellate Court also having
reassessed both oral and documentary evidence placed on
record as well as the grounds which have been urged,
formulated the points and in paragraph 22 made an
observation that the plaintiff based on her title on the
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basis of Ex.P2 - sale deed dated 28.08.1973 claims that
she had purchased the property i.e., east to west 25 mola
and north to south 32 mola. If the measurement is
converted into feet, it comes to 42 x 48 feet. The First
Appellate Court also take note of demand register extract
at Ex.P4 which clearly discloses that the measurement as
37 x 43 feet thus, the measurement shown in the
documents of plaintiff are not tallying with each other.
Both the Courts have taken note of Ex.P2 and P4 and also
taken note of admission on the part of PW1 regarding
very construction of the toilet wherein clear admission
given by PW1 that defendant has constructed the toilet in
his own property. When the plaintiff claims that toilet was
constructed in her property, she must have to prove the
same. Having considering the admission on the part of
PW1 and reassessing the material on record, the First
Appellate Court dismissed the appeal and confirmed the
judgment and decree of the Trial Court.
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6. The learned counsel for the appellant would
vehemently contend that both the Courts have committed
an error in considering the material available on record
particularly Ex.P2 which is purchased by the husband of
the plaintiff and it measures as 42 x 48 feet. Instead of
considering the document at Ex.P2, both the Courts
believed the document at Ex.P4 that is actual
measurement is in existence in the demand register and
ought not to have relied upon the document at Ex.P4 and
ought to have considered the document at Ex.P2. This
Court has to frame the substantive question of law that
both the Courts have committed an error in coming to the
conclusion that the plaintiff has not proved the fact that
the construction made by the defendant is in the property
of the plaintiff. The counsel would vehemently contend
that the application was filed under Order 26 Rule 9 of
CPC seeking for appointment of Court Commissioner to
find out as to whether the toilet constructed by the
defendant over the suit schedule property or not and the
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said application was dismissed by the Trial Court and
hence, this Court has to frame the substantive question of
law admitting the appeal.
7. Per contra, the learned counsel appearing for
the respondent would vehemently contend that both the
Courts have taken note of the fact that though document
at Ex.P2 is relied upon, Ex.P4 is very clear that demand
register which clearly discloses the existence of the
property available at the spot and the defendant has
produced the documents at Ex.D1 to D7 and even
admission was given by PW1 in the cross-examination
that the toilet was constructed by the defendant in his
property and same was taken note of by both the Courts
and hence, dismissed the suit.
8. Having heard the learned counsel appearing for
the respective parties and also on perusal of the material
on record, it discloses that the very case of the plaintiff is
with regard to 4 x 4 feet. It is the contention of the
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plaintiff that the defendant had constructed the toilet in
the property belongs to the plaintiff. In order to prove
the said fact, the plaintiff has relied upon both oral and
documentary evidence placed on record. No doubt, the
plaintiff relies upon Ex.P2, but the sole document at Ex.P2
is contrary to the document at Ex.P4 wherein
measurement shown in Ex.P4 is contrary to Ex.P2. In
order to prove the claim of the plaintiff, nothing is elicited
from the mouth of DW1 in his cross-examination but PW1
himself has given the unequivocal admission that
defendant has constructed toilet in his property and
hence, the Trial Court in paragraph 17, having considered
the material on record rightly comes to the conclusion
that the very admission is suffice to comes to a conclusion
that plaintiff has not proved the case and the First
Appellate Court on reconsideration of material on record
in detail discussed the claim of the plaintiff and comes to
the conclusion that the defendant had not encroached and
put up the construction in the suit property and in
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paragraph 22 also taken note of the measurement
available as per the demand register produced by plaintiff
as 37 x 43 feet. The First Appellate Court also taken note
of the admission of PW1 in paragraph 27 wherein, PW1
had gone to the extent to depose that he does not know
when the defendant has constructed the toilet and even
does not know the measurement of the defendant's
property also. Hence, considering the material on record,
both the Courts given the fact finding with regard to the
very case of the plaintiff wherein she contended that
defendant put up the toilet in the property belongs to the
plaintiff, but she did not prove the same. Hence both the
Courts considered the material on record in a proper
perspective. Hence, I do not find any error in the findings
of both the Courts. Unless there is any perversity in the
finding of both the Courts ignoring the material on record,
this Court cannot comes to other conclusion. Hence, I do
not find any grounds to frame the substantive question of
law and to admit the appeal.
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9. In view of the discussions made above, I pass
the following:
ORDER
The second appeal is dismissed.
In view of dismissal of the main appeal, I.As. if any,
do not survive for consideration and the same stand
dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
SN
