Karnataka High Court
Sanjeeva Kulala vs Sri. Umakanth Kamath on 13 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:46323
RSA No. 396 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 396 OF 2024 (POS)
BETWEEN:
1. SANJEEVA KULALA,
AGED ABOUT 52 YEARS,
2. BHASKAR KULAL,
AGED ABOUT 50 YEARS,
3. KUSUMA KULAL,
AGED ABOUT 47 YEARS,
4. SUDHAKAR KULAL,
AGED ABOUT 45 YEARS,
ALL ARE CHILDREN OF
LATE PADDU HANDTHI,
R/AT NO. 38, KALATHUR VILLAGE,
SANTHEKATTE POST, BRAHMAVARA TALUK,
Digitally UDUPI DISTRICT - 576213.
signed by C ...APPELLANTS
HONNUR
(BY SRI PRASAD HEGDE K B, ADVOCATE)
SAB
Location: AND:
HIGH
COURT OF SRI UMAKANTH KAMATH,
KARNATAKA AGED ABOUT 60 YEARS,
S/O A VAMANA KAMATH,
R/AT NO. 38, KALATHUR VILLAGE,
SANTHEKATTE POST,
UDUPI DISTRICT - 576105.
...RESPONDENT
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RSA No. 396 of 2024
HC-KAR
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 13.10.2023
PASSED IN RA.No.51/2022 ON THE FILE OF THE ADDITIONAL
SENOR CIVIL JUDGE AND ACJM, UDUPI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 16.11.2022 PASSED IN OS No.1/2015 ON THE FILE OF
THE PRINCIPAL CIVIL JUDGE AND JMFC, UDUPI.
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. I have heard the
counsel appearing for the appellants. This second appeal is
also filed against the concurrent finding.
2. The factual matrix of the case of the plaintiff
before the Trial Court is that, late Paddu Handthi and
the defendants have been in possession and enjoyment of
the land bearing Survey No.38/16. The specific case of the
plaintiff before the Court is that, item Nos.1 and 2 of plaint
'A' schedule properties and other properties were granted
on occupancy right to A. Vamana Kamath who is the father
of the plaintiff. He has executed a registered settlement
deed dated 02.08.2007 in favour of the plaintiff pertaining
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to plaint 'A' schedule properties and other properties. The
plaintiff purchased item No.3 of plaint 'A'
schedule property from Sanjeeva Kamat and Vrinda
Kamanth through a registered sale deed dated
08.11.2003. Since the date of acquisition by the
plaintiff, he has been in actual possession and enjoyment
of the plaint 'A' schedule property.
3. It is contended that the portion of survey
No.38/16 of Kalathur village measuring 1.75 acres and 25
cents, now bearing Survey No.38/31 (1.15 acres) and
Survey No.38/32 (85 cents), situated immediately next to
item No.1 of the plaint 'A' schedule properties belongs to
the defendants who are the children of late Paddu Handa
and Linga Handa.
4. It is further contended that, taking undue
advantage of the non availability of a boundary wall or
fence which separates the defendants properties and
item No.1 of the plaint 'A' schedule property,
the defendants started raising boundary disputes in the
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year 2013 and scheming to trespass into a portion of the
said item No.1 of plaint 'A' schedule properties.
Therefore, the plaintiff filed an application
before the Survey department for measurement of
item No.1 of plaint 'A' schedule properties. After knowing
about the visit of Surveyor, the defendants, with the help
of their henchmen, trespassed into the portion of
item No.1 of the plaint 'A' schedule property on
01.12.2014 by using old fencing materials and forcibly
started erecting a sort of fence separating the plaint
'B' schedule property from the remaining portion of
item No.1 of plaint 'A' schedule properties.
5. It is also contended that on the basis of
application, the Surveyor appointed by the Survey
department visited the Plaint 'A' schedule properties on
02.12.2014, fixed the boundary marks of the plaint
'A' schedule property and made it clear to the defendants
that they had in fact trespassed into the plaint
'B' scheduled properties. In spite of repeated requests, the
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defendants refused to stop erecting the fence. Hence,
plaintiff gave a petition to the jurisdiction police. But the
police declined to interfere in the matter, since it is a civil
matter. Thereafter, the defendants also threatened to
trespass into item Nos.2 and 3 of the plaint 'A'
schedule property and also the remaining portion of
item No.1. Since the defendants claim possession
of those properties or claim any right over the same,
prayed to grant the relief.
6. The defendants in the written statement
contend that they have been in possession to the extent of
3.40 acres from time immemorial, continuously, peacefully
without any interference by any person. In
the Hadbust sketch of the Tahsildar clearly shows that the
defendants have been in possession and enjoyment of
3.40 acres of land in Survey No.38/16. In the said sketch,
to the south-western side of the above
property, Survey No.38/25 measuring 18 cents is situated,
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which is also in the exclusive possession and enjoyment of
the defendants from time immemorial.
7. From the sketch and topography of the land, it
is clear that no person can enter Survey No.38/16
measuring 3.40 acres and Survey No.38/25 measuring 18
cents, as there are clear boundaries. Between the mud
dhare with fence and remaining portion of the said survey
number, in the eastern side to bifurcate the property of
the plaintiff, there exists a tar road called Nalkuru,
Muddoor road. To the eastern side of the said road, the
property of the plaintiff exists, and hence, the defendants
contend that they are in exclusive possession from time
immemorial and pray the Court to dismiss the suit.
8. The Trial Court considering the pleadings of the
parties, framed the issues with regard to the claim made
by the plaintiff and also issues with regard to the
defendants that they have been in possession and
enjoyment of 3.40 acres of land. The Trial Court
considering the material on record, answered the
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issue Nos.1 and 2 finding that defendants
had trespassed into the plaint 'B' schedule properties, and
answered issue No.3 in the negative and answered the
other issues in the affirmative, came to the conclusion
that, based on the evidence of PW-1 discussed
in paragraph No.20 and also the evidence of DW-1 to 5
discussed the same in paragraph No.1 to 26, and
particularly in paragraph No.32, came to the conclusion
that defendants are in possession of the 'B' schedule
property along with granted land of 2 acres to their
mother Paddu Handthi. However, since the defendants
failed to produce any piece of document to show
their possession of the Plaint 'B' schedule property, the
Court granted the relief, ordering them to surrender
the Plaint 'B' scheduled property by
removing the fence erected by them within three months.
9. The judgment was challenged before
the Appellate Court and the Appellate Court also having
considered the grounds urged in the appeal
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memo, formulated the point, whether the Trial Court
considered both oral and documentary evidence in a
proper perspective and whether the finding requires
interference from this Court. The First Appellant Court,
having re-assessed the material on record particularly the
cross-examination which has been narrated in
paragraph No.17 in respect of PW-1 has also taken note of
the admission on the part of DW-1 that Surveyor issued
notice to him before conducting the survey. It is also
the specific case of the plaintiff that they put up a fence in
the year 2013 and immediately
when they came to know about the encroachment of
'B' schedule property, they approached the police and
lodged a complaint. The First Appellate Court in
paragraph No.19, came to the conclusion that when the
attempt was made, they approached the police. Further,
In the cross examination, DW-1 also admitted that they
did not erect a new fence but they only repaired the
existing fence. A copy of the endorsement Ex.P-25 was
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also marked with regard to the encroachment is
concerned. The recitals of Exs.P23 to 25 clearly show
that the appellants were interfering with the
possession, and hence, Appellate Court confirmed the
judgment of the Trial Court.
10. Being aggrieved by the concurrent finding, the
present second appeal is filed before this Court. The
counsel appearing for the appellants vehemently contends
that the plaintiff cannot ask any mandatory injunction
without seeking the relief of possession of the land,
which is admittedly with the defendants. The counsel
further contends that the direction given by the Trial Court
to surrender the possession of the 'B' schedule property
cannot be granted without seeking the relief of
declaration and mandatory injunction. The
counsel also vehemently contends that the Courts
below erred in not framing proper and necessary issues
based on the pleadings. Hence, this Court has to admit
and frame the substantial questions of law.
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11. Having heard the appellants counsel and also
perused the pleadings of the plaintiff and defendants
which have been narrated above. It is the specific case of
the plaintiff that defendants had encroached the property.
The property was surveyed, and a notice was also issued.
It is also the claim of the defendants that they are
in possession to the extent of 3.46 acres of Kalathuru
village.
12. It is the specific case of the plaintiff that when
the surveyor visited and surveyed the land, particularly
on 02.12.2014, an attempt was made to trespass into
the plaint 'B' schedule property. Despite requests, the
defendants did not stop the same. In this regard, a police
complaint was given, and police replied by directing them
to go to the civil Court, as the dispute was civil in nature.
Considering the material available on record,
particularly the hadubast sketch Ex.P22 and also the
endorsement issued by the police Ex.P25 when
the complaint was lodged with regard to the trespassing of
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the property, the Trial Court took note of the admission on
the part of DW-1 to 5 also wherein, they categorically
admitted that they are in excess possession of the
property, as the property allotted to them was only to the
extent of 2 acres, but they claim 3.40 cents of the land.
When such material was considered by the Trial Court in
paragraph No.20, the evidence of PW-1 and also the
evidence of witnesses DW-1 to 5
in paragraph No.21, 22, 23, 24, 25 and it also took note of
cross examination of each witness. It came to the
conclusion in paragraph No.30, 31 and 32 that the extent
of land allotted is only to the extent of 2 acres to their
mother Paddu Handthi but they failed to produce any piece
of document to show their possession in the plaint
'B' schedule property, and considering the documents
placed before it particularly the complaint, the Trial
Court came to the conclusion that defendants have
to surrender the possession.
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13. Now the contention of the appellants
counsel that without seeking the relief of declaration, suit
for mandatory injunction cannot be maintainable. The
said contention also cannot be accepted since the
defendants are not claiming any right in respect of the
property which the plaintiff has sought and the claim of
the plaintiff that the said property belongs to them.
When such being the case, since the defendants not
disputing the title of the plaintiff but only claim that they
are in possession, and in order to substantiate the same,
nothing is placed on record.
14. On the other hand, plaintiff placed
the documents before the Court, particularly document
Ex.P22 hadubast apart from that Ex.P25 endorsement
issued by the police when the attempt was made
to trespass the property of the plaintiff. The
documents Exs.P23, 24 also disclose that the plaintiff has
opposed the claim. When such being the case, I do not
find any ground to admit and frame substantial questions
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of law. There is no perversity in the finding of both the
Trial Court as well as the First Appellant Court in
appreciating both oral and documentary evidence.
Hence, the question of invoking Section 100 of CPC does
not arise. Since both questions of fact and questions of law
were considered by the Trial Court and the Appellate
Court, there is no ground to admit and frame the
substantial questions of law.
15. In view of the discussions made above, I pass
the following;
ORDER
i) The Regular Second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
CHS
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