Karnataka High Court
Smt Munivenkatamma vs Sri Gangadhara on 25 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:48875
RSA No. 290 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.290 OF 2025 (DEC/INJ)
BETWEEN:
1. SMT. MUNIVENKATAMMA
W/O LATE DRIVER MUNIYAPPA
AGED ABOUT 84 YEARS
2. SMT. SHARADAMMA
W/O LATE DRIVER MUNIYAPPA
AGED ABOUT 74 YEARS
3. SRI. M. SHIVAKUMAR
S/O LATE DRIVER MUNIYAPPA
AGED ABOUT 51 YEARS
4. PADMAVATHI
Digitally signed W/O M. SHIVAKUMAR
by DEVIKA M AGED ABOUT 39 YEARS
Location: HIGH
COURT OF 5. KUSHAL
KARNATAKA
S/O M. SHIVAKUMAR
AGED ABOUT 19 YEARS
6. KARTHIK
S/O M. SHIVAKUMAR
AGED ABOUT 17 YEARS
APPELLANT NO.6 IS A MINOR
REPRESENTED BY HIS NATURAL GUARDIAN
HIS FATHER NAMELY M.SHIVAKUMAR.
-2-
NC: 2025:KHC:48875
RSA No. 290 of 2025
HC-KAR
7. SMT. PADMAVATHI
D/O LATE DRIVER MUNIYAPPA
W/O CHANDRAPPA
AGED ABOUT 58 YEARS
8. SMT. MANJULA
D/O LATE DRIVER MUNIYAPPA
W/O VENKATESH
AGED ABOUT 48 YEARS
ALL ARE RESIDING AT
OLD HOUSE NO.2359/2139,
NEW MUNICIPAL NO.57/2635/2465,
WARD NO.1, KORAMARA BEEDHI,
DEVANAHALLI TOWN
BENGALURU RURAL DISTRICT
PIN CODE 562110.
...APPELLANTS
(BY SRI. S.N.ASHWATHNARAYANA, SENIOR COUNSEL FOR
SRI. CHANDRAPPA V., ADVOCATE)
AND:
1. SRI. GANGADHARA
S/O LATE KANIVE KARIBASAPPA
AGED ABOUT 62 YEARS
RESIDING AT WARD NO.1
KORAMARA BEEDI
TALUK OFFICE ROAD
DEVANAHALLI TOWN
BENGALURU RURAL DISTRICT
PIN CODE: 562110.
...RESPONDENT
(BY SRI. K. CHETHAN KUMAR A/W
SRI. N. BALAJI, SRI. PRASANNACHARI K.B., AND
SRI. PRASHANTH K.H., ADVOCATES FOR C/R)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 29.11.2024
PASSED IN R.A.NO.15010/2023 ON THE FILE OF V
-3-
NC: 2025:KHC:48875
RSA No. 290 of 2025
HC-KAR
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU
RURAL, SITTING AT DEVANAHALLI., ALLOWING THE APPEAL
AND SETTING ASIDE AND REVERSE THE JUDGMENT AND
DECREE DATED 25.11.2022 PASSED IN O.S.NO.84/2011 ON
THE FILE OF PRL. SENIOR CIVIL JUDGE AND JMFC,
DEVANAHALLI.
THIS APPEAL COMING ON FOR FINAL HEARING, 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 appellants and also the learned
counsel for the respondent. Though there is a divergent
finding with regard to the possession is concerned that the
Trial Court even though answered the Issue No.6 as
affirmative, while granting the relief of permanent
injunction held that plaintiffs are entitled for protection of
their possession over the suit schedule property by way of
permanent injunction till the defendant obtains the
recovery of possession of the suit schedule property by
following procedure established under the law. The said
judgment was challenged by the respondent before the
Appellate Court in R.A.No.15010/2023. The First Appellate
NC: 2025:KHC:48875
HC-KAR
Court having taken note of the reasoning given in respect
of point No.6 is concerned that when the relief of
possession is sought for by virtue of counter claim by the
defendant, made an observation that Trial Court has
committed an error and the same is not sustainable and
ought to have granted the relief of possession in the very
suit itself and hence, allowed the appeal by setting aside
the said judgment and the suit in its entirety and counter
claim is decreed and directed to hand over the possession
within three months.
2. Being aggrieved by the said judgment, present
second appeal is filed. The counsel appearing for the
appellants would vehemently contend that First Appellate
Court committed an error in granting the relief of counter
claim and directing the appellants to hand over the
possession and Courts below are not justified in
considering the disputed document and accepting the case
of the respondent and not considering the material
evidence supporting the case of the appellants.
NC: 2025:KHC:48875
HC-KAR
3. The counsel appearing for the respondent would
vehemently contend that there is no any divergent finding.
Since, the Trial Court answered Issue No.6 as affirmative
in favour of the respondent, but committed an error in
approaching the Court by filing a separate suit by payment
of Court fee and the said payment of Court fee also paid in
the counter claim and relief of possession is also sought in
the counter claim and in the very same suit, ought to have
been granted but, on misconception, directed to approach
the Court by filing a separate suit and same has been set
up right by the First Appellate Court and hence, question
of admitting the second appeal and framing substantive
question of law does not arise.
4. Having heard the learned counsel for the
appellants and the counsel appearing for the respondent
and also the considering the material available on record
and also particularly reasoning given by the Trial Court in
respect of Issue No.6 is concerned, though answered the
same as affirmative, but fails to take note of the fact that
NC: 2025:KHC:48875
HC-KAR
a counter claim was made and also separate Court fee is
also paid to the counter claim and rightly pointed out by
the counsel appearing for the respondent that by
misconception without looking into the counter claim, an
erroneous order has been passed and First Appellate Court
also considering the point No.6, rightly held that Trial
Court already comes to a conclusion that respondent is
entitled for possession since already sought for the relief
of possession by way of counter claim and Court fee is also
paid and the same amounts to an illegality. When such
finding is given and the same is not divergent and the
same is also a concurrent finding and only an error has
kept in by the Trial Court giving the protection and
directing to seek the appropriate relief in a separate suit
and the same is erroneous. When there is no divergent
finding and only misconception as rightly contended by the
counsel appearing for the respondent. Hence, I do not find
any ground to admit and frame substantive question of
law.
NC: 2025:KHC:48875
HC-KAR
5. At this juncture the learned counsel for the
appellants seeks six months time to vacate the premises.
The counsel appearing for the respondent submits that
already execution petition is filed. Having taken note of
the said fact into consideration, it is appropriate to grant
three months time from today. The appellants are directed
to file an undertaking affidavit that going to vacate the
premises within three months from today and not to seek
any further time in the matter. If undertaking affidavit is
not filed within one week from today, the appellants will
not enure the benefit of this order of granting three
months. Accordingly, the second appeal is disposed of.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
