Karnataka High Court
K Sugaooa S/O Channappa vs Sangamma W/O Virupakhappa Patil on 26 November, 2025
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NC: 2025:KHC-D:16519
RSA No. 5461 of 2011
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 26TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO.5461 OF 2011 (DEC/INJ)
BETWEEN:
K. SUGAPPA S/O. CHANNAPPA,
AGE: 57 YEARS, OCC. AGRICULTURE,
R/O. KARATAGI,
TQ. GANGAVATHI-560021.
...APPELLANT
(BY SRI. ANOOP G. DESHPANDE, ADVOCATE)
AND:
SANGAMMA W/O. VIRUPAKSHAPPA PATIL.
AGE: MAJOR, OCC/ PRIVATE DOCTOR,
R/O. HOSALLI ROAD,
GANGAVATHI-560021.
...RESPONDENT
(BY SRI. NEELENDRA D. GUNDE, ADVOCATE)
YASHAVANT
NARAYANKAR
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
Digitally signed by
YASHAVANT
NARAYANKAR CALL FOR THE RECORDS AND TO SET ASIDE THE JUDGMENT AND
Date: 2025.11.29
09:58:45 +0530
DECREE DATED 24.02.2010 MADE IN O.S.NO.101/2006 ON THE FILE
OF THE PRL. CIVIL JUDGE (JUNIOR DIVISION), GANGAVATHI AND
JUDGMENT DATED 18.02.2011 AND DECREE DATED 03.03.2011 IN
R.A.NO.9/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE,
GANGAVATHI AS THE SAME BEING ERRONEOUS AND NOT
SUSTAINABLE IN LAW AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 5461 of 2011
HC-KAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C M JOSHI)
This appeal arises out of the judgment in R.A.No.9/2010,
whereby the judgment of the Trial Court in O.S.No.101/2006
dated 24.02.2010 was confirmed.
2. The factual matrix of the case is that the plaintiff is
the owner and possessor of an open site bearing No.6 at
Sivaparvati Nagar, Hosahalli Road, Gangavathi and bounded by a
15 feet road towards east. The plaintiff had purchased it under
the registered sale deed dated 29.09.1995 and 18.11.2006.
When the plaintiff was in his site, the defendant along with her
henchmen tried to trespass into the suit site and dispossessed
the plaintiff. Therefore, the plaintiff was constrained to file the
suit for declaration of his title and consequential relief of
injunction and to restrain the defendant.
3. The suit was resisted by the defendants contending
that there is a land of one Mayur Patil, who is her stepson, and
the roads are formed illegally in the property of the said Mayur
Patil and therefore, the plaintiff has no right to use the said road.
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4. On the basis of the said contention, the following
issues and additional issue were framed:
"ISSUES
1. Whether the plaintiff proves that he is in lawful
possession of the suit schedule property?
2. Whether the plaintiff further proves that his
peaceful possession and enjoyment is interfered
with, by the defendant?
3. Whether the defendant proves that towards the
eastern side of the suit plot there is a land bearing
Sy. No.8/2/2 belonging to one Mayur Patil, further
the plaintiff colluded with deed writer mentioned
wrong boundaries in the sale deed?
4. Whether the plaintiff is entitled for relief claimed?
5. What order or decree?
ADDL. ISSUES
1. Whether the plaintiff proves that he is an absolute
owner and possessor of suit schedule property?
2. Whether the suit is properly valued and court fee
paid is sufficient?"
5. After the trial, the Trial Court came to the conclusion
that though the plaintiff has proved the ownership of his site, he
is unable to prove the disturbance caused by the defendant. It
was held that when there is no interference that has been proved
by the plaintiff, the suit would fail and therefore, it dismissed the
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suit. Being aggrieved, the plaintiff approached the First Appellate
Court in R.A.No.9/2010 and by judgment and decree dated
18.02.2011, the First Appellate Court dismissed the appeal
confirming the judgment of the Trial Court.
6. Now, the learned counsel appearing for the appellant
submits that the existence of the road on the eastern side has
been decided by this Court in RSA No.100341/2016 and RSA
No.100393/2016 and therefore, the appeal has to be disposed
off in terms of the observations made in the above said appeals.
It is submitted that the appellant is no more in possession of the
property since he has sold it to somebody else.
7. It is pertinent to note that when the appellant
admittedly has disposed of the property regarding which he
claims the relief of injunction, being a remedy in personam, it
cannot survive when the appellant cannot be in lawful possession
of the property. In that view of the matter, the appeal does not
survive.
8. It is made clear that the finding insofar as additional
issue No.1 is concerned, it was answered by the Trial Court in
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the affirmative and that was not dealt in detail by the First
Appellate Court and therefore, it would prevail.
9. It is also relevant to note that the existence of the
road towards the eastern side of the site of the plaintiff is
concerned, the finding in the RSA No.100341/2016 and RSA
No.100393/2016, which is based on the report of the ADLR, who
was appointed as a Court Commissioner at the instance of this
Court, would be binding.
10. With these observations, the appeal is disposed of.
11. In view of disposal of the appeal, pending
interlocutory applications, if any, do not survive for consideration
and are disposed off.
SD/-
(C M JOSHI)
JUDGE
YAN
CT:PA
