[Cites 2, Cited by 0]
Karnataka High Court
Annaiah vs Kenchamma on 28 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1431 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1431 OF 2025 (INJ)
BETWEEN:
1. ANNAIAH
S/O LATE MUDDEGOWDA
AGE ABOUT 54 YEARS
2. KARIGOWDA
S/O LATE MUDDEGOWDA
AGE ABOUT 49 YEARS
3. SANNAKAMMA
W/O LATE MUDDEGOWDA
AGE ABOUT 79 YEARS
ALL ARE R/AT HULKERE VILLAGE
Digitally signed
by DEVIKA M KASABA HOBLI
PANDAVAPURA TALUK
Location: HIGH
COURT OF MANDYA DISTRICT - 571439
KARNATAKA ...APPELLANTS
(BY SRI SREENIVASAN M Y, ADVOCATE)
AND:
KENCHAMMA
W/O LATE JAVAREGOWDA
AGE ABOUT 81 YEARS
R/AT HULKERE VILLAGE
KASABA HOBLI
PANDAVAPURA TALUK
MANDYA DISTRICT - 571439
...RESPONDENT
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RSA No. 1431 of 2025
HC-KAR
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 21.07.2025 PASSED IN
R.A.NO.21/2023 ON THE FILE OF ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, PANDAVAPURA 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
This second appeal is filed against the concurrent finding
of the Trial Court as well as the First Appellate Court.
2. This matter is listed for admission. Heard the
learned counsel appearing for the appellants.
3. The factual matrix of the case of plaintiff before the
Trial Court while seeking the relief of permanent injunction is
that plaintiff is the absolute owner and peaceful possession and
enjoyment of the suit schedule property. Except the plaintiff,
other persons did not have any right and possession over the
suit schedule property. The suit schedule property is a
Mangalore tiled house. Now, the said house is in poor condition.
Therefore, the plaintiff intended to repair the said house. By
that time, defendant No.4 and his children i.e., defendant Nos.1
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to 3 are interfering and restraining the plaintiff to repair the
said house. Though the defendants are not having any manner
of right, title and possession over the suit schedule property,
are trying to interfere with the possession of the suit schedule
property and they are influenced to panchayath, therefore, the
panchayath has not issued license to the plaintiff and also
defendants are interfering with the suit schedule property. The
plaintiff has issued a legal notice to the defendants and also to
the panchayat office on 21.05.2015. Even though defendants
are interfering with the possession of the plaintiff, hence, filed
the suit.
4. In pursuance of the suit summons, the defendants
appeared and filed written statement denying the entire
averments of the plaint. It is further contended that the
grandfather of defendant No.1 has acquired 13 ankanas
property from his ancestors. On 05.02.1935, Boregowda,
adopted the son by name Kempanna has purchased 11
ankanas house from Motegowda by virtue of the sale deed.
Said Boregowda is the grandfather of defendant Nos.1 to 3.
From the date of purchase, grandfather of the defendants was
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in absolute ownership of 24 ankanas house. Thereafter,
defendants are in possession of 24 ankanas of house. The
Panchayath has also issued a khatha for measuring 39x51 feet
in favour of the defendants. Western side of the house, there is
vacant site No.36A2 measuring east to west 10 feet and north
to south 50 feet. Said vacant site belongs to defendant No.4.
The plaintiff is relative of the defendants and she is not have
any issues and she is also a widow and old aged. Hence,
defendants have given permission to the plaintiff to reside in
one ankana house out of 24 ankanas. The defendants only
taking care of the plaintiff. Presently, she is in possession of
one ankana house with permission of the defendants. The
plaintiff has taken advantage of the possession and obtained
the tax assessment register from the Panchayath in the year
2005 and filed the present false suit against the defendants to
grab the said suit property.
5. The Trial Court considering the pleadings of the
parties, framed the Issues and allowed the parties to lead their
evidence. The Trial Court considering both oral and
documentary evidence placed on record, comes to the
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conclusion that though defence was taken that the extent is
only a smaller extent but PW1 categorically deposed that the
extent is east-west 22 feet and south-north 30 feet. DW1
claims that the same is an ancestral property and produced the
document. Defendants also subjected for examination and DW1
in the cross-examination admits the location of the property
and also admits that the plaintiff is in possession of the house
and the same is in a dilapidated condition and also admits that
permission is given to repair the said house. DW1, DW2 and
DW3 all have admitted the same. The Trial Court considering
these admissions comes to the conclusion that the plaintiff has
established her possession and defendants are interfering with
the possession of the plaintiff over the suit property since, they
contend that the extent of the possession with the plaintiff is
lesser than what the plaintiff is claiming and granted the relief
of permanent injunction.
6. Being aggrieved by the judgment of the Trial Court,
an appeal was preferred before the First Appellate Court in
R.A.No.21/2023. The First Appellate Court also having
considered the grounds urged in the appeal, formulated the
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Points that whether the plaintiff has established her possession
over the suit schedule property and whether the Trial Court
erred in holding that the plaintiff is in actual possession of the
suit property and there is an interference by the defendants.
The First Appellate Court having reassessed both oral and
documentary evidence placed on record, extracted the
admission of DW1, DW2 and DW3 in paragraph 21 and discuss
the same in paragraph 22 and also taken note of the
application filed before the Court for additional evidence and
held that no need to receive any additional evidence while
answering Point No.3 and so also comes to the conclusion that
the defendants would contend that the extent of possession
given to the plaintiff is only to the extent of east-west 12 feet
and north-south 26 feet instead of measurement of the suit
schedule property east-west 22 feet and north-south 30 and
except taking that defence, nothing is placed on record. Hence,
comes to the conclusion that in view of the said defence, they
are interfering with the possession of the plaintiff and
confirmed the judgment of the Trial Court. Being aggrieved by
the concurrent finding of both the Courts, the present second
appeal is filed before this Court.
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7. The learned counsel appearing for the appellants
would vehemently contend that finding of both the Courts is
perverse since not considered both oral and documentary
evidence placed on record and Trial Court is not justified in
appreciating the evidence of PW3 and Trial Court also not
justified in decreeing the suit on the basis of demand register
extract - Ex.P1. The counsel also contend that the First
Appellate Court failed to consider the document which is
produced before the Court and also contend that both oral and
documentary evidence are not properly appreciated by the First
Appellate Court. The counsel also vehemently contend that
appellants also filed a separate suit for the relief of permanent
injunction. If this appeal is dismissed confirming the judgment
of both the Courts, it affects their right to the extent and only
dispute is with regard to the plaintiff's possession over the suit
property since the plaintiff is claiming more than what they
have given permission.
8. Having heard the learned counsel for the appellants
and also on perusal of the material on record, it discloses that
the Trial Court taken note of the admission on the part of DW1
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to DW3 and the same is extracted in paragraphs 16 to 20
wherein each witnesses have admitted the possession of the
plaintiff. But the contention of the appellants that they are in
lesser the possession i.e., only to the extent of house property
and Ex.P9 also confronted to the defendants witnesses and
they have also admitted the same. DW2 and DW3 also
admitted the plaintiff's possession over the suit schedule
property. When suggestions were made to all these witnesses,
they agreed that plaintiff is in possession of the suit schedule
property and not to the extent what the appellants now
claiming. Thus, their own admission is very clear that plaintiff is
in possession of the suit schedule property. When such being
the case, the very contention that they are in possession of
only to the extent of house property cannot be accepted.
9. The admission on the part of DW1, DW2 and DW3
are unequivocal to the extent of the suit schedule property is
concerned. When schedule is shown in the suit to the extent of
22 x 30 feet and when there is an admission on the part of
DW1 to DW3 in this regard, now the appellants cannot find
fault with the appreciation of both oral and documentary
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evidence on the part of Trial Court and the First Appellate
Court. The First Appellate Court also while reconsidering the
material on record, in paragraphs 21 and 24, taken note of the
admission and when suggestion was made to the witnesses to
the extent that east to west 12 feet and north to south 26 feet,
the same was denied by PW1. On the other hand, defendant
Nos.1 to 3 have admitted with regard to the possession of
plaintiff over suit schedule property in entirety and not in
respect of any of the portions as what the appellants' counsel
has canvassed now and nothing is elicited from the mouth of
PW1 to the extent what now counsel contend that the
injunction granted by the Trial Court and First Appellate Court
is more than the extent what they are in possession and said
contention cannot be accepted when an unequivocal admission
is given by DW1 to DW3 in respect of the suit schedule
property is concerned and they have not stated while giving
evidence that they are in the extent of 12 x 26 feet. Under the
circumstances, I do not find any perversity in the finding of
both the Trial Court and the First Appellate Court. Hence, it is
not a case to invoke Section 100 of CPC.
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10. 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.A. if any,
does not survive for consideration and the same stands
dismissed.
The finding given by this Court shall not affect the
right of the appellants in the suit in O.S.No.61/2023 and
the Trial Court is directed to dispose of the same on its
merits.
Sd/-
(H.P.SANDESH)
JUDGE
SN
