Karnataka High Court
Gurusiddappa Shankarappa Gouri vs Fakruddin S/O. Akbar Ali Magar on 3 November, 2025
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RSA No. 100248 of 2014
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 3RD DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO. 100248 OF 2014 (POS)
BETWEEN:
GURUSIDDAPPA SHANKARAPPA GOURI
AGED ABOUT 36 YEARS, OCC. BUSINESS,
R/O. PATIL GALLI, YALLAPUR ONI,
BANAKAPUR CHOWK,
P.B. ROAD, HUBBALLI.
...APPELLANT
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)
AND:
FAKRUDDIN S/O. AKBAR ALI MAGAR,
AGED ABOUT 63 YEARS, OCC. BUSINESS,
R/O. PATIL GALLI, YELLAPUR ONI,
BANAKAPUR CHOWK, P B ROAD, HUBBALLI.
...RESPONDENT
Digitally
(BY SRI. ARAVIND D. KULKARNI, ADVOCATE)
signed by
YASHAVANT
YASHAVANT NARAYANKAR
NARAYANKAR Date:
2025.11.04 THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
10:19:20
+0530
SET ASIDE THE JUDGMENT AND DECREE DATED 09.04.2014 PASSED
BY THE III ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI AND
CONSEQUENTLY DISMISS THE SUIT IN ENTIRETY BY SETTING ASIDE
THE JUDGMENT AND DECREE DATED 23.01.2010 PASSED BY THE
PRINCIPAL CIVIL JUDGE (JR.DN.) HUBBALLI IN O.S.NO.431/2003 AND
ETC.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 100248 of 2014
HC-KAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C M JOSHI)
The appellant is before this Court assailing the concurrent
findings of the Trial Court and the First Appellate Court, by which
the suit of the plaintiff for possession and injunction was
decreed.
2. The factual matrix of the case that is necessary for
the purpose of this order is that the respondent had filed the suit
in O.S.No.431/2003 seeking a direction to the appellant herein,
(who was the defendant therein) to remove the construction put
up in the area shown in the hand sketch map and also sought an
injunction. The respondent had also filed O.S.No.222/2005
against the appellant and three others for the relief of mandatory
injunction and permanent injunction which was clubbed with
O.S.No.431/2003 and a common trial was held and ultimately
both the suits came to be decreed. Being aggrieved by the
decree passed by the Trial Court in O.S.No.431/2003, the
defendant, filed R.A.No.25/2010 and after hearing, the said
appeal came to be dismissed. Thus, the defendant is before this
Court in second appeal.
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3. It was the contention of the appellant that the suit
schedule property is not properly described and that the hand
sketch of the plaintiff was incorrect. Inter alia, the contention of
non-joinder of necessary party was also raised and it was
specifically contented that the 'EFGH' portion shown in the hand
sketch accompanying the plaint was not part of R.S.No.
6/A/1A/1H and therefore, the plaintiff had no right, title over the
suit schedule property.
4. The Trial Court framed appropriate issues and after
the trial, it came to the conclusion that the defendant had not
established his defence beyond reasonable doubt and therefore,
it decreed the suit.
5. The First Appellate Court also found that there were
certain admissions on behalf of the defendant in his cross-
examination. In paragraph Nos.18, 19 and 20, the First Appellate
Court had observed as below:
"18. Here in this case, the plaintiff measured the
property before filing of the suit. Thereafter, got
surveyed the schedule property and adjacent lands
through court commissioner. The survey report
discloses that the area measuring 40 x (6'+5.9")2
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shown as 'EFGH' is part and partial of the property
belonging to the plaintiff. The report further discloses
that the defendant encroached that area and put up the
construction. The defendant has not produced any
material to contradictory the report of the surveyor and
the correctness of the sketch. The plaintiff counsel
relied upon the ruling rendered by our Apex court in the
case of Subhaga and others Vs. Shobha and
others, reported in (2006) 5 Supreme Court cases
466. Wherein it is held that "proper mode for
identification of the immovable property is either by
boundaries or by any other descriptions. Once a
property has been identified by boundaries, even there
is any discrepancy, normally the boundaries should be
prevailed- It is not necessary to survey all the adjacent
lands to find out whether an encroachment was made
in the property concerned." The report of the survey
discloses that the defendant encroached upon the
property.
19. The defendant in the cross examination
admitted that the he has not obtained the license and
the approved plan to construct the house. The
defendant admitted that on his request the
commissioner measured entire property. The order
sheet and the plaint marked as Ex.P.19 and 20
discloses that the defendant filed the suit to declare
that there is a road in between the schedule property
bearing R.S.No.6/A/1A/1H. In the said suit the
defendant stated that the plaintiff is the owner of the
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property bearing R.S. No. 6/A/1A/1H measuring 15
guntas. In the said suit the defendant not stated that
on the northern side of the schedule property the road
is existing. In the said suit it is averred that the vendor
of the plaintiff without consent of the defendant and
others sold eastern side of the plaintiff. In the said suit
the defendant not stated that his property is existing on
the northern side of the suit bearing R.S.No.6/A/1A/1H.
The said suit was dismissed for non prosecution.
20. Thus on re-appreciation of the material on
record, I hold that the trial court has rightly held that
the plaintiff is the owner of the property bearing
R.S.No.6/A/1A/1H measuring 15 guntas. The plaintiff
succeeded in proving that the area measuring 40
x(6'+5'.9")2 is the part and partial of the property
belonging to the plaintiff and the defendant has
encroached the schedule property to the extent of 40
x(6'+5'.9")2 shown as EFGH in the plaint sketch.
Accordingly, these points are answered in the
affirmative."
6. It is pertinent to note that the said observation of
the First Appellate Court is not shown to be incorrect in any way.
The finding of the Trial Court as well as the First Appellate Court
being concurrent findings on facts and that the appellant has not
filed any appeal in respect of the judgment and decree in
O.S.No.222/2005, the relief in the present appeal would not be
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of any relevance to the appellant herein. It is submitted that the
appellant had also filed O.S.No.191/2005 which also came to be
dismissed and it has attained finality. Hence, no substantial
questions of law arise. Therefore, the appeal is bereft of any
merits and as such, the same is dismissed.
SD/-
(C M JOSHI)
JUDGE
RKM
CT:PA
