Karnataka High Court
Ignatius Martis vs Govinda Bhat on 9 October, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 136 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.136 OF 2024 (INJ)
BETWEEN:
1. IGNATIUS MARTIS
S/O LATE VICTOR MARTIS
AGED ABOUT 58 YEARS
R/AT MOODU PAJAI HOUSE
KUNJARUGIRI POST
KURKAL VILLAGE
UDUPI TALUK AND DISTRICT-576 122.
...APPELLANT
(BY SRI. NARAYANA BHAT M., ADVOCATE)
AND:
1. GOVINDA BHAT
S/O LATE RAMAKRISHNA BHAT
Digitally signed AGED ABOUT 97 YEARS
by DEVIKA M R/AT MOODU PAJAI HOUSE
Location: HIGH KUNJARUGIRI POST, KURKAL VILLAGE
COURT OF UDUPI TALUK AND DISTRICT-576 122.
KARNATAKA
...RESPONDENT
(BY KUM. SWATHI R. BHAT, ADVOCATE FOR
SMT. JAYANTHI R., ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 10.10.2023
PASSED IN R.A.NO.34/2022 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE, ACJM, UDUPI, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
21.04.2022 PASSED IN O.S.NO.230/2011 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE AND JMFC, UDUPI.
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RSA No. 136 of 2024
HC-KAR
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 appeal is listed for admission and I have heard
learned counsel for the appellant and learned counsel for the
respondent.
2. This appeal is filed against the concurrent finding.
The factual matrix of the case of the plaintiff before the Trial
Court is that he is the owner in possession of the plaint 'A'
schedule property. The said properties were obtained by father
of the plaintiff by name Sri Victor Martis on chalageni from
Adamaru Mutt, Udupi. When Karnataka Land Reforms Act came
into force, above said Victor Martis had filed suit for declaration
and occupancy rights has been granted in his favour. The father
of the plaintiff died on 05.05.2013 by executing registered Will
dated 16.04.2002 in favour of the plaintiff with a life interest to
enjoy the same to his wife Cicilia Martis.
3. The defendant is the owner of immovable property
bearing Sy.No.26/11 of Kurkal Village which is situated
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immediately to the east of the properties of the plaintiff along
with two others namely, Anantha Bhat and Subbanna Bhat. The
defendant is owing some other properties along with Subbanna
Bhat and Anantha Bhat jointly. In between the properties of
plaintiff and defendant, there was a big thorney fence with
shrub growth therein, which is the boundary between the
properties of plaintiff and defendant. In the plaint 'A' schedule
properties, the house of the plaintiff, Well and other fruit trees
are existing. In the eastern portion of the plaint 'A' schedule
properties, inside the plaint 'A' schedule property, there exists
a road leading from South to North which ends near the house
of one Achyutha Acharya and his brother Umesh Acharya. The
said road ends in the land of the plaintiff.
4. The above said Achyutha Acharya has recently
purchased a car on 09.03.2011 and he has requested the
plaintiff to permit him to use the road leading to his house
existing in the plaint 'A schedule properties. The said road ends
near the house of Achyutha Acharya in the land of plaintiff.
Therefore, the plaintiff permitted the above said Achyutha
Acharya to use the road existing in the plaint 'A' schedule
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property. The defendant being a powerful person having money
and political power, has removed the thorney fence and put up
barbed wire fence by encroaching upon the plaint 'A' schedule
properties with an intention to block the road leading to the
house of Achyutha Acharya. The defendant had removed the
thorney fence on 27.02.2011 and put up barbed wire fence by
encroaching upon the land of the plaintiff. Hence, the plaintiff
has filed the suit for the relief of bare injunction.
5. In pursuance of the suit summons, the defendant
appeared and filed the written statement contending that the
averments made in the plaint are false. But, it is contended
that there is only pathway in the land of the defendant. The
said pathway is about 2 to 3 feet width. The plaintiff has not
left any land. The plaintiff land is surrounded by compound
wall. The plaintiff, in order to help Sri Achyutha Acharya, raised
a false contention alleging that existence of alleged road in the
land of plaintiff in collusion with the said Achyutha Acharya and
made attempt to remove the thorney fence and shrub on the
eastern side of pathway and attempted to form a road in the
land of defendant. The said illegal act of the plaintiff and
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Achyutha Acharya was resisted by the defendant and his son
and denied all the averments made in the plaint.
6. The Trial Court given an opportunity to both the
parties to adduce their evidence and framed the issues and
allowed the parties to lead evidence. The plaintiff, to prove his
case examined himself as P.W.1 and examined one witness as
P.W.2 and got marked the documents as Exs.P1 to P26. On the
other hand, the son of the defendant, who is a GPA holder is
examined as D.W.1 and got marked the documents as Exs.D1
to D30.
7. The Trial Court having considered both oral and
documentary evidence placed on record, particularly answers
elicited from the mouth of P.Ws.1 and 2 comes to the
conclusion that there is no interference on the part of the
defendant as alleged in the plaint and in detail discussed both
oral and documentary evidence placed on record and apart
from the evidence of P.Ws.1 and 2, Commissioner was
appointed and he was also examined as C.W.1 and Ex.C1 is the
report of the Commissioner and having considered the
Commissioner's report which goes against the plaintiff, comes
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to the conclusion that there is no encroachment as alleged by
the plaintiff against the defendant and dismissed the suit.
8. The same is challenged before the First Appellate
Court in R.A.No.34/2022. The First Appellate Court having
considered the grounds urged in the appeal memo, formulated
the points whether the Trial Court properly considered the
pleadings, oral and documentary evidence and whether it
requires interference of this Court and the First Appellate Court
comes to the conclusion that the Trial Court in detail discussed
both oral and documentary evidence placed on record and
given the finding that there is no interference and also comes
to the conclusion that it does not require any interference. The
First Appellate Court even while considering the appeal,
extracted the admission on the part of P.W.1 in paragraph
No.23, wherein also taken note of admission given by P.W.1
that defendant has not caused any trouble for enjoyment of the
suit schedule property. In paragraph No.24, the evidence of
P.W.2 is also discussed and in paragraph No.25, the evidence
of D.W.1 and so also in paragraph No.26, the document of
Ex.D14 was discussed and the document of Ex.D15 was
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discussed in paragraph No.27 and affirmed the judgment of the
Trial Court. Hence, this second appeal is filed before this Court.
9. The main contention of learned counsel for the
appellant before this Court is that even after the compound wall
of the plaintiff's house, the property is in existence and
permission is given to use the said property to the
neighbouring owner and the same is not taken note of by both
the Courts. The counsel during the course of argument also
placed on record the photographs with regard to existence of
the house and the property and fencing made by the parties.
The counsel also vehemently contend that both the Courts have
committed an error in appreciating both oral and documentary
evidence placed on record and contend that the very reasoning
given by the Trial Court and the First Appellate Court is against
the Commissioner's report and Commissioner did not measure
the land of the plaintiff and defendant. The Commissioner's
report is also objected and even though he has been examined
before the Trial Court, his evidence is not convincing and the
same is not considered by both the Courts and both the Courts
committed an error in coming to the conclusion that there is no
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encroachment on the schedule property and the house of the
appellant is surrounded by a compound wall and the very
reasoning is erroneous.
10. Per contra, learned counsel for the respondent
would vehemently contend that when the suit is filed for the
relief of permanent injunction, no boundaries are given and
learned counsel would vehemently contend that the
Commissioner, who has been examined before the Court has
given the clear report in terms of Ex.C1 that there is no
encroachment and both the Courts have taken note of oral and
documentary evidence as well as Commissioner report i.e.
Ex.C1 and it does not require any interference.
11. Having heard learned counsel for the appellant and
learned counsel for the respondent and considering the factual
aspects of the case, the very case of the plaintiff is that the
defendant had encroached upon the property of the plaintiff
and in order to prove the same, nothing is placed on record and
even the admission given by P.W.1 during the course of cross-
examination which has been extracted by the First Appellate
Court in paragraph No.23 is very clear that defendant never
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troubled him for using the plaint schedule property and he also
categorically admit that the property of the plaintiff was
measured and also categorically admitted that on the northern
side of the property, the house of Achyutha Acharya is situated
and the same is used by several persons and this admission is
also taken note of by both the Courts. Even the Trial Court has
taken note of the same and Commissioner report is also taken
note of by the Courts and with regard to the factual aspects
i.e., question of fact and question of law is concerned, both the
Trial Court as well as the First Appellate Court considered the
same. When there is a clear admission on the part of P.W.1
that the defendant never troubled for use of the plaint schedule
property, question of granting the relief of permanent
injunction does not arise. When such admission is available and
when the Commissioner report also goes against the plaintiff
that there is no encroachment by the defendant, question of
admitting the second appeal does not arise and I do not find
any substantial question of law to frame in this appeal.
12. In view of the discussion made above, I pass the
following:
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ORDER
The regular second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST
