Karnataka High Court
Late Shivappa vs Sri Nagendrappa on 13 October, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 547 of 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 547 OF 2024 (INJ)
BETWEEN:
LATE SHIVAPPA,
SINCE DECEASED BY LRS.
1. SMT. BHAGYAMMA,
W/O LATE SHIVAPPA,
AGED ABOUT 52 YEARS.
2. SRI. SURESH,
S/O LATE SHIVAPPA,
AGED ABOUT 22 YEARS.
3. SRI. OBALESH,
S/O LATE SHIVAPPA,
AGED ABOUT 21 YEARS.
Digitally signed
by DEVIKA M 4. SRI. KUMARAPPA,
Location: HIGH S/O LATE OBALAPPA,
COURT OF AGED ABOUT 48 YEARS.
KARNATAKA
ALL THE APPELLANTS ARE
R/O CHIRADONI VILLAGE,
CHENNAGIRI TALUK,
DAVANAGERE DISTRICT.
...APPELLANTS
(BY SRI. PAWAN KUMAR, ADVOCATE FOR
SRI. H. DEVENDRAPPA, ADVOCATE)
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RSA No. 547 of 2024
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AND:
1. SRI. NAGENDRAPPA,
S/O GUDDAHALLI SIDDAPPA,
AGED ABOUT 56 YEARS,
R/O CHIRADONI VILLAGE,
BASAVAPATTANA HOBLI,
CHENNAGIRI TALUK,
DAVANAGERE DISTRICT.
...RESPONDENT
(BY SMT. SARITHA KULKARNI, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 11.09.2023
PASSED IN R.A.NO.4/2023 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, CHANNAGIRI, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
18.11.2022 PASSED IN O.S.NO.15/2018 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE AND JMFC, CHANNAGIRI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. Heard the learned counsel for the appellants
and also the learned counsel for the respondent.
2. This second appeal is filed against the
concurrent finding. The Trial Court dismissed the suit filed
by the plaintiff and First Appellate Court confirmed the
same.
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3. The factual matrix of case of plaintiff before
Trial Court while seeking the relief of permanent injunction
is that suit schedule property is the open site bearing
No.528 measuring East-West 21 feet and North-South 15
feet situated at Chiradoni Village. Mother of the plaintiffs
constructed the house thereon and was residing therein
and her name was appearing in the DCB of the year 1993-
2014 and was paying the taxes in respect of the schedule
property and plaintiffs have succeeded in respect of the
suit schedule property after the death of their mother. The
house was too old and hence they have demolished the
same as per the instructions of the PDO. Thereafter, the
defendant did start the obstructions to the plaintiffs
possession of the suit property and claiming the title on
the suit property and hence Panchayath authority
confirmed the title of the plaintiff through the resolution in
that regard. It is asserted that the C.E.O of Zilla
Panchayath had made spot inspection and passed an order
on 10.07.2017, wherein he opined that, the suit property
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belongs to the plaintiffs. While doing so he gave the
directions to the plaintiffs to leave 6 feet way amidst, the
suit property and the property of defendant bearing
No.527. That, after the Chiradoni Grama Panchayath had
passed resolution and gave the license to the plaintiffs for
construction of house in suit schedule property. Even
after, the defendant tried to interfere into the possession
of the suit schedule property and hence, complaint was
lodged and suit is filed for the relief of permanent
injunction. The defendant appeared and filed written
statement denying all the averments made in the plaint
and defendant has categorically contended that suit
property is vacant site situated on the southern side of the
property of defendant bearing No.527 after the said
property, there is a panchayath road. The defendant and
his brothers owning the houses adjoining to each other in
the site bearing No.527 and to reach the southern
panchayath road from their respective houses, they are
using the suit property as road. Therefore, the defendant
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has got easementary right of way by necessity in the suit
property. The suit property belongs to the panchayat
which had not been granted in favour of the plaintiffs or
their mother at any point of time and hence claims that
the plaintiff is not entitled for any relief.
4. The Trial Court having considered the grounds
urged before the Trial Court, framed the issues with
regard to the possession and interference of the defendant
and whether entitled for the relief. The plaintiff No.2
himself examined as P.W.1 and also got marked 24
documents as Ex.P.1 to Ex.P.24 and also got examined
witnesses as P.W.2 and P.W.3 and the other hand
defendant himself entered into witness box and examined
as D.W.1 and got marked document Ex.D.1 to Ex.D.15.
The Trial Court having considered both oral and
documentary evidence particularly in paragraph No.20
taken note of document of Ex.P.18 wherein a reference
was made that it was an ancestral property of the plaintiff.
On the other hand, defendants claims that Ex.D.3 is the
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notice of the Taluk Panchayath CEO dated 18.01.2018
wherein Executive Officer had directed to the PDO Gram
Panchayath not to change the mutation in respect of the
suit schedule property till the pending enquiry by the
Executive Officer. Even the plaintiffs have not produced or
laid any foundation that the enquiry which is pending as
per Ex.D.3 concluded in their favour. The Trial Court
having considered the admissions on the part of the P.W.1
with regard to the possession and also the documents
wherein categorically admitted that the same is a vacant
site and the house constructed thereon was demolished
and also taken note of both the plaintiffs are residing
separately at other properties and not residing in the said
property and also taken note of evidence of P.W.2 who
categorically admitted during the course of cross-
examination that the plaintiffs have removed the hut
situated in the suit schedule property in the year 2015-16.
The Trial Court also taken note that suit was filed in the
year 2018 as on the date of filing of the suit, no
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documents are standing in the name of the plaintiff and
hence dismissed the suit.
5. Being aggrieved by the said judgment and
decree of dismissal of the suit, an appeal is filed in
R.A.No.4/2023. The First Appellate Court also having
re-assessed the material available on record, particularly
in paragraph No.25 taken note of discussion made by the
Trial Court with regard to the fact that the defendants
have constructed two portion houses facing their house
towards southern side where the suit schedule property.
After the southern side of the suit schedule property, the
Panchayath road is situated. The defendant claims that
there is no any structure in the suit schedule property and
using the suit schedule property as a way to ingress his
property.
6. It is also important to note that defendant also
not claiming any right in respect of the suit schedule
property and only their claim is that they are making use
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of the same to ingress their property bearing No.527 and
defendants have also not made any claim particularly in
respect of the suit schedule property, but the fact is that
when the plaintiff has not proved the possession by
placing on record the First Appellate Court also having re-
assessed both oral and documentary evidence, comes to
the conclusion that Trial Court rightly appreciated all the
materials available on record and comes to the conclusion
that it does not requires any interference and dismissed
the appeal.
7. Being aggrieved by the concurrent finding,
present second appeal is filed before this Court.
8. The learned counsel for the appellants would
vehemently contend bringing to the Court notice the
substantial question of law suggested by the counsel in the
second appeal that both the Courts have failed to consider
the entries made in the relevant revenue records showing
the name of the plaintiffs and the plaintiffs are the owners
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of the schedule property bearing property Nos.528 and
fails to take note of the resolution passed by the Grama
Panchayath dated 19.12.2017 holding that the schedule
property belongs to the appellants/plaintiffs and that the
licence was issued for construction of the house and
inspite of it, committed an error in dismissing the suit in
coming to the conclusion that the plaintiffs have not
established the possession as on the date of filing of the
suit.
9. The learned counsel for the respondent submits
that though the defendant is not claiming any right in
respect of the suit schedule property, the defendant is
having property bearing Nos.527 and the same is adjacent
to the suit schedule property, but they are making use of
the same to ingress their property and both the Courts
have not committed any error.
10. Having heard the learned counsel for the
appellants and the learned counsel for the respondent and
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considering the material available on record, though it is
the claim of the plaintiffs in the earlier original suit that
the property belongs to their mother, in order to prove the
factum that the property belongs to their mother, nothing
is placed on record. The only contention is that they were
in possession from 1993 to 2014 and they were paying
taxes and the building was very old and hence they have
removed the same. No doubt, the plaintiffs relied upon
the tax paid receipts as per Ex.P.1, building licence dated
27.12.2017, copy of the DCB register extract panchayath
property survey report, Grama Panchayath order, Grama
Panchayath property survey report, mutation registers and
tax paid receipts, but in order to prove the factum of
possession of the plaintiffs, nothing is placed on record. It
is important to note that the matter was pending before
the authority and enquiry was pending. In order to prove
that the enquiry was concluded and the same was held in
favour of the plaintiffs as ordered in terms of Ex.D.3, no
material is placed before the Court.
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11. The Trial Court while considering the material
on record, taken note of the documents prior to 2018 in
paragraph No.20 i.e., Ex.P.18, wherein a reference was
made that property belongs to the plaintiffs ancestors and
as per the resolution No.4 dated 15.12.2017, it is resolved
to mutate the name of the plaintiffs in the records of the
suit schedule property and the same is disputed. When
such material is available before the Court, when the suit
is filed in the year 2018 i.e., on 24.01.2018, the plaintiffs
ought to have placed on record the documents to show
that the property stands in the name of the plaintiffs as on
the date of filing of the suit and the same is not
established and hence the Trial Court rightly comes to the
conclusion that in order to prove the possession as on the
date of filing of the suit, nothing is placed on record. The
Trial Court in paragraph Nos.23 and 24 in detail discussed
the same and also taken note of the admission on the part
of P.W.1 to P.W.3 that the schedule property is vacant site
and the plaintiffs are not enjoying their property and they
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are residing elsewhere and not in the suit schedule
property and hence comes to the conclusion that they
have not proved the possession. When such finding is
given by the Trial Court, nothing is placed on record to
establish that the plaintiffs are in possession of the suit
schedule property as on the date of filing of the suit.
12. The First Appellate Court in paragraph Nos.25,
26 and 27 considered the same and comes to the
conclusion that the Trial Court has not committed any
error in the absence of any material before the Court that
the plaintiffs are in possession of the property as on the
date of filing of the suit to establish the possession. It is
settled law that when the suit is filed for the relief of
permanent injunction, the plaintiff must prove that the
plaintiff is in possession of the property as on the date of
filing of the suit and no such documents are placed before
the Court and hence I do not find any ground to admit the
appeal and frame any substantial question of law to
consider the second appeal.
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13. In view of the discussions made above, I pass
the following:
ORDER
The second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
RHS,MD
