Karnataka High Court
Subramanya vs S.C. Srikanth on 13 October, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:40475
RSA No. 906 of 2023
C/W RSA No. 947 of 2023
HC-KAR
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. 906 OF 2023 (INJ)
C/W
REGULAR SECOND APPEAL NO. 947 OF 2023 (INJ)
IN RSA No. 906/2023
BETWEEN:
1. SUBRAMANYA
S/O SHANKARA SHETTY
AGED ABOUT 73 YEARS
R/AT SHIVARAJAPURA,
DOORVASAPURAM POST,
THIRTHAHALLI TALUK,
SHIVAMOGGA DISTRICT - 577 432
2. BHASKARA SHETTY
Digitally signed
by DEVIKA M S/O SHANKARA SHETTY
Location: HIGH AGED ABOUT 71 YEARS,
COURT OF R/AT SHIVARAJAPURA,
KARNATAKA
DOORVASAPURAM POST,
THIRTHAHALLI TALUK,
SHIVAMOGGA DISTRICT - 577 432
...APPELLANTS
(BY SMT. BHUSHANI KUMAR, ADVOCATE)
AND:
SRIKANTH SHASTRI
S/O LATE CHIDAMBARA SHASTRY
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RSA No. 906 of 2023
C/W RSA No. 947 of 2023
HC-KAR
AGED ABOUT 65 YEARS,
R/AT SHIVARAJAPURA,
DOORVASAPURAM POST,
THIRTHAHALLI TALUK,
SHIVAMOGGA DISTRICT - 577 432
...RESPONDENT
(BY SRI. ASHWATH C.M, ADVOCATE FOR C/R
(CP.1927/2023 & 8003/2023)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 25.01.2023
PASSED IN R.A No. 16/2019 ON THE FILE OF SENIOR CIVIL
JUDGE AND JMFC, THIRTHAHALLI, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
23.07.2019 PASSED IN O.S No. 188/2011 ON THE FILE OF
PRINCIPAL CIVIL JUDGE AND JMFC, THIRTHAHALLI.
IN RSA NO. 947/2023
BETWEEN:
1. SUBRAMANYA
S/O SHANKARA SHETTY
AGED ABOUT 73 YEARS
R/AT SHIVASRAJPURA
DOORAVASAPURAM POST
THIRTHAHALLI TALUK
SHIVAMOGGA DISTRICT - 577 432.
2. BHASKARA SHETTY
S/O SHANKARA SHETTY
AGED ABOUT 71 YEARS
R/AT SHIVARAJAPURA
DOORVASAPURAM POST
THIRTHAHALLI TALUK
SHIVAMOGGA DISTRICT - 577 432.
...APPELLANTS
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NC: 2025:KHC:40475
RSA No. 906 of 2023
C/W RSA No. 947 of 2023
HC-KAR
(BY SMT. BHUSHANI KUMAR, ADVOCATE)
AND:
1. S.C. SRIKANTH
S/O LATE CHIDAMABARA SHASTRY
AGED ABOUT 65 YEARS
R/AT SHIVARAJAPURA
DOORVASAPURAM POST
THIRTHAHALLI TALUK
SHIVAMOGGA DISTRICT - 577 432.
2. GANESH SHASTRY
S/O LATE CHIDAMABARA SHASTRY
AGED ABOUT 55 YEARS
R/AT SHIVARAJAPURA
DOORVASAPURAM POST
THIRTHAHALLI TALUK
SHIVAMOGGA DISTRICT - 577 432.
3. PRASHANTHA
S/O LATE CHIDAMABARA SHASTRY
AGED ABOUT 53 YEARS
R/AT SHIVARAJAPURA
DOORVASAPURAM POST
THIRTHAHALLI TALUK
SHIVAMOGGA DISTRICT - 577 432.
4. UMAKANTH
S/O LATE CHIDAMABARA SHASTRY
AGED ABOUT 62 YEARS
R/AT SHIVARAJAPURA
DOORVASAPURAM POST
THIRTHAHALLI TALUK
SHIVAMOGGA DISTRICT - 577 432
...RESPONDENTS
(BY SRI. ASHWATH C.M, ADVOCATE FOR C/R1 TO R4
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NC: 2025:KHC:40475
RSA No. 906 of 2023
C/W RSA No. 947 of 2023
HC-KAR
(CP.1928/2023 & 8004/2023))
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 25.01.2023
PASSED IN RA No. 17/2019 ON THE FILE OF SENIOR CIVIL
JUDGE AND JMFC, THIRTHALALLI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 23.07.2019 PASSED IN O.S No. 181/2011 ON THE
FILE OF PRINCIPAL CIVIL JUDGE AND JMFC,
THIRTHAHALLI.
THESE APPEALS, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
COMMON ORAL JUDGMENT
These two appeals are listed for admission. Heard
the learned counsel appearing for the respective parties.
Both the appeals' subject matters are similar and hence
taken together for consideration.
2. The factual matrix of the case is that these two
appeals have been filed against the concurrent findings of
the Trial Court and the Appellate Court, wherein, the Trial
Court granted the relief of permanent injunction in respect
of the suit schedule property coming to the conclusion that
the plaintiff is in possession of the suit schedule property
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and the mutation register extract, demand register
extract, tax paid receipts and partition deed evidence the
fact that the plaintiff is in possession of the suit schedule
property.
3. The main contention of the counsel appearing
for the appellants/defendants before the Trial Court is that
the suit schedule property is a government property and
the plaintiff does not have any title or interest over the
suit schedule property and ought to have filed the suit for
relief of declaration instead of the relief of only bare
injunction was sought and the said contention of the
appellants/defendants was turned down by the Trial Court
as well as the First Appellate Court. Hence, the second
appeals are filed before this Court.
4. The main contention of the counsel appearing
for the appellants in both the appeals that these two
judgments and decrees arise out of different decrees
passed in O.S.No.181/2011 and also O.S.No.188/2011 and
also against the appeals in R.A.Nos.16/2019 and 17/2019.
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The grounds that have been urged in both the appeals are
similar and counsel also vehemently contend that both the
Courts have committed an error in coming to the
conclusion that plaintiffs are in possession of the suit
schedule property when identity of the suit schedule
property is in dispute and not passed the speaking order.
When an application is filed before the First Appellate
Court for appointment of a Court Commissioner, the
Appellate Court fails to take note of the said fact into
consideration. Hence, this Court has to frame the
substantial question of law by admitting the appeals since
matters require reconsideration.
5. Per contra, the learned counsel appearing for
the respondents would contend that both the Courts while
considering the respective suits taken note of the
documentary evidence placed before it, particularly
documents at Ex.P1 to 25 and considered mainly the
documents at Ex.P1, P2 to 4 and also Ex.P5, 6 and 7 which
clearly establish the fact that the plaintiffs are in
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possession of the suit schedule property. The only
contention is that the property belongs to the government
and also the counsel brought to the notice of this Court
that a resolution was passed by the government stating
that it is a private property and not the government
property, thus, the question of seeking a relief of
declaration does not arise since the defendants are not
claiming any title in respect of the suit schedule property
and the question of seeking for consequential relief does
not arise.
6. Having heard the learned counsel appearing for
the appellants and respondents and considering the factual
aspects of the case, it discloses that the plaintiffs
specifically pleaded before the Trial Court while seeking
the relief of permanent injunction that they are in
possession of the suit schedule property and there was a
partition deed among the family members in the year
2001 itself and the suit was filed in the year 2011 when
the interference was made by the defendants. The Trial
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Court having considered the material available on record,
particularly in paragraph No.20 taken note of the fact that
admittedly the defendants are not claiming any right in
respect of the suit schedule property and their only
contention is that the suit schedule property is
government land. When the defendants did not claim any
right or title over the suit schedule property, the very
contention that the plaintiffs ought to have filed the suit
for declaration does not arise since there is no cloud on
the title. The Trial Court has taken note of the documents
which have been placed before the Court, particularly
documents of Ex.P1 to 7 i.e., demand register extracts,
Form No.8 and also the tax paid receipts, partition deed
and other documents of the order passed in CRRP
No.248/1994 and comes to the conclusion that the
plaintiffs are in possession of the property.
7. The counsel appearing for the appellant has
brought to the notice of this Court that construction is
made by the defendants and they are in possession of the
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property, to substantiate the same, particularly in respect
of the suit schedule property is concerned, not placed any
documents and the Trial Court comes to the conclusion
that the claim made by the defendants is in respect of the
defendants' property and not in respect of the plaint
schedule property. The very contention of the appellants'
counsel that there is a dispute in respect of identity of the
property is concerned and the said contention cannot be
accepted. The Trial Court having considered both oral and
documentary evidence available on record, arrived with
just conclusion. When the suit is filed only for the relief of
permanent injunction is concerned, particularly documents
of Ex.P1 to 7 were taken note of by the Trial Court as well
as the Appellate Court and the Appellate Court also while
considering the respective appeals also in detail discussed
the material available on record i.e., both the oral and
documentary evidence and concurrent finding is given
particularly considering the documents which have been
considered by the Trial Court and comes to the conclusion
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that the Trial Court has not committed any error in
granting the relief of permanent injunction and taken note
of the documentary evidence of Ex.P1 to 7 which
establishes the possession of the plaintiffs. When such
being the case, I do not find any error in the finding of the
Trial Court as well as the First Appellate Court since both
the Courts considered the question of law and the question
of fact. Hence, admitting the second appeals and framing
of substantial question of law does not arise as contended
by the counsel appearing for the appellants and the
substantial question of law suggested by the counsel is
also only with regard to the identity of the property is
concerned and both the Courts have taken note of the
same and even the Appellate Court also comes to a
conclusion that there is no need to consider the application
filed under Order 26 Rule 9 of the Code of Civil Procedure
in view of the material available on record. Hence, I do not
find any ground to admit the appeals and frame
substantive questions of law in the appeals since both the
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Courts have taken note of factual aspects as well as
questions of law. Hence, no merit in the appeals.
8. In view of the discussions made above, I pass
the following:
ORDER
The appeals are dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
GJM
CT: BHK
