Karnataka High Court
Dodda Naika S/O. Mudda Naika vs Chikkanayaka @ Gavinayaka Dead By Lrs on 17 October, 2025
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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RSA No. 440 of 2009
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
REGULAR SECOND APPEAL NO. 440 OF 2009 (DEC/INJ)
BETWEEN:
DODDA NAIKA
S/O MUDDA NAIKA
R/AT NEGGADAPURA VILLAGE
KASABA HOBLI, H.D.KOTE TALUK
MYSORE DISTRICT - 570 001.
...APPELLANT
(BY SRI T.A. KARUMBAIAH, ADV.)
AND:
CHIKKANAYAKA @ GAVINAYAKA
DEAD BY LRS
1. CHENNAMMA
W/O LATE CHIKKANAYAKA
AGED 62 YEARS.
Digitally
signed by
NANDINI M S 2. MUDDA NAYAKA
Location: S/O CHIKKANAYAKA
HIGH COURT
OF AGED 42 YEARS.
KARNATAKA
3. SANNA NAYAKA
S/O LATE CHIKKANAYAKA
AGED 40 YEARS.
4. SOMA NAYAKA
S/O LATE CHIKKANAYAKA
AGED 38 YEARS.
5. SINGA NAYAKA
S/O LATE CHIKKANAYAKA
AGED 37 YEARS.
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RSA No. 440 of 2009
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6. PUTTALAMMA
W/O GAVINAYAKA
AGED 42 YEARS.
7. H.G. ANANDA
S/O GAVINAYAKA
AGED 40 YEARS.
ALL ARE RESIDENTS OF
HEGGADAPURA VILLAGE
KASABA HOBLI
H.D.KOTE TALUK
MYSORE DISTRICT - 570 001.
(NOTE: RESPONDENT 1(b) AND RESPONDENT 2 ARE THE
SAME PERSON, HENCE HE IS MADE AS RESPONDENT NO2
IN THE ABOVE APPEAL)
...RESPONDENTS
(BY SRI V. RANGARAMU, ADV.)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 26.2.2009 PASSED IN
R.A.NO.55/2005 ON THE FILE OF THE PRESIDING OFFICER, FTC-I,
MYSORE, (CONCURRENT CHARGE), DISMISSING THE APPEAL AND
UPHOLDING THE JUDGEMENT AND DECREE DATED 26.10.2005
PASSED IN OS.NO.148/1997 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.), HUNSUR.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
ORAL JUDGMENT
1. This Regular Second Appeal under Section 100 of CPC is
filed by the defendant with a prayer to set aside the judgment
and decree dated 26.10.2005 passed in O.S.No.148/1997 by
the Court of Civil Judge (Sr.Dn.), Hunsur and the judgment and
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decree dated 26.02.2009 passed in R.A.No.55/2005 by the Fast
Track Court-I, Mysuru.
2. Heard the learned Counsel for the parties.
3. Brief facts of the case leading to filing of this second
appeal are as under:
O.S.No.71/1991 was filed before the jurisdictional civil
court seeking the relief of declaration declaring that the
plaintiffs are the absolute owners of the suit schedule property
and grant permanent injunction against the defendant.
Additionally, a prayer to pass a decree for possession directing
the defendant to hand over possession of the suit schedule
property and to grant mesne profits was also made. For want of
jurisdiction, the said suit was subsequently transferred to the
Court of Civil Judge (Sr.Dn.), Hunsur, and numbered as
O.S.No.148/1997.
4. It is the case of the plaintiffs that they are the owners of
the suit schedule property bearing Sy. No.23 measuring 3 acres
33 guntas situated at Heggadapura village, H.D.Kote.
Defendant is the close relative of the plaintiffs and owner of
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property bearing Sy.No.22 situated adjacent to the property of
the plaintiffs. Defendant had filed O.S.No.175/1988, which was
subsequently numbered as O.S.No.539/1989 seeking the relief
of permanent injunction and in the said suit, the Court
Commissioner appointed had found that the property
measuring to an extent of 1 acre 28 guntas belonging to the
plaintiffs in Sy. No.23 was encroached by the defendant. It is
under these circumstances, after disposal of O.S.No.539/1989,
the present suit was filed.
5. The defendant who had entered appearance in the
present suit, had filed his detailed written statement opposing
the suit claim. To substantiate their case before The Trial Court,
on behalf of the plaintiffs, plaintiff no.1(ii) - Muddanayaka was
examined as PW-1. Ten documents were marked as Exs.P-1 to
P-10 in support of plaintiffs case. On the other hand, defendant
had examined himself as DW-1 and five other witnesses were
examined as DW-2 to DW-6 and 29 documents were got
marked on behalf of the defendant as Exs.D-1 to D-25.
6. The Trial Court after hearing the arguments addressed on
both sides and also appreciating the material evidence available
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on the spot, vide impugned judgment and decree dated
26.10.2005 decreed the suit. The said judgment and decree
passed in O.S.No.148/1997 was confirmed in R.A.No.55/2005
vide the impugned judgment and decree dated 26.02.2009
passed by Fast Track Court-1, Mysuru. Being aggrieved by the
concurrent findings recorded against him, the defendant is
before this Court.
7. This Court had admitted this regular second appeal on
05.11.2015 to consider the following substantial question of
law.
"Whether the judgment and decree of both
the courts below are perverse in decreeing the suit
for injunction based on the report of the
commissioner which is filed in the earlier suit?"
8. It is not in dispute that plaintiffs are the owners of the
suit schedule property bearing Sy. No.23 measuring 3 acres 23
guntas situated at Heggadapura village, H.D.Kote. According to
the plaintiffs, plaintiff no.1 - Chikkanaika had purchased the
suit schedule property under a registered sale deed dated
28.01.1970 which is marked at Ex.P-1. Ex.P-2 is the pahani
extract of the suit schedule property which stands in the name
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of the plaintiffs. Exs.P-3 & P-4 are the index of lands. Ex.P-5 is
the tax paid receipt.
9. Similarly, it is also not in dispute that defendant is the
owner of the land bearing Sy. No.22 totally measuring 4 acres
11 guntas which is situated adjacent to the plaint schedule
property. The defendant had purchased the same under a
registered sale dated 26.07.1960 which is marked as Ex.D-1.
He has also produced relevant documents in support of his
possession and title in respect of the property bearing Survey
No. 22 measuring 4 acres 11 guntas.
10. The grievance of the plaintiffs in the present suit is that
defendant had encroached land to the extent of 1 acre 28
guntas in Sy.No.23, which is the suit schedule property.
11. The defendant had earlier filed suit in O.S.No.175/1988,
which was subsequently re-numbered as O.S.No.539/1989
seeking the relief of permanent injunction in respect of his
property bearing Sy. No.22 measuring 4 acres 11 guntas which
is situated abutting the plaint schedule property bearing Sy.
No.23 belonging to the plaintiffs. In the said suit, a Court
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Commissioner was appointed for the purpose of local inspection
and survey of the land which was subject matter of
O.S.No.539/1989 and in the Commissioner's report which was
filed in O.S.No.539/1989, it was stated that defendant had
encroached land bearing Sy. No.23 belonging to the plaintiffs to
the extent of 1 acre 28 guntas.
12. It is not in dispute that defendant herein was the plaintiff
in O.S.No.539/1989 and the plaintiffs herein were the
defendants in the said suit. In the present case, the
commissioner's report filed in O.S.No.539/1989 is produced as
Ex.P-7. Ex.P-8 is the sketch prepared by the Court
Commissioner, and Ex.P-9 is the copy of the mahazar for
having carried out the commission work. Both the courts below
having appreciated the aforesaid documents, have recorded a
finding that the defendant in the present suit has encroached
land bearing Sy. No.23 to an extent of 1 acre 28 guntas.
13. Defendant in support of his case had examined himself as
DW-1 and five other witnesses were examined on his behalf as
DW-2 to DW-6. DW-6 - Srinivasaiah is the Court Commissioner
who has prepared Exs.P-7, P-8 & P-9. He has deposed in
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support of Exs.P-7, P-8 & P-9 and he also has denied the
suggestion made to him by the defendant that his report was
false. He has denied that no encroachment was made by the
defendant over the property belonging to the plaintiffs. It is
under these circumstances, the courts below have arrived at a
conclusion that plaintiffs had successfully proved that defendant
had encroached the suit schedule property bearing Sy.No.23 to
an extent of 1 acre 28 guntas. Therefore, I am of the opinion
that the courts below were fully justified in decreeing the suit
and the impugned judgment and decree, therefore, cannot be
termed as perverse. Under the circumstances, the substantial
question of law framed by this Court is answered in the
negative. No other substantial question of law that arises for
consideration in this appeal is pointed out by the learned
Counsel for the appellant.
14. It is also relevant to note here that defendant had also
made a plea of adverse possession to an extent of 1 acre 28
quintas in Sy. No.23, and thereby, virtually admitted his
possession over the said land. However, the plea of adverse
possession by the defendant has been negatived by the courts
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below, since he had not admitted the title of the plaintiffs over
the said extent of land. Under the circumstances, I am of the
opinion that this regular second appeal does not merit
consideration. Accordingly the same is dismissed.
Sd/-
(S VISHWAJITH SHETTY)
JUDGE
KK
