Karnataka High Court
Timmappa Jatti Gouda vs Manjunath Venkatraman Yaji on 25 October, 2025
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NC: 2025:KHC-D:14241
RSA No. 5261 of 2013
C/W RSA No. 5260 of 2013
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT DHARWAD
DATED THIS THE 25TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO. 5261 OF 2013 (INJ)
C/W
REGULAR SECOND APPEAL NO. 5260 OF 2013
IN RSA No. 5261/2013
BETWEEN:
1. TIMMAPPA JATTI GOUDA,
AGE: 75 YEARS, R/O. TALGOD GRAM,
TQ. HONNAVAR - 581 423,
DIST. KARWAR.
SINCE DECEASED BY HIS LR
GOURI KOM NARAYAN GOUDA,
AGE: 51 YEARS, R/O. TALGOD GRAM,
TQ. HONNAVAR-581 423, DIST. KARWAR.
...APPELLANT
YASHAVANT (BY SRI. PRANAV BADAGI, ADVOCATE FOR
NARAYANKAR
SRI. R.H. ANGADI, ADVOCATE)
Digitally signed by
YASHAVANT
NARAYANKAR
Date: 2025.10.28
AND:
11:25:47 +0530
1. MANJUNATH VENKATRAMAN YAJI,
AGE: 53 YEARS,
R/O. TALGOD GRAM,
TQ. HONNAVAR-581 423,
DIST. KARWAR.
2. KRISHNA VENKATRAMANA YAJI,
AGE: 48 YEARS,
R/O. TALGOD GRAM,
TQ. HONNAVAR-581 423,
DIST. KARWAR.
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RSA No. 5261 of 2013
C/W RSA No. 5260 of 2013
HC-KAR
3. LAXMINARAYANA VENKATRAMANA YAJI,
AGE: 42 YEARS,
R/O. TALGOD GRAM,
TQ. HONNAVAR-581 423,
DIST. KARWAR.
4. SHRIDHAR VENKATRAMANA YAJI,
AGE: 38 YEARS,
R/O. TALGOD GRAM,
TQ. HONNAVAR-581 423,
DIST. KARWAR.
5. SMT. SHASHIKALA W/O. MANJUNATH YAJI,
AGE: 48 YEARS,
R/O. TALGOD GRAM,
TQ. HONNAVAR - 581 423,
DIST. KARWAR.
6. SMT. PARWATI W/O. VENKATRAMAN YAJI,
AGE: 74 YEARS,
R/O. TALGOD GRAM,
TQ. HONNAVAR - 581 423,
DIST. KARWAR.
...RESPONDENTS
(BY SRI. ASHOK R. MENSINAKAI, ADVOCATE;
SRI. SHIVARAJ S. BALLOLI, ADVOCATE FOR R1 TO R5)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE SENIOR
CIVIL JUDGE, HONNAVAR, DATED 26.11.2012 PASSED IN
RSA.NO.93/2002 IN DISMISSING THE APPEAL FILED BY THE
APPELLANTS, CONFIRMING THE JUDGMENT AND DECREE DATED
06.09.2002 IN O.S.NO.85/1997 PASSED BY THE CIVIL JUDGE
(JR.DN.), HONNAVAR, AND TO DISMISS THE SUIT FILED THE
PLAINTIFFS IN THE ENDS OF JUSTICE AND EQUITY.
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RSA No. 5261 of 2013
C/W RSA No. 5260 of 2013
HC-KAR
IN RSA NO. 5260/2013
BETWEEN:
1. NARAYAN TIMMAPPA GOUDA,
AGE: 58 YEARS,
R/O. TALGOD GRAM,
TQ. HONNAVAR - 581 423,
DIST. KARWAR.
2. GOURI KOM NARAYAN GOUDA,
AGE: 51 YEARS,
R/O. TALGOD GRAM,
TQ. HONNAVAR - 581 423,
DIST. KARWAR.
...APPELLANTS
(BY SRI. PRANAV BADAGI, ADVOCATE FOR
SRI. R.H. ANGADI, ADVOCATE)
AND:
1. MANJUNATH VENKATRAMAN YAJI,
AGE: 53 YEARS,
R/O. TALGOD GRAM,
TQ. HONNAVAR-581 423,
DIST. KARWAR.
2. KRISHNA VENKATRAMANA YAJI,
AGE: 48 YEARS,
R/O. TALGOD GRAM,
TQ. HONNAVAR-581 423,
DIST. KARWAR.
3. LAXMINARAYANA VENKATRAMAN YAJI,
AGE: 42 YEARS,
R/O. TALGOD GRAM,
TQ. HONNAVAR-581 423,
DIST. KARWAR.
4. VISHWESHWAR VENKATRAMANA YAJI,
AGE: 51 YEARS,
R/O. TALGOD GRAM,
TQ. HONNAVAR-581 423,
DIST. KARWAR.
5. VASUDEV VENKATRAMANA YAJI,
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RSA No. 5261 of 2013
C/W RSA No. 5260 of 2013
HC-KAR
AGE: 46 YEARS,
R/O. TALGOD GRAM,
TQ. HONNAVAR-581 423,
DIST. KARWAR.
6. GANAPATHI VENKATRAMANA YAJI,
AGE: 44 YEARS,
R/O. TALGOD GRAM,
TQ. HONNAVAR-581 423,
DIST. KARWAR.
7. SHRIDHAR VENKATRAMANA YAJI,
AGE: 38 YEARS,
R/O. TALGOD GRAM,
TQ. HONNAVAR-581 423,
DIST. KARWAR.
...RESPONDENTS
(BY SRI. ASHOK R. MENSINAKAI, ADVOCATE;
SRI. SHIVARAJ S. BALLOLI, ADVOCATE FOR R1 TO R5 & R7)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED
BY THE SENIOR CIVIL JUDGE, HONNAVAR, DATED 26.11.2012
PASSED IN RSA.NO.92/2002 IN DISMISSING THE APPEAL FILED
BY THE APPELLANTS, CONFIRMING THE JUDGMENT AND DECREE
DATED 06.09.2002 IN O.S.NO.80/1997 PASSED BY THE CIVIL
JUDGE (JR.DN.), HONNAVAR, AND TO DISMISS THE SUIT FILED
THE PLAINTIFFS IN THE ENDS OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE C M JOSHI
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RSA No. 5261 of 2013
C/W RSA No. 5260 of 2013
HC-KAR
ORAL JUDGMENT
The appellants happen to be the plaintiff in
O.S.No.85/1997 and the defendants in O.S.No.80/1997. Both
these suits were clubbed together and common evidence was
led and after hearing the arguments, the Trial Court i.e.,
Principal Civil Judge (Junior Division), Honnavar dismissed the
suit of the appellants and decreed the suit of the respondents.
The said common judgment of the Trial Court was confirmed by
the First Appellate Court in R.A.No.92 and 93 of 2002 by its
judgment dated 26.11.2012. Being aggrieved by the concurrent
findings of the Trial Court and the First Appellate Court, the
appellant is before this Court in second appeal.
2. Heard learned counsel appearing for the appellants.
3. The factual matrix of the case is that in both the
suits, the suit schedule property is one and the same. The
respondents were owners of Survey No.70B measuring 35
guntas, Survey No.98A measuring 2 acres 9 guntas out of 3
acres 14 guntas and these properties were the undivided
properties of the respondents. It was contented that abutting
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the said properties and the property belonging to the
appellants, there exists the property bearing Survey No.70A of
the appellant and it is a Forest land. It was alleged that the
appellants had encroached upon 3 acres 20 guntas of the
respondents which was shown in an eye sketch.
4. The facts as narrated by the Trial Court at
paragraph 6 and 7 are as follows:
"6. It is the specific allegation of the plff. in
the plaint that plffs. are the owners of S.No. 70B
measuring 0-35-0, S.No.98A measuring 2-9-0
out of 3-14-0. These properties are undivided
properties of the plff. and deft 3 to 6. It is
specifically alleged that abutting said ownership
property there exist S.No. 70A It is forest S.No.
Plff. and deft, 3 to 6 have encroached upon 3-
20-0 of land in the said forest S.No. 70A shown
as C§PÀqÀ portion in the eye sketch. Since from
more than 35-40 years they have encroached
the said property and have fixed compound
surrounding the said encroached portion. They
have planted cashew and other fruit bearing
trees. Said C§PÀqÀ portion is suit property in this
case.
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7. It is further alleged by the plffs. that
after these demise of plff. and deft.no. 3 to 6 's
father these plff. and deft.no, 3 to 6 themselves
came in possession of the same. Defts. 1 and 2
have no sort of right, title or interest much less
possession over the same. Inorder to grab the
said suit schedule property these defts. 1. and 2
are trying to remove the boundary fence put to
the said suit schedule property. So also forcibly
they are cutting the trees existing in the suit
schedule property. Because of the act of the
deft.no.1 and 2 plff. and deft. 3 to 6 will be put
to greater hardship and loss. Though the plff,
requested deft.no. 1 and 2 not to do the same,
but deft. no. 1 and 2 are not heeding to the
request. They are threatening that entire suit
schedule property will be encroached by them.
They are cruel in nature. They are backed up by
men and money. If the deft. 1 and 2 succeeds in
their activities then plff. and deft. 3 to 6 will be
put to greater hardship and loss. Hence the suit.
For all these reasons it is prayed by the plff, to
decree the suit against the deft.1 and 2."
5. The defendants denied the said contention and in
turn they sought injunction against the appellants herein.
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6. During the pendency of the suit, after hearing the
arguments, the appellants amended the plaint and after said
amendment, detailed written statement was also filed by the
respondents. In such amendment, the appellants had taken up
different contention, which was contrary to the contention
taken up earlier. This aspect of the matter is considered in
detail by the Trial Court in paragraphs 50 and 51 of its
judgment, which reads as below:
"50. As argued by the counsel for the defts. in
O.S..85/97 Sri G.V. Bhat that, this suit is purely
based is on the oral evidence. According to him
form no. 50 is not applicable for forest land.
There is no pleading as such. There is no
evidence to that aspect. So in the absence of
any evidence placed on record, argument of the
learned Sri G.V. Bhat cannot be accepted at all.
One thing is clear that Timmappa Gouda the plff.
in 0.S.85/97 have also been encroached certain
property, but it is not the suit property.
51. So far as pleading pladed by defts. 1
and 2 in O.S.80/97 is concerned, initially entire
case made out by the plffs, have been dented by
the defs. 1 and 2 by filing W.S. on that basis
evidence have been lead by both the parties to
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the suit. After completion of the argument, plffs.
sought to amend the plaint. After amendment, a
detail W.S. came to be filed giving clear go by
to the earlier W. S. filed by deft. 1 and 2 in
O.S.80/97. So there is veriance in pleadings and
evidence adduced by these defts. 1 and 2 in
O.S.80/97 with that of the plaint averments in
O.S. no 85/97. This D.W.1 is quite ignorance. He
is unable to speaks before the court that with
regad to the exact property. D.W.1 has given
different boundaries of the encroached property,
so also D.W.2. The report so filed by the
commissioner in O.S.85/97 and the plaint
averments in O.S.85/97 disclose different
boundaries to the encroached property of this
Timmappa Gouda. So the consistent
corroborative evidence have not at all been
adduced by Timmappa Gouda through D.W.1 to
decree his case. He would have been the best
person to speak before the court with regard to
the actual encroachment done by him. D.W.1
was not given any share in the encroached
property. Even his brother was also not given
any share. So if all these factual features are
assembled together, it can very well be stated
that the case made out by the plff. in O.S.80/97
and defts. in O.S.No.85/97 is more probable
than the case made out by deft.no.1 and 2 in
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O.S.80/97 and pltf. in O.S.85/97 Because in civil
cases, if the suit is purely based on the oral
evidence probability of the evidence is to be
taken into consideration. The parties to the suit
shall have to prove their respective cases with
preponderance of evidence and with all
probabilities. In this case as stated supra, it is
not denied by D.W.2 in O.S.30/97 and plff. in
0.S.85/97 that Venkatraman Yaji has not
encroached any property in S.No. 70A. They
have consistently spoken before the court and
pleaded that this Venkatraman Yaji has
encroached upon more than 20-0-0 of land in
S.No.70A which is the suit S.No.
7. It is evident that the pleadings and the effect of the
documents produced by the appellants herein were considered
at length and in detail by the Trial Court and it came to the
conclusion that the appellants have not proved their case. In
paragraph 52, the Trial Court observes as below:
"52. Further a sketch have been produced by
the plffs. in O.S.80/97 to show the exact
possession of the said C§PÀqÀ portion in the suit
property. Defts. also have produced the sketch.
This sketch is quite contrary to their own
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evidence. So this sketch so produced by the
defts. 1 and 2 in 0.S.80/97 is not duly proved in
accordance with law, whereas the evidence
adduced by P.W.1 supports the very contents of
the sketch so produced along with the plaint in
O.S.80/97 by the plffs. So as stated supra, if all
these factual features assembled together, it
clinchingly establishes that the plffs. in
O.S.80/97 are able to prove before the court
with preponderance of evidence and with all
probabilities that, they have encroahced upon
said 3-20-0 of land shown as C§PÀqÀ portion in
S.No.70A of Talagod village since from their
father and they are in possession of the same.
Even D.W.2 has, spoken before the court with
regard to the construction of the compound
surrounding the said property. Whereas plff. in
O.S.85/97 is unable to prove before the court
with preponderance of evidence and with all
probabilities that, he is in possession of the said
3-0-0 of land as alleged in O.S.85/97. Therefore
recast issue no.1 in O.S.80/97 is to be answered
in the affirmative and issue no.1 pared in
O.S.85/97 is to be answered in the negative.
Accordingly they are answered."
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8. The above view taken by the Trial Court insofar as
the contention of the appellants herein was considered and the
First Appellate Court also came to the same conclusion and
affirmed the judgment of the Trial Court. In paragraphs 34 and
35 of the common judgment of the First Appellate Court, it was
observed as below:
"34. With regard to the interference is
concerned, the trial Court has held that the plaintiffs
in OS No.80/97 are able to prove their possession
over said 3-20-0 of land. It is the suit schedule
property. Though there is some encroachment done
by the plaintiff in OS No.85/97, he has not entered
the witness box to prove his case. Therefore, non
entering the witness box by the plaintiff in OS
No.85/97 gives room for drawing an adverse
inference against him. It is not the evidence of
D.W.1 that the defendant No.1 in OS No.80/97 is
unable to attend the court. It is further observed by
the trial Court that though some evidence has been
given by D.W.1, but he never speaks that plaintiff in
OS No.85/97 is unable to attend the court and
therefore, he is speaking on behalf of the plaintiff in
OS No. 85/97. He has stated that he is not residing
in the said property so stated in OS No.85/97 and
he was not given any share. By considering these
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aspects the trial Court has held that when the
plaintiffs in OS No.80/97 are able to prove their
possession over the suit property, then the question
of interference done by the defendants No.1 and 2
in OS No.80/97 has to be taken into consideration.
Accordingly, the trial Court has answered issue No.2
in OS No.80/97 in the affirmative and in OS
No.85/97 in the negative. Further, it observed that
when the possession of the suit property is proved
and so also interference, definitely the plaintiffs in
OS No.80/97 are entitled for injunction against the
defendants No.1 and 2 as claimed by them. But in
OS No.85/97, the plaintiff has claimed injunction in
respect of 3-0-0 of land. The D.W.2 has given quite
contrary evidence with that of D.W.1 with regard to
their exact extent of the property encroached by
this plaintiff in OS No.85/97 and he is unable to
prove that the said entire 3-0-0 of land is in his
possession. Only because certain documents have
been produced by the defendants No.1 and 2 in OS
No.80/97 and the plaintiff in OS No.85/97 itself does
not establish their possession over the suit schedule
property involved in OS No.85/97. Evidence so
adduced by D.W.1 and 2 is quite against the case so
made out by the plaintiff in OS No.85/97. Therefore,
the plaintiff in OS No.85/97 is not entitled for
injunction. Accordingly, the trial Court decreed the
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suit in OS No.80/97 and dismissed the suit of the
plaintiff in OS No.85/97.
35. On going through the entire judgment and
decree of the trial Court and on reappreciation of
the evidence on record, I am of the opinion that the
trial Court has discussed each and every aspect of
oral and documentary evidence produced by both
the parties and correctly came to the conclusion that
the plaintiffs in OS No.80/97 have proved their case
with preponderance of all probabilities. Therefore,
whatever the grounds urged in the appeal memo of
both the appeals that the judgment and decree
passed dismissing the suit of the plaintiff in OS
No.85/97 is erroneous and it is liable to be set
aside; the trial Court failed to note that the suit land
is not the land which was encroached by the
deceased father of defendants No.1 to 4 during his
life time and he was not in possession of it and as
such it could not be in possession of defendants etc
are not at all sustainable. Since the plaintiffs in OS
No.80/97 have proved their case with
preponderance of all probabilities, the trial Court has
correctly given its findings and accordingly decreed
the suit in OS No.80/97. Mere contention that the
trial Court has not appreciated the evidence and it is
committed mistake is not a sufficient ground to
allow the appeals in the absence of any strong
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grounds. Therefore, I am of the considered opinion
that the common judgment and decree of the trial
Court is based on sound reasoning and correct
findings and hence, both the appeals are liable to be
dismissed. Accordingly, I answer the points No.1
and 2 in the negative."
9. The learned counsel appearing for the appellants
herein submits that the appreciation of the evidence by the
Trial Court and the First Appellate Court and the possession of
the plaintiffs as depicted in Ex.D-22/tax paid receipts of the
house property and Ex.D15-Form No.50 was not properly
appreciated by the Courts below. It is pertinent to note that the
overwhelming evidence placed on record before the Trial Court
were examined by the Trial Court in the light of the pleadings
of the appellants. The Trial Court notices that there are
contradictory pleadings and evidence on record and therefore,
the probability of the case of the appellants has not been
established. Both the Courts below are of the view that it is the
oral evidence, which alone is important. After appreciating the
oral evidence available on record and linking such oral evidence
to the documents produced, the Trial Court rejected the claim
of the appellants herein. In view of the concurrent findings of
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both the Courts on fact, there is no room for re-appreciation of
the evidence on record. No discernible or perverse appreciation
of the evidence is brought to the notice of this Court. The suits
being for injunction, no substantial question of law has been
projected by the appellant in this case. In that view of the
matter, the appeals are bereft of merits and therefore, the
appeals are dismissed at the stage of admission itself.
10. In view of disposal of the appeals, pending
interlocutory applications, if any, do not survive for
consideration and are disposed of accordingly.
SD/-
(C M JOSHI)
JUDGE
RKM & YAN
CT:PA
