Karnataka High Court
Sri Kalamanda P Nanaiah vs Smt. M R Lolakshi on 28 October, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 114 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.114 OF 2025 (DEC/POS)
BETWEEN:
SRI. KALAMANDA P. NANAIAH
S/O LATE SRI. POOVAIAH
(SINCE DECEASED BY HIS LEGAL HEIRS)
1. SRI. KALAMANDA N. SANTHOSH
S/O SRI. K.P.NANAIAH
AGED ABOUT 48 YEARS
2. SMT. KALAMANDA N. THANGAMMA
W/O LATE SRI. K.P.NANAIAH
AGED ABOUT 80 YEARS
ALL ARE RESIDING AT
Digitally signed ARAMERI VILLAGE AND POST
by DEVIKA M
VIRAJPET TALUK
Location: HIGH KODAGU DISTRICT-571218.
COURT OF
KARNATAKA ...APPELLANTS
(BY SRI. SOMANNA B.A., ADVOCATE)
AND:
1. SMT. M.R. LOLAKSHI
W/O LATE SRI. M.G. RAJU
AGED ABOUT 75 YEARS
2. SRI. M.R. HARSHA,
S/O LATE SRI. M.G.RAJU
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RSA No. 114 of 2025
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AGED ABOUT 51 YEARS
BOTH ARE RESIDING AT
ARAMERI VILLAGE AND POST
VIRAJPET TALUK
KODAGU DISTRICT-571 218.
3. SRI. KALAMANDA JAGATH
S/O SRI. K.P. NANAIAH
AGED ABOUT 51 YEARS
RESIDING AT
ARAMERI VILLAGE AND POST
VIRAJPET TALUK
KODAGU DISTRICT-571 218.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED 16.10.2024
PASSED IN R.A.NO.11/2019 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, VIRAJPET, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
15.06.2019 PASSED IN O.S.NO.75/2011 ON THE FILE OF THE
ADDITIONAL CIVIL JUDGE AND JMFC, VIRAJPET.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 114 of 2025
HC-KAR
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission. I have heard learned
counsel for the appellants.
2. The Trial Court granted the relief of declaration and
possession in respect of the suit schedule property which was
encroached by the defendants and the same is confirmed by
the First Appellate Court. The appellants challenged the
concurrent findings of the Trial Court before the First Appellate
Court.
3. The factual matrix of the case of the plaintiffs
before the Trial Court is that though at the first instance, the
plaintiffs filed the suit for the relief of permanent injunction that
defendants are interfering with the possession of the property,
subsequently, on account of encroachment made by the
defendants, suit is amended for the relief of declaration and
possession.
4. Hence, the Trial Court framed additional issues
whether the plaintiffs prove that they are the absolute owners
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of the suit schedule property, whether the plaintiffs prove that
defendants have encroached the suit schedule property during
the pendency of the suit and whether the plaintiffs are entitled
for the relief of declaration and possession as claimed in the
suit. The defendants also took a specific contention in the
written statement that they are in lawful possession of the
counter claim property.
5. Since the plaintiffs made the counter claim, the
Trial Court given an opportunity to both the parties to lead
evidence and substantiate their contentions. The Trial Court
having given an opportunity to both parties, considered the
document of Ex.P1-sale deed under which the plaintiffs claimed
declaration and possession over the suit schedule property.
Apart from that, when an attempt is made by the defendants to
mutate the property which belongs to the plaintiffs by placing
on Exs.D10 and D11 i.e., General Power of Attorney and sale
deed which are not registered documents, the Trial Court
comes to the conclusion in paragraph No.22 that an attempt
was made by the defendants by relying upon the documents
Exs.D11 and D10 and they are only the unregistered
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documents. The defendants were never in lawful possession as
per the issue framed by this Court and only based on Exs.D10
and D11. The revenue documents clearly disclose that property
was got mutated in collusion with the revenue officials and the
documents are not registered and an observation is made that
the said documents are hit by Section 17 of the Registration
Act. It is also observed that only on the basis of said
documents of Exs.D10 and D11, the revenue officers mutated
the names of defendants and the same is not valid. Hence,
answered issue Nos.3 and 4 as 'negative' and answered the
issue Nos.2 to 5 as 'affirmative' in coming to the conclusion
that plaintiffs have established their ownership based on the
said sale deed of the year 1979, Ex.P1.
6. Aggrieved by the judgment and decree of the Trial
Court, an appeal is filed before the First Appellate Court in
R.A.No.11/2019 & R.A.No12/2019 challenging the rejection of
counter claim made by the plaintiffs and defendants as well as
granting the relief in favour of the plaintiffs in both the appeals.
The First Appellate Court considering the grounds which have
been urged in both the appeals, formulated the points whether
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the plaintiffs have proved that they are the absolute owners of
the suit schedule property and whether the defendants have
encroached the suit schedule property during the pendency of
the suit and these two points are answered as 'affirmative' and
defendants' contention that they are in actual possession and
interference by the plaintiffs is answered by the Trial Court in
coming to the conclusion that defendants have not proved the
fact that they are in actual possession of the property and the
First Appellate Court considering the material available on
record, particularly in paragraph Nos.27, 28 and so also in
paragraph No.30, discussed with regard to ownership of the
plaintiffs and also possession and comes to the conclusion that
defendants have not disputed the ownership of plaintiffs over
the suit schedule property as well as its extent in paragraph
No.38, but only dispute is in respect of identity of the property,
since the defendants are seriously disputing the identity of the
suit schedule property and defendants are claiming that their
counter claim schedule property situates within the boundaries
of plaint schedule boundaries.
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7. The First Appellate Court also taken note of the fact
that burden is on the plaintiffs to prove the identity of the
property and also considered the document of Ex.P1,
particularly the boundaries mentioned in Ex.P1 and the said
boundaries tallies with the plaint schedule property which have
been mentioned in the plaint and the evidence of P.W.1 is also
very clear with regard to the boundaries which he has claimed
in the plaint averments as well as the sale deed and defendant
No.1 also in his written statement has clearly pleaded that his
wife purchased 3 acres, 69 cents in Sy.No.431/1 from
Kalamanda Sheelavathi, who is the daughter of Kalamanda
Achamma through agreement of sale dated 03.07.1989 as well
as Sarvathrika Adikara Pathra. In order to prove the same,
D.W.3 has produced G.P.A and agreement of sale i.e., Exs.D10
and D11. The First Appellate Court also, in detail discussed the
case of the defendants, since the defendants claim right based
on Exs.D10 and D11 and those documents do not confer any
right in favour of the defendants, since the documents are not
registered documents. The First Appellate Court also taken note
of the fact that documents i.e., Exs.D10 and D11 do not confer
any right in favour of the defendants. Having taken note of the
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same, the First Appellate Court on re-appreciation of both oral
and documentary evidence comes to the conclusion that Trial
Court has not committed any error. Being aggrieved by the
same, present second appeal is filed before this Court.
8. The main contention of learned counsel appearing
for the appellants before this Court is that both the Courts
failed to take note of the evidence of plaintiffs as well as
defendants. The counsel would vehemently contend that even
though there are 7 original issues and 4 additional issues, in
total 11 issues framed before the trial Court, 7 points were
under consideration before the First Appellate Court. But, both
the Courts committed an error in not relying upon oral and
documentary evidence and counsel would vehemently contend
that the First Appellate Court and the Trial Court not considered
the evidence of D.W.2 and also Ex.D9 and contend that both
the Courts were not justified in dismissing the counter claim
and it requires interference to admit the second appeal and
frame substantial question of law.
9. Having considered the material available on record,
the plaintiffs, particularly claimed the relief of declaration based
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on Ex.P1-sale deed of the year 1979 and seek for the relief of
possession on account of encroachment made by the
defendants during the course of pendency of the suit which is
also pleaded and deposed before the Court. When an attempt is
made by the defendants by creating the documents of Exs.D9,
D10 and D11 and the said documents are also not registered
documents, the same were taken note of by the Trial Court,
while considering the claim of the defendants, since the
defendants claims counter claim and in order to substantiate
the counter claim, nothing is placed on record and the Trial
Court comes to the conclusion that documents at Exs.D10 and
D11 are created in collusion with the revenue officials, since
they are not registered documents and when the property is
claimed by the defendants, the same ought to have been
registered and the defendant only rely upon the unregistered
document which requires registration under Section 17 of the
Registration Act and definite reason was given that plaintiffs
are the owners of the suit schedule property and defendants
made an attempt to encroach upon the property and during the
pendency of the suit also encroached the property of the
plaintiffs. Hence, answered issues and contention of the
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appellants/defendants making counter claim based on Exs.D10
and D11 and since the said documents are also not admissible
documents under the evidence, rightly comes to the conclusion
that defendants have not proved their case. Hence, comes to
the conclusion that the defendants have not made out any
case. Having reassessed the material available on record, this
Court also is of the view that unless perversity is found in the
reasoning of the Trial Court as well as the First Appellate Court,
question of admitting the second appeal does not arise and
both the Courts have taken note of question of fact and
question of law and no substantial question of law arises to
invoke Section 100 of CPC.
10. In view of the discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST
