Karnataka High Court
Hanamappa Alias Hanamantappa S/O ... vs Mahadevappa S/O Ishwarappa Pyati on 3 September, 2025
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RSA No. 100075/2025
Reserved on : 05.08.2025
Pronounced on : 03.09.2025
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 03RD DAY OF SPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
REUGLAR SECOND APPEAL NO.100075 OF 2025
BETWEEN:
HANAMAPPA @ HANAMANTAPPA
S/O. SANJEEVAPPA PUJAR
AGE: 74 YEARS, OCC. AGRICULTURE
R/O. SHIRUNJ-582103,
TQ. AND DIST. GADAG
...APPELLANT
(BY SRI. C.S. SHETTAR AND SMT. KAVYA C. SHETTAR, ADVOCATES)
AND:
Digitally signed by
MALLIKARJUN
RUDRAYYA KALMATH MAHADEVAPPA S/O. ISHWARAPPA PYATI
Location: HIGH
COURT OF
KARNATAKA
AGE: 49 YEARS, OCC. AGRICULTURE
DHARWAD BENCH
Date: 2025.09.04
12:46:35 +0530
R/O. SHIRUNJ-582103
TQ. AND DIST. GADAG.
...RESPONDENT
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING
TO, ADMIT THE APPEAL AND CALL FOR THE RECORDS OF THE
COURTS BELOW AND ALLOW THE APPEAL SETTING ASIDE THE
JUDGMENT AND DECREE PASSED IN R.A.NO.66/2024 DATED
28.10.2024 PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE
COURT AND JUDICIAL MAGISTRATE FIRST CLASS AT GADAG, AND
THE JUDGMENT AND DECREE PASSED BY LEARNED PRINCIPAL CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, GADAG, IN OS
NO.112/2020 DATED 20.06.2024 AND THEREBY DECREE THE SUIT
FILE BY THE APPELLANT/PLAINTIFF IN O.S.NO.112/2020 AND ETC.
IN THIS REGULAR SECOND APPEAL HAVING BEEN HEARD AND
RESERVED ON 05.08.2025 AND COMING ON FOR "PRONOUNCEMENT
OF ORDERS", THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 100075/2025
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE G BASAVARAJA)
The captioned second appeal is filed by the unsuccessful
plaintiff who is questioning the concurrent Judgment of the
Courts below in dismissing the suit filed by the plaintiff.
2. For the sake of convenience, the parties herein are
referred to as per their rank before the trial Court.
3. Brief facts leading to this appeal are that the plaintiff
filed suit for permanent and mandatory injunction to grant
decree, restraining the defendant from causing obstruction in
the smooth use and enjoyment of passage shown in red ink
arrow in the hand sketch map and also sought for mandatory
injunction against the defendant to remove the illegal Katta put
up with boulders and mud shown by letters in red ink as 'WXYA'
in the hand sketch map.
4. It is stated in the plaint that the suit property is a
house bearing Panchayat No.208 situate at Shirunj Village,
Taluk and District Gadag. The suit property morefully shown by
letters 'ABCDEF' in the plaint and sketch map. The small room
appurtenant to the 'ABCD' House is shown by letters 'EFDZ'.
The Door of the plaintiff is shown by letters 'D1'. The suit
property Panchayat No.207 of the same village is morefully
shown by letters 'JKLM' in the plain hand sketch map. The
small Katta appurtenant to 'JKLM' house shown by letters with
red ink as 'WXYZ' in the suit property, against which the relief is
sought by the plaintiff. The door of the defendant is shown by
letters 'D2'. It is averred in the plaint that the plaintiff is the
owner in possession of suit 1A house and the defendant is the
owner in possession of the suit 1B house. The plaintiff has the
door D1 for ingress and egress from a small passage shown by
the redline to reach the western main Panchayat Road. The
plaintiff and his family members have no alternative passage to
reach the Western Panchayat Road from the Door of D1. The
said passage is in existence since time in Memorial. The
defendant being political influential person, along with his
henchmen, has constructed an illegal Katta with stones and
mud on the ground the said Katta is useful for the repair of his
house and promised the plaintiff that he would remove the
same when the repair works of the roof gets over. Therefore,
the plaintiff, by heeding to the words of defendant, kept quite
on the ground that the defendant would remove the said illegal
Katta. The defendant has absolutely no occasion to use the
said Katta and made obstruction for the use and enjoyment of
the passage shown in the map. The said illegal katta has
caused great trouble and obstacle for the use and enjoyment of
the passage for ingress and egress of the plaintiff and the
plaintiff family is prevented from using the said passage for
their day-to-day works. Therefore, the plaintiff has filed the
suit.
5. In response to summons, defendant remained absent
and hence placed exparte.
6. Initially, the suit came to be partly decreed and the
respondent/defendant preferred an appeal in RA No.40 of 2021
before the Principal Senior Civil Judge, Gadag. Thereafter, as
per the Judgment and decree passed in the said appeal, the
matter was remanded back to the trial Court with direction to
give an opportunity to the defendant. Accordingly, after receipt
of the entire file, defendant appeared and filed his written
statement contending that the suit property originally belongs
to Mallappa the brother of plaintiff's father and he has sold his
property to the respondent/defendant and at the time of sale
transaction, he told that the said Katta is based on the
foundation of the property and if the said Katta is demolished
that entire wall will collapse. It is also contended by the
defendant that this village is located downhill where ground-
water is very near to the foundation of the property and during
the rainy season, the groundwater increases and at that
situation to construct the foundation wall a big boulder has to
be fixed on the foundation in order to avoid leakage of water
from the foundation. It is also contented that in order to
maintain the balance on the said stones, some heavy items
have been put on the said foundation which has been
misconceived by the appellant-plaintiff and is described as
Katta. The plaintiff has failed to understand the difference
between the Katta and foundation wall. Further, he has denied
all other averments made in the plaint and sought for dismissal
of suit.
7. Based on the pleadings, the trial Court has framed
eight issues. To prove the case of the plaintiff, plaintiff himself
got examinef as PW1 and maarked documents as Exhibits P1 to
P8. On closure of plaintiff's side evidence, on behalf of
defendant, two witnesses were examined as DWs1 and 2 and
marked one document as Exhibit D1. Having heard the
arguments on both sides, the trial Court dismissed the suit with
costs. Being aggrieved by the Judgment and decree of the trial
Court, the plaintiff has preferred appeal before the appellate
Court in RA No.66 of 2024, which came to be dismissed with
costs on 28th October 2024. Being aggrieved by the judgments
of both the Courts, the appellant has preferred this second
appeal.
8. Sri C.S. Shettar, learned Counsel appearing on behalf
of Smt. Kavya V. Shettar for the appellant, would submit that
the both the Courts have not assigned cogent or acceptable
reason in the Judgments. The Courts below have completely
erred and approached the matter entirely on an entirely
different angle without looking into the pleadings, documents
and evidence and hence the Judgment and decree pass by both
the Courts below are liable to be set aside. He would further
submit that though the trial Court has rightly answered issues 1
and 2 in the affirmative holding that there is panchayat Road
towards the western side of the house of the defendant and the
plaintiff is using the passage shown by red arrow mark in hands
sketch map to reach the Western Main Panchayat Road from
the beginning, however, the trial Court has committed error in
answering issues 3 and 4 in the negative, and issue No.five in
the affirmative. The trial Court, only on the basis of admission
of the plaintiff that the suit property, as of now, is in the same
position as it was at the time of purchase of the property by the
grandfather of the defendant, has shifted the entire blame on
the plaintiff that he should have constructed his house keeping
in mind the ingress and egress towards the Panchayat Road.
The trial Court has erred in accepting the contention of the
defendant that the Katta was part of the property purchased by
his grandfather and it was constructed by original owner
Mallappa about 70 years back and it is a foundation to wall and
suppose if the set Katta is removed, the entire wall will collapse.
9. However, on plain reading of Exhibit D1, no such
words appear as stated by DW1. In fact, it is clearly mentioned
in exhibit D1 that the property was an open place and house
property, and there is no reference as to Katta whatsoever.
10. The trial Court has overlooked the admission of DW1
that no Katta appears in the recital of exhibit D1. DW1 had
admitted the six photographs in his cross-examination marked
as Exhibits D9 to D14. DW1 also agrees to the suggestion that
only if the soil is removed, then only it will be convenient to
identify whether the Katta is related to foundation or not as
contended by him. However, the trial Court erroneously
suggested the plaintiff can pass through a one feet stone way at
the edge of the stone and soil and there is no need to remove
the katta as it is part of the property of the defendant and even
in Exhibit D1 there is no reference to the said Katta being the
part of the property. On all these grounds it is sought to admit
the appeal by framing substantial question of law.
11. On perusal of pleadings, evidence and upon
appreciation of entire evidence on record, in my considered
opinion, the Courts below have properly appreciated the
evidence on record in accordance with law and facts. No
substantial question of law would arise for consideration in this
appeal. Accordingly, I proceed to pass the following:
ORDER
i) Being devoid of merits, appeal stands dismissed at the
stage of admission itself.
ii) Pending applications, if any, also stand disposed of.
Sd/-
(G BASAVARAJA)
JUDGE
lnn
CT-CMU
