The High Court
Case Details
- 1 - NC: 2025:KHC:21968 RSA No. 482 of 2023 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.482 OF 2023 (INJ) BETWEEN: SMT. PUTTAMMA W/O LATE MALLIKARJUNA PRESENTLY AGED ABOUT 76 YEARS R/AT NO.115, ‘SHIVAKRUPA’, GURUSARVABHOUMA ALSO CALLED AS GURUSARVABHOUMA LAYOUT, BEHIND ITI LAYOUT, OPPOSITE TO GOPALAN ARCADE MYSURU ROAD, BENGALURU-560098 PRESENTLY R/AT NO.225/8 1ST FLOOR, 53RD CROSS, 4TH BLOCK, RAJAJINAGAR, BENGALURU-560010 REP. BY HER SON AND GPA HOLDER SRI KASHIVISHWANATH M (BY SRI H V DEVARAJU, ADVOCATE) AND: SRI M NAGARAJU @ M PAPANNA S/O LATE M MAHADEVAPPA PRESENTLY AGED ABOUT 75 YEARS, R/AT M L HUNDI VILLAGE, Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA …APPELLANT - 2 - NC: 2025:KHC:21968 RSA No. 482 of 2023 HC-KAR UKKALAGERE POST, SOSALE HOBLI T NARASIPURA TALUK-571124 MYSURU DISTRICT
Legal Reasoning
(BY SRI P NATARAJU, ADVOCATE) …RESPONDENT THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 10.10.2022 PASSED IN R.A NO.11/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., T. NARASIPURA, MYSURU AND ETC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.P.SANDESH ORAL JUDGMENT Heard the learned counsel appearing for the respective parties. - 3 - NC: 2025:KHC:21968 RSA No. 482 of 2023 HC-KAR 2. This appeal is filed against the concurrent finding of both the Courts wherein the relief is sought for mandatory injunction and permanent injunction. 3. The factual matrix of the case of the plaintiff before the Trial Court that the defendant had constructed the toilet in the property belongs to her and hence, she is entitled for the relief of mandatory and permanent injunction. The defendant appeared and filed the written statement contending that toilet has been constructed in his own property and not in the property of the plaintiff as contended. Hence, the plaintiff is not entitled for the relief as sought. 4. The Trial Court having considered the pleadings of the parties, framed the Issues and allowed the parties to lead their evidence. In order to prove the case of the plaintiff, the GPA holder of the plaintiff is examined as PW1 and got marked the documents at Ex.P1 to 22. On the other hand, the defendant examined himself as DW1 - 4 - NC: 2025:KHC:21968 RSA No. 482 of 2023 HC-KAR and got marked the documents at Ex.D1 to D7(a). The Trial Court having considered both oral and documentary evidence placed on record particularly considering the document of sale deed dated 28.05.1973 in which the plaintiff is relied upon at Ex.P2 wherein the measurement of the property shown as 42 x 48 feet and also Ex.P4 i.e., demand register wherein measurement of the suit schedule property is shown as 37 x 43 feet and the Trial Court taken note of the case of the defendant wherein he claims that his property is measuring 35 x 43 feet and also produced the documents at Ex.D1 and D5 - demand registers for the period of 2011-12 and 2017-18 respectively reveal that the defendant owns the property in the measurement of 35 x 43 feet and also taken note of the fact that construction taken by the defendant is to the extent of 11 x 29 feet and he has constructed the toilet towards western side of his property and also he retained vacant area to the extent of 24 x 14 feet after construction of his house. The Trial Court also considered - 5 - NC: 2025:KHC:21968 RSA No. 482 of 2023 HC-KAR both oral and documentary evidence placed on record wherein DW1 in his cross-examination though he denied that he has constructed the toilet in the suit schedule property, as per Ex.D1 and D5, the defendant has retained 24 x 14 feet vacant site apart from his residential house which is constructed in the measurement of 11 x 29 feet. The plaintiff also not denied the fact that the defendant has not left with any vacant site with the measurement of 24 x 14 feet after construction of his house and the Trial Court also taken note of unequivocal admission on the part of PW1 that defendant has constructed the toilet in his property and the same is sufficient to hold that the plaintiff has failed to prove her claim and dismissed the suit. 5. The First Appellate Court also having reassessed both oral and documentary evidence placed on record as well as the grounds which have been urged, formulated the points and in paragraph 22 made an observation that the plaintiff based on her title on the - 6 - NC: 2025:KHC:21968 RSA No. 482 of 2023 HC-KAR basis of Ex.P2 – sale deed dated 28.08.1973 claims that she had purchased the property i.e., east to west 25 mola and north to south 32 mola. If the measurement is converted into feet, it comes to 42 x 48 feet. The First Appellate Court also take note of demand register extract at Ex.P4 which clearly discloses that the measurement as 37 x 43 feet thus, the measurement shown in the documents of plaintiff are not tallying with each other. Both the Courts have taken note of Ex.P2 and P4 and also taken note of admission on the part of PW1 regarding very construction of the toilet wherein clear admission given by PW1 that defendant has constructed the toilet in his own property. When the plaintiff claims that toilet was constructed in her property, she must have to prove the same. Having considering the admission on the part of PW1 and reassessing the material on record, the First Appellate Court dismissed the appeal and confirmed the judgment and decree of the Trial Court. - 7 - NC: 2025:KHC:21968 RSA No. 482 of 2023 HC-KAR 6. The learned counsel for the appellant would vehemently contend that both the Courts have committed an error in considering the material available on record particularly Ex.P2 which is purchased by the husband of the plaintiff and it measures as 42 x 48 feet. Instead of considering the document at Ex.P2, both the Courts believed the document at Ex.P4 that is actual measurement is in existence in the demand register and ought not to have relied upon the document at Ex.P4 and ought to have considered the document at Ex.P2. This Court has to frame the substantive question of law that both the Courts have committed an error in coming to the conclusion that the plaintiff has not proved the fact that the construction made by the defendant is in the property of the plaintiff. The counsel would vehemently contend that the application was filed under Order 26 Rule 9 of CPC seeking for appointment of Court Commissioner to find out as to whether the toilet constructed by the defendant over the suit schedule property or not and the - 8 - NC: 2025:KHC:21968 RSA No. 482 of 2023 HC-KAR said application was dismissed by the Trial Court and hence, this Court has to frame the substantive question of law admitting the appeal. 7. Per contra, the learned counsel appearing for the respondent would vehemently contend that both the Courts have taken note of the fact that though document at Ex.P2 is relied upon, Ex.P4 is very clear that demand register which clearly discloses the existence of the property available at the spot and the defendant has produced the documents at Ex.D1 to D7 and even admission was given by PW1 in the cross-examination that the toilet was constructed by the defendant in his property and same was taken note of by both the Courts and hence, dismissed the suit. 8. Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, it discloses that the very case of the plaintiff is with regard to 4 x 4 feet. It is the contention of the - 9 - NC: 2025:KHC:21968 RSA No. 482 of 2023 HC-KAR plaintiff that the defendant had constructed the toilet in the property belongs to the plaintiff. In order to prove the said fact, the plaintiff has relied upon both oral and documentary evidence placed on record. No doubt, the plaintiff relies upon Ex.P2, but the sole document at Ex.P2 is contrary to the document at Ex.P4 wherein measurement shown in Ex.P4 is contrary to Ex.P2. In order to prove the claim of the plaintiff, nothing is elicited from the mouth of DW1 in his cross-examination but PW1 himself has given the unequivocal admission that defendant has constructed toilet in his property and hence, the Trial Court in paragraph 17, having considered the material on record rightly comes to the conclusion that the very admission is suffice to comes to a conclusion that plaintiff has not proved the case and the First Appellate Court on reconsideration of material on record in detail discussed the claim of the plaintiff and comes to the conclusion that the defendant had not encroached and put up the construction in the suit property and in - 10 - NC: 2025:KHC:21968 RSA No. 482 of 2023 HC-KAR paragraph 22 also taken note of the measurement available as per the demand register produced by plaintiff as 37 x 43 feet. The First Appellate Court also taken note of the admission of PW1 in paragraph 27 wherein, PW1 had gone to the extent to depose that he does not know when the defendant has constructed the toilet and even does not know the measurement of the defendant’s property also. Hence, considering the material on record, both the Courts given the fact finding with regard to the very case of the plaintiff wherein she contended that defendant put up the toilet in the property belongs to the plaintiff, but she did not prove the same. Hence both the Courts considered the material on record in a proper perspective. Hence, I do not find any error in the findings of both the Courts. Unless there is any perversity in the finding of both the Courts ignoring the material on record, this Court cannot comes to other conclusion. Hence, I do not find any grounds to frame the substantive question of law and to admit the appeal. - 11 - NC: 2025:KHC:21968 RSA No. 482 of 2023 HC-KAR 9. In view of the discussions made above, I pass the following:
Decision
ORDER The second appeal is dismissed. In view of dismissal of the main appeal, I.As. if any, do not survive for consideration and the same stand dismissed. Sd/- (H.P.SANDESH) JUDGE SN