MAYAPPA S/O. MAYAPPA ADIKEPUJERI vs ITTAPPA @ VITTAL MAYAPPA PUJERI

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RSA No. 5560 of 2013


IN THE HIGH COURT OF KARNATAKA AT DHARWAD

TH
DATED THIS THE 5 DAY OF NOVEMBER, 2026


BEFORE

THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI

REGULAR SECOND APPEAL NO. 5560 OF 2013 (INJ)



BETWEEN:

MAYAPPA S/O. MAYAPPA ADIKEPUJERI,
AGE: 35 YEARS,
OCC: SHEPHERD, R/O: HUNUR,
TQ: HUKKERI – 591 309,
DIST: BELGAUM.
…APPELLANT






(BY SRI B.S. KAMATE, ADVOCATE)


AND:

ITTAPPA @ VITTAL MAYAPPA PUJERI,
SINCE DECEASED BY HIS L.R’S.





1. SMT. NIRMALA
W/O. ITTAPPA @ VITTAL MAYAPPA PUJERI,
AGED ABOUT 34 YEARS,
OCC:HOUSEHOLD,

2. KUM. MAYAWWA
D/O. ITTAPPA @ VITTAL MAYAPPA PUJERI,
AGED ABOUT 24 YEARS,
OCC: HOUSEHOLD,

3. KUMAR MALLAPPA
S/O. ITTAPPA @ VITTAL MAYAPPA PUJERI,
AGED ABOUY 12 YEARS,

4. KUMAR DINESH
S/O. ITTAPPA @ VITTAL MAYAPPA PUJERI,

Digitally
signed by
BHARATHI
H M
Date:
2026.11.06
12:40:22
+0530
BHARATHI
H M

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RSA No. 5560 of 2013

AGED ABOUT 11 YEARS,

RESPONDENT NOS. 3 AND 4 BEING MINORS,
R/BY NATURAL GUARDIAN MOTHER RESPONDENT
NO.1,
ALL ARE R/O: HUNUR,
TQ: HUKKERI – 591 309,
DIST: BELGAUM.
…RESPONDENTS

(BY SRI SANJAY S. KATAGERI, ADVOCATE FOR R1 TO R4;
R3 & R4 ARE MINOR’S REPRESENTED BY R1)


THIS RSA IS FILED U/S. 100 OF CPC., PRAYING TO CALL
FOR RECORDS AND SET ASIDE THE JUDGMENT AND DECREE
DATED 17.04.2013 PASSED BY THE SENIOR CIVIL JUDGE,
HUKKERI, IN R.A.NO.45/2003 AND THE JUDGMENT AND
DECREE DATED 15.11.2003 PASSED BY THE CIVIL JUDGE
(JR.DN.), HUKKERI, IN O.S.NO.117/1997 AND THE SUIT
O.S.NO.117/1997 MAY KINDLY BE DECREED AS PRAYED FOR,
BY ALLOWING THIS RSA WITH COSTS IN THE INTEREST OF
JUSTICE.

THIS APPEAL COMING ON FOR FINAL HEARING, HAVING
BEEN HEARD AND RESERVED FOR JUDGMENT ON 05.08.2026,
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

CORAM: HON'BLE MR. JUSTICE B. MURALIDHARA PAI

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RSA No. 5560 of 2013

CAV JUDGMENT

The plaintiff in OS No.117/1997 on the file of learned
Civil Judge (Jr. Dn.), Hukkeri has maintained this regular
second appeal.

2. The plaintiff namely Sri Mayappa maintained
the suit in OS No.117/1997 for the relief of permanent
injunction praying to restrain the defendants from illegally
interfering and obstructing in his peaceful possession and
enjoyment over the suit property, i.e., the property
bearing VPC No.103/A, measuring East-West : 40 feet and
North-South: 50 feet, situated in Hunur Village. The case
of the plaintiff is that he is the owner in possession of the
suit property and that he is using the suit property for the
purpose of tethering cattle and for keeping agricultural
implements. He alleges that the defendant is causing
illegal interference and obstruction in his possession and
enjoyment over the suit property though the defendant
has no manner of right, title or interest over it. He
maintained the suit for permanent injunction.

3. On service of the suit summons, the defendant
appeared before the trial court through his counsel and

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RSA No. 5560 of 2013

contested the suit. The defendant has denied all the
contentions of the plaintiff. He has disputed the
correctness of the measurement and boundaries of the
suit property given by the plaintiff. The defendant
contended that the property described by the plaintiff is
the property bearing VPC No.108, which measures East-
West: 60 feet and North-South:40 feet and that he is in
actual possession and enjoyment of the said property. He
stated that Hunur Village was submerged in Hidkal Dam
Project and therefore the villagers of Hunur were given
plots in new Hunur Village by PWD authorities. He submits
that such plots were formed in the land bearing R.S.No.
17/1 of Majathi Village. He further submits that the
Government granted the suit property to him and
accordingly his name is appearing in the Tax Assessment
Extract as the owner thereof. He contends that the plaintiff
has maintained the suit by suppressing the facts and
prayed for dismissal of the suit.

4. The trial Court, based on the pleadings of the
parties, framed the following issues:

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RSA No. 5560 of 2013

“«ªÁzÁA±ÀUÀ¼ÀÄ

ဂ ) zÁªÁ D¹ÛAiÀÄ ¥ÀævÀåPÀë PÀ¨ÁÓ ªÀ»ªÁnAiÀÄ°èzÉÝãÉAzÀÄ ªÁ¢AiÀÄÄ
gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀ£É?

2) zÁªÁzÀ D¹ÛAiÀÄ°è vÀ£Àß ±ÁAvÀ jÃwAiÀÄ ¥ÀævÀåPÀë PÀ¨ÁÓ ªÀ»ªÁnUÉ
¥ÀæwªÁ¢AiÀÄÄ ºÀgÀPÀvÀÛ ªÀiÁqÀÄwÛzÁÝ£ÉAzÀÄ ªÁ¢AiÀÄÄ gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀ£É?

3) zÁªÁ D¹ÛAiÀÄ ªÀtð£É ¸ÀjAiÀiÁVzÉ JAzÀÄ ªÁ¢AiÀÄÄ
gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀ£É?

4) F zÁªÉAiÀÄ£ÀÄß ºÀÆqÀ®Ä ªÁzÀ PÁgÀt«zÉAiÉÄ?

5) ¥ÀæwªÁ¢AiÀÄÄ gÀÄ¥Á¬Ä 5000-00 ¥ÀjºÁgÀ ªÉZÀÑ ¥ÀqÉAiÀÄ®Ä CºÀð£É?

6) AiÀiÁªÀ rQæ CxÀªÁ DzÉñÀ?”


5. During the trial the plaintiff got examined as
PW1, examined two more witnesses and got marked the
documents as Exs.P1 to P10. Similarly, the defendant
adduced his evidence as DW1, examined a witness and got
marked the documents as Exs.D1 to D22. Afterwards, the
trial Court heard the arguments of both sides, considered
the oral and documentary evidence on record and
dismissed the suit holding that the plaintiff has failed to
prove his lawful possession and enjoyment over the suit
property and the alleged interference by the defendant.


6. Being aggrieved, the plaintiff preferred the
appeal in RA No.45/2003. The first appellate court, after

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RSA No. 5560 of 2013

re-appreciating materials on record, concurred with the
findings recorded by the trial court and dismissed the
appeal. Feeling aggrieved, the plaintiff has preferred this
regular second appeal.


7. On 20.01.2022 this Court admitted the appeal
to consider the following substantial questions of law:-
“i) Whether the finding of the courts below that the
present suit for injunction simplicitor without seeking the
relief of declaration is not maintainable is perverse and
palpably erroneous and contrary to clinching evidence
produced by appellant/plaintiff vide Exs.P1 to P3 coupled
with the categorical admission given by defendant No.1
who is examined as D.W.1 and who has admitted in the
cross-examination in regard to possession of the
appellant/plaintiff’s over the suit schedule property
narrated in the plaint?
ii) Whether the finding of the courts below that
appellant/plaintiff has failed to prove his lawful possession
and enjoyment over the suit schedule property and
interference by respondents/defendants is perverse and
palpably erroneous and contrary to clinching evidence on
record coupled with the categorical admission given by
the defendants in regard to the possession of the
appellant/plaintiff over the suit schedule property.”

8. Sri B. S. Kamate, learned Counsel for the
Plaintiff vehemently submitted that there are ample
evidence on record to prove the plaintiff’s lawful
possession and enjoyment over the suit property. In spite
of the same, the courts below proceeded to hold that he

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RSA No. 5560 of 2013

has failed to prove his possession and enjoyment over the
suit property, ignoring clinching evidence on record such
as oral testimony of the plaintiff and his witnesses coupled
with the documents produced at Exs.P1 to P3 and the
admissions of DW1. He further submitted that the courts
below have even erred in holding that the suit for bare
injunction is not maintainable without seeking the relief of
declaration. As such, he contended that the findings
recorded by the courts below are palpably erroneous and
contrary to the evidence on record. He further submitted
that the first appellate court has erred by not passing a
separate order on the application filed by the plaintiff
under Order 41 Rule 27 of CPC. Hence, he prayed to allow
the appeal and set aside impugned judgments of the
courts below.

9. Per contra, Sri Sanjay S. Katageri, learned
Counsel for the legal representatives of the Defendant
vigorously supported the findings recorded by the courts
below as well as the rejection of the plaintiff's application
by the first appellate court. He submitted that the courts
below were fully justified in recording concurrent finding

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RSA No. 5560 of 2013

and holding that the suit of the plaintiff for bare
permanent injunction is not maintainable.

10. The case papers reveal that the trial court
proceeded to hold that the plaintiff has failed to prove his
lawful possession and enjoyment over the suit property
mainly on the ground that he has failed to discharge the
initial burden of proving his case. The trial court observed
that the assessment register extract produced by the
plaintiff as Ex.P1 does not indicate either the
measurement of the property or existence of any structure
therein. The trial court noted the failure on the part of the
plaintiff to produce any document relating to the grant of
suit property to him or the documents showing the
boundaries of the suit property. The trial court found that
both the parties to the suit have failed to produce the
documents to prove their contentions and particularly the
extent of land in their possession.

11. The first appellate court, while re-appreciating
the evidence on record, observed that the plaintiff has not
stated regarding the mode of acquiring the suit property
and that the documents produced by the plaintiff are not

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RSA No. 5560 of 2013

helpful in proving his possession and enjoyment over the
suit property. The first appellate court held that the
plaintiff cannot depend on the weakness of the defendant
and that in the facts and circumstances of the case the
plaintiff required to seek the relief of declaration.

12. As pointed out earlier, the plaintiff maintained
the suit for permanent injunction in respect of property
bearing VPC No.103/A situated at Hunur Village measuring
East to West 40 feet and North to South 50 feet bounded
on East by Government land (hill), West by road, North by
Kannada School and South by property of Mayappa
Setteppa Adikepujari, comprising of a chappar with red
tiled roof.

13. Though the defendant filed his written
statement and contested the suit, he has not disputed the
claim of the plaintiff over property bearing VPC No.103/A.
The defendant contested the suit of the plaintiff on the
ground that the property described by the plaintiff is the
property bearing VPC No.108 measuring East to West 60
feet North to South 40 feet bounded on East by
Government land, West by road, South by VPC No.103/A

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RSA No. 5560 of 2013

and North by Kannada School. The materials on record
indicate that during the trial of the case the plaintiff has
not disputed the claim of the defendant over the property
bearing VPC No.108.

14. As rightly observed by the courts below, the
initial burden is on the plaintiff to prove his case and he
cannot rely upon the weakness of the defendant to
support his prayer in the suit. As such, it was required for
the plaintiff to prove his actual possession and enjoyment
over the suit property. The case papers go to show that
the plaintiff has not pleaded about the manner in which he
came in possession of the suit property. Further, during
his evidence the plaintiff has not produced any document
under which he was put in possession of the suit property.
Thereby, the plaintiff has failed to prima facie proof his
right, title or interest over the suit property and the actual
measurement of the property in his possession. No doubt,
during his oral evidence the plaintiff has made an attempt
to claim that he is in actual possession and enjoyment of
the suit property as described in the schedule to the
plaint. In the considered view of this Court such oral

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RSA No. 5560 of 2013

testimony is not sufficient to establish the precise
boundaries and measurement of the suit property. Hence,
this Court holds that the courts below are justified in
holding that the plaintiff has failed to prove his lawful
possession and enjoyment over the suit property.

15. It is the case of the defendant that Hunur
Village was submerged in Hidkal Dam project and then the
authorities allotted plots to the Villagers at new Hunur
Village, formed in R.S. No.17/1 of Majathi Village. The
defendant has not produced any document before the
court to support this contention. However, the facts and
circumstances of the case probabilise the above contention
of the defendant. It is because the parties to the suit are
not at dispute regarding their claim over properties
bearing VPC Nos.103/A and 108 respectively. The
assessment register extracts produced at Ex. P1 and Ex.
D1 also prima facie support existence of such properties.
As such, there should be some record relating to these
properties showing its exact measurements and the
boundaries. For the reasons best known to them neither
the plaintiff nor the defendant produced any document

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before the court pertaining to the allotments of the plots
and their measurements.

16. In Ramanuja Naidu Vs V. Kanniah Naidu
and another , reported in AIR 1996 SC 3021 , the
Hon’ble Apex Court has held that interfering with the
concurrent findings of facts by the courts below amounts
to exceeding the jurisdiction vested under Section 100 of
CPC. Further, in Anathula Sudhakar Vs P. Buchi
Reddy (Dead) by L. Rs. and others , reported in AIR
2008 SC 2033 , the Hon’ble Apex Court has held that in
cases where de jure possession has to be established on
the basis of title to the property as in the case of vacant
sites, the issue of title may directly and substantially arise
for consideration, as without a finding thereon it will not
be possible to decide the issue of possession. The facts
and circumstances of the case justifies the observation of
the first appellate court that the plaintiff ought to have
sought for the relief of declaration apart from the relief of
injunction. For the foregoing reasons, this Court finds no
valid reason to interfere with the concurrent findings
recorded by the courts below, which are in consonance

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with the pleadings of the parties and the evidence placed
on record.

17. The impugned judgment of the first appellate
court shows that the plaintiff had filed an application under
Order XXVI Rule 9 r/w Order XLI Rule 27 of CPC before it
praying for appointment of a Court Commissioner to make
local inspection and to submit the report regarding the
measurement and boundaries of the suit property,
existence of hut, electricity supply to such hut and
electricity meter therein, on the ground that it will give an
opportunity to the parties to put forth their case. The first
appellate court rejected the said application primarily on
the ground that it amounts to collection of evidence
through the Court Commissioner.

18. The contention of the plaintiff in this appeal is
that the first appellate court ought to have disposed of
such application through a considered separate order. In
support of this contention, learned Counsel for the Plaintiff
relied on the decision in Veera Vahana Udyog Pvt. Ltd.
represented by its Managing Director Srinivas Reddy
Vs The Karnataka State Road Transport Corporation,

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represented by Managing Director KSRTC,
Bangalore , reported in ILR 2010 KAR 507 . In this
decision, the Division Bench of this Court has reiterated
the duty of the courts to consider all the interlocutory
applications before the consideration of the final case on
merits and that the failure to consider such an application
before passing an order on merits is erroneous.

19. In the case on hand, the plaintiff filed the
application in question at fag end of the proceeding, i.e.,
after completion of reply argument on merits of the
appeal. Admittedly, the first appellate court considered the
said application before taking up the appeal for disposal on
merits of the case. This aspect is clear from the points
framed by the first appellate court for its consideration.
Hence, this Court finds no substance in the above
contention of the plaintiff, disputing the correctness of the
procedure adopted by the first appellate court to consider
his application.

20. Coming to the question of perversity committed
by the courts below if any, in appreciating the evidence on
record, this Court finds no valid reason to accept the

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contentions of the plaintiff. It is because both the courts
below have recorded their findings after considering all
relevant aspects. When the plaintiff has failed to make out
his case the courts below could not have granted the relief
based on the weakness of the defendant. Hence, this
Court holds that the courts below are justified in holding
that the plaintiff has failed to prove his case. Accordingly,
the substantial questions of law at (i) and (ii) are
answered in the negative.

21. In the result, this Court proceeds to pass the
following:
ORDER
The regular second appeal is dismissed.

SD/-
(B. MURALIDHARA PAI)
JUDGE


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