SHIVANNA @ SHIVU vs SMT RATHNAMMA

Court
Karnataka High Court

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RSA No. 1525 of 2014


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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

ST
DATED THIS THE 21 DAY OF SEPTEMBER, 2026


BEFORE

THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

REGULAR SECOND APPEAL NO. 1525 OF 2014 (DEC/INJ)

BETWEEN:


SHIVANNA @ SHIVU
S/O KALEGOWDA
AGED ABOUT 43 YEARS
ST
1 MAIN, II CROSS
ADUVALLI EXTENSION
HASSAN 573 201.
…APPELLANT

(BY SMT. LOKESHWARI, FOR
SRI. A RAVISHANKAR, ADVOCATES)


AND:

1. SMT RATHNAMMA
AGED ABOUT 46 YEARS
W/O SHETTYGOWDA
RATHNA NILAYA,
ST
1 MAIN ROAD
ADUVALLI EXTENSION
HASSAN 573 201.

2. SMT DHANALAKSHMI
AGED ABOUT 53 YEARS
W/O LATE THIMMAIAH
ST
1 MAIN ROAD,
ADUALLI EXTENSION
HASSAN 573 201.
…RESPONDENTS

(BY SRI. A.D. RAMANANDA, AND
SRI. R. JAYANT, ADVOCATES FOR R-1
R-2 – SERVED)













Digitally
signed by
VANDANA S
Location:
High Court
of Karnataka

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RSA No. 1525 of 2014


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THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT
& DECREE DTD 18.8.2014 PASSED IN R.A.NO.185/2013 ON THE FILE OF
THE PRL. SENIOR CIVIL JUDGE, HASSAN, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DTD 11.10.2013 PASSED IN
OS.NO.38/2007 ON THE FILE OF THE PRL. CIVIL JUDGE & JMFC.,
HASSAN.

THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT
WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

ORAL JUDGMENT
The appellant was defendant No.1 in O.S.No.38/2007 filed
by respondent No.1-plaintiff against the appellant and respondent
No.2-defendant No.2 for declaration of title in respect of plaint 'B'
schedule property, permanent injunction in respect of plaint 'A'
schedule property and mandatory injunction directing defendant
No.1 to remove the shed constructed on the 'B' schedule property
and to hand over possession of the same to the plaintiff and for
other reliefs. The said suit was contested by the appellant-
defendant No.1, while respondent No.2-defendant No.2 remained
ex-parte and did not contest the suit. By impugned judgment and
decree dated 11.10.2013, the Trial Court decreed the suit in favour

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RSA No. 1525 of 2014


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of the plaintiff against the defendants. Aggrieved by the judgment
and decree of the Trial Court, the appellant-defendant No.1
preferred an appeal in R.A.No.185/2013 which was dismissed by
the First Appellate Court vide impugned judgment and decree
dated 18.08.2014, aggrieved by which the appellant is before this
Court by way of the present appeal, which was admitted by this
Court on 12.06.2023 to consider the following substantial questions
of law:
“i) Whether the Courts below were justified in decreeing the
suit of the plaintiff when the allegations of the plaintiff was
against the second defendant as per paragraphs 5 and 8 of
the plaint and when the plaintiff gets the suit dismissed
against the second defendant, could the plaintiff sustain an
action independently against the first defendant?
ii) Whether the Courts below were justified in accepting the
Court Commissioner’s report when admittedly the
Commissioner has stated in the report that he has not
measured the suit schedule properties since there was no
boundary marked for identification of the properties which in
other words would mean that the Commissioner’s report is
given without any factual basis?”
2. Heard learned counsel for the appellant and learned
counsel for respondent No.1 and perused the material on record.

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Re. substantial questions of law No.1 and 2 :
3. A perusal of the material on record will indicate that the
plaintiff claimed that he was the owner of the 'A' schedule property
bearing khata No.1395 and to the east of the 'A' schedule property,
the property of defendant No.1 was situated and defendant No.1 is
alleged to have encroached upon a portion of the plaintiff's property
on its eastern side and the said encroached portion is described as
'B' schedule property. It is also contended that defendant No.2 had
encroached upon the 'A' schedule property on its southern side and
the said encroached portion was described as 'C' schedule
property. It is contended that since the defendants had illegally
and unauthorizedly encroached upon the portions of plaintiff's 'A'
schedule property on its eastern side and southern side, plaintiff
instituted the aforesaid suit seeking the aforesaid reliefs against the
defendants.
4. As stated supra, the appellant-defendant No.1
contested the suit only in relation to the 'B' schedule property while
defendant No.2 did not contest the suit and remained exparte in
relation to the 'C' schedule property. It follows therefrom that the

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dispute involved in the present appeal is only in relation to the 'B'
schedule property alleged to have been encroached upon by the
appellant-defendant No.1. Defendant No.1 filed his written
statement disputing and denying the various allegations and claim
made by the plaintiff and sought for dismissal of the suit. He not
only disputed and denied the alleged right, title, interest and
possession of the plaintiff over the 'B' schedule property, but also
disputed and denied the identity, location, schedule,
measurements, boundaries, etc., in relation to the suit schedule
properties as put forth by the plaintiff. It is contended that
defendant No.1 had not encroached any portion of the plaintiff's
property and that defendant No.1 was the absolute owner in lawful
and peaceful possession and enjoyment of his property over which
the plaintiff does not have any right, title, interest or possession and
accordingly, defendant No.1 sought for dismissal of the suit.
5. Based on the aforesaid pleadings, the Trial Court
framed the following issues:
“1) Whether the plaintiff proves that the existence of ‘B’
schedule property as claimed by her?

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2) Whether the plaintiff proves her title over the ‘B’ schedule
property?
3) If so, whether she further proves that the defendant has
illegally constructed a shed by encroaching upon ‘B’
schedule property?
4) Whether the plaintiff proves her possession and
enjoyment over ‘A’ schedule property as on the date of
suit?
5) If so, whether she further proves the alleged interference
by the defendants in respect of her enjoyment?
6) Whether the plaintiff is entitled for the reliefs sought for?
7) What order or decree?
Additional issue No.5(a) :
Whether the suit is barred by limtiation?”

6. Plaintiff examined herself as PW.1 and two witnesses
as PWs.2 and 3 and documentary evidence at Exs.P-1 to P-14
were marked, while defendant No.1 examined himself as DW.1 and
one witness as DW.2 and documentary evidence at Exs.D-1 to 12
were marked on his behalf.
7. The Trial Court came to the conclusion that the
appellant - defendant No.1 had encroached upon the 'B' schedule

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property by placing reliance upon the pleadings and evidence of
the parties as well as the report of the Court Commissioner, which
was accepted by the Trial Court. So also, the First Appellate Court
confirmed the judgment and decree of the Trial Court. In this
context, a perusal of the pleadings and evidence of the plaintiff and
defendant No.1 will clearly indicate that the same are neither
adequate, nor sufficient to establish identity, location, schedule,
measurements, boundaries etc., of the suit schedule properties for
the purpose of upholding the claim of the plaintiff. Further, a
perusal of the report of the Court commissioner will clearly indicate
that the same is incomplete, insufficient and sketchy and that the
Court Commissioner did not measure the suit schedule properties,
nor were there any boundary marks available for the purpose of
identification of the properties claimed by the plaintiff and
defendant No.1; if the material on record comprising of the
pleadings and evidence of the parties and the report of the Court
Commissioner are scrutinized, it becomes clear that both the
Courts fell in error in upholding the claim of the plaintiff by placing
reliance upon an incomplete, insufficient and sketchy report of the
Court of the Commissioner, which could not have been made the

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basis by both the Courts to uphold the claim of the plaintiff and
reject the claim of the appellant-defendant No.1; in other words, the
material on record clearly establishes that there existed a serious
dispute as regards identity, location, schedule, measurements,
boundaries, etc., of the properties claimed by both sides, which
has not been resolved by the report of the Court Commissioner,
which clearly necessitates, requires and warrants appointment of a
new/fresh Court Commissioner by setting aside the impugned
judgments and decrees passed by both the Courts and remitting
the matter back to the Trial Court for reconsideration of the matter
afresh and in accordance with law.
8. Under these circumstances, I am of the considered
opinion that the impugned judgments and decrees of the Trial
Court and the First Appellate Court deserve to be set aside and the
matter be remitted back to the Trial Court for reconsideration afresh
and in accordance with law by issuing certain directions.
The substantial questions of law No.1 and 2 are answered
accordingly.
9. In the result, I pass the following:

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ORDER
(i) Appeal is hereby allowed .
(ii) The judgment and decree dated 18.08.2014 passed in
R.A.No.185/2013 by the Prl. Senior Civil Judge, Hassan and the
impugned judgment and decree dated 11.10.2013 passed in
O.S.No.38/2007 by the Prl. Civil Judge & JMFC, Hassan, are
hereby set aside.
(iii) The matter is remitted back to the Trial Court for
reconsideration afresh and in accordance with law.
(iv) The Trial Court is directed to appoint a fresh / new
Court Commissioner to conduct local inspection of the property of
the plaintiff as well as property of the defendant and submit a report
to the Trial Court.
(v) Liberty is reserved in favour of the parties to submit
their respective memos of instructions before the Court
Commissioner and also file objections, if any, to the
Commissioner’s report and examine / cross-examine, if they so
desire.

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(vi) Liberty is also reserved in favour of the parties to
adduce additional oral and documentary evidence, if they so
desire.
(vii) All rival contentions on all aspects of the matter
including the report and evidence of the Court Commissioner are
kept open and no opinion is expressed on the same.
(viii) The Trial Court is directed to dispose of the suit as
expeditiously as possible.

Sd/-
(S.R.KRISHNA KUMAR)
JUDGE


SV/BMC
List No.: 1 Sl No.: 6