Shekar Poojary v. Smt Jayashree

Karnataka HC7 Nov 2025RSA/1372/2018

Case brief

AI extract

What is this about?

Keywords: permanent prohibitory injunction; right of way; written statement 'Y' schedule roadway and pathway; Government waste land Sy.No.128/1 (Kadim Warg / Kumki); Karnataka Land Reforms Act 1961 occupancy rights; counterclaim; substantial question of law; maintainability of second appeal; Section 100 CPC; Order XLI Rule 27 CPC; finality of first appellate Court findings; Ex.P-15 survey sketch; Ex.P-25 SHO Venoor endorsement; execution petition July 2025; Belthangady D.K; Shekar Poojary vs Jayashree; second appeal dismissed; first appellate judgment confirmed.

What did the court decide?

A second appeal can be entertained by the High Court only on a substantial question of law; otherwise the Court would lack jurisdiction under Section 100 CPC. ¶26

Shekar Poojary Vs Smt Jayashree — Karnataka HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Substantial question of law: whether, in the absence of oral or documentary evidence showing the existence of a roadway or pathway as shown in written statement 'Y' schedule, the lower appellate Court was justified in holding that such a pathway exists in Schedule 'A' and 'B' properties and in partly allowing the defendant's appeal.

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Court's answer

The plaintiff, having admitted the existence of the defendant's only access pathway and raised no objection to her use of the existing pathway leading from the Aaladka - Antharkanda Panchayath Road to her 'X' schedule property, cannot maintain this Regular Second Appeal under Section 100 of the CPC.

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Ratio / Principle

A second appeal can be entertained by the High Court only on a substantial question of law; otherwise the Court would lack jurisdiction under Section 100 CPC.

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Key takeaways

Findings of fact by the first appellate Court are final and Order XLI Rule 27 CPC does not apply to Second Appeals; hence the plaintiff's attempt to alter Ex.P-15 and introduce a new sketch in the Second Appeal is impermissible.ratio¶25
The contention regarding the execution petition filed by the defendant in July 2025 is untenable, as it was lodged only after the plaintiff obstructed the pathway to her house, and no legal bar exists against such execution.ratio¶25
The first appellate Court's partial reversal of the trial Court's finding on the defendant's right of way over plaint 'A' and 'B' schedule properties rested on PW-1's own admission read with the documentary evidence, and therefore stands.

Detailed headnote1 paragraphs

High Court of Karnataka, Bengaluru (Dr. Justice K. Manmadha Rao), CAV judgment dated 07.11.2025 — Regular Second Appeal No.1372 of 2018 (INJ) under Section 100 CPC by the plaintiff-appellant (Shekar Poojary) against the defendant-respondent (Smt. Jayashree) — DISMISSED; the judgment and decree dated 05.04.2018 of the Principal Senior Civil Judge & JMFC, Belthangady (first appellate Court) in R.A.No.4/2016, which had partly reversed the trial Court's decree dated 26.09.2015 in O.S.No.102/2011 (which had granted the plaintiff permanent injunction over Schedule 'A' and 2 acres 55 cents of Schedule 'B' Government land), confirmed. Held: (i) the plaintiff, having admitted the existence of the defendant's sole 'Y' schedule pathway through the Schedule 'A' and 'B' properties and raised no objection to her use of it, cannot maintain the second appeal under Section 100 CPC; (ii) findings of fact by the first appellate Court are final and Order XLI Rule 27 CPC does not apply to Second Appeals, so altering Ex.P-15 or introducing a new sketch is impermissible; (iii) the plaintiff failed to examine his vendor Suresh Poojary and did not implead the Government, the admitted owner of Schedule 'B'. Registry directed to send back the records to the trial Court.

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RSA No. 1372 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 07^TH DAY OF NOVEMBER, 2025

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BEFORE

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THE HON'BLE DR. JUSTICE K.MANMADHA RAO REGULAR SECOND APPEAL NO.1372 OF 2018 (INJ)

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BETWEEN:

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SHEKAR POOJARY S/O ANNAPPA POOJARY, AGED ABOUT 58 YEARS R/AT K.H.B.COLONY, CHURCH ROAD, BELTHANGADY, BELTHANGADY KASABA VILLAGE, BELTHANGADY TALUK, D.K-571 428 (BY SRI. PRASAD K.S., ADVOCATE SMT. ARCHANA MURTHY P., ADVOCATE) AND:

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…APPELLANT

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SMT JAYASHREE W/O RAVI, AGED ABOUT 48 YEARS R/AT PAVANJE GOLI HOUSE KEDDU,ALANDANGADY, C/O DHARNAPPA ACHARYA BADAGAKARANDOOR VILLAGE, BELTHANGADY TALUK D.K-571 428

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…RESPONDENT (BY SRI. PRASANNA V.R., ADVOCATE)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, PRAYING TO ALLOW THIS APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE OF PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, BELTHANGADY D.K DATED

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RSA No. 1372 of 2018

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05.04.2018 IN R.A.NO.4/2016 BY CONFIRMING THE JUDGMENT AND DECREE OF THE PRL. CIVIL JUDGE AND JMFC, BELTHANGADY, D.K. DATED 26.09.2015 IN O.S.NO.102/2011 IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 16.10.2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE DR. JUSTICE K.MANMADHA RAO

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CAV JUDGMENT

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The present Regular Second Appeal is filed assailing the judgment and decree dated 05.04.2018, in R.A.No.4/2016, passed by the Court of the Principal Senior Civil Judge and JMFC, Belthangady D.K (hereinafter referred to as ‘the first appellate Court’) and confirm the judgement and decree dated 26.09.2015, in O.S.102/2011, passed by the Principal Civil Judge & JMFC., at Belthangady, D.K (hereinafter referred to as ‘the trial Court’).

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The appellant herein is the plaintiff before the trial Court and respondent before the first appellate Court

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RSA No. 1372 of 2018

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and the respondent herein is the defendant before the trial

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Court and appellant before the first appellate Court.

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For convenience of reference, the parties herein

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are referred to as per the rankings before the trial Court.

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The plaintiff filed O.S.No.102/2011 against the defendant on the file of the Principal Civil Judge & JMFC., at Belthangady, D.K, for the relief of permanent prohibitory injunction restraining the defendant, his men, partisan heirs, legal representatives or any other person claiming right under the defendant from interfering with the plaint ‘A’ and ‘B’ schedule property.

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The plaintiff instituted the suit for permanent injunction contending that he purchased the plaint ‘A’ schedule property under a registered sale deed dated 12.10.2009 and has been in lawful possession thereof. It is further averred that the plaint ‘B’ schedule property bearing Sy.No.128/1 is Government waste land adjacent to the ‘A’ schedule property, classified as Kadim Warg land, forming the direct Kumki to his property and that he

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RSA No. 1372 of 2018

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has been in possession of the same. The plaintiff has alleged that the defendant, residing on the eastern side of the plaint ‘A’ schedule property without any legal right, is asserting ownership over the plaint ‘B’ schedule property and attempting to take possession of both ‘A’ and ‘B’ schedule properties.

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6. Per Contra, the defendant, by way of written statement and counterclaim, contended that the plaint ‘A’ schedule property originally belonged to her family and was divided in a family partition. It is further asserted that one Gopu Poojary, who had taken the plaint ‘A’ schedule property on lease, was conferred occupancy rights by virtue of the Karnataka Land Reforms Act, 1961. The defendant claims that the ‘A’ schedule property enjoys Kumki privileges over the Government land situated on the eastern side, while the Government land on the western side remained in her father’s possession and she is now in possession of the ‘B’ schedule property. She further contends that she was allotted the ‘X’ schedule written statement property and that access to the same

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RSA No. 1372 of 2018

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exists through a roadway and pathway described as ‘Y’ schedule in her written statement, which passes alongside the ‘B’ schedule property and through the plaint ‘A’ and ‘B’ schedule properties. On these grounds, the defendant sought dismissal of the suit and a decree on her counterclaim restraining the plaintiff from obstructing or closing the said ‘Y’ schedule roadway and pathway and from interfering with her peaceful possession of the plaint ‘B’ schedule property.

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Based on the pleadings, the trial Court has framed following issues for consideration:-

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(i) Whether the plaintiff proves that he is in lawful possession and enjoyment of the plaint ‘A’ and ‘B’ Schedule property?

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(ii) Whether the plaintiff proves interference by the defendant?

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(iii) Whether the defendant proves that he is in possession and enjoyment of written statement schedule “X” Schedule property?

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(iv) Whether the defendant proves the existence and enjoyment of “Y” schedule roadway said to have passes through plaint “A” schedule property?

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(v) Whether the defendant proves interference as contended in written statement?

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(vi) Whether the plaintiff is entitle for

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permanent injunction as sought for?

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(vii) Whether the defendant is entitle for

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the relief sought in counter claim?

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(viii) To what order or decree?

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In order to substantiate his claim, the plaintiff examined himself as PW-1 and got marked the documents as Exs.P1 to Ex. P26. On the other hand, the defendant to defend her defense, she got herself examined as DW1 and got documents marked as per Ex.D1 to D11.

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The trial Court based on the pleadings, oral and documentary evidence, passed the following order:-

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Suit of the plaintiff is hereby partly decreed.

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The counter claim of defendant is hereby dismissed.

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Permanent Injunction is hereby granted in favour of plaintiff regarding plaint A schedule properties and some portion of B schedule property. i.e., 2 acre 55 cents in B schedule property.

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Thereby defendant, her men, partisan heirs, legal representative or any other person claiming right under the defendant in any way

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entering upon the plaint A schedule and some portion i.e., 2 acres 55 cents in B schedule property.

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Parties are directed to bear their own

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costs.

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Draw decree accordingly.

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Assailing the said judgement and decree of the

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trial Court, the defendant has preferred an appeal in R.A.No.4/2016. The first appellate Court has framed following issues for consideration:-

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(i) Whether the plaintiff proves that he is in lawful possession and enjoyment of plaint 'A' and 'B' schedule property?

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(ii) Whether the plaintiff proves interference by the defendant?

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(iii) Whether the defendant proves that he is in possession and enjoyment of written statement schedule 'X' schedule property?

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(iv) Whether the defendant proves the existence and enjoyment of 'Y' schedule roadway said to have passes through plaint 'A' schedule property?

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(v) Whether the defendant proves interference as contended in written statement?

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(vi) Whether the plaintiff is entitle for permanent injunction as sought for?

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(vii) Whether the defendant is entitle for

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the relief sought in counter claim?

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(viii) What order or decree?

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The first appellate Court after considering the

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facts and circumstances of the case, observed that the plaintiff, at one stage, denied the existence of the roadway and pathway shown in the defendant’s written statement

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'Y' schedule roadway, while at another stage admitted that except the said roadway and pathway existing in the 'A' and 'B' schedule properties, the defendant has no other access to her land. Therefore, the Court cannot mould the relief as contended by the plaintiff’s counsel. Since the 'B' schedule property is Government land and the plaintiff failed to prove exclusive settled possession hence, he was not entitled to permanent injunction.

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It is observed that from the cross-examination of PW1 and DW1, it was clear that there exists a roadway and pathway within the plaint 'A' and 'B' schedule properties, and PW1 has admitted that the defendant has no other access to her property described in written statement 'X' schedule property. Further, Ex.D3 and Ex.D4

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RSA No. 1372 of 2018

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reveal that a Panchayath road runs on the western side of Sy.No.128, continuing through Sy.No.128/1 and Sy.No.11/6P3, and to reach Sy.No.11/6, the defendant must pass through lands in Sy.Nos.128/1, 11/11, and 11/13. The plaintiff has not disputed the same. Hence, existence of the roadway and pathway as per 'Y' schedule stands proved.

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It was further observed with respect to the 'B' schedule property that although the defendant claimed possession, it was admitted that the same was Government land and no documentary evidence supports her claim. The pleadings and evidence show that both parties were rival claimants to Government land in Sy.No.128/1 i.e., 'B' schedule proiperty. The defendant’s contention that it was earlier possessed by her father and now by her is unsubstantiated by evidence. Thus, she failed to prove possession or entitlement to permanent injunction in respect of 'B' schedule property.

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RSA No. 1372 of 2018

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It was also observed that the trial Court, however, decreed the plaintiff’s suit without properly appreciating the oral and documentary evidence and erroneously concluded that the plaintiff was in possession of 2 acres 55 cents in 'B' schedule property without identifying the specific extent or location. The findings regarding kumki rights and possession are inconsistent with Board Standing Orders. The trial Court also ignored the plaintiff’s admission regarding the existence of the roadway and the defendant’s lack of alternative access, warranting interference with its judgment.

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Considering that the 'B' schedule property is Government land with a rival claim and that the plaintiff failed to prove specific possession or kumki privilege, he is not entitled to permanent injunction over it. The defendant, having proved the existence of a roadway and pathway described in written statement 'Y' schedule, was entitled to an injunction restraining the plaintiff from obstructing or closing the same. However, since she also

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RSA No. 1372 of 2018

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failed to establish possession over the 'B' schedule property, she was not entitled to injunction in that regard.

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Hence, the first appellate Court reversed the finding of the trial Court in part with respect to right of way of the defendant on plaint ‘A’ and ‘B’ schedule properties based on the very admission of the PW-1 with reference to the documentary evidence.

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The learned counsel for appellant raised the following substantial question of law in the present case:-

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In the absence of any oral or documentary evidence to show that there exist a road way or pathway as shown in the W.S Y schedule property whether the lower appellate Court was justified in holding that there exist a pathway as stated in W.S. Y schedule in the Schedule A and B properties and partly allowing the appeal?

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The learned counsel appearing for the appellant would contend that the appellant had clearly established possession of the Suit Schedule ‘A’ property along with Kumki privileges, right of way, and right of water by producing documentary evidence such as the sale deed

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RSA No. 1372 of 2018

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and sketch copy. The respondent herself admitted that the

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appellant is in possession of 2 acres 55 cents of Kumki land adjacent to the Schedule ‘A’ property and has cultivated rubber thereon. Despite such clear evidence, the first appellate Court erred in holding that the appellant failed to prove settled possession over the Suit Schedule ‘A’ property.

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It is contended that the appellant also categorically denied the existence of the alleged pathway claimed by the respondent under written statement ‘Y’ Schedule property, asserting instead that the respondent accesses her land through a distinct pathway passing through lands bearing Sy.Nos.128/1, 11/11, and 11/13 from the Panchayat road. However, the first appellate Court wrongly equated both pathways and denied the relief of injunction, which finding is erroneous.

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It is further contended that the respondent failed to produce any documentary evidence to substantiate the existence of the alleged pathway in Written Statement ‘Y’ Schedule property, yet the first

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RSA No. 1372 of 2018

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appellate Court erred in partly decreeing the suit in her favour. The respondent’s own cross-examination revealed that the survey sketch was prepared based on the actual possession of both the parties and upon her complaint, thereby corroborating the appellant’s possession over the plaint ‘A’ and ‘B’ schedule properties.

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It is also contended that the appellant was in continuous possession and cultivation of the said properties, and upon being obstructed by the respondent, lodged a complaint before the SHO, Venoor, producing Ex.P-25 endorsement in support thereof. The findings of the first appellate Court that the appellant was not in settled possession, despite such evidence, has resulted in a miscarriage of justice. Further, there was no dispute regarding the identification of the suit properties, yet the first appellate Court erred in holding otherwise, thereby rendering its findings unsustainable in law.

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It is contended by the learned counsel appearing for the respondent that the findings of the first appellate Court are based on the clear admissions of PW-1

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RSA No. 1372 of 2018

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regarding the defendant’s right of way over the Government land described in plaint ‘B’ schedule property/‘Y’ schedule property to the written statement and the existing pathway in plaint ‘A’ schedule properties. As recorded in paragraph 16 of the judgment of the first appellate Court, PW-1 admitted that there exists no other road to reach the defendant’s property except one running through his land, that a gate existed at the time of purchase and that he never obstructed the defendant from using the said pathway measuring 3 feet in width. The reliance made by the trial Court solely on Ex.P-15 sketch to dismiss the counterclaim and decree the plaintiff’s suit was misplaced, as such sketches show roads only when maintained by the Panchayath for the public and as the existence of the road and pathway being admitted by the plaintiff and the same need not be proved.

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Heard learned counsel appearing on either side and perused the records.

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RSA No. 1372 of 2018

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It is observed that the plaintiff failed to examine

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his vendor, Suresh Poojary, to establish exclusive possession of the plaint ‘B’ schedule property and also omitted to array the Government as a party, though the land admittedly belongs to the Government. As held in paragraph 20 of the judgment of the first appellate Court, none of the documents produced by the plaintiff corroborate his claim of settled possession, and the defendant’s statements about complaints against the plaintiff cannot be construed as unequivocal admissions of his possession. The observation of the trial Court further confirms that the plaintiff admitted to the existence of the only access road and pathway leading to the defendant’s property, thereby justifying the decision of the first appellate Court to set aside the injunction in order to protect the defendant’s access, particularly considering her status as a woman with no alternate route. It is also clarified by the trial Court that the plaintiff cannot claim exclusive rights over Government land, which, even if treated as Kumki land, confers only a privilege and not

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RSA No. 1372 of 2018

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ownership capable of extinguishing an established right of roadway.

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It is observed by this Court that the plaintiff has not raised any objection to the defendant’s use of the existing pathway leading from the Aaladka - Antharkanda Panchayath Road to her property described in ‘X’ schedule property, cannot maintain this Regular Second Appeal under Section 100 of the CPC. His attempt to alter Ex.P-15 and introduce a new sketch in the Second Appeal is impermissible, given that findings of fact by the first appellate Court are final and Order XLI Rule 27 CPC does not apply to Second Appeals. The contention regarding the execution petition filed by the defendant in July 2025 is untenable, as it was lodged only after the plaintiff obstructed the pathway to her house, and no legal bar exists against such execution. Hence, the judgment and decree of the first appellate Court, being well-reasoned and just, is required to be upheld by dismissing the present appeal.

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It appears that at the outset, it has to be noticed

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that this being a second appeal, it is only substantial question of law which gives raise for this Court to clutch the jurisdiction and answer the said question of law as otherwise, this Court would lack jurisdiction to entertain second appeal.

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