IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.29 OF 2024 (INJ)

BETWEEN:

1. SRI. LAXMINARAYANA G.S., S/O SRI. SHIVAJI RAO, AGED ABOUT 77 YEARS, RESIDING AT MARKET ROAD, SAGARA TOWN-577401, SHIVAMOGGA DISTRICT.

…APPELLANT (BY SRI. SHREERAM T. NAYAK, ADVOCATE)

AND:

1. SRI. SUDHAKARA, S/O GAJANANA RAO, Digitally signed AGED ABOUT 58 YEARS, by DEVIKA M OCCUPATION: TAILOR.

Location: HIGH COURT OF

2. SRI. KIRAN, KARNATAKA S/O GAJANANA RAO, AGED ABOUT 48 YEARS, OCCUPATION: TAILOR. 3. SMT. SUDHA BAI, W/O GAJANANA RAO, AGED ABOUT 78 YEARS, OCCUPATION: HOUSE WIFE.

ALL ARE RESIDING AT OPPOSITE VITOBA TEMPLE, JINGADE TAILOR SHOP, SAGARA TOWN, SHIVAMOGGA DISTRICT-577401.

…RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 31.10.2023 PASSED IN R.A.NO.02/2022 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, SAGAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 2.10.2021 PASSED IN O.S.NO.247/2016 PASSED ON THE FILE OF PRL. CIVIL JUDGE AND JMFC, SAGAR.

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

CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

ORAL JUDGMENT

This matter is listed for admission. Heard the learned counsel for the appellant.

2. This second appeal is filed by the plaintiff against the concurrent finding. The Trial Court granted the relief in respect of only ‘B’ schedule property is concerned. The relief with regard to restraining the defendants from causing any sort of construction on the northern side of the wall of the plaintiff as alleged, is declined. The same is declined only based on the admission on the part of P.W.1, which has been extracted in paragraph No.16, that the said common wall belongs to the plaintiff and the defendants and the same is located in between the properties of the plaintiff and the defendants and a categorical admission was given that the defendants have constructed the house in their property. The Trial Court taken note of the right which was given to the plaintiff in terms of the partition deed of the year 1967 with regard to the well is concerned and hence granted the relief in respect of the well is concerned, which is morefully described as ‘B’ schedule property for drawing of water.

3. Being aggrieved by the said order of the Trial Court declining to grant the relief, an appeal is filed before the First Appellate Court. The First Appellate Court also having considered the grounds urged in the appeal memo, formulated the point whether the Trial Court has erred by declining the relief of restraining from causing any sort of construction on the northern side of the wall by the respondents as alleged in the plaint. The First Appellate Court having considered both oral and documentary evidence available on record, re-assessed the same in paragraph No.18 and taken note of the plaintiff is relying upon a complaint which is marked as Ex.P.5, which was made to the Municipality by the plaintiff that defendant Nos.1 and 2 are trying to repair the wall without obtaining the permission from the Municipality. Only on the basis of the complaint which was made by the plaintiff against defendant No.1 and 2 to the Municipality, the Court cannot come to conclusion that the wall exclusively belongs to the plaintiff, as there are no substantial evidence to support the same. Except mere self-serving affidavit of the plaintiff, there are no oral or documentary evidence available on record to substantiate that the wall has been constructed by the plaintiff and it exclusively belongs to him. The First Appellate Court also taken note of the recital of the document Ex.P.1 in paragraph No.20 and also taken note of the evidence of P.W.1 and D.W.1 and comes to the conclusion that the Trial Court has not committed any error in appreciating both oral and documentary evidence and confirmed the judgment of the Trial Court and dismissed th