Karnataka High Court
Sri M Appaji vs H C Shivananjegowda on 27 October, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:42640
RSA No. 962 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.962 OF 2025 (DEC)
BETWEEN:
1. SRI. M. APPAJI,
S/O LATE MOLLEGOWDA,
AGED ABOUT 64 YEARS,
R/O TEACHERS COLONY,
MADDUR TOWN,
MANDYA DISTRICT-571428.
...APPELLANT
(BY SRI. ROOPESHA B., ADVOCATE)
AND:
H.C.SHIVANANJEGOWDA,
S/O LATE CHANNAIAH,
Digitally signed AGED ABOUT 73 YEARS,
by DEVIKA M
R/O TEACHER COLONY,
Location: HIGH MADDUR TOWN.
COURT OF
KARNATAKA
DEAD BY HIS LRS.
1. S. VIMALA,
W/O LATE H.C. SHIVANANJEGOWDA,
AGED ABOUT 63 YEARS,
R/O TEACHERS COLONY,
MADDUR TOWN,
MANDYA DISTRICT-571428.
2. CHIEF OFFICER,
TOWN MUNICIPAL OFFICE,
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NC: 2025:KHC:42640
RSA No. 962 of 2025
HC-KAR
MADDUR TOWN,
MANDYA DISTRICT-571428.
...RESPONDENTS
(BY SRI. G.M.ANANDA, ADVOCATE FOR R2;
R1 - SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 21.03.2025
PASSED IN R.A.NO.19/2023 ON THE FILE OF SENIOR CIVIL
JUDGE, MADDUR, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DATED 05.07.2023 PASSED IN
O.S.NO.369/2012 ON THE FILE OF II ADDITIONAL CIVIL
JUDGE, MADDUR.
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 and the learned counsel for respondent No.2.
2. This appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court.
3. The factual matrix of the case of the plaintiff while seeking the relief of declaration and injunction in respect of 'C' schedule property is that the plaintiff is the absolute owner in peaceful possession and enjoyment of 'A' schedule property -3- NC: 2025:KHC:42640 RSA No. 962 of 2025 HC-KAR bearing municipal assessment No.630/675 measuring 60 + 57 x 35, wherein there is a RCC dwelling house and boundary is also given. The dispute is in respect of the southern side of the plaint schedule property shown as 'C' schedule property. It is the contention of the plaintiff that the property was purchased in the year 1994. The defendant No.1 is the owner in possession of 'B' schedule property and he had purchased the same from one S.K. Sujayakantha under the registered sale deed dated 20.05.1992 and constructed ground floor by obtaining license from TMC, Maddur and now he is residing therein. That the vendors of the plaintiff and defendant No.1 are siblings and they formed sites and sold the same to various persons. That while forming the layouts, the said S.K. Chandrasekhar and Sujayakantha have left 6 x 200 feet passage for ingress and egress of public to the layouts formed by them, but however the said passage was unequal. Accordingly, towards south of 'A' schedule property and towards north of 'B' schedule property, there is a 6 feet at north-south and east-west 50 feet, which is described as 'C' schedule property. Since the 'A' and 'B' schedule properties are formed in different layouts, they are not in single alignment -4- NC: 2025:KHC:42640 RSA No. 962 of 2025 HC-KAR and there is a 12 feet difference in alignment of sites on the eastern side. As such, without the 'C' schedule property, the roads running on the eastern side of suit 'A' and 'B' schedule properties do not connect with each other and thus the 'C' schedule property further runs and continues towards the east and it further connects to eastern side roads as well as vacant space lying in between 'A' and 'B' schedule properties.
4. It is specifically pleaded that neither the plaintiff nor defendant No.1 have any exclusive right, title, interest over the 'C' schedule property. When such is the case, in the absence of the plaintiff, defendant No.1 has put up a toilet and compound by encroaching some portion of 'C' schedule property and now he is extending the same by putting up three pillars in order to make a first floor of dwelling house. Therefore, the plaintiff has filed an appeal before the Deputy Commissioner, Mandya in M.A.No.8/2012 and in the meanwhile, TMC, Maddur also issued notice to defendant No.1 directing him to stop illegal construction, but defendant No.1 has not stopped its illegal construction and without the aid of -5- NC: 2025:KHC:42640 RSA No. 962 of 2025 HC-KAR this Court, the plaintiff cannot resist the illegal acts of defendant No.1 and hence filed the suit.
5. In pursuance of the suit summons, defendant No.1 appeared and filed the written statement and defendant No.2 though represented through counsel, did not choose to file any written statement.
6. The main contention of defendant No.1 is that he had purchased the site property measuring east-west 38 feet and north-south 30 feet from its original owner and the same was registered on 20.05.1992 and he is in enjoyment of the same. It is also his contention that in the year 1998, he had constructed a residential house after obtaining building licence and put up compound wall towards east and north of his house property without any obstruction either by the plaintiff or by any public at large and now in order to put up first floor on the ground floor, he moved an application seeking license from TMC on 28.03.2012, but no license was issued by TMC, the defendant deemed to have license based on his application, he has constructed the first floor. It is his case that, while making construction, no obstruction was made by the plaintiff or -6- NC: 2025:KHC:42640 RSA No. 962 of 2025 HC-KAR anybody. Now only with a malafide intention filed the suit. It is further contented that there is no 'C' schedule property as alleged and disputed the very existence of 'C' schedule property. The plaintiff would have questioned the construction at the time of construction of ground floor and compound wall during 1998 itself and after lapse of 12 years, the plaintiff has raised the objection. M.A.No.8/2012 filed by the plaintiff before the Deputy Commissioner is pending for consideration.
7. Based on the pleadings of the parties, the Trial Court framed the issue with regard to whether both of them are not having exclusive right, title in respect of 'C' schedule property, whether defendant No.1 has encroached some portion of 'C' schedule property and whether the plaintiff is entitled for the relief of permanent injunction and mandatory injunction.
8. The Trial Court considering both oral and documentary evidence of P.W.1, D.W.1 and D.W.2 and also the Commissioner evidence, who has been examined as C.W.1, answered issue Nos.1 to 4 in the affirmative in coming to the conclusion that both the plaintiff and defendant No.1 have no -7- NC: 2025:KHC:42640 RSA No. 962 of 2025 HC-KAR exclusive right over 'C' schedule property and portion of 'C' schedule property is encroached by defendant No.1 and the plaintiff is entitled for the relief of permanent injunction and mandatory injunction. The Trial Court particularly taken note of the admission on the part of defendant No.1, who has been examined before the Trial Court. He categorically admits that the said 'C' schedule property 6 feet passage comes immediately after his property on the northern boundary. The Trial Court comes to the conclusion that there is no dispute with regard to 'A' and 'B' schedule property and only dispute is in respect of 'C' schedule property and the very contention of defendant No.1 that 'C' schedule property is not in existence was answered against him, since he categorically admits that 'C' schedule property passage is in existence immediately after his property and also comes to the conclusion that a latrine and compound was constructed in the said 'C' schedule property, which is a public passage and directed to remove the same.
9. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed in R.A.No.19/2023. The First Appellate Court raised the points for consideration as to -8- NC: 2025:KHC:42640 RSA No. 962 of 2025 HC-KAR whether the Trial Court has taken note of stray admission of D.W.1 and came to the wrong conclusion, whether the Trial Court has committed an error in granting the relief and whether it requires interference of the Court. The First Appellate Court having considered both oral and documentary evidence placed on record and also the admission that a passage is in existence i.e., 6 x 38 feet as contented by the plaintiff, comes to the conclusion that no such passage is mentioned in the sale deed of either the plaintiff or defendant No.1. The First Appellate Court also comes to the conclusion that the admission of the witnesses is very clear that 'C' schedule property is in existence and that the construction is made in the said passage. The contention that the admission of D.W.1 is a stray admission was not accepted as not only once he has admitted the same, but admitted the same repeatedly with regard to the existence of the passage and the same comes in between the two sides on the southern boundary of the plaintiff as well as northern boundary of the plaintiff and answered the point in the negative and dismissed the appeal.
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NC: 2025:KHC:42640 RSA No. 962 of 2025 HC-KAR
10. Being aggrieved by the concurrent finding, the present second appeal is filed before this Court.
11. The learned counsel for the appellant before this Court would vehemently contend that with regard to the existence of 'C' schedule property, no documentary evidence is placed before the Court either by the competent authority or by the plaintiff and the plaintiff has not substantiated the same, but the Courts below only on the admission made by defendant No.1 decreed the suit. The learned counsel contend that when the plaintiff seeks the relief of declaration and injunction, there cannot be any reliance on the weakness on the part of defendant No.1. The learned counsel contend that both the Courts were not justified in decreeing the suit without ascertaining the boundaries mentioned in the sale deeds at Ex.P.1 and Ex.D.1 and the decree passed only on the basis of stray admission is not sustainable and hence this Court has to frame the substantive question of law.
12. Per contra, the learned counsel for respondent No.2, who appears on behalf of the Chief Officer, Town Municipal Office, submits that the Engineer of the TMC of
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NC: 2025:KHC:42640 RSA No. 962 of 2025 HC-KAR Maddur was appointed as the Court Commissioner and he visited and inspected the property and found the encroachment made by the owner of the 'B' schedule property in between the property of the plaintiff and defendant No.1 and submitted the report. Though the report is not marked before the Trial Court, but the Commissioner was examined before the Trial Court and the sketch prepared by the Commissioner also clearly discloses that there is an encroachment by defendant No.1 and the same is taken note of by the Trial Court and passed an order and hence it does not require any interference.
13. In reply to the arguments of the learned counsel for respondent No.2, the learned counsel for the appellant relied upon the judgment of this Court in the case of NARASIMHA SHASTRY v. MANGESHA DEVARU reported in ILR 1988 KAR 554, wherein it is held that in ascertaining actual area sold, recitals as to boundaries should prevail. It is further held that it has been held that where the sale deed mentioned the boundaries specifically and clearly to identify the property, the actual extent of the land not being clear, the recitals as to boundaries should prevail. The learned counsel relying upon
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NC: 2025:KHC:42640 RSA No. 962 of 2025 HC-KAR this judgment would contend that the boundaries will prevail. Apart from that, the learned counsel would contend that regarding excess land between the plaintiff and defendant No.1, the appellant had entered into an unregistered document with the owner. The specific pleading is made and also the evidence is also led to that effect and the same has not been considered. The learned counsel would contend that with regard to the existence of the said passage, there is no any records in the corporation also.
14. Having heard the learned counsel for the appellant and the learned counsel for respondent No.2, the Court has to take note of the pleadings of the parties and also the evidence produced by the parties before the Court. The specific case of the plaintiff before the Trial Court is that two layouts are formed by the siblings of the original owners and defendant No.1 had purchased a site measuring 30 x 38 feet and not from the layout of the plaintiff and for the plaintiff's site, measurement is mentioned clearly. In between the two layouts, a passage of 6 x 200 feet is left for the convenience of the public. It is the specific case of the plaintiff that defendant
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NC: 2025:KHC:42640 RSA No. 962 of 2025 HC-KAR No.1 encroached some portion of the said 6 feet of passage, which is kept for the public use and constructed a latrine and a compound. It is also the specific case of the plaintiff that at the time of constructing the first floor, the same was questioned and even inspite of a petition was filed before respondent No.2 herein, no action was taken and the said petition was also pending, but defendant No.1 continued the same and there was an existence of latrine and compound in the said passage. The plaintiff in order to prove her case, examined herself as P.W.1 and got marked the documents at Exs.P.1 to 57. The filing of M.A.No.8/2012 is also marked and so also notice of TMC dated 12.04.1999, subsequent mahazar dated 11.05.2012, certified copy of the letter, notice dated 31.07.2012, letter issued by the DC, Mandya, letter issued by the Chief Officer, TMC, Maddur is also placed on record. On the other hand, defendant No.1 examined himself as D.W.1 and examined one witness as D.W.2 and relied upon the documents at Exs.D.1 to 3 i.e., original sale deed, tax assessment extract and application for licence. The plaintiff also relies upon his sale deed at Ex.P.1 and property assessment extract and building licence, which he had obtained for construction on 07.11.2001.
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NC: 2025:KHC:42640 RSA No. 962 of 2025 HC-KAR
15. Having taken note of both oral and documentary evidence placed on record, the Trial Court comes to the conclusion that neither the plaintiff nor defendant No.1 claims any title in respect of the said passage of 6 feet, which is in existence. The defendant No.1 in the written statement denied the existence of such 6 feet passage. It is not in dispute that the Commissioner was appointed before the Trial Court and the Commissioner gave the report with regard to the fact that there is an encroachment by defendant No.1 in between the property of the plaintiff and defendant No.1. Apart from that, the Commissioner was also examined before the Trial Court and there is no dispute with regard to 'A' and 'B' schedule properties and the same is also observed by the Trial Court. It is important to note that the plaintiff filed an appeal before the Deputy Commissioner, Mandya, in M.A.No.8/2012 and the same was not adjudicated. The Trial Court taken note of both oral and documentary evidence available on record, particularly the admission on the part of D.W.1, though he denies that no such property is in existence between 'A' and 'B' schedule properties, but categorical admission is given that 'C' schedule 6 feet passage is in existence towards the northern side of his
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NC: 2025:KHC:42640 RSA No. 962 of 2025 HC-KAR site, that means, on the southern side of the plaintiff's 'A' schedule property. The plaintiff posed a question to D.W.1 during the course of cross-examination that due to encroachment made by defendant No.1, the municipal authorities could not have formed any drainage. But D.W.1 once again admits that for 6 feet encroachment made by him, municipality cannot form any drainage and also there was no any chance of making any drainage in view of he had constructed the same. A specific answer was also given that 'C' schedule property is in existence after his 30 feet purchased property. The same was taken note of by the Trial Court.
16. The First Appellate Court re-assessed both oral and documentary evidence placed on record while considering the case of the appellant, since the appellant contended that the admission given by D.W.1 is a stray admission. Having considered the admission of D.W.1, the same is not a stray admission as contended by the learned counsel for the appellant. No doubt, it is the argument of the learned counsel for the appellant that the plaintiff cannot depend on the weakness of the defendant. Here is not a case of weakness
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NC: 2025:KHC:42640 RSA No. 962 of 2025 HC-KAR and it is the specific case of the plaintiff that in between 'A' schedule property and 'B' schedule property, there is a passage and the same is shown as 'C' schedule property. Though defendant No.1 denies the same, but in the cross-examination, he categorically admits the said passage. The fact is that the Commissioner visited the spot and gave the report that in portion of the said passage, defendant No.1 had constructed the latrine and compound. When such material is taken note of by the Trial Court and the First Appellate Court, the very contention of the learned counsel for the appellant that there cannot be any decree of declaration and injunction when the plaintiff has not proved the same, cannot be accepted.
17. It is important to note that the plaintiff pleaded specifically that there is a passage and the main contention of the learned counsel for the appellant is that no records are maintained by the Municipality with regard to the existence of 6 feet passage. But the fact is that there is a space between 'A' and 'B' schedule properties. Though the same is denied by defendant No.1, the same is proved by sending the Commissioner and the Commissioner also gave the report,
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NC: 2025:KHC:42640 RSA No. 962 of 2025 HC-KAR wherein it is categorically mentioned that there is an encroachment made by defendant No.1. When the public passage is in existence in between 'A' and 'B' schedule properties, the very contention of the learned counsel for the appellant cannot be accepted.
18. The other contention of the learned counsel for the appellant is that both the Courts have committed an error in not considering the material available on record and both the Courts are not justified in decreeing the suit without ascertaining the boundaries mentioned in Ex.P.1 and Ex.D.1. No doubt, both of them are not claiming any right based on Ex.P.1 and Ex.D.1. During the course of evidence during the trial, when it is emerged that there is an existence of a passage, defendant No.1 is also not having any exclusive right. The learned counsel for the appellant would submit that he had obtained an unregistered document in respect of the same and the same is not placed before the Trial Court. An unregistered document will not confer any right in favour of defendant No.1. The claim of defendant No.1 that through an unregistered document he got right, is very clear that he had encroached
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NC: 2025:KHC:42640 RSA No. 962 of 2025 HC-KAR upon the said passage and put up the latrine and compound and the same is taken note of by the Trial Court and the First Appellate Court. When such being the case, I do not find any error committed by the Trial Court and the First Appellate Court in appreciating the evidence available on record and in the absence of any perversity in coming to such a conclusion, the question of admitting the second appeal does not arise. Both the Courts have taken note of factual aspect as well as the question of law. Hence, I do not find any ground to admit and frame any substantial question of law.
19. The learned counsel for the appellant also relied upon the judgment of this Court in the case of Narasimha Shastry (supra) with regard to the boundaries should prevail. In the case on hand, it is not the case of defendant No.1 before the Trial Court that 'C' schedule property is included in his sale deed and hence the said judgment is not applicable to the facts of the case on hand. It is his specific case that the said area is also purchased by him through an unregistered document. The boundaries of Ex.P.1 and Ex.D.1 are very clear with regard to the extent what they have purchased and when such being the
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NC: 2025:KHC:42640 RSA No. 962 of 2025 HC-KAR case, the judgment of this Court that boundaries will prevail will not come to the aid of the appellant. It is not the specific case of defendant No.1 that the boundary, which is shown in Ex.D.1 includes 'C' schedule property and hence this judgment will not come to the aid of the appellant.
20. In view of the discussions made above, I pass the following:
ORDER The second appeal is dismissed.
Sd/-
(H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 49