Karnataka High Court
M/S Kiocl Ltd vs Sri. U Ramadas on 24 August, 2023
Bench: H.P.Sandesh
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RSA No. 2603 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.2603 OF 2017 (INJ)
BETWEEN:
1. M/S KIOCL LTD
REP. BY ITS CHAIRMAN
II BLOCK, KORAMANGALA
BANGALORE 560 034
2. THE ESTATE OFFICER
KIOCL LTD, KAVOOR
MANGALORE-575015.
...APPELLANTS
(BY SRI Y K NARAYANA SHARMA, ADVOCATE)
Digitally signed
by SHARANYA T
Location: HIGH AND:
COURT OF
KARNATAKA
SRI U RAMADAS ACHAR
AGED ABOUT 66 YEARS
S/O LATE U.S. ACHAR
R/AT NEAR KIOCL COLONY
KAVOOR, KAVOOR-BONDEL CHURCH ROAD
KAVOOR 575015.
...RESPONDENT
(BY SRI NATARAJA BALLAL, ADVOCATE)
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RSA No. 2603 of 2017
THIS RSA IS FILED UNDER SEC.100 R/W ORDER 41
RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 08.11.2017 PASSED IN R.A NO.135/2013 ON THE
FILE OF THE II ADDL. SENIOR CIVIL JUDGE AND CJM
MANGALURU D.K, AND ETC.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the
appellants and the learned counsel appearing for the
respondent.
2. The factual matrix of the case of the plaintiff
before the Trial Court that on 08.03.2008, the defendants
demolished the portion of eastern compound wall as
alleged in paragraph 2 of the plaint and it is the contention
of the defendants in the written statement that they are in
possession of Sy.No.83/P of the property and the
defendants also contended that the plaintiff has illegally
cut the compound wall lying between Sy.No.102/5B3 and
Sy.No.83/P of Marakada village and the plaintiff sought for
the relief of prohibitory injunction against the defendants
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and the defendants also filed counter claim for the relief of
perpetual injunction as against the plaintiff and defendants
also by way of counter claim sought for the relief of
mandatory injunction against the plaintiff. The Trial Court
having considered both oral and documentary evidence
placed on record comes to the conclusion that the plaintiff
is in possession of the plaint schedule property and also
comes to the conclusion that the defendants demolished
the portion of eastern compound wall and also answered
that the defendants are in possession of Sy.No.83/P and
the Trial Court also comes to the conclusion that the
plaintiff is in possession of his property in Sy.No.102/5B3
and the defendants are in possession of their property in
Sy.No.83/P. However while answering Issue No.4 the Trial
Court comes to the conclusion that defendants failed to
prove that the plaintiff has illegally cut the compound wall
lying between Sy.No.102/5B3 and 83/P of Marakada
village and also comes to the conclusion that the plaintiff
is entitled for permanent prohibitory injunction and the
defendants are entitled for perpetual injunction but
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declined to grant the relief of mandatory injunction in
favour of the defendants and hence, answered the issues
partly in the affirmative and partly in the negative by
granting an order of injunction in favour of the plaintiff as
well as the defendants in respect of their respective claims
of their properties.
3. Being aggrieved by the judgment and decree of
the Trial Court, the defendants have filed an appeal and
the First Appellate Court also on re-appreciation of both
oral and documentary evidence placed on record
formulated the point that whether the defendants are
entitled for mandatory injunction as claimed in the counter
claim since the Trial Court has rejected the same and also
formulated the point that whether the judgment of the
Trial Court is illegal, perverse and contrary to the
provisions of law and the said points are answered as
negative in coming to the conclusion that the judgment
and decree of the Trial Court does not requires any
interference.
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4. Being aggrieved by the finding of the First
Appellate Court, the defendants have preferred this second
appeal. The main contention of the counsel for the
appellants that the plaintiff is claiming right over the
northern side alleging that there is a road but no such
road is in existence on the property belongs to
Sy.No.83/P. The counsel also submits that the
commissioner was appointed and commissioner has given
the report in view of the memo of instructions given by
both the parties and objections are not filed to the said
report and same is accepted. The First Appellate Court
committed an error in coming to the conclusion that no
such property is in existence between the property of the
plaintiff and the defendants and the said finding is
erroneous and an erroneous observation is made in
paragraph 19 of the judgment in coming to the conclusion
that it is clear that Bondel-Kavoor road touches to the
plaint schedule property in between the
appellant/defendant have not owned any property and the
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said observation is erroneous which goes against the
material on record. Also an observation is made that the
Trial Court rightly observed this point that in between the
appellant/defendant they have not owned any property
and the said observation is erroneous. The counsel would
vehemently contend that the Courts below have
committed an error in ignoring the evidence available on
record particularly the facts indicating that the compound
wall on the northern side of the plaintiff's property was in
existence on the southern boundary of the land having
triangular shape belonging to the defendants and the
stones of the said compound wall have been removed and
kept loosely on the eastern end of the said triangular
shape strip of land belonging to the defendants by the
plaintiff and as such the judgment and decree in not
granting the mandatory injunction is opposed to law. The
counsel for the appellants contends that both the Courts
have committed an error in not considering the fact that
plaintiff has access to his property from the road on the
southern side of his property with a gate and compound
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wall on the southern side of the property and never has
access to the road on the northern side and the land in
Sy.No.83/P belonging to the defendants is in between the
road on the northern side and the plaintiff's property.
Hence, it requires interference and this Court has to admit
and frame substantial question of law.
5. Per contra, the learned counsel appearing for
the respondent would vehemently contend that it is not in
dispute that the properties belonged to the plaintiff and
the defendants are in existing adjacent to each other. The
plaintiff's main case is that on the northern side of the
property, now road has been formed and hence, he has
got the access to the said road and the defendants are
coming in the way of causing obstruction to access to the
said road. The counsel also would vehemently contend
that the plaintiff has purchased the property to the extent
of 47 cents and in view of expanding of the road, he has
lost half cent of his land and as a result, he has got an
access from the northern side to the main road. Hence,
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the Trial Court as well as First Appellate Court having
considered the material on record granted an order of
perpetual injunction in respect of the property of the
plaintiff is concerned.
6. The counsel for the respondent relied upon the
additional documents which are filed along with the
counter affidavit and he would contend that sketch is very
clear that portion of the property of the plaintiff was
acquired for the formation of the road and when such
being the case, on the northern side, the plaintiff has got
an access to the main road and also relied upon the
document of the year 1989 which shows that prior to the
purchase of the property by the respondent, there was an
encroachment by the defendants and now the
encroachment area has become the road and hence, he
has got an access to the northern side and also produced a
rough sketch as Annexure-D. Hence, both the Courts
have not committed any error in passing the said orders.
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7. Having heard the learned counsel appearing for
the respective parties and also on perusal of the material
on record it discloses that it is not in dispute that the
plaintiff claims the relief of permanent injunction in respect
of his property that is in Sy.No.102/5B3 and in a suit for
the relief of permanent injunction, the Court has to look
into the boundaries mentioned in the suit. The boundaries
mentioned in the suit are east by survey line, south by
Kavoor village boundary, west by survey line and north by
survey line. Having considered the boundaries it is clear
that the plaintiff has claimed as survey line on the eastern,
western and northern boundaries and in the plaint
schedule it is not stated that on the northern side there is
a road as now contended by the plaintiff that the road is in
existence and he has got an access to the road on the
northern side. But the fact is that on the southern side he
is having right and access to his property. But now, the
plaintiff is claiming that in view of formation of the road on
the northern side, there is a road, and he may be
permitted to use the said road. Admittedly, the suit is filed
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in the year 2008 and by that time he has shown northern
side as survey line and the commissioner has been
appointed before the Trial Court and the commissioner
also given the report along with sketch which clearly
shows with regard to survey line is concerned and the
same is marked in the sketch and also triangular shape
sketch is also shown and the same is in respect of
Sy.No.83 and also report is clear that while answering that
there is a concrete road of Kavoor - Bondel runs on the
northern side of the schedule property and also sketch of
the surveyor to be considered and also pointed out that
eastern boundary of the schedule property itself is the
western boundary of the defendants and also surveyor had
fixed the boundaries in the presence of both the parties
along with their counsel and they have prepared the
sketch and I have already referred the said sketch that a
triangular shape shown in the sketch is in respect of
Sy.No.83 and Sy.No.102/5B3 also clear that there is a
survey line in between the property of the plaintiff and
also the defendants. Admittedly, the defendants have
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purchased the property and no dispute in this regard and
only dispute is with regard to the triangular portion of the
property which depicted in the sketch along with the sale
deed executed in favour of the defendants that is corner of
property of Sy.No.83 in which the plaintiff is claiming that
the same is acquired by the government for formation of
the road and hence, he has got an access. When the
boundary description is given in the plaint as a survey line
and on the northern side not pleaded that there was an
existence of road as contended now by the plaintiff. When
such being the case, when the plaintiff himself has pleaded
by showing the boundary as survey line on the northern
side, now he cannot contend that there is a road and same
is also disputed by the defendants by leading evidence
before the Trial Court in respect of the claim of the plaintiff
that defendants are interfering and also claimed the
counter claim of perpetual injunction and both have been
granted injunction by answering the issues by the Trial
Court and declined to grant the relief of mandatory
injunction as sought by both of them and though the
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appellants herein also claimed mandatory injunction in an
appeal and the same was also declined to grant the same.
However, granted the perpetual injunction in respect of
their properties since the plaintiff claims the injunction in
respect of Sy.No.103/5B3 and defendants are claiming
perpetual injunction in respect of Sy.No.83/P which they
have purchased from the Government.
8. No doubt, the respondent mainly relies upon
the additional documents which have produced along with
the counter affidavit wherein he has relied upon the
document with regard to encroachment prior to purchase
of the property. But the fact is that he has purchased the
property in the year 1987 but though he relies upon the
document of the year 1989 there is an encroachment, he
has not sought any relief of possession contending that
there is an encroachment but the counsel submits that in
view of the formation of the road, now the encroached
portion has become road and when the defendants denied
the very contention that the same became as road on the
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northern side, defendants' claimed that said property
belongs to them on the northern side of the property of
the plaintiff Sy.No.83 is in existence. When such being the
case, in view of the pleadings and description shown in the
plaint are concerned, northern side boundary is survey line
and now the plaintiff cannot contend that there is a road.
However, the First Appellate Court while rejecting the
appeal committed an error as contended by the appellants'
counsel that in paragraph 19 an observation is made that
it is clear that Bondel-Kavoor road touches to the plaint
schedule property and in between the appellant/defendant
have not owned any property and the said observation is
erroneous as contended by the appellants' counsel. But
the fact is that both the Courts considered the point with
regard to cut and removal of the compound and comes to
the conclusion that both the parties have proved their
possession over their respective properties and granted an
order of permanent injunction and perpetual injunction
and declined to grant the relief of mandatory injunction in
respect of the appellants as well as the
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respondent/plaintiff and hence, I do not find any error in
the order except the observation made by the First
Appellate Court in the appeal in paragraph 19. When such
being the case, when the boundaries are mentioned by the
plaintiff as in the northern boundary as survey line, now,
he cannot contend that a road is in existence and he has
to make access to the said road and he has not shown
northern boundary as road. Hence, there is no force in the
contention of the respondent counsel. Hence, except
modifying the portion of observation made in the First
Appellate Court in paragraph 19, both the Courts have
considered the material on record and granted the relief of
injunction in favour of the parties in respect of their
respective properties and the suit is only for the relief of
injunction and the Court has to grant the relief of
injunction looking that as on the date of filing of the suit
whether the parties who claimed the relief is in possession
of the property and hence, both the Courts have applied
their mind and given anxious consideration that the parties
are in possession in respect of their properties. Hence, I
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do not find any error in the order of the Trial Court as well
First Appellate Court as they are in exclusive possession in
their respective properties and in order to grant the relief
of mandatory injunction as sought by the plaintiff as well
as the defendants, both the Courts declined to grant the
same since, there are no material on record and hence,
except modification of paragraph 19 of the order of the
First Appellate Court as observed above, no other relief
will be granted in favour of the appellants also.
Accordingly, the appeal is disposed of.
Sd/-
JUDGE
SN
