Karnataka High Court
Sri P K Purushothama vs Sri H Muniyappa on 11 August, 2025
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RFA No. 196 of 2023
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
REGULAR FIRST APPEAL NO.196 OF 2023 (INJ)
BETWEEN:
SRI P.K. PURUSHOTHAMA
S/O SRI P.M. KEMPAIAH,
AGED ABOUT 39 YEARS,
RESIDING AT NO.2903,
S.R.S. NILAYA, S.R.S. ROAD,
PEENYA, BANGALORE-58.
...APPELLANT
(BY SRI KALPANA P.V., ADVOCATE)
AND:
SRI H. MUNIYAPPA
S/O LATE HANUMANTHAPPA,
AGED ABOUT 66 YEARS,
(SINCE DEAD BY LRS.)
Digitally signed by
MAHALAKSHMI B M 1. SMT. MUNILAKSHMAMMA
Location: HIGH W/O LATE H. MUNIYAPPA,
COURT OF
KARNATAKA AGED ABOUT 60 YEARS,
RESIDING AT NO.220,
4TH BLOCK, 10TH CROSS,
PEENYA, BANGALORE-58.
2. SRI P.M. CHANDRASHEKAR
S/O SRI MUNIYAPPA,
AGED ABOUT 38 YEARS,
3. SRI P.M. HANUMANTHAPPA
S/O SRI MUNIYAPPA,
AGED ABOUT 35 YEARS,
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RFA No. 196 of 2023
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4. SRI P.M. RAVIKUMAR
S/O SRI MUNIYAPPA,
AGED ABOUT 31 YEARS,
RESPONDENT NOS.2 TO 4 ARE
RESIDING AT NO.220,
4TH BLOCK, 10TH CROSS,
PEENYA, BANGALORE-58.
...RESPONDENTS
(BY SRI VIJAYA KUMAR K., ADVOCATE FOR R-1 TO R-4)
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 14.12.2022 PASSED IN
O.S.NO.17372/2006 ON THE FILE OF THE XIII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU,
DISMISSING THE SUIT FOR BARE INJUNCTION.
THIS APPEAL COMING ON FOR ORDERS, THIS DAY, JUDGMENT
WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
The present regular first appeal is preferred by the
plaintiff assailing the legality and correctness of the
judgment and decree dated 14.12.2022 passed in O.S.
No.17372/2006 on the file of the XIII Additional City Civil
and Sessions Judge, Mayohall Unit, Bengaluru (CCH-22)
(hereinafter referred to as 'the Trial Court' for short). By
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the judgment and decree, the Trial Court dismissed the
suit seeking permanent injunction.
2. The plaintiff instituted suit seeking a decree of
permanent injunction restraining defendant Nos.1 to 4
from interfering with his peaceful possession and
enjoyment of the suit property. The suit property
comprises site No.80 formed out of land bearing Sy.
No.119 of Laggere Village, Yeshwanthapura Hobli,
Bengaluru North Taluk, now situated at Rajagopalanagar
Extension measuring East-West 24 feet and North-South
33 feet (hereinafter referred to as the 'suit property' for
short) as bounded as follows:
East : Property No.77 belonging to defendant No.1
West : Property No.82 belonging to P.M. Kempaiah,
father of the plaintiff;
North : Road and
South: Property No.79.
3. The case of the plaintiff is that he is the
absolute owner and is in lawful possession of the suit
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property, having acquired it under a registered sale deed
dated 10.10.2006 executed by his father, who inturn had
purchased the same from the original allottee -
Shivaramaiah, through a General Power of Attorney and
affidavit dated 25.02.1991. The original allottee was
issued with a Hakkupatra dated 05.01.1973 by the
Government in respect of Site No.80. It is further averred
that although the Hakkupatra (original allotment) reflected
the dimensions as East-West 40 feet and North-South 30
feet, the actual measurement of site No.80 and the
adjacent sites was East-West 30 feet and North-South 40
feet. Due to the road formation and subsequent road
widening, the North-South measurement was reduced to
33 feet. Additionally, defendant No.1 who is the owner of
the adjacent site No.77 on the eastern side, encroached
upon 6 feet of the suit property, thereby reducing the
East-West dimension to 24 feet and North-South 33 feet.
Accordingly, the plaintiff's sale deed reflects a reduced
extent of east-west 24 feet and North-South 33 feet. It is
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averred that when the plaintiff commenced construction
over the suit property, defendant Nos.1 to 4 interfered
with the plaintiff's possession, Hence, the suit for
injunction.
4. Defendants contested the suit by asserting that
the suit property is not in existence, owing to the
encroachment made by the adjacent site owner, the
plaintiff's father, who is the owner of property No.82. The
defendants specifically denied any interference with the
plaintiff's possession and contend that they are in lawful
possession of the site allotted to defendant No.1 under the
Hakkupatra which measures 40 feet East-West and 30 feet
North-South. On these grounds, the defendants sought
for dismissal of the suit.
5. The Trial Court on the issue as to whether the
measurement of the sites involved, namely the suit
property and site No.77 belonging to the defendants, and
the adjacent sites is as contended by the plaintiff East-
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West 30 feet and North-South 40 feet or as per the
dimension shown in the respective Hakkupatra relied upon
by the defendants, the Trial Court held that the suit being
one for permanent injunction, the burden lies on the
plaintiff to establish his lawful possession over the suit
property measuring 24 feet East-West and 33 feet North-
South as on the date of the suit.
6. The Trial Court considered the hand sketch
marked through PW.3, particularly Ex.P.19 which was
produced by the plaintiff himself and observed that
according to the plaintiff's document itself, site No.82
(owned by the plaintiff's father) located to the west of the
suit property, measures east-west 37 feet on the northern
side and 39.3 feet on the southern side. This directly
contradicted the plaintiff's own pleading at paragraph
No.10 of the plaint, wherein it is asserted that site No.82
was constructed within a measurement of East-West 30
feet and North-South 33 feet. The Trial Court observed
this as a material contradiction, undermining the plaintiff's
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case. The Trial Court further observed that if the
plaintiff's version of site No.80 measuring 30 feet East-
West and 40 feet North-South is accepted, then it
necessarily implies that the plaintiff's father has
encroached nearly 10 feet in Site No.80. In conclusion,
the Trial Court held that the plaintiff has failed to establish
lawful possession over the suit property as on the date of
the suit and also failed to substantiate the alleged
encroachment by the defendants.
7. Heard the learned counsel for the appellant and
learned counsel for the respondents.
8. Learned counsel for the appellant submits that
the plaintiff was put in possession of the suit property
under a registered sale deed dated 10.10.2006. It is
contended that the suit property originally measures East-
West 30 feet and North-South 40 feet, but due to road
widening and encroachment by the adjacent site owner
(defendant No.1), the extent is reduced to 24 feet East-
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West and 33 feet North-South. She argues that the
execution and validity of the sale deed in favour of the
plaintiff has not been disputed by the defendants. Drawing
attention to the cross-examination of DW.1, learned
counsel emphasizes that DW.1 has admitted that there is
a road on the northern side of both his house and the suit
property, and that his house is adjoining the plaintiff's
property. Further, he has admitted that wherever a site
abuts a road, its actual width tends to be lesser.
Importantly, DW.1 also admitted that although all four
sites are mentioned in Hakkupatra as East-West 40 feet
and North-South 30 feet the actual dimensions vary. It is
argued that DW.1 has specifically admitted that the suit
property measuring 24 feet East-West x 33 feet North-
South was sold to the plaintiff by one Kempaiah and that
he has right, title and interest over the suit property.
Learned counsel places reliance on Exs.D.13 and 14, which
are documents produced by defendants themselves.
These documents, it is argued, clearly show the correct
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measurement of site East-West 30 feet and North-South
40 feet and not the other way round as contended by the
defendants. It is submitted that the admissions made by
DW.1, coupled with the documents produced by the
defendants, support the claim of the lawful possession
over the suit property and contradict the defendants'
assertion that the plaintiff's property does not exist in the
stated dimension.
9. Learned counsel appearing for the respondents
denied any interference and contended that the suit
property, as described by the plaintiff, is not in existence.
It is contended that they are in possession of their allotted
site (site No.77) measuring East-West 40 feet and North-
South 30 feet as per their Hakkupatra. It is argued that
the plaintiff's father, the owner of the adjacent site owner
No.82 might have encroached on the suit property. That
the plaintiff had not established lawful possession as on
the date of the suit.
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10. In response to Exs.D.13 and 14, learned
counsel for the respondents submits that although Ex.D.14
mentions the dimensions as '30 feet x 40 feet', it does not
specify the orientation or whether 30 feet is East-West
measurement and 40 feet is North-South measurement.
In the absence of such clarity, it cannot be conclusively
inferred that the site measurements aligned with the
plaintiff's claim. Therefore, the said document does not
support the plaintiff's case that the actual dimensions of
the sites were East-West 30 feet and North-South 40 feet
and the contention to that effect raised by the appellant
deserves to be rejected.
11. Having heard the learned counsel for the
parties, the point that arises for consideration is:
"Whether the plaintiff has established lawful
possession over the suit property as on the date of
the suit so as to entitle him to the relief of
permanent injunction?"
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12. In a suit for bare injunction, the settled
proposition is that, the plaintiff must prove the lawful
possession as on the date of the suit. The plaintiff relies
upon Ex.P.6-registered sale deed dated 10.10.2006,
perusal of Ex.P.6 mentions that the site measures 24 feet
East-West and 33 feet North-South due to the
encroachment arising out of road formation. The plaintiff's
cause of action as pleaded in paragraph No.10 of the plaint
is the 06 feet encroachment by defendant No.1. The sale
deed neither makes any reference to the measurements in
the Hakkupatra being incorrect nor encroachment. This
omission weakens the plaintiff's claim of prior knowledge
and possession over the encroached portion. At paragraph
No.10 of the plaint, the plaintiff alleges that a few days
earlier to the date of execution of the sale deed,
encroachment was noticed. At paragraph No.11 of the
amended plaint states that the sale deed was executed
upon knowledge of such encroachment. The plaintiff's
pleadings acknowledge that his father, owner of site No.82
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has already constructed the house within the full extent of
the allotted site. This is contradicted by Ex.P.19 (2) which
shows the extent of site No.82 as East-West 37 feet on the
northern side and 39.3 feet on the southern side, far
exceeding the claim 30 feet width, thereby indicating an
encroachment by the plaintiff's father into site no.80. The
details described in the plaint and the narrative of the
measurements in the Hakkupatra were incorrect and are
not supported by any records or rectification proceedings.
Mere pleadings without cogent documentary evidence do
not establish that the allotment under Hakkupatra was
wrong. It is also pertinent to note that the plaintiff has
not produced documentary evidence to substantiate the
claim of road widening, which is stated to have reduced
the extent of the suit property. In the absence of such
material, the plea of reduction in measurement due to
road formation remains unsubstantiated.
13. With respect to Ex.D.14 which is relied upon by
the plaintiff to support the actual measurements of the
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site, it is important to note that the said document does
not bear any directional orientation of the measurements.
Though it mentions the dimension as 30 x 40 feet, it does
not clarify that 30 feet refers to East -West extent and 40
feet to the North-South or vis-à-vis. In the absence of
specific reference, the document cannot conclusively
supports the plaintiff's case that the correct measurement
of the site is East-West 30 feet and North-South 40 feet
and moreover, this document would not override the
official dimensions recorded in Hakkupatra, unless there is
any specific correction or rectification by the competent
authority or any documentary evidence to indicate that the
extent of the suit property has been reduced due to road
widening. In the absence of any material to show the
lawful and exclusive possession of the suit property as on
the date of the suit, the Trial Court's findings are
supported by the evidence and do not suffer from any
illegality or perversity warranting any interference and the
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point framed for consideration is answered accordingly and
this Court pass the following:
ORDER
i. The regular first appeal is hereby dismissed.
ii. The judgment and decree of the Trial Court stands
confirmed.
Sd/-
______________________
JUSTICE K.S. HEMALEKHA
MBM
