Karnataka High Court
Smt Padmamma vs Smt Alamelamma on 1 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:23394
MSA No. 3 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
MISCELLANEOUS SECOND APPEAL NO.3 OF 2018 (RO)
BETWEEN:
1. SMT. PADMAMMA,
W/O NANJUNDAIAH @ ANNAIAH,
AGED ABOUT 55 YEARS.
2. SRI. HUCHAIAH,
S/O LATE DODDAHUCHAIAH,
AGED ABOUT 60 YEARS.
BOTH ARE RESIDENTS OF
NEAR RAMAMANDIRA,
BASAVAIAHNA STREET,
MALAVALLI TOWN, MALAVALLI TALUK,
MANDYA DISTRICT-571 430.
...APPELLANTS
Digitally signed
by DEVIKA M (BY SRI. M.B.CHANDRA CHOODA, ADVOCATE)
Location: HIGH
COURT OF AND:
KARNATAKA
1. SMT. ALAMELAMMA,
W/O LATE NANJUNDAIAH,
SINCE DEAD BY LRS.
1(a) SMT. MAHADEVAMMA,
W/O LATE BASAVARAJU,
AGED: MAJOR,
R/AT NEAR NINGAIAH HOTEL,
VAKKALIGARA BEEDI,
MALAVALLI TOWN,
MANDYA DISTRICT.
-2-
NC: 2025:KHC:23394
MSA No. 3 of 2018
HC-KAR
1(b) SRI. RANGA,
S/O GULAIAH,
AGED: MAJOR.
1(c) SRI. GURU,
S/O GULAIAH,
AGED: MAJOR.
1(d) SRI. MANJA,
S/O GULAIAH,
AGED: MAJOR.
1(e) SRI. RAVI,
S/O GULAIAH,
AGED: MAJOR.
RESPONDENTS NO.1(b) TO 1(e) ARE
R/AT KURUPETE,
KOLLAPURADAMMANA STREET,
KANAKAPURA TOWN,
RAMANAGARA DISTRICT.
1(f) SMT. LAKSHMI,
W/O LATE SHIVANNA,
AGED: MAJOR.
1(g) SRI. GIRISH,
S/O LATE SHIVANNA,
AGED: MAJOR.
1(h) RANI,
D/O LATE SHIVANNA,
AGED: MAJOR.
RESPONDENTS NO.1(f) TO 1(h) ARE
R/AT AGRAHARA, 10TH CROSS,
MYSURU MARKET, BENGALURU.
1(i) SMT. NAGAMMA,
W/O LATE SRINIVASA,
AGED: MAJOR.
-3-
NC: 2025:KHC:23394
MSA No. 3 of 2018
HC-KAR
1(j) SRI. KRISHNA,
S/O LATE NANJUNDAIAH,
AGED: MAJOR.
RESPONDENTS NO.1(i) AND 1(j) ARE
R/AT KHB COLONY,
NEAR ADARSH CONVENT ROAD,
NES, MALAVALLI TOWN,
MANDYA DISTRICT.
(AMENDED VIDE ORDER DATED 16.10.2024)
...RESPONDENTS
(R1 - DEAD; NOTICE TO R1(a), R1(d), R1(e) AND
R1(i) - SERVED AND UNREPRESENTED;
NOTICE TO R1(b) AND R1(c) IS HELD SUFFICIENT,
VIDE ORDER DATED 02.06.2022;
NOTICE TO R1(f), R1(g), R1(h) AND R1(j) -
SERVED AND CALLED OUT ABSENT,
VIDE ORDER DATED 30.09.2024)
THIS MSA IS FILED UNDER ORDER 43-1(u) OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 21.11.2017
PASSED IN R.A.NO.42/2013 ON THE FILE OF THE SENIOR
CIVIL JUDGE, MALAVALLI, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
12.09.2013 PASSED IN O.S.NO.147/2011 ON THE FILE OF
THE PRINCIPAL CIVIL JUDGE, MALAVALLI, PARTLY
DECREEING THE SUIT FOR DECLARATION AND MANDATORY
INJUNCTION AND REMITTING BACK THE MATTER TO TRAIL
COURT FOR FRESH DISPOSAL.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
-4-
NC: 2025:KHC:23394
MSA No. 3 of 2018
HC-KAR
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellants. The
respondents though served are unrepresented.
2. The learned counsel for the appellants would
vehemently contend that the Trial Court has given the finding
that issue No.3 would cover the issue of encroachment is
concerned and answered the same. The First Appellate Court
committed an error in remanding the matter by giving the
reasons in paragraph No.21 that mandatory injunction is
sought directing the defendants to demolish the construction
put up by the defendants on the encroached area. The First
Appellate Court also made an observation that without the
issue of whether defendant Nos.1 and 2 have illegally
encroached the portion of the suit schedule property to an
extent of 5 x 31 feet, the Trial Court proceeded to pass an
order and ordered to pay compensation of Rs.33,345/-. Once
the Court comes to such a conclusion, there was no need of
remanding the matter and hence it requires interference of
this Court and set aside the same.
NC: 2025:KHC:23394
HC-KAR
3. Having heard the learned counsel for the
appellants and also considering the material available on
record, the point that arise for the consideration of this Court
is:
(i) Whether the First Appellate Court committed
an error in making an observation in paragraph
No.21 and also framing of an additional issue
with regard to the encroachment and whether
it requires interference of this Court?
4. Having heard the learned counsel for the
appellants and also on perusal of the records, the suit is filed
for the relief of declaration, perpetual injunction and
mandatory injunction. While seeking the relief of mandatory
injunction, it is the specific case of the plaintiff that the
plaintiff is the absolute owner in possession and enjoyment of
the suit schedule property by virtue of the sale deed dated
27.07.1987. It is also pleaded by the plaintiff that the suit
schedule property bearing municipal assessment
No.2723/2170/A, measures east to west 27 feet and north to
south 18 feet which consists of country tiled house, towards
northern side of the country tiled house the plaintiff left 5 x
31 feet vacant site and towards the west of the country tiled
NC: 2025:KHC:23394
HC-KAR
house the plaintiff left 4 x 23 feet vacant site. These vacant
sites were used and enjoyed by the plaintiff for her better
living in the house. It is also the contention of the plaintiff
that she is very poor, old aged, having less support in the
society. Her younger son died about 7-8 months back in
Bangalore. When the plaintiff went to attend the funeral
ceremony, the defendants without having any right, title and
interest over the suit schedule property, trespassed into the
suit schedule property and encroached 5 feet vacant space
situated towards the northern side of the country tiled house
and they have also constructed underground tank and when
they were about to construct the staircase, the plaintiff
resisted the illegal acts of the defendants and the defendants
continued their illegal acts.
5. When such averments are made in the plaint, the
Trial Court also extracted the said contention of the plaintiff.
But having perused the records, no issue was framed with
regard to encroachment is concerned to an extent of 5 x 31
feet. Without framing the issue, the Trial Court proceeded to
pass the order and also comes to the conclusion that there is
an encroachment and ordered to pay the monetary
NC: 2025:KHC:23394
HC-KAR
compensation and no such relief of monetary compensation
for encroachment is sought. The First Appellate Court having
considered the said fact into consideration, given the reasons
in paragraph No.21 and framed the issue regarding
encroachment and remanded the matter to the Trial Court to
consider the same. Having considered the reasons assigned
in the appeal and also remitting the matter to the Trial Court
in the light of the observations made in the judgment and also
framing of an issue, I do not find any error committed by the
First Appellate Court, since the crux of the issue is with regard
to the encroachment of the property belonging to the plaintiff
is concerned and the suit is filed for the relief of mandatory
injunction also. Hence, no ground is made out to interfere
with the findings of the First Appellate Court. The First
Appellate Court having considered the pleadings and also the
reasons given by the Trial Court and no such issue was
framed with regard to the encroachment is concerned, rightly
remitted back the matter to the Trial Court. No ground is
made out to admit the appeal and hence, I answer the point
in the negative.
NC: 2025:KHC:23394
HC-KAR
6. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeal is dismissed.
(ii) The appellants are directed to appear before
the Trial Court on 30.07.2025.
(iii) The Trial Court is directed to issue notice to
the respondents and dispose of the matter in
view of the observations made by the First
Appellate Court in accordance with law
expeditiously.
Sd/-
(H.P.SANDESH)
JUDGE
MD
