Karnataka High Court
Sri A N Chandrappa vs P Prabhavathi on 17 March, 2025
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2025:KHC:10874
RSA No. 602 of 2014
C/W RSA No. 603 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 602 OF 2014 (INJ)
C/W
REGULAR SECOND APPEAL NO. 603 OF 2014 (INJ)
IN RSA No. 602/2014
BETWEEN:
SRI A.N. CHANDRAPPA,
S/O LATE PATEL NANJAPPA,
AGED ABOUT 69 YEARS,
GAYATHRI EXTENSION,
R/O VIVEKANANDA NAGAR,
CHANNARAYAPATNA TOWN - 573 116.
SINCE DEAD REP BY HIS LRs
1(a) SMT. YASHODHA
W/O LATE A.N. CHANDRAPPA,
AGED ABOUT 59 YEARS,
1(b) SMT. KAVITHA,
D/O LATE A.N. CHANDRAPPA,
Digitally signed by
GEETHAKUMARI AGED ABOUT 39 YEARS,
PARLATTAYA S
1(c) SMT. KUSUMA,
Location: High D/O LATE A.N. CHANDRAPPA,
Court of Karnataka
AGED ABOUT 35 YEARS,
1(d) SRI A.N. JAYARAGHAVENDRA,
S/O LATE A.N. CHANDRAPPA,
AGED ABOUT 28 YEARS,
APPELLANTS NO.1(a) TO 1(d) ARE ALL
R/A GAYATHRI EXTENSION,
VIVEKANANDA NAGAR,
CHANNARAYAPATNA TOWN - 573 116.
APPELLANTS
(BY SRI SHIVARAMA BHAT O., ADVOCATE)
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RSA No. 602 of 2014
C/W RSA No. 603 of 2014
AND:
P PRABHAVATHI,
D/O LATE KADLEKAYI RANGAMMA,
AGED ABOUT 52 YEARS,
HOUSING BOARD COLONY,
CHANNARAYAPATANA TOWN - 573 116.
SINCE DEAD REP BY HER LRs
1(a) RAGHAVENDRA,
S/O LATE R. PRABHAVATHI,
AGED ABOUT 34 YEARS,
1(b) R. PRATHIBHA,
D/O LATE R. PRABHAVATHI,
AGED ABOUT 30 YEARS,
1(c) R. ASHOK,
S/O LATE R. PRABHAVATHI,
AGED ABOUT 28 YEARS,
RESPONDENT NOS.1(a) TO 1(c) ARE
R/A HOUSING BOARD COLONY,
CHANNARAYAPATNA TOWN - 573 116.
...RESPONDENTS
[BY R1(a) AND R1(c) ARE SERVED, BUT UNREPRESENTED;
V/O DATED 25.09.2024 NOTICE TO R1(b) IS HELD SUFFICIENT]
THIS RSA IS FILED U/S. 100 ORDER XLII RULE 1 OF CPC.,
AGAINST THE JUDGMENT & DECREE DATED 21.1.2014 PASSED IN
R.A.NO.6/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE,
CHANNARAYAPATNA, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 24.2.2012 PASSED IN
OS.NO.535/1999 ON THE FILE OF THE ADDL. CIVIL JUDGE & JMFC.,
CHANNARAYAPATNA.
IN RSA NO. 603/2014
BETWEEN:
SRI A.N.CHANDRAPPA,
S/O LATE PATEL NANJAPPA,
AGED ABOUT 69 YEARS,
R/AT GAYITHRI EXTENSION,
VIVEKANANDA NAGAR,
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RSA No. 602 of 2014
C/W RSA No. 603 of 2014
CHANNARAYAPATNA TOWN - 573 116.
SINCE DEAD REPRESENTED BY HIS L.RS:
1(a)
SMT. YASHODHA
W/O LATE A.N.CHANDRAPPA
AGED ABOUT 59 YEARS
1(b)
SMT. KAVITHA
D/O LATE A.N.CHANDRAPPA
AGED ABOUT 39 YEARS
1(c)
SMT. KUSUMA
D/O LATE A.N.CHANDRAPPA
AGED ABOUT 35 YEARS
1(d)
SRI P A.N.JAYARAGHAVENDRA
S/O LATE A.N.CHANDRAPPA
AGED ABOUT 28 YEARS
APPELLANT NO. 1(a) TO 1(d) ARE ALL
R/AT GAYATHRI EXTENSION,
VIVEKANANDA NAGAR,
CHANNARAYAPATNA TOWN - 573 116.
...APPELLANTS
(BY SRI SHIVARAMA BHAT O., ADVOCATE)
AND:
R. PRABHAVATHI,
D/O LATE KADLEKAYI RANGAMMA,
AGED ABOUT 52 YEARS,
HOUSING BOARD COLONY,
CHANNARAYAPATNA TOWN - 573 116.
SINCE DEAD REPRESENTED BY HER L.Rs:
1(a) RAGHAVENDRA
S/O LATE R. PRABHAVATHI
AGED ABOUT 34 YEARS
1(b) R.PRATHIBHA
D/O LATE R. PRABHAVATHI
AGED ABOUT 30 YEARS
1(c) R.ASHOK
S/O LATE R. PRABHAVATHI
AGED ABOUT 28 YEARS
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RSA No. 602 of 2014
C/W RSA No. 603 of 2014
RESPONDENT NOs.1(a) TO 1(c) ARE ALL
R/A HOUSING BOARD COLONY
CHANNARAYAPATNA TOWN - 573 116.
...RESPONDENTS
(NOTICE TO R1 (a-c) ARE HELD SUFFICIENT)
THIS RSA IS FILED U/S. 100 ORDER XLII RULE 1 OF CPC.,
AGAINST THE JUDGMENT & DECREE DATED 21.1.2014 PASSED IN
R.A.NO.7/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE,
CHANNARAYAPATNA, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 24.2.2012 PASSED IN
OS.NO.592/1999 ON THE FILE OF THE ADDL. CIVIL JUDGE &
JMFC., CHANNARAYAPATNA.
THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
ORAL JUDGMENT
Challenging common judgment and decree dated
21.01.2014 passed by Senior Civil Judge, Channarayapatna, in
R.As.no.6 & 7 of 2012, these appeals are filed.
2. Brief facts giving rise to these two appeals are Sri
MN Chandrappa (Appellant - 'MNC' for short) was plaintiff in
O.S.no.535/1999 filed for mandatory injunction directing
reconstruction of compound wall on western side of suit
property demolished by defendant - Smt.R.Prabhavathi ('RP'
for short), to hand over possession of extent of 2 feet East-
West and 73 feet North-South marked in rough sketch with
letters 'ABEF' bounded on East by plaintiff's building, West by
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defendant's building, North by road and South by Housing
Board Colony, encroached by defendant out of property
bearing AR no.3175 and Khata no.3615 measuring East-West -
50 feet and North-South - 70 feet situated behind old RMC
Yard within Channarayapatna town (referred to as 'plaintiff
suit property' for short) and for consequential relief of
permanent injunction, etc.
3. Further, MNC was defendant in O.S.no.592/1997
filed by RP for permanent injunction against interference with
peaceful possession in respect of site bearing AR no.1938/A
and khata no.1938/A, measuring East-West - 25ft. and North-
South - 40ft., bounded on East by defendant's building, West
by site of Raju, South by houses of Deeparam and Contractor
Shamrao and North by house of Nataraj situated behind RMC
Yard, Channarayapatna town (referred to as 'defendant suit
property' for short).
4. In O.S.no.535/1999, MNC stated he purchased
vacant site under registered Sale Deed dated 07.02.1983 and
constructed building, wherein, he was running Hemavathi
Educational Institution by obtaining licence. And on western
side of his site, he had left open space 4 ft. in width. And that
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RP, adjacent site owner on western side had encroached on his
site to extent described as plaintiff suit property.
5. In said suit, RP filed written statement stating that
MNC had constructed school in entire extent of 47½ ft. X 74ft.
and had no right or title over area marked with letters 'MILC' in
rough sketch. She stated that 35 years earlier, her mother had
purchased site measuring 25ft. X 80ft. under registered Sale
Deed from Smt.Lakshmamma and after her death, RP along
with her siblings inherited it. And in partition between them,
defendant suit property fell to her share. In said site, she had
constructed a house in 21 ft. X 31 ft. area. In view of
interference by MNC, she had filed O.S.no.592/1999.
6. In O.S.no.592/1999, MNC filed written statement
stating that he had purchased site measuring 50 ft. X 73 ft.
under registered sale deed and was absolute owner. And while
constructing school building, he had left vacant, 2½ ft. space
on western side of his site and RP had encroached on western
side of his site. Therefore, he had filed O.S.no.535/1999.
7. Both suits were clubbed and following issues were
framed:
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ISSUES IN O.S.no.535/99:
1. Does the plaintiff proves that he is the owner and in
possession of property shown as 'ABCD' in his rough
sketch and 'MILC' shown in rough sketch annexed
Written Statement of defendant?
2. Does the plaintiff proves the alleged trespass of the
defendant on the Suit schedule property?
3. Does the defendant proves that the plaintiff only
possessed property measuring East West 47½ and
North South 74' which shown in the rough sketch
annexed Written Statement?
4. Whether the plaintiff entitles for the relief sought?
5. What Order or Decree?
ADDITIONAL ISSUES
1. Whether the plaintiff further proves that the defendant
has encroached 5 feet towards the western side of
the suit schedule property and constructed a building
thereon?
2. Whether the plaintiff is entitle for the relief of
Mandatory injunction as prayed in the suit?
ISSUES IN O.S.no.592/99:
1. Does the plaintiff prove her possession with respect
to suit property?
2. Does the plaintiff proves the interference of
defendant on her possession?
3. Whether the suit is maintainable in view of the
pendency of suit in O.S.no.535/99?
4. Whether the plaintiff entitled for the relief sought in
the present suit?
5. What order or decree?
8. To prove their case, MNC examined himself and
another witness as PWs.1 and 2 and got marked Exs.P1 to P8.
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In rebuttal, RP examined herself and another witness as DWs.1
and 2 and got marked Exs.D1 to D7.
9. On consideration, in O.S.no.535/1999, trial Court
answered issues no.1, 2, 4, additional issues no.1 and 2 in
negative, issue no.3 in affirmative and issue no.5 by dismissing
suit. While in O.S.no.592/1999, it answered issues no.1 to 4 in
affirmative and issue no.5 by decreeing suit and restraining
MNC from interfering with RP's peaceful possession and
enjoyment of defendant's suit property.
10. Aggrieved MNC filed RA.nos.6/2012 and 7/2012
against judgment and decrees in O.S.no.535/1999 and
O.S.no.592/1999 respectively on various grounds.
11. Based on contentions urged, first appellate Court
framed following common points:
1. Whether the judgment and decree of the trial Court
need to be interfered with? If so to what extent?
2. To what relief and decree the parties are entitled for?
12. On consideration, it answered point no.1 in
negative and point no.2 dismissing both appeals, leading to
present appeals.
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13. Sri O. Shivaram Bhat, learned counsel for appellant
- MNC submitted that appeal was by plaintiff against
concurrent findings in a suit for mandatory injunction and
consequential relief of permanent injunction. It was submitted,
plaintiff was absolute owner of site measuring 50 ft. X 70 ft. in
which RP had encroached 2 ft. X 72 ft. on western side, by
removing existing compound wall. It was submitted, to
substantiate ownership, Ex.P1 - sale deed was produced and to
substantiate boundaries and extent - Exs.P4 and P8 - sketches
were produced. On other hand, RP did not produce title
documents or measurements of her property. And trial Court
appointed Court Commissioner to measure both properties,
wherein, Court Commissioner's report disclosed encroachment
of 3 ft. by RP. Despite same, suit came to be dismissed and
confirmed in appeal.
14. It was submitted, pleading about encroachment by
RP was substantiated by oral evidence of MNC and adjacent
land owner (PW.2) and corroborated by documentary evidence
i.e. sale deed - Ex.P1, Assessment register extracts as Exs.P2,
3, 5 to 7 and sketches - Exs.P4 and P8. It was submitted,
nothing material to discredit plaintiff evidence was elicited in
cross-examination. On other hand, material placed on record
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by RP was examining herself as DW.1 and independent witness
examined as DW.2, along with Assessment register
extracts/photograph as Exs.D1 to D7.
15. It was submitted, trial Court based its findings
primarily on Commissioner's report, even though said report
disclosed encroachment of 3 ft. in MNC's property by RP.
Therefore, findings of trial Court were contrary to material on
record and perverse. It was submitted, even first appellate
Court also concurred with trial Court findings by referring to
Commissioner's report, without re-appreciation. Thus error was
concurrent, calling for interference. In light of above
contention, learned counsel propounded following substantial
questions of law for consideration:
1. Whether both Courts were justified in dismissing OS
no.535/1999 even when RP failed to produce
document of title?
2. Whether both Courts were justified in dismissing
O.S.no.535/1999 and decreeing O.S.no.592/1999
ignoring Ex.C1 - Commissioner's Report showing
less measurement of plaintiff's property on East to
West, than in Ex.P1 - Sale Deed?"
16. It was alternatively submitted, since impugned
findings mentioned above were given in suit for bare
injunction, even in case, this Court were to hold MNC not
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entitled for injunction as prayed, liberty be reserved to him to
file comprehensive suit for determinations of rights, with
observations that findings recorded herein would not come in
way.
17. Heard learned counsel for appellant.
18. During pendency of this appeal RP died. Though
her legal representatives were brought on record, they have
chosen to remain unrepresented. Hence, appeal is taken up for
disposal.
19. These appeals are by plaintiff in O.S.no.535/1999
and defendant in O.S.no.592/1999 against concurrent findings
in respective suits for injunction. While MNC claimed to have
purchased site measuring 50ft.X73ft. under Ex.P1 - registered
sale deed on 07.02.1983, constructed a building for
educational institution by leaving 4ft. space on western side
and constructed compound wall. He further claimed RP was
owner of adjacent site on western side of his property, had
demolished compound wall and encroached on his property to
extent described as plaintiff suit property. Therefore, MNC filed
O.S.no.535/1999 for mandatory injunction with consequential
relief of permanent injunction.
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20. On other hand, RP claimed, her mother had
purchased property measuring 25ft. X 80ft. under registered
sale deed about 30 - 35 years earlier from Smt.Lakshmamma
and after her death, she got defendant suit property in
partition with her siblings. Denying allegation of any
encroachment on MNC's property, she claimed to have
constructed building in area measuring 21ft. X 31ft. On
allegation of interference by MNC with peaceful possession of
her property, she filed O.S.no.592/1999 for permanent
injunction.
21. Both suits were clubbed and common evidence
recorded, wherein MNC examined himself as PW.1, produced
his title deed as Ex.P1, Assessment Register Extracts as
Exs.P2, P3, P5 to P7 and sketches as Exs.P4 and P8. He also
examined adjacent land owner as PW.2. RP examined herself
as DW.1 and produced Assessment Register Extracts as
Exs.D1, D3 to D7 and Photograph as Ex.D2. Adjacent site
owner was examined as DW.2.
22. It is also seen at inception of his suit, MNC had
filed application for appointment of Court Commissioner for
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spot inspection, same was allowed and Court Commissioner
was examined as CW.1 and submitted his report.
23. While passing impugned judgment and decree, trial
Court noted, though MNC claimed to have put up construction
by obtaining licence, same was not produced. It noted Ex.D5
mentioned measurement of Hemavati Convent building as
47½ft. X 74ft. Noting, PW.2 had stated measurement of
construction by MNC as 46 ft. X 60 ft. and admitting to be
unaware of measurements of school building, held same to be
unreliable. Thereafter, examining depositions of DWs.1 and 2,
it noted same to have sustained cross-examination leading to
ambiguity, which required reference to Court Commissioner's
report.
24. It noted, CW.1 reported that RP said to have
constructed building to extent of 25.2 ft. X 39 ft., while, MNC
had put up construction of 47 ft. X 74 ft. and vacant space
about 3.10 ft. and 4.10 ft. between two buildings. It observed,
initially MNC had alleged encroachment of 2ft., but later
amended plaint and revised it to 5ft., which was inconsistent
with Court Commissioner's report. Therefore, it drew adverse
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inference against MNC for not being sure about extent of
encroachment.
25. Taking note of fact that MNC had not disputed
ownership of RP in respect of her property and as per
Commissioner's report, RP was owner of site measuring
25 ft. X 40 ft. had put-up construction of 21 ft. X 39 ft., held
MNC failed to establish encroachment. Consequently, it
dismissed suit by MNC and decreed suit of RP.
26. Though, learned counsel for appellant - MNC
vehemently contended that as per Commissioner's report,
there was encroachment of 3 ft. into MNC's property, perusal
of deposition of CW.1 reveals specific assertion that properties
bearing khatas no.1937 and 3615 were separate properties
and that he had measured only property bearing khata
no.1937. Consequently, there cannot be reliance on his report
about encroachment into property of MNC bearing khata
no.3615.
27. Moreover, finding about encroachment would be
question of fact and not amenable for re-appreciation in
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second appeal. Consequently, substantial questions of law
proposed do not arise for consideration.
28. Hence, appeals are dismissed.
29. It is observed that plaintiff - MNC may avail any
remedy, if available to him in law, without expressing any
opinion on same.
Sd/-
(RAVI V HOSMANI)
JUDGE
GRD
