Karnataka High Court
Sudhindracharya S/O Hanumantacharya ... vs The Commissioner on 27 November, 2025
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RSA No. 5759 of 2010
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 27TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO.5759 OF 2010 (INJ)
BETWEEN:
1. SUDHINDRACHARYA
S/O. HANUMANTACHARYA DIGGAVI
URF KAMPLI,
SINCE DECEASED BY HIS LRS.
1A. SMT. GEETABAI
W/O. SUDHINDRACHARYA KAMPLI,
AGED ABOUT 66 YEARS,
OCC. HOUSEHOLD WORK,
R/O. RAYARMATH, MALAMADDI,
DHARWAD-580007.
1B. SMT. VANI
YASHAVANT W/O. SUDHEENDRA HUILGOL,
NARAYANKAR AGED ABOUT 48 YEARS,
Digitally signed by OCC. HOUSEHOLD WORK,
YASHAVANT
NARAYANKAR R/O. RAYARMATH, MALAMADDI,
Date: 2025.11.29
09:58:46 +0530 DHARWAD-580007.
1C. SMT. SANGEETA
W/O. JAYASIMHA D
AGED ABOUT 45 YEARS,
OCC. HOUSEHOLD WORK,
R/O. RAYARMATH, MALAMADDI,
DHARWAD-580007.
1D. SMT. NAINA
W/O. ANAND KULKARNI,
AGED ABOUT 43 YEARS,
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RSA No. 5759 of 2010
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OCC. HOUSEHOLD WORK,
R/O. RAYARMATH,
MALAMADDI,
DHARWAD-580007.
...APPELLANTS
(BY SRI. SAGAR S. HEGDE, ADVOCATE FOR
SRI. S.R. HEGDE, ADVOCATE)
AND:
THE COMMISSIONER,
HUBLI-DHARWAD MUNICIPAL CORPORATION,
DHARWAD.
...RESPONDENT
(BY SRI. IRANAGOUDA K. KABBUR, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC., PRAYING TO SET
ASIDE THE JUDGEMENT AND DECREE IN R.A.NO.122/2010,
DATED 15.07.2010, ON THE FILE OF THE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, AT DHARWAD AND TO
CONFIRM THE JUDGMENT AND DECREE PASSED IN
O.S.NO.344/2002 DATED 19.02.2005 ON THE FILE OF THE PRL.
CIVIL JUDGE COURT (JR. DN.) & PRL. J.M.F.C., COURT,
DHARWAD BY ALLOWING THIS APPEAL, WITH COST IN THE
ENDS OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ARGUMENTS THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 5759 of 2010
HC-KAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE C M JOSHI)
Heard the learned counsel for the appellants and the
learned counsel for the respondent.
2. The appellant was the plaintiff in
O.S.No.344/2002 before the Trial Court, who succeeded in
getting a permanent injunction against the defendant-
corporation from demolishing or damaging the compound
wall, which was put surrounding his property. The said
judgment of the Trial Court in O.S.No.344/2002 dated
19.02.2005 was questioned before the First Appellate Court
in R.A.No.122/2010. By impugned judgment dated
15.07.2010, the First Appellate Court allowed the appeal
and dismissed the suit of the plaintiff. It is the said
judgment of the First Appellate Court, which is assailed in
the present second appeal.
3. The factual matrix that is relevant for the
purpose of this appeal is that the plaintiff claims to be the
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owner of the property bearing CTS No.301/II-2B/3 and the
property in dispute is the compound wall of the length of
100 ft. It is the case of the plaintiff that he is the absolute
owner of CTS No.301/II-2B/3 of Dharwad and it was
purchased by him under a sale deed dated 19.05.1960.
Later, it was subdivided amongst the brothers. The plaintiff
contended that he has constructed a compound wall with
due permission of the defendant-corporation and has also
obtained a completion certificate.
4. The issuance of the completion certificate is
disputed by the defendant-corporation. It was contented
that there were some bunk shops, which were put adjoining
the compound wall, which was opposed by the plaintiff and
he had filed a suit in O.S.No.329/2002, which came to be
decreed. Later, the defendant-corporation intended to
demolish the compound wall constructed by the plaintiff
without issuing any notice to the plaintiff and therefore, he
was constrained to approach the Trial Court seeking an
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injunction. The plaintiff had sought the following prayer in
the suit:
Prayer
"The Plaintiffs most humbly prays as under:-
a. An order of permanent injunction please be granted
restraining the Defendant or anybody on its behalf
from demolishing by damaging the suit compound
wall.
b. Cost of the proceedings be awarded.
c. Any other appropriate relief that, this Hon'ble Court
deems just and proper in the circumstances of the
case be awarded.
Hence, a decree be passed in favour of the
Plaintiffs, in the ends of justice and equity."
5. On issuance of notice, the defendant-corporation
appeared through its counsel and filed the written
statement denying the plaint averments. It was contented
that though it had given permission to the plaintiff to
construct the compound wall, the plaintiff has not
constructed it as per the City Survey Records and there is
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encroachment by him. There were public complaints against
the plaintiff and therefore, the defendant-corporation got
measured the suit schedule property and found that there is
an encroachment by the plaintiff and as such, it had taken
action in accordance with law.
6. The Trial Court framed the following issues:
"ISSUES
1. Whether the Plff. proves that he has constructed
the compound wall with due permission from the
deft./corporation?
2. Whether the Plff. proves the cause of action?
3. Whether the plff. is entitled for the relief of
permanent injunction as prayed for?
4. Whether the Deft./Corporation proves that the suit
of the plff. is not maintainable?
5. To what order or decree?"
7. After the trial, the Trial Court decreed the suit
restraining the defendants from damaging or demolishing
the compound wall of the plaintiff. Being aggrieved, the
defendant-corporation approached the First Appellate Court
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and the First Appellate Court by the impugned judgment,
allowed the appeal and dismissed the suit. It is the said
judgment of the First Appellate Court, which is assailed in
the present second appeal.
8. This Court has framed the following the
substantial question of law by order dated 30.09.2010:
1) Whether the finding of the Appellate Court at
paragraph 27 is contrary to the finding at
paragraph 13 amounting to a perverse finding?
2) Whether Appellate Court was justified in
holding that Ex.P1 to Ex.P10 being the title
deeds will not prove the ownership of the
plaintiffs property?
3) Whether the Appellate Court was correct in
holding that defendant had proved
encroachment by plaintiff in the absence of
evidence or the evidence that was available
was sufficient to hold that plaintiff had
encroached the property of the defendant?"
9. Learned counsel for the appellant submits that
the plaintiff has constructed the compound wall after the
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boundaries were identified by the City Survey Authorities.
He submits that the title in respect of the property owned
by the plaintiff is not in dispute, but it is only the compound
wall which is the point of litigation. He submits that Ex.P.1
is a City Survey Extract and Ex.P.7 is the permission
granted by the defendant-corporation for construction of the
compound wall. The plan showing the proposed construction
was submitted to the defendant and it was approved as
may be seen from Ex.P.9. It is his case that he has
constructed the compound wall in accordance with the
permission granted to him under Ex.P.7 and Ex.P.9. In this
regard, he relies on Ex.P.8, the City Survey Map, which
shows the boundaries of the property of the plaintiff.
10. Per contra, learned counsel appearing for the
defendant-corporation submits that the defendant-
corporation has directed the City Survey Authorities to
survey the property and identify the encroachment by the
plaintiff. Accordingly, the City Survey Authorities have
prepared a sketch as per Ex.D.2, which clearly shows that
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there was encroachment. In pursuance to Ex.D.2, the
defendant-corporation proceeded to take action against the
plaintiff.
11. A perusal of the records would reveal that while
the defendant-corporation proceeded as per Ex.D.2, notice
was not issued to the plaintiff. Though the oral evidence
shows that notice was issued to the plaintiff, the defendant-
corporation cannot rely on such oral deposition so far as the
mandatory requirements are concerned. It is evident that it
is the case of the plaintiff that he has constructed the
compound wall as per the permission granted to him under
Ex.P.7 and Ex.P.9. Except Ex.D2, there is nothing on record
to show that while preparing Ex.D.2, prior notice was issued
to the plaintiff and in his presence the survey was
conducted by the concerned authorities. In that view of the
matter, the contention of the respondent-corporation that
Ex.D.2 holds the field cannot be accepted. It is also worth
to note that when an action is being taken against a person
like plaintiff, it is necessary that the permission issued by
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the defendant-corporation are to be shown to be violated.
In the case on hand, Ex.P.7 and Ex.P.9 being such
documents issued and permitted by the defendant, it has to
be established by the defendant authorities that the plaintiff
has violated the same. The enquiry regarding such violation
acquire quasi-judicial stature since the defendant is a
corporation, who is acting as trustee of the citizens of Hubli-
Dharwad city. In that view of the matter, preparing a sketch
as per Ex.D.2 without a notice being issued to the plaintiff
cannot be sustained.
12. At this juncture, both the learned counsels
appearing for the parties would submit that the
measurement of the property of the plaintiff may be done
through the Court. I am afraid this request made by the
learned counsels has any reason to accede. The cause of
action for the present suit had arose somewhere in 2002
and it cannot be continued forever. When it is a conclusion
that Ex.D.2 was prepared without a notice being issued to
the plaintiff, the defendant-corporation will be at liberty to
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initiate action after issuing notice to the plaintiff and after
ascertaining that there is violation of the building
permission granted to him and if at all there is any
encroachment by the plaintiff into the public road, it is
needless to say that the defendant-corporation has the
statutory provisions, which come to its aid and is at liberty
to take such action.
13. Therefore, this Court is of the view that it is not
necessary for this Court to delve into the substantial
questions of law, which were framed and it would suffice to
hold that the defendant-corporation would be at liberty to
initiate fresh action after issuing notice to the plaintiff and
holding the survey as required under law through the city
survey authorities, in the presence of the appellant.
Therefore, with this observation, the present appeal
deserves to be disposed off.
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14. It is made clear that until fresh action is taken by
the defendant-corporation in accordance with law, the
existing compound wall of the plaintiff has to be preserved.
15. Ordered accordingly.
SD/-
(C M JOSHI)
JUDGE
YAN
CT:PA
