Karnataka High Court
M.C. Hiremani vs Sri. Murali on 7 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1635 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1635 OF 2024 (INJ)
BETWEEN:
M.C. HIREMANI,
AGED ABOUT 70 YEARS,
R/O HANUMANTHA NAGARA,
BEHIND TAJ HIGH SCHOOL,
OLD TOWN, BHADRAVATHI,
DECEASED BY HIS LRS.
1. SMT. GUNDAMMA,
W/O LATE M.C. HIREMANI,
AGED ABOUT 70 YEARS,
HOUSEWIFE,
R/O HANUMANTHA NAGARA,
BEHIND TAJ HIGH SCHOOL,
Digitally signed OLD TOWN, BHADRAVATHI,
by DEVIKA M
SHIVAMOGGA DISTRICT-577 301.
Location: HIGH
COURT OF
KARNATAKA 2. SRI. LOKESH,
S/O LATE M.C. HIREMANI,
AGED ABOUT 43 YEARS
R/O HANUMANTHA NAGARA,
BEHIND TAJ HIGH SCHOOL,
OLD TOWN, BHADRAVATHI,
SHIVAMOGGA DISTRICT-577 301.
3. SRI. SRIDHARA,
S/O LATE M.C. HIREMANI,
AGED ABOUT 41 YEARS,
R/O HANUMANTHA NAGARA,
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RSA No. 1635 of 2024
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BEHIND TAJ HIGH SCHOOL,
OLD TOWN, BHADRAVATHI,
SHIVAMOGGA DISTRICT-577 301.
4. KUM. LEELAVATHI,
D/O LATE M.C. HIREMANI,
AGED ABOUT 38 YEARS,
R/O HANUMANTHA NAGARA,
BEHIND TAJ HIGH SCHOOL,
OLD TOWN, BHADRAVATHI,
SHIVAMOGGA DISTRICT-577 301.
5. SRI. MANJUNATHA,
S/O LATE M.C. HIREMANI,
AGED ABOUT 39 YEARS,
R/O HANUMANTHA NAGARA,
BEHIND TAJ HIGH SCHOOL,
OLD TOWN, BHADRAVATHI,
SHIVAMOGGA DISTRICT-577 301.
...APPELLANTS
(BY SRI. KARTHIK S. TAYUR, ADVOCATE)
AND:
1. SRI. MURALI,
S/O LATE JAYADEVA NAIK,
AGED ABOUT 43 YEARS,
R/O HANUMANTHA NAGARA,
BEHIND TAJ HIGH SCHOOL,
OLD TOWN, BHADRAVATHI,
SHIVAMOGGA DISTRICT-577 301.
2. THE COMMISSIONER,
CITY MUNICIPAL COUNCIL,
TARIKERE ROAD,
BHADRAVATHI,
SHIVAMOGGA DISTRICT-577 301.
...RESPONDENTS
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RSA No. 1635 of 2024
HC-KAR
THIS RSA IS FILED UNDER SECTION 100 R/W ORDER
XLII RULE 2 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 02.09.2024 PASSED IN R.A.NO.37/2021 ON THE FILE
OF PRL. SENIOR CIVIL JUDGE AND JMFC, BHADRAVATHI,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 24.09.2021 PASSED IN O.S.NO.319/2013
ON THE FILE OF II ADDITIONAL CIVIL JUDGE AND JMFC,
BHADRAVATHI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission. Heard the learned
counsel for the appellants.
2. This second appeal is filed against the concurrent
finding of the Trial Court and the First Appellate Court.
3. The factual matrix of the case of the plaintiff before
the Trial Court while seeking the relief of permanent injunction,
it is contented that he has purchased the property measuring
10 x 50 feet in land bearing Sy.No.222/2, bearing site No.7 and
assessment No.1503 from one S.Kotaiah on 27.08.1993. The
CMC, Bhadravathi had given the possession of the said property
after receiving the fee. The CMC, Bhadravathi had issued
assessment register to the plaintiff pertaining to the property
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measuring 20 x 50 feet. The defendant has no right, title and
interest over the suit schedule property.
4. In pursuance of the suit summons, the defendants
appeared through their counsel and defendant No.1 filed the
written statement denying the averments made in the plaint.
The defendant No.1 vehemently contended that the original
owner S. Kotaiah was the owner of the property measuring
30 x 50 feet, which comprised a Mangalore tiled house. Out of
which, the plaintiff had purchased the land measuring 10 x 50
feet and the mother of this defendant by name Rama Bai had
purchased the land measuring 10 x 50 feet and another person
by name Tulsi Bai had purchased the land measuring 10 x 50
feet. Towards the eastern side of the property purchased by
the plaintiff, there is a channel road and the plaintiff with an
intention to grab the public road, illegally constructed the
house. Against the illegality of the plaintiff, defendant No.1
had filed an application before the CMC, Bhadravathi. The
Engineers of the CMC, Bhadravathi have visited the spot and
found that the plaintiff had encroached 10 x 32 feet of the
Government land. The Deputy Commissioner, Shivamogga also
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directed the CMC, Bhadravathi to take action against the illegal
construction. That on 30.04.2013, CMC, Bhadravathi had
issued notice to the plaintiff and the plaintiff had issued reply,
wherein he admitted the said encroachment. Thereafter, the
engineer visited the spot and found that the plaintiff had
encroached the Government land. Considering the illegal
encroachment, the CMC, Bhadravathi had issued notice to the
plaintiff on 12.07.2013. The Civil Court has no jurisdiction to
try the case. The suit itself is not maintainable, since other
alternative remedy is available to the plaintiff and hence the
suit for bare injunction is not maintainable under Section 41 of
the Specific Relief Act.
5. The defendant No.2 CMC, Bhadravathi also filed the
written statement contending that notice was issued based on
the requisition filed by defendant No.1. The suit is filed for the
relief of bare injunction and not filed for any relief of
declaration to declare that notice issued by the CMC is bad in
law and when the notice was issued, immediately he had
approached the Civil Court without exhausting his remedy.
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6. The Trial Court having considered the pleadings of
the parties, framed the issues and comes to the conclusion that
the plaintiff is in possession by answering issue Nos.1 to 3 in
the affirmative, but declined to grant the relief in coming to the
conclusion that the plaintiff is not entitled for the relief under
Section 41(h) of the Specific Relief Act, 1963 and dismissed the
suit.
7. Being aggrieved by the said order, an appeal is filed
in R.A.No.37/2021. The First Appellate Court having considered
the grounds urged in the appeal memo, formulated the points
whether the appellant established before the Trial Court that he
is in lawful possession of the suit schedule property, whether
the Trial Court was justified in dismissing the suit and whether
it requires interference of this Court. The First Appellate Court,
in paragraph No.18 taken note of the grounds which have been
urged and also the documents, which have been relied upon
and considering the material available on record, in paragraph
No.29, taken note of issuance of notice against the plaintiff and
also cross-objection filed before the Court and an observation is
made that it is admitted fact that after issuing of notice by
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defendant No.2, the plaintiff has filed a suit for permanent
injunction. Ex.D.1 is the notice issued by defendant No.2,
wherein they have mentioned that he has encroached the
public property and asked him to vacate the suit property. The
First Appellate Court also taken note of that P.W.1 in his cross-
examination admitted that he has preferred an appeal before
the Deputy Commissioner against Ex.D.1 notice. The Deputy
Commissioner after considering all the materials placed before
him, dismissed the appeal filed by the appellant as per Ex.D.5.
The admission of P.W.1 in his cross-examination and Ex.D.5
clearly shows that the plaintiff got efficacious remedy, then if
the appellant is aggrieved by the order of the Deputy
Commissioner, he has to challenge the said order before the
competent authority and instead of that, he had approached
the Civil Court and the Civil Court dismissed the suit on the
ground that when the process was initiated against the plaintiff,
he has sought for the relief of injunction. The First Appellate
Court considering the material available on record, particularly
in paragraph No.30, assigned the reason that the plaintiff is not
entitled for the relief of bare injunction.
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8. Being aggrieved by the said order, the present
second appeal is filed before this Court.
9. The learned counsel for the appellants would
vehemently contend that Ex.P.2 is the receipt under which the
possession is handed over by the Municipality in respect of
remaining area and there is a sale deed in respect of 10 x 50
feet and also the appellants are paying the tax to the
Municipality after constructing the house. When such
possession is established, the Trial Court ought to have granted
the relief of permanent injunction.
10. Having heard the learned counsel for the appellants
and also on perusal of the material available on record,
particularly the averments made in the plaint, the plaintiff has
pleaded that 10 x 50 feet was purchased by him and it is also
his case that remaining area was also allotted by the
Municipality. But no document is placed before the Court,
except Ex.P.2 receipt and the Municipality has not granted the
land in accordance with law. It is the specific case of defendant
No.1 that out of 30 x 50 feet, he had purchased 10 x 50 feet
and the plaintiff had purchased 10 x 50 feet and another
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person also purchased 10 x 50 feet and hence the title is in
respect of 10 x 50 feet. But the fact is that the plaintiff had
encroached the Government property and inspection was
conducted and engineer also visited and notice was issued
against the plaintiff and the same is challenged before the
Deputy Commissioner by the plaintiff and when the appeal was
dismissed, he had approached the Civil Court by filing a suit.
Hence, the Trial Court taking note of Section 41(h) of the
Specific Relief Act and also the First Appellate Court having re-
assessed the material available on record, comes to the
conclusion that when efficacious remedy is available to the
plaintiff, ought not to have approached the Civil Court. The
appellant when the notice was issued to quit and vacate the
premises, which is in his unauthorised occupation, since he has
encroached the same, filed the civil suit and hence I do not find
any ground to interfere with the findings of the Trial Court as
well as the First Appellate Court. Hence, I do not find any
ground to admit the appeal and frame any substantial question
of law.
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11. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MD
