Karnataka High Court
The Commissioner vs Smt. Mahadevi on 9 October, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 2229 of 2023
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.2229 OF 2023 (INJ)
BETWEEN:
1. THE COMMISSIONER
THE CITY MUNICIPALITY
SAGAR CITY-577 401
SHIVAMOGGA DISTRICT.
...APPELLANT
(BY SRI. VISHWANATH R. HEGDE, ADVOCATE)
AND:
1. SMT. MAHADEVI
W/O VINAYAKA SADANANDA YALLAPURKAR
AGED ABOUT 63 YEARS
SUPERINTENDENT
SOCIAL WELFARE DEPARTMENT
Digitally signed R/O WARD NO.21, NEHRU NAGAR
by DEVIKA M SAGAR TOWN-577 401.
Location: HIGH ...RESPONDENT
COURT OF (RESPONDENT SERVED)
KARNATAKA
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 15.09.2023
PASSED IN R.A.NO.10045/2022 (OLD R.A.NO.19/2019) ON
THE FILE OF V ADDITIONAL DISTRICT AND SESSIONS JUDGE,
SHIVAMOGGA, SITTING AT SAGAR, DISIMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
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RSA No. 2229 of 2023
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08.01.2019 PASSED IN O.S.NO.187/2015 ON THE FILE OF
PRINCIPAL CIVIL JUDGE AND JMFC, SAGAR.
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 and I have heard
learned counsel for the appellant.
2. The suit is filed for the relief of permanent
injunction before the Trial Court in O.S.No.187/2015. The
plaintiff had sought for the relief of permanent injunction based
on the sale deed dated 12.12.2005. According to the said sale
deed, the plaintiff has purchased the property and she is in
possession of the suit schedule property and specific pleading
was made that the defendant on 10.07.2015 came with 6-7 of
their workers near the suit schedule property and tried to form
a road on the eastern side of the suit schedule property. Hence,
contend that there is a threat and also interference by the
defendant in enjoyment of the suit schedule property by the
plaintiff and she approached the Court by filing the suit.
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3. In respect of the said claim, the plaintiff examined
herself as P.W.1 and also examined one witness as P.W.2 and
got marked the documents as Exs.P1 to P11, particularly the
documents which have been placed before the Trial Court to
show that the plaintiff is in occupation of the suit schedule
property i.e., tax paid receipts, photographs and CD which are
marked as Exs.P6 to P9.
4. The case of the defendant is that plaintiff is trying
to encroach upon the property i.e., the conservancy which
belongs to the defendant. The Trial Court having considered
both oral and documentary evidence placed on record while
granting the relief of declaration, particularly in paragraph
No.12 made an observation with regard to though defendant
contend that plaintiff is making an attempt to encroach upon
the property i.e., conservancy belonging to the defendant, but
nothing is placed on record to that effect and even not
examined any witness, except cross-examining P.W.2. Hence,
the Trial Court granted the relief of permanent injunction in
respect of the suit schedule property of the plaintiff.
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5. Being aggrieved by the same, an appeal is filed
before the First Appellate Court and the First Appellate Court
having re-assessed both oral and documentary evidence placed
on record, framed the point for consideration with regard to an
application filed under Order 26, Rule 9 of CPC for appointment
of Court Commissioner and also point for consideration is
framed whether the finding of the Trial Court is perverse,
capricious and arbitrary and based without proper appreciation
of evidence.
6. The First Appellate Court having considered these
points for consideration, comes to the conclusion that there is
no need of appointment of any Commissioner and the plaintiff
has only sought for the relief of permanent injunction in respect
of the suit schedule property and also with regard to the
alleged attempt to encroach the property of the defendant is
concerned, nothing is placed on record and while answering
point No.2 with regard to claim of the plaintiff is concerned and
also the contention of the appellant-defendant before the
Court, an observation is made in paragraph Nos.21 and 22 that
admittedly, defendant has not entered into witness box or led
any evidence either oral or documentary evidence before the
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Court and also taken note of the fact that P.W.2 was cross-
examined and it is elicited that on the eastern side of the suit
schedule property, there is conservancy and further elicited
that on the eastern side conservancy and on the western side
road, in between, there is a land and the said land belongs to
the plaintiff and taken note of very existence of the property
and identification of the property of the plaintiff and also
defence with regard to conservancy is concerned and the same
is discussed in paragraph No.23. When the defendant has
suggested P.W.2 that the defendant has not encroached the
suit schedule property, but it is repairing the existing
conservancy for which he has denied the same.
7. It is also observed by the First Appellate Court that
in the instant case, admittedly, there is no dispute with regard
to existence of conservancy road on the eastern side of the suit
schedule property. However, the plaintiff inspite of it, in order
to prove the conservancy road on the eastern side of the suit
schedule property since from the beginning the plaintiff relied
on Exs.P1 to P3, sale deeds. Before discussing about Exs.P1 to
P3, sale deeds, it is necessary to see the schedule of the suit
schedule property and detailed discussion was made with
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regard to measurement is concerned. When such being the
case and considering the material on record, particularly in
paragraph No.26, an observation is made that in the present
case, the defendant though appeared through its advocate and
filed the written statement before the Trial Court and though
the plaintiff has filed the said suit against the defendant, the
defendant has not entered into the witness box and in order to
come to the conclusion that plaintiff made an attempt to
encroach upon the property i.e., conservancy belonging
defendant, nothing is placed on record and having re-assessed
both oral and documentary evidence placed on record, comes
to the conclusion that Trial Court has not committed any error
in granting the relief of permanent injunction. Hence, the
present second appeal is filed before this Court.
8. The learned counsel appearing for the appellant
would vehemently contend suggesting a substantial question of
law that both the Courts were justified in decreeing the suit
without considering Section 284 of Karnataka Municipalities
Act, 1964 and both the Courts, without considering the material
on record and only based on the photographs and in the
absence of any independent material, granted the relief of
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permanent injunction. Having taken note of said contention
taken in the appeal also, no such plea was taken before the
Trial Court, except taking the defence before the Trial Court
that there is a provision for an appeal and Civil Court has no
jurisdiction and when the right of the plaintiff is affected and
when there was a threat of interference for enjoyment of the
property of the plaintiff, a suit is filed and the very contention
that Civil Court has no jurisdiction cannot be accepted.
9. On the other hand, the Trial Court also taken note
of the contention that the defendant took specific defence that
plaintiff is making an attempt to encroach upon the property of
the defendant. But, the same is not substantiated by placing
any oral or documentary evidence and the appellant has not led
any evidence before the Trial Court. When such being the case,
I do not find any ground to admit the appeal and frame any
substantial question of law and no infirmity is found in the
order of the Trial Court and the First Appellate Court. Hence, no
ground to admit the appeal and frame any substantial question
of law.
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10. In view of the discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST
