Karnataka High Court
Sri M Appaji vs H C Shivananjegowda on 27 October, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 962 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.962 OF 2025 (DEC)
BETWEEN:
1. SRI. M. APPAJI,
S/O LATE MOLLEGOWDA,
AGED ABOUT 64 YEARS,
R/O TEACHERS COLONY,
MADDUR TOWN,
MANDYA DISTRICT-571428.
...APPELLANT
(BY SRI. ROOPESHA B., ADVOCATE)
AND:
H.C.SHIVANANJEGOWDA,
S/O LATE CHANNAIAH,
Digitally signed AGED ABOUT 73 YEARS,
by DEVIKA M
R/O TEACHER COLONY,
Location: HIGH MADDUR TOWN.
COURT OF
KARNATAKA
DEAD BY HIS LRS.
1. S. VIMALA,
W/O LATE H.C. SHIVANANJEGOWDA,
AGED ABOUT 63 YEARS,
R/O TEACHERS COLONY,
MADDUR TOWN,
MANDYA DISTRICT-571428.
2. CHIEF OFFICER,
TOWN MUNICIPAL OFFICE,
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RSA No. 962 of 2025
HC-KAR
MADDUR TOWN,
MANDYA DISTRICT-571428.
...RESPONDENTS
(BY SRI. G.M.ANANDA, ADVOCATE FOR R2;
R1 - SERVED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 21.03.2025
PASSED IN R.A.NO.19/2023 ON THE FILE OF SENIOR CIVIL
JUDGE, MADDUR, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DATED 05.07.2023 PASSED IN
O.S.NO.369/2012 ON THE FILE OF II ADDITIONAL CIVIL
JUDGE, MADDUR.
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 appellant and the learned counsel for
respondent No.2.
2. This 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 while
seeking the relief of declaration and injunction in respect of 'C'
schedule property is that the plaintiff is the absolute owner in
peaceful possession and enjoyment of 'A' schedule property
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bearing municipal assessment No.630/675 measuring 60 + 57
x 35, wherein there is a RCC dwelling house and boundary is
also given. The dispute is in respect of the southern side of the
plaint schedule property shown as 'C' schedule property. It is
the contention of the plaintiff that the property was purchased
in the year 1994. The defendant No.1 is the owner in
possession of 'B' schedule property and he had purchased the
same from one S.K. Sujayakantha under the registered sale
deed dated 20.05.1992 and constructed ground floor by
obtaining license from TMC, Maddur and now he is residing
therein. That the vendors of the plaintiff and defendant No.1
are siblings and they formed sites and sold the same to various
persons. That while forming the layouts, the said S.K.
Chandrasekhar and Sujayakantha have left 6 x 200 feet
passage for ingress and egress of public to the layouts formed
by them, but however the said passage was unequal.
Accordingly, towards south of 'A' schedule property and
towards north of 'B' schedule property, there is a 6 feet at
north-south and east-west 50 feet, which is described as 'C'
schedule property. Since the 'A' and 'B' schedule properties are
formed in different layouts, they are not in single alignment
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and there is a 12 feet difference in alignment of sites on the
eastern side. As such, without the 'C' schedule property, the
roads running on the eastern side of suit 'A' and 'B' schedule
properties do not connect with each other and thus the 'C'
schedule property further runs and continues towards the east
and it further connects to eastern side roads as well as vacant
space lying in between 'A' and 'B' schedule properties.
4. It is specifically pleaded that neither the plaintiff nor
defendant No.1 have any exclusive right, title, interest over
the 'C' schedule property. When such is the case, in the
absence of the plaintiff, defendant No.1 has put up a toilet and
compound by encroaching some portion of 'C' schedule
property and now he is extending the same by putting up three
pillars in order to make a first floor of dwelling house.
Therefore, the plaintiff has filed an appeal before the Deputy
Commissioner, Mandya in M.A.No.8/2012 and in the
meanwhile, TMC, Maddur also issued notice to defendant No.1
directing him to stop illegal construction, but defendant No.1
has not stopped its illegal construction and without the aid of
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this Court, the plaintiff cannot resist the illegal acts of
defendant No.1 and hence filed the suit.
5. In pursuance of the suit summons, defendant No.1
appeared and filed the written statement and defendant No.2
though represented through counsel, did not choose to file any
written statement.
6. The main contention of defendant No.1 is that he
had purchased the site property measuring east-west 38 feet
and north-south 30 feet from its original owner and the same
was registered on 20.05.1992 and he is in enjoyment of the
same. It is also his contention that in the year 1998, he had
constructed a residential house after obtaining building licence
and put up compound wall towards east and north of his house
property without any obstruction either by the plaintiff or by
any public at large and now in order to put up first floor on the
ground floor, he moved an application seeking license from
TMC on 28.03.2012, but no license was issued by TMC, the
defendant deemed to have license based on his application, he
has constructed the first floor. It is his case that, while making
construction, no obstruction was made by the plaintiff or
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anybody. Now only with a malafide intention filed the suit. It is
further contented that there is no 'C' schedule property as
alleged and disputed the very existence of 'C' schedule
property. The plaintiff would have questioned the construction
at the time of construction of ground floor and compound wall
during 1998 itself and after lapse of 12 years, the plaintiff has
raised the objection. M.A.No.8/2012 filed by the plaintiff before
the Deputy Commissioner is pending for consideration.
7. Based on the pleadings of the parties, the Trial
Court framed the issue with regard to whether both of them are
not having exclusive right, title in respect of 'C' schedule
property, whether defendant No.1 has encroached some
portion of 'C' schedule property and whether the plaintiff is
entitled for the relief of permanent injunction and mandatory
injunction.
8. The Trial Court considering both oral and
documentary evidence of P.W.1, D.W.1 and D.W.2 and also the
Commissioner evidence, who has been examined as C.W.1,
answered issue Nos.1 to 4 in the affirmative in coming to the
conclusion that both the plaintiff and defendant No.1 have no
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exclusive right over 'C' schedule property and portion of 'C'
schedule property is encroached by defendant No.1 and the
plaintiff is entitled for the relief of permanent injunction and
mandatory injunction. The Trial Court particularly taken note
of the admission on the part of defendant No.1, who has been
examined before the Trial Court. He categorically admits that
the said 'C' schedule property 6 feet passage comes
immediately after his property on the northern boundary. The
Trial Court comes to the conclusion that there is no dispute
with regard to 'A' and 'B' schedule property and only dispute is
in respect of 'C' schedule property and the very contention of
defendant No.1 that 'C' schedule property is not in existence
was answered against him, since he categorically admits that
'C' schedule property passage is in existence immediately after
his property and also comes to the conclusion that a latrine and
compound was constructed in the said 'C' schedule property,
which is a public passage and directed to remove the same.
9. Being aggrieved by the judgment and decree of the
Trial Court, an appeal is filed in R.A.No.19/2023. The First
Appellate Court raised the points for consideration as to
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whether the Trial Court has taken note of stray admission of
D.W.1 and came to the wrong conclusion, whether the Trial
Court has committed an error in granting the relief and whether
it requires interference of the Court. The First Appellate Court
having considered both oral and documentary evidence placed
on record and also the admission that a passage is in existence
i.e., 6 x 38 feet as contented by the plaintiff, comes to the
conclusion that no such passage is mentioned in the sale deed
of either the plaintiff or defendant No.1. The First Appellate
Court also comes to the conclusion that the admission of the
witnesses is very clear that 'C' schedule property is in existence
and that the construction is made in the said passage. The
contention that the admission of D.W.1 is a stray admission
was not accepted as not only once he has admitted the same,
but admitted the same repeatedly with regard to the existence
of the passage and the same comes in between the two sides
on the southern boundary of the plaintiff as well as northern
boundary of the plaintiff and answered the point in the negative
and dismissed the appeal.
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10. Being aggrieved by the concurrent finding, the
present second appeal is filed before this Court.
11. The learned counsel for the appellant before this
Court would vehemently contend that with regard to the
existence of 'C' schedule property, no documentary evidence is
placed before the Court either by the competent authority or by
the plaintiff and the plaintiff has not substantiated the same,
but the Courts below only on the admission made by defendant
No.1 decreed the suit. The learned counsel contend that when
the plaintiff seeks the relief of declaration and injunction, there
cannot be any reliance on the weakness on the part of
defendant No.1. The learned counsel contend that both the
Courts were not justified in decreeing the suit without
ascertaining the boundaries mentioned in the sale deeds at
Ex.P.1 and Ex.D.1 and the decree passed only on the basis of
stray admission is not sustainable and hence this Court has to
frame the substantive question of law.
12. Per contra, the learned counsel for respondent
No.2, who appears on behalf of the Chief Officer, Town
Municipal Office, submits that the Engineer of the TMC of
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Maddur was appointed as the Court Commissioner and he
visited and inspected the property and found the encroachment
made by the owner of the 'B' schedule property in between the
property of the plaintiff and defendant No.1 and submitted the
report. Though the report is not marked before the Trial Court,
but the Commissioner was examined before the Trial Court and
the sketch prepared by the Commissioner also clearly discloses
that there is an encroachment by defendant No.1 and the same
is taken note of by the Trial Court and passed an order and
hence it does not require any interference.
13. In reply to the arguments of the learned counsel for
respondent No.2, the learned counsel for the appellant relied
upon the judgment of this Court in the case of NARASIMHA
SHASTRY v. MANGESHA DEVARU reported in ILR 1988
KAR 554, wherein it is held that in ascertaining actual area
sold, recitals as to boundaries should prevail. It is further held
that it has been held that where the sale deed mentioned the
boundaries specifically and clearly to identify the property, the
actual extent of the land not being clear, the recitals as to
boundaries should prevail. The learned counsel relying upon
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this judgment would contend that the boundaries will prevail.
Apart from that, the learned counsel would contend that
regarding excess land between the plaintiff and defendant
No.1, the appellant had entered into an unregistered document
with the owner. The specific pleading is made and also the
evidence is also led to that effect and the same has not been
considered. The learned counsel would contend that with
regard to the existence of the said passage, there is no any
records in the corporation also.
14. Having heard the learned counsel for the appellant
and the learned counsel for respondent No.2, the Court has to
take note of the pleadings of the parties and also the evidence
produced by the parties before the Court. The specific case of
the plaintiff before the Trial Court is that two layouts are
formed by the siblings of the original owners and defendant
No.1 had purchased a site measuring 30 x 38 feet and not from
the layout of the plaintiff and for the plaintiff's site,
measurement is mentioned clearly. In between the two
layouts, a passage of 6 x 200 feet is left for the convenience of
the public. It is the specific case of the plaintiff that defendant
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No.1 encroached some portion of the said 6 feet of passage,
which is kept for the public use and constructed a latrine and a
compound. It is also the specific case of the plaintiff that at the
time of constructing the first floor, the same was questioned
and even inspite of a petition was filed before respondent No.2
herein, no action was taken and the said petition was also
pending, but defendant No.1 continued the same and there was
an existence of latrine and compound in the said passage. The
plaintiff in order to prove her case, examined herself as P.W.1
and got marked the documents at Exs.P.1 to 57. The filing of
M.A.No.8/2012 is also marked and so also notice of TMC dated
12.04.1999, subsequent mahazar dated 11.05.2012, certified
copy of the letter, notice dated 31.07.2012, letter issued by
the DC, Mandya, letter issued by the Chief Officer, TMC,
Maddur is also placed on record. On the other hand, defendant
No.1 examined himself as D.W.1 and examined one witness as
D.W.2 and relied upon the documents at Exs.D.1 to 3 i.e.,
original sale deed, tax assessment extract and application for
licence. The plaintiff also relies upon his sale deed at Ex.P.1
and property assessment extract and building licence, which he
had obtained for construction on 07.11.2001.
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15. Having taken note of both oral and documentary
evidence placed on record, the Trial Court comes to the
conclusion that neither the plaintiff nor defendant No.1 claims
any title in respect of the said passage of 6 feet, which is in
existence. The defendant No.1 in the written statement denied
the existence of such 6 feet passage. It is not in dispute that
the Commissioner was appointed before the Trial Court and the
Commissioner gave the report with regard to the fact that there
is an encroachment by defendant No.1 in between the property
of the plaintiff and defendant No.1. Apart from that, the
Commissioner was also examined before the Trial Court and
there is no dispute with regard to 'A' and 'B' schedule
properties and the same is also observed by the Trial Court. It
is important to note that the plaintiff filed an appeal before the
Deputy Commissioner, Mandya, in M.A.No.8/2012 and the
same was not adjudicated. The Trial Court taken note of both
oral and documentary evidence available on record, particularly
the admission on the part of D.W.1, though he denies that no
such property is in existence between 'A' and 'B' schedule
properties, but categorical admission is given that 'C' schedule
6 feet passage is in existence towards the northern side of his
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site, that means, on the southern side of the plaintiff's 'A'
schedule property. The plaintiff posed a question to D.W.1
during the course of cross-examination that due to
encroachment made by defendant No.1, the municipal
authorities could not have formed any drainage. But D.W.1
once again admits that for 6 feet encroachment made by him,
municipality cannot form any drainage and also there was no
any chance of making any drainage in view of he had
constructed the same. A specific answer was also given that 'C'
schedule property is in existence after his 30 feet purchased
property. The same was taken note of by the Trial Court.
16. The First Appellate Court re-assessed both oral and
documentary evidence placed on record while considering the
case of the appellant, since the appellant contended that the
admission given by D.W.1 is a stray admission. Having
considered the admission of D.W.1, the same is not a stray
admission as contended by the learned counsel for the
appellant. No doubt, it is the argument of the learned counsel
for the appellant that the plaintiff cannot depend on the
weakness of the defendant. Here is not a case of weakness
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and it is the specific case of the plaintiff that in between 'A'
schedule property and 'B' schedule property, there is a passage
and the same is shown as 'C' schedule property. Though
defendant No.1 denies the same, but in the cross-examination,
he categorically admits the said passage. The fact is that the
Commissioner visited the spot and gave the report that in
portion of the said passage, defendant No.1 had constructed
the latrine and compound. When such material is taken note of
by the Trial Court and the First Appellate Court, the very
contention of the learned counsel for the appellant that there
cannot be any decree of declaration and injunction when the
plaintiff has not proved the same, cannot be accepted.
17. It is important to note that the plaintiff pleaded
specifically that there is a passage and the main contention of
the learned counsel for the appellant is that no records are
maintained by the Municipality with regard to the existence of 6
feet passage. But the fact is that there is a space between 'A'
and 'B' schedule properties. Though the same is denied by
defendant No.1, the same is proved by sending the
Commissioner and the Commissioner also gave the report,
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wherein it is categorically mentioned that there is an
encroachment made by defendant No.1. When the public
passage is in existence in between 'A' and 'B' schedule
properties, the very contention of the learned counsel for the
appellant cannot be accepted.
18. The other contention of the learned counsel for the
appellant is that both the Courts have committed an error in
not considering the material available on record and both the
Courts are not justified in decreeing the suit without
ascertaining the boundaries mentioned in Ex.P.1 and Ex.D.1.
No doubt, both of them are not claiming any right based on
Ex.P.1 and Ex.D.1. During the course of evidence during the
trial, when it is emerged that there is an existence of a
passage, defendant No.1 is also not having any exclusive right.
The learned counsel for the appellant would submit that he had
obtained an unregistered document in respect of the same and
the same is not placed before the Trial Court. An unregistered
document will not confer any right in favour of defendant No.1.
The claim of defendant No.1 that through an unregistered
document he got right, is very clear that he had encroached
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upon the said passage and put up the latrine and compound
and the same is taken note of by the Trial Court and the First
Appellate Court. When such being the case, I do not find any
error committed by the Trial Court and the First Appellate Court
in appreciating the evidence available on record and in the
absence of any perversity in coming to such a conclusion, the
question of admitting the second appeal does not arise. Both
the Courts have taken note of factual aspect as well as the
question of law. Hence, I do not find any ground to admit and
frame any substantial question of law.
19. The learned counsel for the appellant also relied
upon the judgment of this Court in the case of Narasimha
Shastry (supra) with regard to the boundaries should prevail.
In the case on hand, it is not the case of defendant No.1 before
the Trial Court that 'C' schedule property is included in his sale
deed and hence the said judgment is not applicable to the facts
of the case on hand. It is his specific case that the said area is
also purchased by him through an unregistered document. The
boundaries of Ex.P.1 and Ex.D.1 are very clear with regard to
the extent what they have purchased and when such being the
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case, the judgment of this Court that boundaries will prevail will
not come to the aid of the appellant. It is not the specific case
of defendant No.1 that the boundary, which is shown in Ex.D.1
includes 'C' schedule property and hence this judgment will not
come to the aid of the appellant.
20. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MD
