[Cites 14, Cited by 0]
Karnataka High Court
Shri Innayathulla vs Sri Shameem Ahmed on 20 February, 2026
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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RSA No. 1503 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 1503 OF 2025 (INJ)
BETWEEN:
SRI INNAYATHULLA,
S/O LATE ABDUL SHUKOOR,
AGED ABOUT 54 YEARS,
R/A KOMBAGUDDE,
MALLAR VILLAGE AND POST,
UDUPI TALUK,
UDUPI DISTRICT - 576 101.
...APPELLANT
[BY SRI PRADEEP KUMAR R H., ADVOCATE (PH)]
AND:
1. SRI SHAMEEM AHMED,
Digitally signed by
GEETHAKUMARI S/O SABU SAHEB,
PARLATTAYA S AGED ABOUT 54 YEARS,
Location: High R/A KOMBAGUDDE,
Court of MALLAR VILLAGE AND POST,
Karnataka UDUPI TALUK,
UDUPI DISTRICT - 576 101.
LATE AMEER ADAM,
(SINCE DECEASED IS REP BY LRs FROM 2 TO 7)
2. SMT. NOORUNISSA,
AGED ABOUT 62 YEARS,
3. SRI PARVEZ,
AGED ABOUT 43 YEARS,
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RSA No. 1503 of 2025
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4. SRI FAZILATH,
AGED ABOUT 41 YEARS,
5. SMT. FARIYAL BANU,
AGED ABOUT 36 YEARS,
6. SMT. FAMIA BANU,
AGED ABOUT 39 YEARS,
7. SRI MOHAMMED FAZIL,
AGED ABOUT 32 YEARS,
NO. 2 TO 7 ARE R/A AA MANZIL,
NEAR KOMBAGUDDE MAZID,
MALLAR VILLAGE,
KAUP TALUK,
UDUPI DISTRICT - 576 101.
...RESPONDENTS
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT
AND DECREE DATED 26.06.2025 PASSED IN RA NO.48/2024 ON THE
FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND ACJM,
UDUPI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 28.06.2024 PASSED IN OS NO.412/2015 ON
THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, UDUPI.
THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI
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RSA No. 1503 of 2025
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ORAL JUDGMENT
Challenging judgment and decree dated 26.06.2025
passed by II Additional Senior Civil Judge and ACJM, Udupi, in
RA no.48/2024 and judgment and decree dated 28.06.2024
passed by Principal Civil Judge and JMFC, Udupi, in OS
no.412/2015, this second appeal is filed.
2. Sri RH Pradeep Kumar, learned counsel for
appellant submitted, appeal was by plaintiff in OS no.412/2015
filed for mandatory injunction directing defendant no.1 to
surrender vacant possession of North-Eastern portion of plaint
'A' schedule property ('suit property', for short) by removing
encroachment and construction made thereon within time to be
fixed by Court etc.
3. It was submitted, in plaint, it was stated, suit
property originally belonged to Rathnakar Shetty of Mallaru
village and plaintiff purchased it from him under registered Sale
Deed dated 18.08.2005 and after obtaining building licence,
plaintiff constructed house bearing Door no.2-56 in it and was
in lawful possession. It was further stated, on South-Western
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side of suit property, there existed PWD road running from
Kaup to Shirva. And defendant no.1 had purchased property
through defendant no.2 on North-Eastern side of suit property,
behind plaintiff's house, who had knowledge about existence of
4 cents of property of plaintiff and yet assisted him in putting
up compound wall. Thereafter, defendant no.1 had constructed
a house on North-Eastern side of suit property without leaving
any set-back on four sides as prescribed and in course of same
had encroached on plaintiff extent of 4 cents on North-Eastern
side of plaint 'A' schedule property.
4. And when defendant no.1 was questioned on
encroachment, same was denied. Therefore, plaintiff got
measured his property through Surveyor, which revealed
encroachment of 4 cents belonging to plaintiff. Despite demand
to demolish construction on encroached portion, defendant no.1
failed to comply. On other hand, defendant erected PVC pipe
connection on South-Eastern side of his house for draining
rainwater and caused water to fall upon wall/premises of
plaintiff causing inconvenience and damage. A representation
was submitted before PDO, Mallaru Panchayat seeking action,
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but no steps were taken. Hence, stating that cause of action
arose on 03.07.2015 and subsequently, when defendant no.1
refused to remove alleged encroachment, suit was filed.
5. On appearance, defendants filed written statement
denying plaint averments. Defendant no.1 stated, that he was
bonafide purchaser of 'B' schedule property and disputed
correctness of description and boundaries of suit property. He
asserted that he had validly purchased property under
registered Sale Deed from defendant no.2 and was put in
possession and was in peaceful possession and enjoyment of
same without interference, since then. He denied encroachment
on plaintiff's property and stated that before commencement of
construction he had got his property measured and put up
compound wall. It was stated that construction of house was
within extent owned/possessed by defendant no.1.
6. Defendant no.1 also denied allegation about
construction without set-back and stated, it was accordance
with law. He also denied allegation that defendant no.2 assisted
him in encroachment. Denying erection of PVC pipes and
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causing rainwater to fall upon plaintiff's property, it was stated
drainage arrangement was within his property without causing
damage or inconvenience to plaintiff. Alleging suit was false
and vexatious, sought for its dismissal.
7. In his separate written statement, defendant no.2
admitting extent of 62 cents in Sy.no.23/4-P4 situated at
Mallaru village, Udupi Taluk, situated on North-Eastern side of
plaintiff's house was sold to defendant no.1 under registered
Sale Deed. He also admitted existence of Kaup to Shirva PWD
road on South-Western side of suit property.
8. Defendant no.2 denied allegation about assisting
defendant no.1 in encroaching plaintiff's property. He stated
title and possession of property as per boundaries and extent
mentioned in Sale Deed was conveyed and possession
delivered and he had no knowledge of any encroachment or
dispute between plaintiff and defendant no.1.
9. Based on pleadings, trial Court framed following:
ISSUES
1. Whether the plaintiff proves that, defendant
had constructed the residential building
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without leaving a set back on the four side
of the building as prescribed by the
Panchayath norms?
2. Whether the plaintiff further proves after
measuring the property he found that
defendant No.1 has encroached the 4 cents
of land on the north eastern side of the
plaint 'A' schedule property?
3. Whether the plaintiff further proves that
defendant No.1 had erected a water PVC
pipe connection on the south-eastern side of
his house to enable the water to go out from
his property?
4. Whether the plaintiff is entitled for the relief
of Mandatory Injunction as prayed for?
5. What order or decree?
Addl. Issue framed on 10-08-2021:
1. Whether the plaintiff is entitled for vacant
possession as prayed?
10. In trial, plaintiff examined himself and two others
as PWs.1 to 3 and got marked Exhibits P1 to P9. On behalf of
defendants, defendant no.1 examined himself as DW.1 and got
marked License issued by Mallar Gram Panchayat as Exhibit-
D1.
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11. On consideration, trial Court answered issues no.1
to 4 and additional issue no.1 in negative and issue no.5 by
dismissing suit with cost.
12. Aggrieved, plaintiff filed RA.no.48/2024 on various
grounds, based on which first appellate Court framed following:
POINTS
1. Whether the Appellant prove that defendant
had constructed the residential building
without leaving a set back by encroaching 4
cents of land on the north eastern side of
the plaint 'A' schedule property and also put
up PVC pipe connection on the south-
eastern side of his house to enable the
water to go out from his property?
2. Whether the judgment and decree requires
to be interference by this Court?
3. What order or decree?
13. On consideration, first appellate Court answered
points no.1 and 2 in negative and point no.3 by dismissing
appeal and confirming judgment and decree passed by trial
Court. Aggrieved thereby, plaintiff had filed this appeal.
14. At outset, learned counsel submitted, both Courts
failed to properly appreciate pleadings oral and documentary
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evidence. It was submitted, both Courts erred in discarding
Court Commissioner's Report and Sketch in violation of Order
XXVI Rules 9 and 10 of CPC, by relying on decision of this Court
in Shadaksharappa v. Kumari Vijayalaxmi reported in
2023:KHC-K:494, wherein it was held when objections are
filed to Commissioner's Report, Court is required either to
examine Commissioner or appoint fresh commission. Reliance
was also placed on decision in Mohammed Abdulla v. R.
Mune Gowda reported in 2024:KHC:2102 for proposition that
once brought on record, Report submitted under Order XXVI
Rule 9 CPC constitutes substantive evidence.
15. It was further submitted, first appellate Court failed
to re-appreciate evidence and record independent findings. It
was stated, first appellate Court merely reproduced abstract
principles under Sections 58 and 101 to 103 of Evidence Act
without assigning clear reasons in violation of mandate of Order
XLI Rule 31 CPC as held by Hon'ble Supreme Court in Santosh
Hazari v. Purushottam Tiwari reported in (2001) 3 SCC
179 and H. Siddiqui v. A. Ramalingam reported in (2011) 4
SCC 240.
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16. It was submitted, both Courts erred in dismissing
suit merely on ground that plaint alleged encroachment of 4
cents whereas Commissioner's Report found encroachment of
only 1.75 cents, without examining possibility of moulding of
relief to extent of encroachment proved, which was in violation
of ratio laid down by Hon'ble Supreme Court in Ganesh
Trading Co. v. Moji Ram reported in (1978) 2 SCC 91 and
Ramesh Chand Ardawatiya v. Anil Pajwani reported in
(2003) 7 SCC 350, wherein it was held relief may be moulded
based on evidence available.
17. Reliance was also placed on decision in case of
Hero Vinoth v. Seshammal reported in (2006) 5 SCC 545
to contend that perversity and misapplication of legal principles
warrant interference in second appeal.
18. It was submitted, reliance on decision in case of
Dorab Cawasji Warden v. Coomi Sorab Warden reported in
(1990) 2 SCC 117, by trial Court established mis-application
of law as said decision is authority for proposition about grant
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of interim mandatory injunction while adjudicating final relief
after trial.
19. Reliance was also placed on decision in case of Sri
Biswanath Banik v. Sulanga Bose reported in (2022) 7
SCC 731, wherein it was held that in cases of encroachment
and injunction, cause of action arises upon disturbance to
possession.
20. In light of above grounds, learned counsel
submitted following substantial questions of law would arise
and prayed for allowing appeal by answering same in favour of
appellant.
"SUBSTANTIAL QUESTIONS OF LAW:
a) Whether both Courts failing to properly appreciate
evidentiary value of Court Commissioner's Report,
rendering their findings perverse?
b) Whether first appellate Court failed to follow
mandate under Order XLI rule 31 of CPC as held in
Santosh Hazari's case?
c) Whether both Courts erred in dismissing suit in
entirely instead of moulding relief to extent of 1.75
cents?
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21. Heard learned counsel, perused impugned
judgment and decree passed by both Courts.
22. As noted above, this appeal under Section 100 of
CPC is by unsuccessful plaintiff against concurrent findings in
suit for mandatory injunction.
23. Plaintiff's case before trial Court was that he was
owner of 18 cents of land in Sy.no.23/4P4 of Malluru village
having purchased it under Ex.P3 - registered sale deed. He
stated that he had constructed house therein leaving 4 cents
vacant on North-Eastern side. He further stated, defendant
no.1 purchased 62 cents of land in Sy.no.23/4P4 on North-
Eastern side of plaintiff's property. He further stated that said
purchase was facilitated by defendant no.2, who was aware of
4 cents of vacant land of plaintiff, but alleges that defendant
no.2 assisted defendant no.1 in putting up compound wall
including plaintiff's 4 cents vacant land. It was further stated
that defendant no.1 put up construction by encroaching on 4
cents of plaintiff's land, without leaving any set-back.
Thereafter he installed PVC pipe-line for discharging rainwater
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on plaintiff's wall/property which would cause damage and
inconvenience to plaintiff and as defendant no.1 refused to
remove encroachment, he filed suit.
24. Suit was opposed by defendant no.1 denying
existence of 4 cents vacant land belonging to plaintiff on North-
Eastern side of suit property and also denying encroachment.
Boundary description of suit property was disputed as incorrect.
Defendant no.1 claimed to have purchased 62 cents of land in
Sy.no.23/4P4 of Mallaru village, obtained building license and
put-up construction within confines of his property. Defendant
no.2 denied not only knowledge of existence of 4 cents of
plaintiff's property but also denied assisting defendant no.1 in
encroachment.
25. Thus from pleadings, it is evident that there is no
dispute between parties about purchase of land by respective
parties and their title over same. Dispute was mainly whether
defendant no.1 had encroached on 4 cents of plaintiff's
property on its North-Eastern side, whether defendant had put-
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up construction therein and whether plaintiff was entitled for
vacant possession of same.
26. It is seen that in trial, plaintiff examined himself
and another as PWs.2 and 3. He got marked title deed as
Ex.P3, building license, Record of Rights, complaint for removal
of encroachment and photographs as Exs.P4 to P9. Defendants
however led only documentary evidence, producing building
license as Ex.D1.
27. While passing impugned judgment and decree, trial
Court adverted to oral and documentary evidence. It noted,
assertion by plaintiff in plaint para 2 that there existed PWD
road on South-West side of property and defendant no.1
purchased property existing on back side of plaintiff's house.
Referring to allegation of erection of PVC pipes on South-
Eastern side to drain rainwater on plaintiff's wall and plaintiff's
property, it observed, plaintiff's allegation was about
encroachment on North-Eastern side and interference on
South-Eastern side.
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28. It observes, admission by plaintiff (as PW.2) that at
time of purchase of property, he did not enquire about
boundaries of property and that he was not physically present
at time of possession. It also refers to admission about extent
of encroachment by defendant no.1 was 1.75 cents and not 4
cents as stated in plaint. Trial Court further referred to
admission that he was not aware when his property was
encroached and that he did not have any documents to
establish that defendant encroached on 4 cents of his land. It
also referred to inconsistencies in deposition of PW.3 about
extent of encroachment as well as when it was encroached.
29. It also refers to report of Court Commissioner,
which showed encroachment of 1 ¾ th cent of plaint schedule
'A' land by defendant no.1. It however noted objections of
plaintiff against Commissioner's report and referring to decision
in Shadaksharappa's case (supra), concluded that there was
no compulsion to examine Commissioner and holding that only
if it was dissatisfied with report, it may direct further enquiry.
On said conclusion, it answered issue no.1 in negative. While
answering issues no.2 and 3, it noted that unlike plaintiff's
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claim that on private survey, he found defendant had
encroached 4 cents of his land, plaintiff failed to produce such
report. It also noted, admission about construction having
begun in year 2005 and putting up of sheets in year 2008
without any objection. On noting absence of objections as well
as failure to establish encroachment of 4 cents, it answered,
issues no.2 and 3 in negative. As a consequence, it answered
additional issue no.1 regarding entitlement of plaintiff for
vacant possession of suit property in negative and dismissed
suit.
30. First appellate Court, on independent re-
appreciation by extracting and referring to admissions,
concurred with trial Court findings. Referring to various
decisions of this Court, it held burden lie on party seeking
reliance on Commissioner's report to establish its correctness,
endorsed overlooking of report and by concluding failure on
part of plaintiff to establish encroachment of 4 cents of
plaintiff's land, dismissed appeal. Thus, while passing impugned
judgment, both Courts have adverted to entire material on
record and arrived at concurrent finding of fact about failure of
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plaintiff to establish encroachment of 4 cents of his land by
defendant no.1.
31. Though learned counsel for plaintiff vehemently
contended that both Courts erred in not moulding relief to
extent of 1.75 cents encroachment reported by Court
Commissioner, it is seen that plaintiff himself filed objections
against Commissioner's report and did not seek for examining
Commissioner as witness. Moreover, there is failure to seek for
amendment of plaint even after receipt of Commissioner's
report. Thus, plaintiff having continued to assert extent of
encroachment by defendant no.1 at 4 cents and having failed
to establish same, findings would be in accordance with law.
32. As no substantial questions of law would arise for
consideration, no grounds to admit appeal. It is dismissed.
Sd/-
(RAVI V HOSMANI)
JUDGE
GRD/AV
