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Karnataka High Court
Smt Vijayamma vs Shivakumar D on 2 February, 2026
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY, 2026
PRESENT
THE HON'BLE MRS. JUSTICE ANU SIVARAMAN
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
REGULAR FIRST APPEAL NO.1322 OF 2022 (DEC/POS)
BETWEEN:
SMT. VIJAYAMMA
W/O MUNIRAJU
AGED ABOUT 64 YEARS
R/AT NO.27-28, 11TH CROSS,
RACHENAHALLI, HEGGADE NAGARA
A.C.POST, BENGALURU-560 045.
... APPELLANT
(BY SRI. MANJUNATH G. KANDEKAR, ADV.,)
AND:
1. SRI. D. SHIVAKUMAR
S/O DAKSHINA MURTHY
AGED ABOUT 74 YEARS
R/AT NO.8,
AMARAJYOTHI LAYOUT,
VIJAYANAGAR
BANGALORE-560 040.
2. SMT. SHAILA MARY
D/O MUNIRAJU
W/O SURESH
AGED ABOUT 42 YEARS,
R/AT NO.27,
RACHENAHALLI VILLAGE
HEGGADE NAGARA,
2
K R PURAM HOBLI,
BENGALURU EAST TALUK
BENGALURU-560 045.
3. THE MINISTRY OF COMMUNICATION EMPLOYEES
CO-OPERATIVE HOUSING SOCIETY LTD.,
HAVING ITS OFFICE AT NO.33
SERPENTINE ROAD,
KUMARA PARK WEST EXTENSION
BENGALURU-560 020.
...RESPONDENTS
(BY SRI. B.V.KRISHNA, ADV., FOR
SRI. PRASHANTH CHANDRA S.N., ADV., FOR C/R1;
SRI/SMT. L.M.SOWRABA JEEVALA, ADV., FOR R2
SRI. K.P. THRIMURTHY, ADV. FOR R3)
THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER
XLI RULE 1 OF THE CPC, 1908, AGAINST THE JUDGMENT AND
DECREE DATED 14.06.2022 PASSED IN O.S.NO.26133/2018 ON
THE FILE OF XXVI ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE AT MAYOHALL, BENGALURU (CCH-20) DECREEING THE
SUIT FOR DECLARATION AND INJUNCTION AND POSSESSION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 06.01.2026 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU SIVARAMAN
J., PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN
and
HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
3
CAV JUDGMENT
(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)
This Regular First Appeal is filed by defendant No.1 in
O.S.No.26133/2018 assailing the judgment and decree
dated 14.06.2022 passed by the XXVI Additional City Civil
and Sessions Judge at Mayo Hall, Bengaluru (CCH-20) ('trial
Court' for short), decreeing the suit for absolute ownership
over suit schedule - B property, mandatory injunction to
demolish construction and vacate possession of the said
property.
2. We have heard Shri. Manjunath G. Kandekar,
learned counsel appearing for the appellant. Shri. B.V.
Krishna, learned counsel appearing for respondent No.1 and
Shri. K.P. Thrimurthy, learned counsel appearing for
respondent No.3.
3. For the sake of convenience, the parties are
referred to as per the rankings before the trial Court.
4. The plaint averments are as follows:-
The plaintiff is the absolute owner of the plaint
schedule - A property, having purchased the same vide
registered Sale Deed dated 16.08.2004 from defendant No.3
along with the owners of the land. Due to an error in the
measurements, a registered Rectification Deed dated
08.02.2006 was executed by defendant No.3, rectifying the
measurements of the plaint schedule - A property.
Consequent thereto, the khatha of the property was
transferred in the name of the plaintiff and has been paying
property taxes regularly. The plaintiff constructed a
compound wall around plaint schedule - A property.
Defendants No.1 and 2, having no manner of right,
title and interest in the plaint schedule - A property,
unlawfully encroached upon the eastern portion of the said
property to an extent of 728 sq.ft., which portion is
described as plaint schedule - B property. The plaintiff
became aware of the encroachment in June 2018, when
defendants No.1 and 2 demolished the compound wall on
the eastern portion of the plaint schedule - A property. Upon
questioning defendants No.1 and 2, they claimed ownership
over the said portion and refused to furnish any title
documents in respect of plaint schedule - B property.
Subsequently, the plaintiff obtained an Encumbrance
Certificate dated 06.08.2018 in respect of plaint schedule - A
property, which revealed the execution of a Gift Deed dated
15.03.2014 by defendant No.1 in favour of defendant No.2.
On being aware of the said Gift Deed being cancelled, the
plaintiff again applied for an Encumbrance Certificate, which
disclosed the execution of a Cancellation Deed. Certified
copies of both the Gift Deed and Cancellation Deed were
obtained and a bare perusal of the same clearly reveals that
the properties therein are entirely different from both plaint
schedule - A and B properties.
The plaintiff issued a legal notice dated 29.06.2018 to
the Registrar of Co-operative Societies and also lodged a
complaint with the jurisdictional police on 20.08.2018.
However, no action was taken by the police on the ground
that the dispute was civil in nature.
In the meanwhile, defendants No.1 and 2 proceeded to
demolish the compound wall on the eastern side of plaint
schedule - A property and commenced construction activities
on the encroached portion. Despite having no right, title or
interest in plaint schedule - B property, defendants No.1 and
2 are unlawfully encroaching and putting up a construction
upon plaint schedule - B property belonging to the plaintiff.
Aggrieved by the acts of defendants No.1 and 2, the
plaintiff had filed a suit seeking a declaration that the
plaintiff is the absolute owner of the plaint schedule - B
property, a mandatory injunction directing defendants No.1
and 2 to demolish the construction put up and a direction to
hand over the vacant possession of plaint schedule - B
property to the plaintiff.
5. In response to the suit summons, defendants
No.1 to 3 appeared before the trial Court. Defendant No.3
filed the written statement admitting that the plaintiff is the
owner of plaint schedule - A property and denied the
knowledge about the plaintiff's construction of the compound
wall and encroachment made by defendants No.1 and 2 to
the extent of 728 sq.ft.
6. Defendant No.1 filed a written statement
contending that she is the absolute owner of the property
bearing Sites No.27 and 28 in HL No.111, measuring East to
West 80 feet and North to South 30 feet, in all measuring
2400 square feet situated at Rachenahalli Village, Hegde
Nagar, Bengaluru South Taluk. The said property was
purchased from Shri. Munivenkatappa by Sale Deed dated
26.07.1999 and defendant No.1 was in possession of the
said property. It is contended that the plaintiff attempted to
dispossess her from her property and she had to file
O.S.No.26106/2018, but the same was taken back as not
pressed. It is further stated that she had filed
O.S.16359/2004 and obtained permanent injunction against
the plaintiff and that she had not encroached into the
plaintiff's property or created any mischief as alleged.
7. Defendant No.2, being the daughter of defendant
No.1 adopted the written statement of defendant No.1.
8. In support of the plaintiff's case, the plaintiff
examined himself as P.W.1 and got marked 42 documents as
Exs.P1 to P42. The defendants neither lead any oral
evidence nor produced any documents in support of the
defence taken.
9. The trial Court based on the pleadings framed the
following issues for consideration:-
"1. Whether the plaintiff proves the ownership over the
suit schedule 'B' property?
2. Whether the plaintiff is entitled to the mandatory
injunction to demolishing the construction put up
on the suit schedule 'B' property?
3. Whether the plaintiff is entitled to the possession of
the suit schedule 'B' property?
4. Whether the plaintiff has made out cause of action
for the suit?
5. Whether the plaintiff is entitled for the reliefs
sought for?"
10. The trial Court on perusal of the documents on
record, observed that in all the earlier suits filed by
defendant No.1, she had sought only reliefs of injunction in
respect of properties entirely different from the plaint
schedule properties. Although defendant No.1 claimed
possession and enjoyment of her property, her contention
was that the plaintiff was attempting to dispossess her. In
none of the suits did defendant No.1 identify or include the
plaint schedule - B property so as to establish her
possession over the encroached portion.
11. During cross examination of PW.1, defendant
No.1 herself suggested that the plaintiff had executed a
Rectification Deed with the original owner, Munivenkatappa,
and further suggested that the plaintiff's property bearing
Site No.9/4 is situated far away from her properties in Sites
No.27 and 28, and the same has been admitted by her.
Despite cross examining PW.1, defendant No.1 neither
entered the witness box nor adduced any evidence or
produced documents to demonstrate that her properties,
that is, Sites No.27 and 28 are adjacent to the plaint
schedule property, that is, Site No.9/4. The plaintiff, on the
other hand, produced all the relevant documents pertaining
to plaint schedule - A and B properties and pertaining to
various suits filed by defendant No.1. These documents
established that the plaintiff's property and the property
claimed by defendant No.1 are not adjacent. The trial Court
further found that defendants No.1 and 2 without any right
or title had encroached upon the plaintiff's property,
demolished the compound wall erected by the plaintiff on
plaint schedule - A property and occupied plaint schedule - B
property to the extent of 728 sq.ft and raised a construction
thereon.
12. Defendant No.1's contention that the plaintiff is
interfering with her possession, was not proved that the
plaintiff's property is situated in any of the boundaries of her
property in order to show that the plaintiff has encroached
her property. The description of the suit property in Ex.P42
was found to be consistent with the rough sketch and plan
annexed thereto at Ex.P6. Defendant No.1 having failed to
cross-examine PW.1 on the documents produced, and that
defendant No.1 has failed to prove that the plaintiff has
interfered with any portion of her property.
13. The trial Court held that the plaintiff has proved
that he is the absolute owner of the plaint schedule - B
property and established the construction raised thereon by
defendants No.1 and 2 after demolishing the compound wall.
Accordingly, issues No.1 to 5 were answered in the
affirmative. The suit was decreed with costs, declaring that
the plaintiff as the owner of the plaint schedule - A property
and directing defendants No.1 and 2 to demolish the
construction put up on the plaint schedule - B property and
to hand over the vacant possession of the same to the
plaintiff.
14. The learned counsel appearing for the
appellant/defendant No.1 contended that the appellant is the
owner of property bearing No.27 and 28, HL No.111 situated
at Rachenahalli Village, K.R.Puram Hobli, Hegde Nagar,
Bengaluru purchased from her vendor Munivenkatappa. The
property in respect of which plaintiff claimed relief as well as
the description of the property including the number is
entirely different. However, the trial Court failed to consider
this aspect. It is contended that subsequent to the Sale
Deed dated 26.07.1999, defendant No.1 got a Khatha in
respect of her property and constructed a dwelling house
therein. The location of the property of defendant No.1 and
the plaintiff are different. Therefore, it is contended that the
trial Court relied only on the plaintiff's Sale Deed while
brushing aside the defendant No.1's Sale Deed, residential
construction, Khatha entries and sanctioned building plan. It
is further contended that the trial Court failed to consider
the fact that the property of defendants No.1 and 2 is
neither situated adjacent to property claimed by the plaintiff
nor the boundaries reflected in the Sale Deed and the
boundaries of the defendants is not one and the same.
15. It is further contended that the trial Court did not
consider the judgment and decree in O.S.No.16359/2004,
wherein, defendant No.1's possession was protected.
Further, the details of defendant No.1's property established
through Ex.P32, under which, she purchased the property on
26.07.1999, and further affirmed by the judgment and
decree in O.S.No.16359/2004. It is further contended that
the plaintiff's suit schedule - A and B properties are entirely
different from defendant No.1's property. Therefore,
defendant No.1 could not have encroached upon the
plaintiff's property.
16. The learned counsel appearing for respondent
No.1, on the other hand, contended that the property of
respondent No.1 herein, that is, the plaintiff was admittedly
comprised in Sy.No.111 situated at Rachenahalli Village,
K.R. Puram Hobli. The plaintiff had purchased the property
vide registered Sale Deed dated 16.08.2004, which was
marked as Ex.P1. The document clearly shows that sites had
already been formed and the property purchased was Site
No.9/4 in Khatha No.1383 situated at Rachenahalli Village.
On noticing a mistake in the measurement of the Site, a
Rectification Deed was executed on 08.02.2006, wherein,
the correct measurements of the Site are shown as being 54
+ 58/2 from East to West and 40 + 45/2 from North to
South, totally measuring 2,380 square feet and being
bounded on the East by Site No.9/6, West by Road, North by
Site No.9/5 and South by Site No.9/3. It is contended that
Ex.P6-Layout Plan of the Shivaram Karanth Nagar had also
been produced where the exact location of the site
purchased by the plaintiff is shown.
17. It is stated that defendant No.1 owns no property
in Survey No.111 or in the vicinity of the property of the
plaintiff and that she has absolutely no claim to put up any
construction in suit schedule - B property, which is a part of
the property purchased by the plaintiff by Ex.P1. It is further
submitted that defendant No.1 had not produced any
documents and that even the Sale Deed under which
defendant No.1 claimed had been produced by the plaintiff
as Ex.P32. It is submitted that what is conveyed by Ex.P32
is that all the piece and parcel of land with building bearing
No.27 and 28 in HL No.111 situated in Rachenahalli Village,
Hegde Nagar, Thanisandra Group Panchayath, K.R. Puram
Hobli, Bangalore South Taluk. It is clearly seen from the
schedule to Ex.P32 that property conveyed is bounded on
the East by Site No.49, on the West by Site No.26, on the
North by Road and on the South by Sites No.29 and 30.
There is no indication that the HL No.111 referred to in
Ex.P32 is a reference to the survey number of the property.
From the Encumbrance Certificate produced as Ex.P31, it is
clear that the property mentioned therein is Sites No.27 and
28 in House List No.111 of Rachenahalli Village.
18. It is further contended that O.S.No.16359/2004 is
filed by the appellant against Shri. Shivashankar, Secretary,
Central Excise House Building Co-operative Society and her
vendor Shri. Munivenkatappa and two others. It is submitted
that the Society, which has formed the Layout was the
Ministry of Communication Employees Co-operative Housing
Society Limited and a collusive suit and an injunction
obtained ex-parte against a completely different Society
which had nothing to do with the development in question
cannot help defendant No.1 to prove her contentions. It is
further contended that the suit filed by defendant No.1 as
O.S.No.26106/2018 had been admittedly abandoned by
defendant No.1. It is therefore contended that the finding of
the trial Court that defendant No.1 could not prove that she
had any property in the vicinity of the plaintiff's site and that
she had encroached into the plaintiff's property without any
right, title or interest is perfectly legal and valid.
19. We have considered the contentions advanced.
The plaint was filed seeking a declaration that the plaintiff is
the absolute owner of suit schedule - A property as also
seeking a mandatory injunction directing defendants No.1
and 2 to demolish the construction put up by them and to
hand over vacant possession of suit schedule - B property.
The plaintiff had based his claim on Ex.P1 - Sale Deed and
Ex.P2 - Deed of Rectification. The said documents clearly
show that the plaintiff had purchased Site No.9/4 with Khata
No.1383 of Rachenahalli Village. The recitals in Ex.P1 - Deed
of Sale specifically show that the property is situated in
Sy.No.111 and that the seventh vendor is the Ministry of
Communication Employees Co-operative Housing Society
Limited. Ex.P32, which is admittedly the Sale Deed under
which defendant No.1 claims, shows that what is conveyed
was all the piece and parcel of land with building bearing
No.27 and 28 in House List No.111 situated in Rachenahalli
Village, Hegde Nagar. The boundaries shown are also
entirely different from what is shown in Exs.P1 and P2.
Further, the earlier suit, that is, O.S.No.16359/2004 on
which much reliance is placed by the appellant herein is filed
with the following parties as is evident from Ex.P33, which
reads as follows:-
"Plaintiff: Smt. Vijayamma, W/o Muniraj, Aged about 46
years, Residing at No. 27-28, 11th Cross, Hegde Nagar, A.C.
Post, Bangalore - 45.
(Represented by Advocate Sri S.I. Balaguru)
V/s.
Defendants: 1) Sri Shivashankar, Secretary, Central Excise
House Building Co-operative Society, Central Revenue Bldg. No.
1, Queens Road, Bangalore. 2) Sri Munivenkatappa, S/o Sri
Chandrappa, Residing at Srirampura Village, Yelahanka Hobli,
Bangalore North Taluk, Bangalore. 3) Sri Narasimha Murthy,
Major, C/o Central Excise House Co-operative Society No.1,
Queens Road, Bangalore. 4) Sri Ramanji S/o. Ramanna, Major,
C/o Central Excise Co-operative Society No.1, Queens Road,
Bangalore.
(D1, 3 and 4: Exparte, D2: by Advocate Sri Lakshmi Kantha
Raja Urs)"
It is therefore clear that it is not against either the plaintiff
in the present suit or the Ministry of Communications
Employees Co-operative Housing Society Limited that the
suit was filed. The suit was contested only by defendant
No.2, who was the vendor of the appellant herein.
Defendant No.2 clearly contended that he had made no
effort to encroach into the appellant's property and that the
appellant had filed that suit with an intention to grab
another property near appellant's property. The contentions
raised on the basis of the said suit therefore cannot aid the
appellant in any manner. Further, though, it is contended
that there was an order of ad-interim injunction in
O.S.No.26106/2018, Ex.P36 produced by the plaintiff would
show that the suit was dismissed as not pressed on
01.10.2018.
20. The trial Court after considering the contentions
of the parties and the extensive documentary evidence
placed on record, specifically found that the plaintiff had title
in respect of Site No.9/4 in Sy.No.111 as claimed by her and
that defendant No.1 had failed to prove that she had any
right, title or interest in suit schedule - B property. From an
examination of the two Sale Deeds and the materials on
record, we agree with the finding of the trial Court that the
property purchased by the plaintiff was Site No.9/4
comprised in Sy.No.111 of Rachenahalli Village. It was also
clearly found that defendant No.1 had encroached into suit
schedule - B property and had constructed a compound wall.
The oral evidence led by the plaintiff has also been
specifically considered by the trial Court in coming to the
conclusion that defendant No.1 did not own property in the
vicinity of the plaintiff's property.
21. Having considered the contentions advanced, the
evidence and the documents placed on record, we are of the
opinion that the findings of the trial Court are well justified
and do not require any interference in this appeal. The
appeal accordingly fails and is dismissed with costs.
All pending interlocutory applications shall stand
disposed of.
Sd/-
(ANU SIVARAMAN)
JUDGE
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
cp*
