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Karnataka High Court
Smt Adilakshmi vs Sri Shiva Kumar on 11 March, 2026
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RFA No. 2798 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR FIRST APPEAL NO. 2798 OF 2024 (INJ)
BETWEEN:
1. SMT. ADILAKSHMI
WIFE OF SRI KUPPAIAH
AGED ABOUT 56 YEARS
RESIDING AT NO.60, 2ND FLOOR
7TH CROSS, 8TH MAIN
SRIRAMANAGARA, ITTAMADU
BSK III STAGE, BANGALORE-560 060.
...APPELLANT
(BY SRI. R.S.RAVI, SENIOR ADVOCATE FOR
SRI. B. SHARATH GOWDA, ADVOCATE)
AND:
1. SRI. SHIVA KUMAR
S/O SRI RAJE URS
Digitally signed by
CHAITHRA A AGED ABOUT 55 YEARS
Location: HIGH
COURT OF RESIDING AT NO.2661
KARNATAKA
5TH MAIN, KUMARASWAMY LAYOUT
BENGALURU - 560 078.
...RESPONDENT
(BY SRI. N.N. RAJ URS, ADVOCATE FOR C/RESPONDENT)
THIS RFA IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 20.09.2024
PASSED IN OS.NO.2754/2019 ON THE FILE OF THE V
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
DISMISSING THE SUIT FOR INJUNCTION.
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RFA No. 2798 of 2024
HC-KAR
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
ORAL JUDGMENT
Captioned appeal is filed by the unsuccessful plaintiff
in O.S.2754/2019 who instituted the suit for injunction
simpliciter restraining the defendants from interfering with
her peaceful possession and enjoyment of the suit
schedule property described as Site No.28.
2. For the sake of convenience, the parties are
referred to as per their rank before the trial Court.
3. Facts leading to the case are as under:
Plaintiff claims to be absolute owner of site No.28
formed in a layout carved out by one Krishnappa.
Plaintiff's contention is that Krishnappa originally owned
larger extent of land and formed a layout in 1998 as per
Ex.15. Under Ex.P16 dated 30.6.2004, Krishnappa sold 11
sites to Munirajappa. Plaintiff in turn purchased site
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No.28 from Munirajappa under registered sale deed dated
6.2.2006 evidenced at Ex.P2. Plaintiff based on the title
documents asserts that she is in exclusive possession and
enjoyment of the suit schedule property. Reliance is also
placed on revenue records and tax paid receipts and
construction of compound wall around the property.
Plaintiff has also stated that she mortgaged the property
with India Infoline Housing Finance Limited by depositing
title deeds on 10.5.2018. Present suit is filed alleging that
on 6.3.2019, defendant trespassed and claimed right over
the suit schedule property.
4. Per contra, defendant upon receipt of summons
entered appearance, filed written statement and stoutly
denied the entire averments made in the plaint. Defendant
however, asserted title based on registered sale deed
dated 10.3.2008. Defendant asserts that he has
purchased site No.47 from Krishnappa. According to
defendant the land bearing Survey No.69 was allotted to
Krishnappa under registered partition deed dated
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19.12.2003 and thereafter Krishnappa obtained approved
layout on 15.10.2004 and defendant has purchased Site
No.47. The primary defence of the defendant is that Site
No.28 and 47 are not adjacent and therefore, sought for
dismissal of the suit.
5. Trial Court based on rival pleadings formulated
issues. Plaintiff and defendant No.2 in support of their
claim led in oral and documentary evidence. The trial
Court while answering Issue No.1 though held that
documents adduced by plaintiff indicate plaintiff's
possession over the suit schedule property, in view of
conflicting claims by plaintiff and defendant, suit for
injunction simpliciter is not maintainable. It is in this
backdrop, trial Court held that it is not possible to decide
as to who is in actual possession and proceeded to dismiss
the suit.
6. Heard the learned counsel for the plaintiff and
learned counsel for the defendant. This Court has
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independently perused the pleadings and carefully
scrutinized the oral and documentary evidence let in by
both the parties.
7. Having heard the learned counsel, the following
points would arise for consideration:
"(i) Whether the finding of the trial Court that
the plaintiff cannot maintain a suit for
injunction simpliciter in view of conflicting
sale deed of plaintiff and defendant suffers
from perversity and warrants interference?
(ii) Whether the existence of two layouts, one
prior to partition( Ex.P15 dated 3.12.1998)
and another approved layout dated
15.10.2004(Ex.D7) post registered partition
deed, materially affects the identification of
the suit schedule property?
(iii) Whether the trial Court failed to appreciate
that the prior sale deed dated 6.2.2006 in
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favour of the plaintiff cannot affect
subsequent sale deed dated 10.3.2008
executed by the same vendor in favour of
defendant?
(iv) What Order?"
Findings on Points (i) to (iii):
8. It is not in dispute that one Krishnappa was the
original owner. It is also not in dispute that Krishnappa
formed a layout which was not approved, evidenced at
Ex.P15. He sold 11 sites to one Munirajappa on 30.6.2004
evidenced at Ex.P16. The plaintiff purchased site No.28
from Munirajappa under registered sale deed dated
6.2.2006. Post sale, plaintiff's name was mutated and tax
paid receipts also demonstrates that the transfer of title
was conveyed by the local authorities.
9. It is also not in dispute that plaintiff and
defendant trace their title through common source. The
original owner Krishnappa appears to be the main culprit
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and responsible for this multiple litigations by the site
purchasers. The evidence on record reveals the existence
of two distinct layouts. Even before partition in the family,
Krishnappa formed a layout in 1998 which is evidenced at
Ex.P15. He sold 11 sites to Munirajappa under Ex.P16.
10. Later, Krishnappa is allotted the very same land
under registered partition deed dated 19.12.2003
evidenced at Ex.P5. Krishnappa who was aware of the
earlier alienations mischievously obtains approval of a
fresh layout which is evidenced at Ex.D7 and reassigns site
numbers though the spatial location of the sites reflected
in the earlier layout fundamentally remained same. Site
No.28 in the unapproved layout is now assigned Site
No.47 in the approved layout.
11. This Court has compared the layouts marked at
Exs.P15 and D7. The emergence of two layouts has
substantially introduced confusion regarding site
numbering and identification. However, on meaningful
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analysis of both the layouts formed at the instance of
Krishnappa, this Court is more than convinced that Site
No.28 is renumbered as Site No.47. It is quite interesting
to note that defendants have placed reliance on the filing
of the suit by the owner of Site No.48 against plaintiff
herein. The plaint averments may not come to the aid of
the defendant but strengthen plaintiff's contention that the
site purchased by the plaintiff under an unapproved layout
is now numbered as Site No.47 in the approved layout
post partition deed. If plaintiff was not in possession of
Site No.47, the plaintiff in O.S.No.5614/2021 had no cause
of action to file an injunction suit against present plaintiff.
12. This Court deems it apposite to extract relevant
paragraphs in the plaint and also the schedule indicated in
the plaint, which is as under:
"8. The Plaintiff submits that defendant has illegally
encroached and have built a compound Wall by Cement
Bricks / Blocks, on the South East measuring East to West
14 feet (E & F) and North to South 31 feet (D & G), totally
measuring-434 Square feet. The Sketch of the entire
measurement of Suit Schedule Property 'A' along with
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Illegally encroachment, is marked as D, E, F & G is hereby
furnished and marked as Document No.10, for the kind
perusal of this Hon'ble court and called as Suit Schedule
Property 'B'. Thus the plaintiff prays for a direction to the
defendant to demolish the compound wall that was built
by the defendant in Suit Schedule Property - 'B'.
9. The Plaintiff submits that immediately, the
Plaintiff approached the Jurisdiction Thalaghattapura
Police station, on the same day 08-10-2021 and the Police
officer has informed that since the nature is of Civil in
Nature and as such the Police do not interfere in Civil
matter and instructed the plaintiff to Approach the Civil
court for proper relief and remedy and a such the plaintiff
having no other alternative and efficacy remedy is
approaching this Hon'ble court for the relief of 1)
Declaration, 2) Possession 3) Mandatary Injunction and 4)
Injunction."
"SCHEDULE-'A'
All that piece and parcel of Vacant Site No.48,
formed in Sy. No. 69, Anjanapura Village, Katha No. 69,
B.B.M.P. Ward No. 196, measuring East to West 25 feet
and North to South 62 feet, totally measuring about 1550
Square feet and bounded on as follows:
East by:- Site No. 46 & 47
West by: Road
North by: Site No.49,
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South by: B.D.A. Property."
"SCHEDULE-'B'
All that piece and parcel of portion in Vacant Site
No.48, measuring East to West 14 feet (E & F) and North
to South 31 feet (D & C) totally measuring 434 Square
feet as shown in the sketch which is marked D,E,F & G,
formed in Sy. No. 69, Anjanapura Village, Katha No. 69,
B.B.M.P. Ward No. 196 and bounded on as follows:
East by:- Site No. 46 & 47
West by: Road
North by: Remaining Portion of the same Site
No.48, belonging to the Plaintiff
South by: Remaining Portion of the same Site
No.48, belonging to the Plaintiff"
13. On reading the plaint averments in
O.S.5614/2021, though plaintiff asserts title over site
No.28, the present suit schedule property bearing Site
No.28 under earlier layout corresponds to Site No.47 in
the later approved layout. The mischief appears to
originate from the original owner Krishnappa himself in
renumbering the sites differently after partition.
Therefore, plaintiff's title over Site No.28 which now
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corresponds to Site No.47 being prior in point of time,
prima facie prevails over the subsequent sale deed
executed by original owner Krishnappa. The original
owner Krishnappa having sold 11 sites to one Munirajappa
under registered sale deed dated 6.2.2006 had no saleable
title which he could have conveyed to defendant. The
adjoining site owner who is plaintiff in O.S.No.5614/2021,
filed the suit alleging encroachment not against defendant
but against plaintiff and therefore, an inference can be
drawn that despite reassigning site numbers based on
subsequent layout which is though approved, the location
of Site No.28 and its topography clearly stood unchanged.
14. The plaintiff's vendor Munirajappa purchased
11 sites from Krishnappa including Site No.28 in 2006.
Therefore, even if Krishnappa had a imperfect title and
acquired valid right and title post allotment of Survey No.
69 under registered partition deed, the first transferee
Munirajappa and the present plaintiff can claim benefit of
Section 43 of Transfer of Property Act, 1882 and therefore,
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the sale deed executed by Krishnappa in favour of
defendant pertaining to Site No.47 suppressing formation
of layout and alienation of 11 sites in favour of
Munirajappa is without saleable title insofar as 11 sites are
concerned.
15. Therefore, plaintiff by producing the registered
sale deed, formation of layout on 3.12.1998 evidenced at
Ex.P15, tax payments evidenced at Ex.P11, construction of
compound wall evidenced at Ex.P10, mortgage by deposit
of title deeds evidenced at Ex.P8, coupled with the suit
filed by the adjoining owner of Site No.46 in
O.S.5614/2021 has clearly demonstrated his lawful
possession.
Accordingly, point Nos.(i) and (iii) are answered in
the "Affirmative" and point No.(ii) is answered in the
"Negative".
Conclusions and reasons for reversal.
16. The recurring dispute appears to stem from
irregular layout formation by original owner Krishnappa,
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who formed layout even prior to crystallization of title
under partition deed. The multiplicity of litigation (O.S.
5614/2021 and withdrawn O.S. 711/2025) demonstrates
necessity for comprehensive adjudication.
17. On a careful re-appreciation of the entire oral
and documentary evidence, this Court is of the considered
view that the judgment of the Trial Court dismissing the
suit for injunction cannot be sustained. The Trial Court has
proceeded on an erroneous assumption that the plaintiff
was not in possession as on the date of suit, without
examining the documentary evidence in its proper
perspective and without correlating the surrounding
circumstances.
18. The plaintiff has traced her title through a
registered sale deed dated 06.02.2006 (Ex.P2), executed
by Munirajappa, who in turn derived title from Krishnappa
under registered sale deed dated 30.06.2004 (Ex.P16).
The partition deed dated 19.12.2003 (Ex.P5) clearly
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demonstrates that Krishnappa was allotted the property in
question. The Trial Court failed to appreciate that the
plaintiff's sale deed is prior in point of time to the
defendant's sale deed dated 10.03.2008. When both
parties trace title to a common vendor, the earlier
registered conveyance ordinarily prevails, subject to
identification of property. This vital chronological aspect
has been completely overlooked.
19. The evidence on record unmistakably reveals
the existence of two layouts, one formed in 1998 (Ex.P15)
and another approved layout dated 15.10.2004 (Ex.D7).
The material indicates possible re-numbering of sites after
approval. The surrounding circumstances, particularly the
pleadings in O.S.No.5614/2021 filed by the adjoining site
owner alleging encroachment by the present plaintiff,
strongly suggest that the dispute is one of overlapping and
identity rather than absence of possession. The Trial Court
failed to frame or consider a proper issue on identity of the
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property and mechanically concluded that the plaintiff was
not in possession.
20. The documentary evidence relied upon by the
plaintiff namely mutation entries, tax paid receipts,
mortgage by deposit of title deeds, and construction of
compound wall were not adequately evaluated. When a
third party alleges that the plaintiff has constructed a
compound wall and encroached, such allegation itself
presupposes physical control over the property. The Trial
Court extracted a portion of cross-examination in isolation
and failed to weigh the cumulative effect of the evidence.
21. The contention advanced under Section 43 of
the Transfer of Property Act, 1882 also required serious
consideration. If Krishnappa had formed the earlier layout
before formal allotment under the partition deed and
subsequently acquired complete title, the doctrine of
"feeding the grant by estoppel" could validate earlier
transfers. The Trial Court has not adverted to this
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statutory principle at all. Non-consideration of a material
statutory provision amounts to a serious error in law.
22. The dismissal of the suit solely on the ground
that the plaintiff was not in possession, without resolving
the core dispute relating to layout renumbering and
overlapping claims, has resulted in miscarriage of justice.
The reasoning adopted is neither comprehensive nor
consistent with the documentary evidence. The approach
of the Trial Court suffers from misapplication of law and
misappreciation of evidence.
23. In an appeal under Section 96 of CPC, this
Court, being the final Court on facts, is duty-bound to
independently assess the evidence. Upon such
reassessment, this Court is satisfied that the findings
recorded by the Trial Court are perverse to the extent that
relevant material evidence has been ignored and improper
inferences have been drawn.
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24. For all the aforesaid reasons, the judgment and
decree of dismissal warrant interference and cannot be
allowed to stand. The conclusions of the Trial Court are set
aside as being legally unsustainable and contrary to the
weight of evidence on record.
Finding on Point No.(iv):
25. Accordingly, this Court proceeds to pass the
following:
ORDER
(i) The appeal is allowed.
(ii) The judgment and decree dated
20.9.2024 passed in O.S.No.2754/2019 by the V
Additional City Civil and Sessions Judge at
Bengaluru, is hereby set aside.
(iii) Consequently, the suit of the plaintiff
for permanent injunction is decreed. The
defendant and his agents are hereby restrained
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from interfering with the plaintiff's lawful and
peaceful possession and enjoyment of the suit
schedule property.
(iv) Office to draw the decree accordingly.
Sd/-
(SACHIN SHANKAR MAGADUM)
JUDGE
ALB
List No.: 2 Sl No.: 115
