- 1 - NC: 2025:KHC-K:2111 RSA No. 7370 of 2012 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 2ND DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 7370 OF 2012 (INJ) BETWEEN: DWARAKA INDUSTRIES NEHRU GUNJ BY ITS OPARTNER, VIJAY KUMAR S/O DWARKADAS LOYA, AGE: 56 YEARS, OCC: BUSINESS, R/O: KIRANA BAZAR, ASIF GUNJ, GULBARGA. …APPELLANT (BY SRI R.S.SIDHAPURKAR, ADVOCATE) AND: 1. UMAKANTH S/O RAMALU @ BHEEMAPA SAJJAN AGE: 56 YEARS, OCC: MOTOR MECHANIC, MAIN ROAD, NEHRU GUNJ, OPP. S.B.H.GULBARGA – 585 101. 2. VIJAY KUMAR S/O UMKANTH SAJJAN AGE: 36 YEARS, OCC: MOTOR MECHANIC MAIN ROAD, NEHRU GUNJ OPP: S.B.H., GULBARGA – 585 101. …RESPONDENTS Digitally signed by BASALINGAPPA SHIVARAJ DHUTTARGAON Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2111 RSA No. 7370 of 2012 (BY SRI SHIVANAND PATIL, ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO ALLOW THIS APPEAL AND JUDGMENT AND DECREE DATED 26.09.2012 PASSED IN R.A.NO.55/2010 BY THE I ADDITIONAL SENIOR CIVIL JUDGE, GULBARGA, SETTING ASIDE THE JUDGMENT AND DECREE DATED 16.04.2010 PASSED IN O.S.NO.264/2006 BY THE PRINCIPAL CIVIL JUDGE (JR.DN), GULBARGA AND PASS ANY OTHER APPROPRIATE ORDER AS THIS HON’BLE COURT MAY DEEM FIT IN THE CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE. THIS REGULAR SECOND APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE) This appeal is arising from the divergent finding in a suit for injunction. 2. The suit initially is decreed restraining the defendants from putting up any construction over the suit property. Defendants are directed to remove the fencing put by them after filing of the suit, within two months from the date of judgment. The defendants filed an appeal. The Appellate Court allowed the appeal and dismissed the suit with an observation that City Corporation, Kalaburagi is at liberty to - 3 - NC: 2025:KHC-K:2111 RSA No. 7370 of 2012 take stringent action against the persons who have encroached upon the road including the suit property. 3. This second appeal is admitted on 26.08.2015 to answer the following substantial question of law: "Whether the first appellate court has committed a serious illegality in ignoring the material evidence on record inclusive of the report of the court commissioner, and thus the judgment of the first appellate court is perverse? 4. After hearing the learned counsel appearing for the appellant and the respondents, this Court is of the view that one more substantial question of law is also required to be framed: “Whether the First Appellate Court is justified in allowing the appeal and dismissing the suit after having recorded a finding that there is encroachment in respect of the land and encroachment is to be removed by the Corporation on the premise that the property is a public road”. 5. The facts narrated in the plaint and in the written statement can be summarized as under: - 4 - NC: 2025:KHC-K:2111 RSA No. 7370 of 2012 - Plaintiff clams to have purchased four plots in a layout formed by a Housing Co-operative Society. Plaintiff claims to be in possession of the property since 1978 in which year the plaintiff has purchased four plots. It is contended that to the North of the plots purchased by the plaintiffs there is a road formed in the layout and according to the plaintiff it measures 45 feet in width. On the North of the said road, it is stated that the defendants have occupied certain plots of the same Housing Co-operative Society. It is stated that the defendants have without having any title over the property, have constructed a structure and in addition they have put up the fence on the road formed in the layout. Thus, the suit for injunction is filed. Defendants denied the contention of the plaintiffs and prayed for dismissal of the suit. 6. Before the Trial Court, the Court Commissioner was appointed to ascertain the contention relating to the encroachment on the public road. The Commissioner having visited the spot has submitted a report. The report is produced before the Court. The plaintiff did not file objection to the report. The report indicated encroachment by the defendants on the public road. The defendant did not examine the - 5 - NC: 2025:KHC-K:2111 RSA No. 7370 of 2012 Commissioner. After considering the evidence on record, the Trial Court has decreed the suit and directed the defendant to remove the fence put up on the road within two months from the date of the judgment. The Trial Court also held that the defendants right over the property is not established and restrained the defendants from putting up any structure over the suit property till their title over the property is declared. 7. Defendants filed the appeal. The First Appellate Court has allowed the appeal. The relevant operative portion of the decree reads as under: “The suit of the plaintiff in O.S. No.264/2006 is dismissed with costs. It is made clear that the City Corporation Gulbarga is at liberty to take stringent action against wrong dowers who encroaches portion of the road including suit property even against both parties of this case.” 8. Aggrieved by the aforementioned decree of the Appellate Court, the plaintiff is in appeal. - 6 - NC: 2025:KHC-K:2111 RSA No. 7370 of 2012 9. Learned counsel appearing for the plaintiff would contend that the encroachment is established through the report of the Court Commissioner. The report of the Court Commissioner is duly proved though the defendant did not adduce any evidence to disprove the report of the Court Commissioner. Under these circumstances, the First Appellate Court could not have said that the suit is not maintainable on the premise that the road is a public road. 10. It is submitted that the right to move the Corporation for removal of encroachment is one of the remedies alternative available to the plaintiff. The Civil’s Court jurisdiction to entertain a suit of this nature is not barred. It is also urged that the defendant did not establish his right over the property on the Northern side of the suit road and the Appellate Court could not have dismissed the appeal having noticed that the encroachment is established. 11. Learned counsel appearing for the defendant/respondent on the other hand would contend - 7 - NC: 2025:KHC-K:2111 RSA No. 7370 of 2012 that the defendant has filed objection to the report of the Court Commissioner. The Court Commissioner's report is demonstrated to be wrong. The defendant has also taken a stand that the plaintiff himself has encroached the public road and thereby, the width of the public road is reduced from 35 feet to 32 feet and plaintiff himself being the encroached, is not entitled to the relief of injunction claimed. 12. It is also his further contention that the First Appellate Court has not foreclosed the remedy to the plaintiff if any, and the liberty is given to the plaintiff to approach the Commissioner of the Corporation and the Commissioner is empowered to take action for removal of encroachment in the public road. Thus, he would urge that no error can be found in the impugned judgment and decree passed by the First Appellate Court. It is also urged that the Court Commissioner has not measured the property as required under law. Since there is allegation that the plaintiff has also encroached upon the public road, - 8 - NC: 2025:KHC-K:2111 RSA No. 7370 of 2012 the Court Commissioner was required to measure the plaintiff's property and the construction he has made and also the property of the defendant and the construction made by the defendant and then, should have arrived at a conclusion as to whether there is encroachment on the road or not and if there is encroachment, who has made the encroachment and to what extent. Since, the Court Commissioner has not carried out such exercise, the report of the Court Commissioner cannot be looked into and the First Appellate Court is justified in rejecting the part of the report of the Court Commissioner. 13. This Court has considered the contentions raised at the bar and perused the records. 14. Certain facts are admitted at this stage of the proceeding. The dispute is concerning the alleged encroachment on the public road in a layout. The plaintiff's property is said to be located to the south of the public road in the layout and defendant's property is said - 9 - NC: 2025:KHC-K:2111 RSA No. 7370 of 2012 to be located on the north of the public road in the layout. The width of the public road is 45 feet. 15. Both plaintiff and defendant have put up the structure in the property said to be belonging to them. However, the question is whether there is encroachment on the public road in the layout. 16. The report of the Court Commissioner would indicate that the width of the road is 32 feet. It is also borne out from the records that the Corporation has issued notice to the plaintiff alleging violation of building byelaws while construction building in the plaintiffs land. Plaintiff has filed a suit contending that the defendant has violated the building byelaws and has encroached upon the public road. 17. Under the circumstances referred to above, the Court Commissioner was required to find out as to whether the plaintiff has encroached any portion of the public road and whether the defendant has encroached any portion of the public road. The Court below has noticed that the width of the road as on the date of the spot inspection is said to be 32 feet in the report of the Court Commissioner. It is further stated in - 10 - NC: 2025:KHC-K:2111 RSA No. 7370 of 2012 the Court Commissioner’s report that 11 feet is encroached by the defendant. There is no reference to remaining 2 feet out of 45 feet which is the admitted width of the public road. 18. It is also noticed from the Court Commissioner’s report that the Court Commissioner has not measured the plaintiff’s property and extent of plaintiff’s construction is not forthcoming in the report. Under the circumstances, this Court is of the view that the said report cannot be considered as the basis to hold that there is encroachment as stated in the Commissioner’s report. However, what is required to be noticed is on the public road which is the disputed property, the width is less than 45 feet. Thus the question is who has encroached how much. The Appellate Court has held that the Commissioner, City Corporation, Kalaburagi shall take appropriate action to remove the encroachment. 19. This Court is of the view that the Corporation has the authority to remove the encroachment on the public road. There is no dispute about it. However, at the same time the right of the parties to approach the civil Court is also not taken away. The suit is initiated in the year 2006 and the parties - 11 - NC: 2025:KHC-K:2111 RSA No. 7370 of 2012 have agitated the matter before two Forums before approaching this Court. This Second Appeal is filed in the year 2012. Under the circumstances, driving the parties to approach the Commissioner to initiate fresh action is not be advisable. However, this Court is of the view that the Commissioner is to be directed to remove the encroachment after issuing notice to both the parties and the Commissioner shall measure the properties of the plaintiff and defendant and thereafter, shall arrive at a conclusion as to how much portion is encroached on the public road which measured 45 feet width as per the layout plan and thereafter, he shall take appropriate action for removal of encroachment. 20. Hence the following: ORDER (i) The appeal is disposed of. (ii) A direction is issued to the Commissioner, City Corporation of Kalaburagi to issue notice to the plaintiff as well as the defendant to measure the plaintiff’s property and his construction and also the defendant’s property and his construction. - 12 - NC: 2025:KHC-K:2111 RSA No. 7370 of 2012 (iii) The Commissioner shall identify the encroachment if any, on the public road between the property of the plaintiff and defendant which is the subject matter of the suit and shall remove the encroachment. (iv) It is further made clear that the Commissioner shall not refer to the report of the Court Commissioner produced in this case and shall independently, ascertain the extent of encroachment if any, after issuing notice to both the parties and after measuring the properties of both parties. (v) The compliance report shall be submitted to this Court within three months from the date of receipt of the copy of this order. (vi) Registry shall send the copy of this judgment to the Commissioner, City Corporation of Kalaburagi. Sd/- (ANANT RAMANATH HEGDE) JUDGE BRN/List No.: 1 Sl No.: 49