- 1 - NC: 2025:KHC:10874 RSA No. 602 of 2014 C/W RSA No. 603 of 2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 602 OF 2014 (INJ) C/W REGULAR SECOND APPEAL NO. 603 OF 2014 (INJ) IN RSA No. 602/2014 BETWEEN: 1(a) 1(b) 1(c) 1(d) SRI A.N. CHANDRAPPA, S/O LATE PATEL NANJAPPA, AGED ABOUT 69 YEARS, GAYATHRI EXTENSION, R/O VIVEKANANDA NAGAR, CHANNARAYAPATNA TOWN - 573 116. SINCE DEAD REP BY HIS LRs SMT. YASHODHA W/O LATE A.N. CHANDRAPPA, AGED ABOUT 59 YEARS, SMT. KAVITHA, D/O LATE A.N. CHANDRAPPA, AGED ABOUT 39 YEARS, SMT. KUSUMA, D/O LATE A.N. CHANDRAPPA, AGED ABOUT 35 YEARS, SRI A.N. JAYARAGHAVENDRA, S/O LATE A.N. CHANDRAPPA, AGED ABOUT 28 YEARS, APPELLANTS NO.1(a) TO 1(d) ARE ALL R/A GAYATHRI EXTENSION, VIVEKANANDA NAGAR, CHANNARAYAPATNA TOWN - 573 116. APPELLANTS (BY SRI SHIVARAMA BHAT O., ADVOCATE) Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka - 2 - NC: 2025:KHC:10874 RSA No. 602 of 2014 C/W RSA No. 603 of 2014 AND: 1(a) 1(b) 1(c) P PRABHAVATHI, D/O LATE KADLEKAYI RANGAMMA, AGED ABOUT 52 YEARS, HOUSING BOARD COLONY, CHANNARAYAPATANA TOWN - 573 116. SINCE DEAD REP BY HER LRs RAGHAVENDRA, S/O LATE R. PRABHAVATHI, AGED ABOUT 34 YEARS, R. PRATHIBHA, D/O LATE R. PRABHAVATHI, AGED ABOUT 30 YEARS, R. ASHOK, S/O LATE R. PRABHAVATHI, AGED ABOUT 28 YEARS, RESPONDENT NOS.1(a) TO 1(c) ARE R/A HOUSING BOARD COLONY, CHANNARAYAPATNA TOWN - 573 116. …RESPONDENTS [BY R1(a) AND R1(c) ARE SERVED, BUT UNREPRESENTED; V/O DATED 25.09.2024 NOTICE TO R1(b) IS HELD SUFFICIENT] THIS RSA IS FILED U/S. 100 ORDER XLII RULE 1 OF CPC., AGAINST THE JUDGMENT & DECREE DATED 21.1.2014 PASSED IN R.A.NO.6/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHANNARAYAPATNA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 24.2.2012 PASSED IN OS.NO.535/1999 ON THE FILE OF THE ADDL. CIVIL JUDGE & JMFC., CHANNARAYAPATNA. IN RSA NO. 603/2014 BETWEEN: SRI A.N.CHANDRAPPA, S/O LATE PATEL NANJAPPA, AGED ABOUT 69 YEARS, R/AT GAYITHRI EXTENSION, VIVEKANANDA NAGAR, - 3 - NC: 2025:KHC:10874 RSA No. 602 of 2014 C/W RSA No. 603 of 2014 1(a) 1(b) 1(c) 1(d) CHANNARAYAPATNA TOWN - 573 116. SINCE DEAD REPRESENTED BY HIS L.RS: SMT. YASHODHA W/O LATE A.N.CHANDRAPPA AGED ABOUT 59 YEARS SMT. KAVITHA D/O LATE A.N.CHANDRAPPA AGED ABOUT 39 YEARS SMT. KUSUMA D/O LATE A.N.CHANDRAPPA AGED ABOUT 35 YEARS SRI P A.N.JAYARAGHAVENDRA S/O LATE A.N.CHANDRAPPA AGED ABOUT 28 YEARS APPELLANT NO. 1(a) TO 1(d) ARE ALL R/AT GAYATHRI EXTENSION, VIVEKANANDA NAGAR, CHANNARAYAPATNA TOWN - 573 116. ...APPELLANTS (BY SRI SHIVARAMA BHAT O., ADVOCATE) AND: 1(a) 1(b) 1(c) R. PRABHAVATHI, D/O LATE KADLEKAYI RANGAMMA, AGED ABOUT 52 YEARS, HOUSING BOARD COLONY, CHANNARAYAPATNA TOWN - 573 116. SINCE DEAD REPRESENTED BY HER L.Rs: RAGHAVENDRA S/O LATE R. PRABHAVATHI AGED ABOUT 34 YEARS R.PRATHIBHA D/O LATE R. PRABHAVATHI AGED ABOUT 30 YEARS R.ASHOK S/O LATE R. PRABHAVATHI AGED ABOUT 28 YEARS - 4 - NC: 2025:KHC:10874 RSA No. 602 of 2014 C/W RSA No. 603 of 2014 RESPONDENT NOs.1(a) TO 1(c) ARE ALL R/A HOUSING BOARD COLONY CHANNARAYAPATNA TOWN - 573 116. ...RESPONDENTS (NOTICE TO R1 (a-c) ARE HELD SUFFICIENT) THIS RSA IS FILED U/S. 100 ORDER XLII RULE 1 OF CPC., AGAINST THE JUDGMENT & DECREE DATED 21.1.2014 PASSED IN R.A.NO.7/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHANNARAYAPATNA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 24.2.2012 PASSED IN OS.NO.592/1999 ON THE FILE OF THE ADDL. CIVIL JUDGE & JMFC., CHANNARAYAPATNA. THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI ORAL JUDGMENT Challenging common judgment and decree dated 21.01.2014 passed by Senior Civil Judge, Channarayapatna, in R.As.no.6 & 7 of 2012, these appeals are filed. 2. Brief facts giving rise to these two appeals are Sri MN Chandrappa (Appellant - 'MNC' for short) was plaintiff in O.S.no.535/1999 filed for mandatory injunction directing reconstruction of compound wall on western side of suit property demolished by defendant - Smt.R.Prabhavathi ('RP' for short), to hand over possession of extent of 2 feet East- West and 73 feet North-South marked in rough sketch with letters 'ABEF' bounded on East by plaintiff's building, West by - 5 - NC: 2025:KHC:10874 RSA No. 602 of 2014 C/W RSA No. 603 of 2014 defendant's building, North by road and South by Housing Board Colony, encroached by defendant out of property bearing AR no.3175 and Khata no.3615 measuring East-West - 50 feet and North-South - 70 feet situated behind old RMC Yard within Channarayapatna town (referred to as 'plaintiff suit property' for short) and for consequential relief of permanent injunction, etc. 3. Further, MNC was defendant in O.S.no.592/1997 filed by RP for permanent injunction against interference with peaceful possession in respect of site bearing AR no.1938/A and khata no.1938/A, measuring East-West - 25ft. and North- South - 40ft., bounded on East by defendant's building, West by site of Raju, South by houses of Deeparam and Contractor Shamrao and North by house of Nataraj situated behind RMC Yard, Channarayapatna town (referred to as 'defendant suit property' for short). 4. In O.S.no.535/1999, MNC stated he purchased vacant site under registered Sale Deed dated 07.02.1983 and constructed building, wherein, he was running Hemavathi Educational Institution by obtaining licence. And on western side of his site, he had left open space 4 ft. in width. And that - 6 - NC: 2025:KHC:10874 RSA No. 602 of 2014 C/W RSA No. 603 of 2014 RP, adjacent site owner on western side had encroached on his site to extent described as plaintiff suit property. 5. In said suit, RP filed written statement stating that MNC had constructed school in entire extent of 47½ ft. X 74ft. and had no right or title over area marked with letters 'MILC' in rough sketch. She stated that 35 years earlier, her mother had purchased site measuring 25ft. X 80ft. under registered Sale Deed from Smt.Lakshmamma and after her death, RP along with her siblings inherited it. And in partition between them, defendant suit property fell to her share. In said site, she had constructed a house in 21 ft. X 31 ft. area. In view of interference by MNC, she had filed O.S.no.592/1999. 6. In O.S.no.592/1999, MNC filed written statement stating that he had purchased site measuring 50 ft. X 73 ft. under registered sale deed and was absolute owner. And while constructing school building, he had left vacant, 2½ ft. space on western side of his site and RP had encroached on western side of his site. Therefore, he had filed O.S.no.535/1999. 7. Both suits were clubbed and following issues were framed: - 7 - NC: 2025:KHC:10874 RSA No. 602 of 2014 C/W RSA No. 603 of 2014 ISSUES IN O.S.no.535/99: 1. Does the plaintiff proves that he is the owner and in possession of property shown as 'ABCD' in his rough sketch and 'MILC' shown in rough sketch annexed Written Statement of defendant? 2. Does the plaintiff proves the alleged trespass of the defendant on the Suit schedule property? 3. Does the defendant proves that the plaintiff only possessed property measuring East West 47½ and North South 74' which shown in the rough sketch annexed Written Statement? 4. Whether the plaintiff entitles for the relief sought? 5. What Order or Decree? ADDITIONAL ISSUES 1. Whether the plaintiff further proves that the defendant has encroached 5 feet towards the western side of the suit schedule property and constructed a building thereon? 2. Whether the plaintiff is entitle for the relief of Mandatory injunction as prayed in the suit? ISSUES IN O.S.no.592/99: 1. Does the plaintiff prove her possession with respect to suit property? 2. Does the plaintiff proves the interference of defendant on her possession? 3. Whether the suit is maintainable in view of the pendency of suit in O.S.no.535/99? 4. Whether the plaintiff entitled for the relief sought in the present suit? 5. What order or decree? 8. To prove their case, MNC examined himself and another witness as PWs.1 and 2 and got marked Exs.P1 to P8. - 8 - NC: 2025:KHC:10874 RSA No. 602 of 2014 C/W RSA No. 603 of 2014 In rebuttal, RP examined herself and another witness as DWs.1 and 2 and got marked Exs.D1 to D7. 9. On consideration, in O.S.no.535/1999, trial Court answered issues no.1, 2, 4, additional issues no.1 and 2 in negative, issue no.3 in affirmative and issue no.5 by dismissing suit. While in O.S.no.592/1999, it answered issues no.1 to 4 in affirmative and issue no.5 by decreeing suit and restraining MNC from interfering with RP's peaceful possession and enjoyment of defendant's suit property. 10. Aggrieved MNC filed RA.nos.6/2012 and 7/2012 against judgment and decrees in O.S.no.535/1999 and O.S.no.592/1999 respectively on various grounds. 11. Based on contentions urged, first appellate Court framed following common points: 1. Whether the judgment and decree of the trial Court need to be interfered with? If so to what extent? 2. To what relief and decree the parties are entitled for? 12. On consideration, it answered point no.1 in negative and point no.2 dismissing both appeals, leading to present appeals. - 9 - NC: 2025:KHC:10874 RSA No. 602 of 2014 C/W RSA No. 603 of 2014 13. Sri O. Shivaram Bhat, learned counsel for appellant - MNC submitted that appeal was by plaintiff against concurrent findings in a suit for mandatory injunction and consequential relief of permanent injunction. It was submitted, plaintiff was absolute owner of site measuring 50 ft. X 70 ft. in which RP had encroached 2 ft. X 72 ft. on western side, by removing existing compound wall. It was submitted, to substantiate ownership, Ex.P1 - sale deed was produced and to substantiate boundaries and extent - Exs.P4 and P8 - sketches were produced. On other hand, RP did not produce title documents or measurements of her property. And trial Court appointed Court Commissioner to measure both properties, wherein, Court Commissioner's report disclosed encroachment of 3 ft. by RP. Despite same, suit came to be dismissed and confirmed in appeal. 14. It was submitted, pleading about encroachment by RP was substantiated by oral evidence of MNC and adjacent land owner (PW.2) and corroborated by documentary evidence i.e. sale deed - Ex.P1, Assessment register extracts as Exs.P2, 3, 5 to 7 and sketches - Exs.P4 and P8. It was submitted, nothing material to discredit plaintiff evidence was elicited in cross-examination. On other hand, material placed on record - 10 - NC: 2025:KHC:10874 RSA No. 602 of 2014 C/W RSA No. 603 of 2014 by RP was examining herself as DW.1 and independent witness examined as DW.2, along with Assessment register extracts/photograph as Exs.D1 to D7. 15. It was submitted, trial Court based its findings primarily on Commissioner's report, even though said report disclosed encroachment of 3 ft. in MNC's property by RP. Therefore, findings of trial Court were contrary to material on record and perverse. It was submitted, even first appellate Court also concurred with trial Court findings by referring to Commissioner's report, without re-appreciation. Thus error was concurrent, calling for interference. In light of above contention, learned counsel propounded following substantial questions of law for consideration: 1. Whether both Courts were justified in dismissing OS no.535/1999 even when RP failed to produce document of title? 2. Whether both Courts were justified in dismissing O.S.no.535/1999 and decreeing O.S.no.592/1999 ignoring Ex.C1 - Commissioner’s Report showing less measurement of plaintiff's property on East to West, than in Ex.P1 - Sale Deed?” 16. It was alternatively submitted, since impugned findings mentioned above were given in suit for bare injunction, even in case, this Court were to hold MNC not - 11 - NC: 2025:KHC:10874 RSA No. 602 of 2014 C/W RSA No. 603 of 2014 entitled for injunction as prayed, liberty be reserved to him to file comprehensive suit for determinations of rights, with observations that findings recorded herein would not come in way. 17. Heard learned counsel for appellant. 18. During pendency of this appeal RP died. Though her legal representatives were brought on record, they have chosen to remain unrepresented. Hence, appeal is taken up for disposal. 19. These appeals are by plaintiff in O.S.no.535/1999 and defendant in O.S.no.592/1999 against concurrent findings in respective suits for injunction. While MNC claimed to have purchased site measuring 50ft.X73ft. under Ex.P1 - registered sale deed on 07.02.1983, constructed a building for educational institution by leaving 4ft. space on western side and constructed compound wall. He further claimed RP was owner of adjacent site on western side of his property, had demolished compound wall and encroached on his property to extent described as plaintiff suit property. Therefore, MNC filed O.S.no.535/1999 for mandatory injunction with consequential relief of permanent injunction. - 12 - NC: 2025:KHC:10874 RSA No. 602 of 2014 C/W RSA No. 603 of 2014 20. On other hand, RP claimed, her mother had purchased property measuring 25ft. X 80ft. under registered sale deed about 30 - 35 years earlier from Smt.Lakshmamma and after her death, she got defendant suit property in partition with her siblings. Denying allegation of any encroachment on MNC's property, she claimed to have constructed building in area measuring 21ft. X 31ft. On allegation of interference by MNC with peaceful possession of her property, she filed O.S.no.592/1999 for permanent injunction. 21. Both suits were clubbed and common evidence recorded, wherein MNC examined himself as PW.1, produced his title deed as Ex.P1, Assessment Register Extracts as Exs.P2, P3, P5 to P7 and sketches as Exs.P4 and P8. He also examined adjacent land owner as PW.2. RP examined herself as DW.1 and produced Assessment Register Extracts as Exs.D1, D3 to D7 and Photograph as Ex.D2. Adjacent site owner was examined as DW.2. 22. It is also seen at inception of his suit, MNC had filed application for appointment of Court Commissioner for - 13 - NC: 2025:KHC:10874 RSA No. 602 of 2014 C/W RSA No. 603 of 2014 spot inspection, same was allowed and Court Commissioner was examined as CW.1 and submitted his report. 23. While passing impugned judgment and decree, trial Court noted, though MNC claimed to have put up construction by obtaining licence, same was not produced. It noted Ex.D5 mentioned measurement of Hemavati Convent building as 47½ft. X 74ft. Noting, PW.2 had stated measurement of construction by MNC as 46 ft. X 60 ft. and admitting to be unaware of measurements of school building, held same to be unreliable. Thereafter, examining depositions of DWs.1 and 2, it noted same to have sustained cross-examination leading to ambiguity, which required reference to Court Commissioner's report. 24. It noted, CW.1 reported that RP said to have constructed building to extent of 25.2 ft. X 39 ft., while, MNC had put up construction of 47 ft. X 74 ft. and vacant space about 3.10 ft. and 4.10 ft. between two buildings. It observed, initially MNC had alleged encroachment of 2ft., but later amended plaint and revised it to 5ft., which was inconsistent with Court Commissioner's report. Therefore, it drew adverse - 14 - NC: 2025:KHC:10874 RSA No. 602 of 2014 C/W RSA No. 603 of 2014 inference against MNC for not being sure about extent of encroachment. 25. Taking note of fact that MNC had not disputed ownership of RP in respect of her property and as per Commissioner's report, RP was owner of site measuring 25 ft. X 40 ft. had put-up construction of 21 ft. X 39 ft., held MNC failed to establish encroachment. Consequently, it dismissed suit by MNC and decreed suit of RP. 26. Though, learned counsel for appellant - MNC vehemently contended that as per Commissioner's report, there was encroachment of 3 ft. into MNC's property, perusal of deposition of CW.1 reveals specific assertion that properties bearing khatas no.1937 and 3615 were separate properties and that he had measured only property bearing khata no.1937. Consequently, there cannot be reliance on his report about encroachment into property of MNC bearing khata no.3615. 27. Moreover, finding about encroachment would be question of fact and not amenable for re-appreciation in - 15 - NC: 2025:KHC:10874 RSA No. 602 of 2014 C/W RSA No. 603 of 2014 second appeal. Consequently, substantial questions of law proposed do not arise for consideration. 28. Hence, appeals are dismissed. 29. It is observed that plaintiff - MNC may avail any remedy, if available to him in law, without expressing any opinion on same. Sd/- (RAVI V HOSMANI) JUDGE GRD List No.: 1 Sl No.: 37