- 1 - HC-KAR NC: 2025:KHC:23394 MSA No. 3 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH MISCELLANEOUS SECOND APPEAL NO.3 OF 2018 (RO) BETWEEN: 1. SMT. PADMAMMA, W/O NANJUNDAIAH @ ANNAIAH, AGED ABOUT 55 YEARS. 2. SRI. HUCHAIAH, S/O LATE DODDAHUCHAIAH, AGED ABOUT 60 YEARS. BOTH ARE RESIDENTS OF NEAR RAMAMANDIRA, BASAVAIAHNA STREET, MALAVALLI TOWN, MALAVALLI TALUK, MANDYA DISTRICT-571 430. …APPELLANTS (BY SRI. M.B.CHANDRA CHOODA, ADVOCATE) AND: 1. 1(a) SMT. ALAMELAMMA, W/O LATE NANJUNDAIAH, SINCE DEAD BY LRS. SMT. MAHADEVAMMA, W/O LATE BASAVARAJU, AGED: MAJOR, R/AT NEAR NINGAIAH HOTEL, VAKKALIGARA BEEDI, MALAVALLI TOWN, MANDYA DISTRICT. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:23394 MSA No. 3 of 2018 1(b) SRI. RANGA, S/O GULAIAH, AGED: MAJOR. 1(c) SRI. GURU, S/O GULAIAH, AGED: MAJOR. 1(d) SRI. MANJA, S/O GULAIAH, AGED: MAJOR. 1(e) SRI. RAVI, S/O GULAIAH, AGED: MAJOR. RESPONDENTS NO.1(b) TO 1(e) ARE R/AT KURUPETE, KOLLAPURADAMMANA STREET, KANAKAPURA TOWN, RAMANAGARA DISTRICT. 1(f) SMT. LAKSHMI, W/O LATE SHIVANNA, AGED: MAJOR. 1(g) SRI. GIRISH, S/O LATE SHIVANNA, AGED: MAJOR. 1(h) RANI, D/O LATE SHIVANNA, AGED: MAJOR. RESPONDENTS NO.1(f) TO 1(h) ARE R/AT AGRAHARA, 10TH CROSS, MYSURU MARKET, BENGALURU. 1(i) SMT. NAGAMMA, W/O LATE SRINIVASA, AGED: MAJOR. - 3 - HC-KAR NC: 2025:KHC:23394 MSA No. 3 of 2018 1(j) SRI. KRISHNA, S/O LATE NANJUNDAIAH, AGED: MAJOR. RESPONDENTS NO.1(i) AND 1(j) ARE R/AT KHB COLONY, NEAR ADARSH CONVENT ROAD, NES, MALAVALLI TOWN, MANDYA DISTRICT. (AMENDED VIDE ORDER DATED 16.10.2024) …RESPONDENTS (R1 – DEAD; NOTICE TO R1(a), R1(d), R1(e) AND R1(i) - SERVED AND UNREPRESENTED; NOTICE TO R1(b) AND R1(c) IS HELD SUFFICIENT, VIDE ORDER DATED 02.06.2022; NOTICE TO R1(f), R1(g), R1(h) AND R1(j) – SERVED AND CALLED OUT ABSENT, VIDE ORDER DATED 30.09.2024) THIS MSA IS FILED UNDER ORDER 43-1(u) OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 21.11.2017 PASSED IN R.A.NO.42/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, MALAVALLI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 12.09.2013 PASSED IN O.S.NO.147/2011 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE, MALAVALLI, PARTLY DECREEING THE SUIT FOR DECLARATION AND MANDATORY INJUNCTION AND REMITTING BACK THE MATTER TO TRAIL COURT FOR FRESH DISPOSAL. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC:23394 MSA No. 3 of 2018 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT Heard the learned counsel for the appellants. The respondents though served are unrepresented. 2. The learned counsel for the appellants would vehemently contend that the Trial Court has given the finding that issue No.3 would cover the issue of encroachment is concerned and answered the same. The First Appellate Court committed an error in remanding the matter by giving the reasons in paragraph No.21 that mandatory injunction is sought directing the defendants to demolish the construction put up by the defendants on the encroached area. The First Appellate Court also made an observation that without the issue of whether defendant Nos.1 and 2 have illegally encroached the portion of the suit schedule property to an extent of 5 x 31 feet, the Trial Court proceeded to pass an order and ordered to pay compensation of Rs.33,345/-. Once the Court comes to such a conclusion, there was no need of remanding the matter and hence it requires interference of this Court and set aside the same. - 5 - HC-KAR NC: 2025:KHC:23394 MSA No. 3 of 2018 3. Having heard the learned counsel for the appellants and also considering the material available on record, the point that arise for the consideration of this Court is: (i) Whether the First Appellate Court committed an error in making an observation in paragraph No.21 and also framing of an additional issue with regard to the encroachment and whether it requires interference of this Court? 4. Having heard the learned counsel for the appellants and also on perusal of the records, the suit is filed for the relief of declaration, perpetual injunction and mandatory injunction. While seeking the relief of mandatory injunction, it is the specific case of the plaintiff that the plaintiff is the absolute owner in possession and enjoyment of the suit schedule property by virtue of the sale deed dated 27.07.1987. It is also pleaded by the plaintiff that the suit schedule property bearing municipal assessment No.2723/2170/A, measures east to west 27 feet and north to south 18 feet which consists of country tiled house, towards northern side of the country tiled house the plaintiff left 5 x 31 feet vacant site and towards the west of the country tiled - 6 - HC-KAR NC: 2025:KHC:23394 MSA No. 3 of 2018 house the plaintiff left 4 x 23 feet vacant site. These vacant sites were used and enjoyed by the plaintiff for her better living in the house. It is also the contention of the plaintiff that she is very poor, old aged, having less support in the society. Her younger son died about 7-8 months back in Bangalore. When the plaintiff went to attend the funeral ceremony, the defendants without having any right, title and interest over the suit schedule property, trespassed into the suit schedule property and encroached 5 feet vacant space situated towards the northern side of the country tiled house and they have also constructed underground tank and when they were about to construct the staircase, the plaintiff resisted the illegal acts of the defendants and the defendants continued their illegal acts. 5. When such averments are made in the plaint, the Trial Court also extracted the said contention of the plaintiff. But having perused the records, no issue was framed with regard to encroachment is concerned to an extent of 5 x 31 feet. Without framing the issue, the Trial Court proceeded to pass the order and also comes to the conclusion that there is an encroachment and ordered to pay the monetary - 7 - HC-KAR NC: 2025:KHC:23394 MSA No. 3 of 2018 compensation and no such relief of monetary compensation for encroachment is sought. The First Appellate Court having considered the said fact into consideration, given the reasons in paragraph No.21 and framed the issue regarding encroachment and remanded the matter to the Trial Court to consider the same. Having considered the reasons assigned in the appeal and also remitting the matter to the Trial Court in the light of the observations made in the judgment and also framing of an issue, I do not find any error committed by the First Appellate Court, since the crux of the issue is with regard to the encroachment of the property belonging to the plaintiff is concerned and the suit is filed for the relief of mandatory injunction also. Hence, no ground is made out to interfere with the findings of the First Appellate Court. The First Appellate Court having considered the pleadings and also the reasons given by the Trial Court and no such issue was framed with regard to the encroachment is concerned, rightly remitted back the matter to the Trial Court. No ground is made out to admit the appeal and hence, I answer the point in the negative. - 8 - HC-KAR NC: 2025:KHC:23394 MSA No. 3 of 2018 6. In view of the discussions made above, I pass the following: ORDER (i) The appeal is dismissed. (ii) The appellants are directed to appear before the Trial Court on 30.07.2025. (iii) The Trial Court is directed to issue notice to the respondents and dispose of the matter in view of the observations made by the First Appellate Court in accordance with law expeditiously. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 73