- 1 - HC-KAR NC: 2025:KHC:34344 RFA No. 834 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA REGULAR FIRST APPEAL NO.834 OF 2023 (DEC/INJ) BETWEEN: SRI S.RAVI S/O LATE R. SATYANARAYANA AGED ABOUT 57 YEARS, R/AT NO.40, 4TH CROSS, 3RD MAIN, PIPE LINE ROAD, J.C. NAGAR, MAHALAKSHMIPURAM POST, BANGALORE-560086. …APPELLANT (BY SRI NAIK RAMACHANDRA RAMA, ADVOCATE) AND: 1. MRS. C.R. JAYALAKSHMI ALI, W/O MR. B.M. ALI, AGED ABOUT 71 YEARS, R/AT NO.50 & 51, FORMED IN SY.NO.15/4, B.B.M.P. WARD NO.12, 26TH MAIN ROAD, 5TH BLOCK, NANDINI LAYOUT, BANGALORE-560086. 2. SMT. B.M. AYSHA W/O B.G. LOHITH, D/O C.R. JAYALAKSHMI, AGED ABOUT 40 YEARS, R/AT NO.34, MERRIAN ROAD, TORONTO, ONTARIO, MIKEM7, CANADA. ALSO RESIDING R/AT R/AT NO.50 AND 51, Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:34344 RFA No. 834 of 2023 FOPRMED IN SY.NO.15/4, NEW CORPORATION NO.50/11, B.B.M.P. WARD NO.12, 26TH MAIN ROAD, 5TH BLOCK, NANDINI LAYOUT, BANGALORE-560086. …RESPONDENTS (BY SRI C. SHANKAR REDDY, ADVOCATE FOR C/R-1 & R-2) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 02.03.2023 PASSED IN O.S.NO.7057/2014 ON THE FILE OF THE XLII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, PARTLY DECREEING THE SUIT FOR DECLARATION AND INJUNCTION. THIS APPEAL COMING ON FOR ORDER, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA ORAL JUDGMENT The defendant is in this regular first appeal assailing the legality and correctness of the judgment and decree dated 02.03.2023 in O.S. No.7057/2014, on the file of the XLII Additional City Civil and Sessions Judge, Bengaluru (CCH-43) (hereinafter referred to as ‘Trial Court’ for short). 1.1 The plaintiffs’ suit for declaration and consequential relief of injunction in respect of ‘A and B’ schedule properties was decreed. - 3 - HC-KAR NC: 2025:KHC:34344 RFA No. 834 of 2023 1.2 The plaintiffs claim title under the registered sale deed dated 31.12.2003 and relies upon the rectification deed dated 12.12.2013, the defendant claims under a registered sale deed dated 06.05.2013 2. Pleadings in brief: 2.1 Plaint averments: i. Site Nos.50 and 51 formed in Survey No.15/4 was purchased under the registered sale deed dated 31.12.2003, possession was taken, construction was put up and taxes were paid by plaintiff No.1. ii. Certain description error in the 2003 deed were later rectified by a rectification deed dated 12.12.2013, pursuant to which the katha was affected in the name of plaintiff No.1 and subsequently, plaintiff No.1 executed a gift deed in favour of her daughter-plaintiff No. 2. iii. When the plaintiffs were not in station in the year 2014, the defendant allegedly encroached upon part of ‘A’ schedule, i.e., ‘B’ schedule property and raised - 4 - HC-KAR NC: 2025:KHC:34344 RFA No. 834 of 2023 temporary structure and thus, the plaintiffs sought for mandatory injunction. 2.2 Written Statement Averments: i. Defendant is the absolute owner in possession of 993.75 square feet purchased on 06.05.2013, after the purchase, the defendant put up construction. ii. Plaintiff’s schedule is inaccurate, boundaries/ measurements in the 2003 deed differ from the present claim in the schedule property. The 2013 rectification deed was only executed by Lakshmi Narayan without joining the other co-executants / their legal heirs and substantively alters the property’s identity. iii. The defendant denied any encroachment as alleged by the plaintiffs and also contended that the suit is not maintainable. iv. As per the rectification description, the total area of ‘A’ schedule should be 3,000 square feet, i.e., east-west northern side 40 feet, east-west southern side 60 feet, north-south 60 feet and the actual measurement - 5 - HC-KAR NC: 2025:KHC:34344 RFA No. 834 of 2023 found is 2418 square feet, indicating a deficit of 582 square feet. The defendant's site measured 1034.70 square feet on the ground as against 993.75 square feet in his deed and it was in excess of 40.95 square feet. 3. During the pendency of the suit, the Court Commissioner was appointed and measured both the properties. He recorded that description in Ex.P1-the sale deed dated 31.12.2003 does not tally with the ground situation, whereas the description tallies with Ex.P2-the rectification deed dated 12.12.2013. 4. Relying on the report, the trial Court held that the defendant encroached on the east-west northern side by 19.5 feet and decreed the suit. Though the defendant denied any encroachment, the Court concluded that the encroachment stood proved on the basis of the Commissioner's finding and accordingly, decreed the suit in favour of the plaintiffs. - 6 - HC-KAR NC: 2025:KHC:34344 RFA No. 834 of 2023 5. Heard the learned counsel for the appellant and the learned counsel appearing for the respondents. 6. Learned counsel appearing for the appellant submits that the Commissioner’s report itself records that the plaintiffs’ property corresponds only with the rectification deed at Ex.P2 and not with the original sale deed at Ex.P1. Ex.P2 was executed solely by Lakshmi Narayan, without the participation of the legal heirs of Kariyappa and Renuka Prasad, who were co-executants of the original sale deed. Hence, the rectification deed is invalid in law. It is submitted that the rectification deed is not a mere correction, but substantially alters the description, measurement, location and boundaries of the property, thereby creating a new identity. Such a deed cannot confer rights on the plaintiffs. It is submitted that the gift deed in favour of plaintiff No.2 is based on the rectification deed and therefore does not carry any independent validity. It is argued that the defendant's title under his registered sale deed dated 06.05.2013 is prior in - 7 - HC-KAR NC: 2025:KHC:34344 RFA No. 834 of 2023 point of time and is not affected by the plaintiffs’ belated rectification. 7. Learned counsel appearing for the respondents- plaintiffs asserts that plaintiff No.1 derived the title of Site Nos.50 and 51, Survey No.15/4 under the registered sale deed dated 31.12.2003-Ex.P1 executed by the original owners. Pursuant thereto, the possession was delivered and construction was raised and she has been paying taxes and municipal record mutated in her name. It is submitted that the descriptions in Ex.P1 contain typographical mistakes in measurements. To cure this error, a rectification deed at Ex.P2 dated 12.12.2013 was executed, which corrected the dimension and reflected the correct identity of the property. The rectification deed being supplementary to the original sale deed relates back to the original conveyance and does not confer any new rights. It only clarifies the actual extent purchased in the year 2003 is 3,000 square feet. It is admitted that the Court Commissioner’s inspection report clearly identified - 8 - HC-KAR NC: 2025:KHC:34344 RFA No. 834 of 2023 that the plaintiffs’ property, as per the rectification deed, measures 3,000 square feet but on the ground measures only 2,418 square feet. The deficit of 582 square feet corresponds to the encroachment made by the defendant. The Commissioner further noted that the defendant's plot, as per his sale deed, should measure 993.75 square feet but on ground measured 1034.70 square feet thereby showing an excess of 40.95 square feet and these findings corroborate the encroachment in favour of the plaintiffs. It is argued that the defendant's sale deed dated 06.05.2013 cannot override the plaintiffs’ prior title of 2003. The plea of rectification deed is invalid is unfounded, since the deed merely corrects the clerical errors and does not change the substance of the property purchased in 2003. It is contended that the trial Court has rightly decreed the suit, declaring her title over ‘A and B’ schedule properties and directing removal of the encroachment by the defendant and restraining him by permanent injunction from interfering with her possession. - 9 - HC-KAR NC: 2025:KHC:34344 RFA No. 834 of 2023 8. Having heard the learned counsel for the parties, the points that arise for consideration are: “i. Whether Ex.P2-rectification deed dated 12.12.2013 where boundaries and measurements differ materially from Ex.P1 would have legal effect and validity? ii. Whether the encroachment is proved in law and on facts so as to sustain a decree for declaration and injunction?” 9. Ex.P1-registered sale deed dated 31.12.2003 executed by Kariyappa, Renuka Prasad and Lakshmi Narayan, in favour of the plaintiff-Jayalakshmi, in respect of Site Nos.50 and 51 formed in Survey No.15/4 situated at Laggere, Yeshwanthpura Hobli, Bangalore North Taluk. The schedule therein describes the property with measurements east-west 60 feet, north-south 60 + 40 feet divided upon 2 along with 1 square AC sheet house having jungle wood doors and windows with electricity facility. The boundaries are shown as East : Site No. 49 - 10 - HC-KAR NC: 2025:KHC:34344 RFA No. 834 of 2023 West : Site No. 52 North : Road South: Private layout 9. Ex.P2 is the rectification deed dated 12.12.2013 executed by Lakshmi Narayan in favour of the plaintiffs stating that by oversight in Ex.P1 the schedule was recorded as east-west 60 feet and north-south 60 + 40 feet divided by 2, whereas the correct measurement is east-west northern side 40 feet, southern side 60 feet and north-south 60 feet. The rectified schedule describes the properties as Site Nos.50 and 51, Survey No.15/4, Corporation No.50 / 11, Ward No.12 of Nandini Layout, Bangalore bounded by East : Private Property West : Road North : Site No.52 South : Site No.49. 10. It is evident from Exs.P1 and P2 that there is a material difference in the description of the property, both in measurement and in boundary particulars. The - 11 - HC-KAR NC: 2025:KHC:34344 RFA No. 834 of 2023 rectification deed executed nearly a decade later and without joining all the original executants or their legal heirs substantially alters the identity of the property. The critical question that arises is whether such a unilateral rectification can confer a valid claim upon the plaintiffs and cure the discrepancy in Ex.P1, or whether the variance in description undermines the very foundation of the plaintiffs’ title. The shift is not a mere clerical correction of dimensional figures, it reorients the parcel relating to abutting properties / roads. 11. It is settled law that while boundaries ordinarily prevail over measurements, that principle presupposes consistent, certain and non-contradictory boundaries. Here in Exs.P1 and P2 carry mutually inconsistent boundary sets, therefore, the very identity of the property is put in doubt unless the plaintiffs prove a mutual mistake and obtains a valid rectification deed from all original vendors. The rectification under law is intended to correct a mutual mistake and cannot be used to convey new rights or - 12 - HC-KAR NC: 2025:KHC:34344 RFA No. 834 of 2023 substantially change the property's identity, location or boundaries. Ex.P2 is executed by only Lakshmi Narayana, though Ex.P1 was executed by Kariyappa, Renuka Prasad and Lakshmi Narayana. Though it is contended that Renuka Prasad and Lakshmi Narayan are no more, the legal heirs of the deceased co-executants did not join together for the rectification of the deed. 12. On this record, Ex.P2 cannot by itself, perfect the plaintiffs’ title to a property described materially different from Ex.P1. Further, the defendant's purchase is dated 06.05.2013, which precedes the rectification deed 12.12.2013. A later ‘rectification’ cannot operate to the prejudice of a prior transferee who claims under an independent title, absent proof of fraud or notice linking his title to the alleged mistake. 13. The Commissioner’s report is corroborative, it cannot cure a title defect or substitute for proof of the true identity under the plaintiffs’ deed. The Commissioner - 13 - HC-KAR NC: 2025:KHC:34344 RFA No. 834 of 2023 himself proceeded on Ex.P2 as tallying with ground and not Ex.P1. If Ex.P2 is legally informed and substantially alters identity, reliance on such a description vitiates the finding of encroachment. The khata and assessment entries may reflect possession or a fiscal liability, but do not confer title, at best, they are supporting circumstances and cannot overcome deed level inconsistencies in identity boundaries. In a suit for declaration and injunction for encroachment, the initial burden lies on the plaintiffs to establish clear title and precise identity of the property allegedly encroached. Given the inconsistency between Ex.P1 and Ex.P2 and the legal infirmity surrounding Ex.P2, the plaintiffs have not discharged this burden. The plaintiffs have failed to prove through a valid and binding chain of title the identity of schedule A and B properties as claimed against Ex.P2 executed cannot be treated as a valid rectification deed. The encroachment resting on the description derived from an ineffective rectification cannot stand. The trial Court has erred in decreeing the suit by - 14 - HC-KAR NC: 2025:KHC:34344 RFA No. 834 of 2023 relying on the Commissioner’s report, which is anchored to Ex.P2, without first resolving the title / identity issue arising from Ex.P1 and Ex.P2, discrepancy and validity of Ex.P2. Consequently, the impugned judgment and decree warrants interference by this Court and the points framed for consideration are answered accordingly and this Court pass the following: ORDER i. The regular first appeal is allowed. ii. The judgment and decree dated 02.03.2023 in O.S. No.7057/2014, on the file of the XLII Additional City Civil and Sessions Judge, Bengaluru (CCH-43) is set aside. iii. The suit of the plaintiff is hereby dismissed. Sd/- ____________________ JUSTICE K.S. HEMALEKHA AT List No.: 1 Sl No.: 25