- 1 - HC-KAR NC: 2025:KHC-D:7697 MSA No. 540 of 2012 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 16TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS SECOND APPEAL NO. 540 OF 2012 BETWEEN: 1. SHRI BABAN @ MARUTI GOVIND JADHAV, SINCE DECEASED BY HIS LR’S., 1A. CHAYA WD/O MRUTI @ BABAM JADHAV, AGE: 65 YEARS, OCC: HOUSEHOLD, R/O: 3402/2, GONDHALLI, BELAGAVI. 2. SHRI VIJAY GOVIND JADHAV, AGE: 58 YEARS, OCC: GOVT. SERVANT, R/O: 3402/2, GONDHALI GALLI, BELAGAVI-590 001. 3. SMT. CHANDRABHAGA W/O. SAJAN BHOPALE, SINCE DECEASED AND REPRESENTED BY HER LR’S., 3A. SHRI SATISH S/O SAJAN BHOPALE, AGE: 52 YEARS, OCC: SERVICE, R/O: SY.NO.56/10, 5TH CROSS, OPP. HARMONY APARTMENT, SHAHU NAGAR, BELAGAVI. 3B. SHRI YUVARAJ S/O SAJAN BHOPALE, AGE: 46 YEARS, OCC: PVT. SERVICE, R/O: SY.NO.53/10, 5TH CROSS, OPP. HARMONY APARTMENT, SHAHU NAGAR, BELAGAVI. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - HC-KAR NC: 2025:KHC-D:7697 MSA No. 540 of 2012 3C. SMT. ROOPA S. GHODAKE, AGE: 50 YEARS, OCC: HOUSEHOLD, R/O: C/O. KUNAL INGAVALE, HANUMAN TEKADE, SHANTA CRUZ, WEST MUMBAI. 3D. SMT. DEEPA R. SHETAKE, AGE: 48 YEARS, OCC: HOUSEHOLD, R/O: ASHRAY NAGAR, NIPPANI. 4. SMT. KAMAL W/O. ARJUN TADE, AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O: MUTTON SHOP, TQ: SAMBRA, DIST: BELAGAVI. 5. SMT. SULOCHANA D/O. SHANKAR JADHAV, AGE: MAJOR, OCC: SERVICE, R/O: C/O. TAHASILDAR’S OFFICE, TQ: CHIKKODI, DIST: BELAGAVI. … APPELLANTS (BY SRI. SANGRAM S. KULKARNI, ADVOCATE) AND: 1. SHRI UTTAM ANANT SAROLKAR, AGE: 58 YEARS, OCC: SERVICE, R/O: 3402/1, GONDHALI GALLI, BELAGAVI-590 001. 2. SHRI GANAPAT KALLAPPA SAROLKAR, SINCE DECEASED BY HIS LR’S., 2A. SHANTA SHANKAR SUREKHAR, AGE: 65 YEARS, OCC: HOUSEHOLD, R/O: H.NO.3402/A, GHONDHALI GALLI, BELAGAVI. 3. SHRI NANA KALLAPPA SAROLKAR, AGE: 56 YEARS, OCC: SERVICE, - 3 - HC-KAR NC: 2025:KHC-D:7697 MSA No. 540 of 2012 R/O: 3402/1, GONDHALI GALLI, BELAGAVI-590 001. 4. SHRI BABU LAXMAN SAROLKAR, AGE: 66 YEARS, OCC: WATCHMAN, R/O: 3402/1, GONDHALI GALLI, BELAGAVI-590 001. 5. SHRI VISHNU LAXMAN SAROLKAR, AGE: 65 YEARS, OCC: SERVICE, R/O: 3402/1, GONDHALI GALLI, BELAGAVI-590 001. 6. SHRI ANIL LAXMAN SAROLKAR, AGE: 63 YEARS, OCC: SERVICE, R/O: 3402/1, GONDHALI GALLI, BELAGAVI-590 001. 7. SHRI VILAS LAXMAN SAROLKAR, AGE: 61 YEARS, OCC: SERVICE, R/O: 3402/1, GONDHALI GALLI, BELAGAVI-590 001. 8. 8A. 8B. 8C. SHRI YALLAPPA ANANT SAROLKAR, SINCE DECEASED BY HIS LRS., SMT. LAXMIBAI W/O YALLAPPA SAROLKAR, AGE: 53 YEARS, OCC: HOUSE WIFE, R/O: 3402/1, GONDHALI GALLI, BELAGAVI. SHRI MANGESH S/O YALLAPPA SAROLKAR, AGE: 32 YEARS, OCC: BUSINESS, R/O: 3402/1, GONDHALI GALLI, BELAGAVI. SHRI SANTOSH S/O YALLAPPA SAROLKAR, AGE: 30 YEARS, OCC: BUSINESS, R/O: 3402/1, GONDHALI GALLI, BELAGAVI. - 4 - HC-KAR NC: 2025:KHC-D:7697 MSA No. 540 of 2012 9. SHRI ASHOK ANANT SAROLKAR, SINCE DECEASED REPRESENTED BY HER LR’S., 9A. SMT. BHARATI ASHOK SAROLKAR, SINCE DECEASED REPRESENTED BY HER LR’S., 9B. SHRI AKSHAY S/O ASHOK SAROLKAR, AGE: 45 YEARS, OCC: SERVICE, R/O: GONDHALI GALLI, BELAGAVI-590 001. 9C. SHRI AMIT S/O ASHOK SARLLOKAR, AGE: 41 YEARS, OCC: SERVICE, R/O: GONDHARI GALLI, BELAGAVI-590 001. 9D. SHRI ANAND S/O ASHOK SAROLKAR, AGE: 39 YEARS, OCC: PRIVATE JOB, R/O: GONDHALI GALLI, BELAGAVI-590 001. … RESPONDENTS (R1 TO R2(A), R3 TO R7, R8(A TO C)-SERVED; R1 TREATED AS LR’S OF DECEASED OF R3; R9(B TO D)-HELD SUFFICIENT; R9(B TO D) ARE LR’S OF DECEASED R9(A)) THIS MSA IS FILED UNDER ORDER XLIII RULE 1(U) R/W. SEC.100 OF THE CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED: 19.01.2012 PASSED IN R.A. NO.806/2009 ON THE FILE OF THE FAST TRACK COURT-I AND ADDL. DISTRICT JUDGE, BELGAUM AT BELAGAM AND CONFIRM THE JUDGMENT AND DECREE DATED 20-12-2003 PASSED IN O.S. NO.555/1994 ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE JR. DN. BALGAUM AT BELGAUM. THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER: - 5 - HC-KAR NC: 2025:KHC-D:7697 MSA No. 540 of 2012 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This Miscellaneous Second Appeal is filed by the legal heirs of defendant No.1, challenging the order passed in R.A.No.806/2009 dated 19.01.2012 on the file of Fast Track Court-I and Additional District Judge, Belgaum (for short, ‘First Appellate Court’), thereby setting aside the order passed in O.S.No.555/1994 dated 20.12.2003 on the file of III Additional Civil Judge JR.DN., Belgaum (for short, ‘Trial Court’) and remanded the matter to the Trial Court. 2. For the purpose of convenience, ranking of the parties is referred to as per their status before the Trial Court. 3. The plaintiffs have filed the suit against the defendants for mandatory injunction directing defendant Nos.1 to 9 to remove the encroachment over the suit gutter by demolishing the foundation of compound wall and to restore the latrines No.1 and 2 as shown in the hand sketch map. 4. The Trial Court has dismissed the suit. Against which, the plaintiffs have preferred the regular appeal before the First Appellate Court. The First Appellate Court has passed - 6 - HC-KAR NC: 2025:KHC-D:7697 MSA No. 540 of 2012 an order of setting aside the judgment and decree passed in the suit and remanded the suit to the Trial Court by permitting the plaintiffs to cross-examine the Court Commissioner appointed in the said suit. In terms of objections filed by the plaintiffs, this remand order is under challenge in the present appeal. 5. The learned counsel for the appellants/defendants submitted that the Trial Court has rightly dismissed the suit on the reason that the plaintiffs have not taken recourse to cross- examine the Court Commissioner. Therefore, remanding the case to the Trial Court for cross-examination of Court Commissioner is not correct. Although it is submitted that latrines No.1 and 2 were demolished by the City Corporation, Belgaum, therefore, latrines No.1 and 2 are not in existence. Hence, there is no question of taking measurement of the latrines and cross-examination of Court Commissioner. Hence, prays to allow the appeal and set aside the order of the First Appellate Court in remanding the case to the Trial Court. 6. The respondents/plaintiffs though were served notice, but remained absent. - 7 - HC-KAR NC: 2025:KHC-D:7697 MSA No. 540 of 2012 7. Heard arguments from learned counsel for the appellants/defendants. 8. In the suit in O.S.No.555/1994, the Trial Court has appointed the Court Commissioner. The Court Commissioner has conducted an enquiry by surveying the suit property and submitted his report. The plaintiffs might have grievance over the Court Commissioner’s report, have filed objections. But the plaintiffs have not cross-examined the Court Commissioner. The Trial Court, after appreciating the evidence on record, has dismissed the suit. Against this, the plaintiffs have preferred the regular appeal before the First Appellate Court and the First Appellate Court has remanded the matter enabling the plaintiffs to cross-examine the Court Commissioner, which is challenged in this appeal. 9. As per the submission made by learned counsel for the appellants/defendants, latrines No.1 and 2 as shown in the plaint hand sketch map are not in existence. Since they have been demolished by the City Corporation, Belgaum. Hence, there is no question of measuring latrines Nos.1 and 2. Therefore, cross-examination of Court Commissioner is nothing - 8 - HC-KAR NC: 2025:KHC-D:7697 MSA No. 540 of 2012 but futile exercises. It is further submitted that the latrines were demolished by the City Corporation, Belgaum, but not by the defendants. But the plaintiffs have not made the City Corporation, Belgaum, as a party in the suit. Therefore, on this ground also the suit is not maintainable. Hence, prays to allow the appeal. 10. Upon considering the suit filed by the plaintiffs, it is only for mandatory injunction seeking directions against defendant Nos.1 to 9 to remove the encroachment over the suit gutter by demolishing the foundation of compound wall and to restore latrines No.1 and 2 as shown in the hand sketch map. When the plaintiffs have sought for mandatory injunction for removal of encroachment, alleged to have been made by the defendants, then the plaintiffs have to seek relief of declaration. Wherever relief is claimed for removing encroachment, then the question is to consider is, the encroached area belongs to whom. Therefore, it is burden on the plaintiffs to prove that whether encroached area belongs to plaintiffs or it is a common area. Unless this is decided, the suit for relief of mandatory injunction alone is not correct. - 9 - HC-KAR NC: 2025:KHC-D:7697 MSA No. 540 of 2012 11. Therefore, without expressing any opinion on merits involved in the case, whether Court Commissioner has reported correctly or not, but keeping open all the contentions of both parties, liberty is reserved to the plaintiffs/respondents to file a suit for declaration and mandatory injunction in the background of the factual matrix involved as discussed above. Therefore, at this stage, there is no need to make interference in the order passed by the Trial Court, when the plaintiffs are given liberty to file a suit for relief as discussed above. 12. Hence, the appeal is liable to be allowed and the impugned order passed by the First Appellate Court is set aside. However, whatever observations made in the suit and in the appeal, shall not come in the way to decide the suit on merits, in case, the plaintiffs choose to institute a suit for the reliefs above stated. In case, the suit is filed by the plaintiffs, the same shall be decided in accordance with law without being influenced of the observations made in O.S.No.555/1994 and in the appeal. - 10 - HC-KAR NC: 2025:KHC-D:7697 MSA No. 540 of 2012 13. With these observations, the appeal is allowed and the impugned order passed by the First Appellate Court is set aside. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE PMP List No.: 1 Sl No.: 10