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2025 DAILYLAW 51786 (KAR)

THE MANAGING DIRECTOR v. SMT HEMALATHA Y M

RSA/488/2023 · 2025-09-09

V Srishananda

Original Suitbody2025

Judgment text

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- 1 - HC-KAR NC: 2025:KHC:35950 RSA No. 488 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 488 OF 2023 (INJ) BETWEEN: THE MANAGING DIRECTOR KARNATAKA STATE ROAD TRANSPORT CORPORATION BANGALORE RURAL DIVISION (RAMANAGARA), PRESENTLY BANGALORE CENTRAL DIVISION, REPRESENTED BY DIVISION CONTROLLER, BANGALORE CENTRAL DIVISION, SHANTHINAGAR, BANGALORE - 560 027 THROUGH THE CHIEF LAW OFFICER &APPELLANT (BY SRI. P.D. SURANA, ADVOCATE) AND: SMT. HEMALATHA Y.M. W/O DR. R. MADHAVAMURTHY, AGED ABOUT 41 YEARS, RESIDING AT NO.1650/16, II MAIN, RAMAMOHANAPURA, BENGALURU - 560 021 &RESPONDENT (BY SRI. HAREESH KUMAR N.T., ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.06.2022 PASSES IN RA NO.44/2018 ON THE FILE OF THE ADDITIONAL Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:35950 RSA No. 488 of 2023 SENIOR CIVIL JUDGE, NELAMANGALA. DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 02.11.2018 PASSED IN O.S.NO.284/2010 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, NELAMANGALA. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri. P.D. Surana, learned counsel for the appellant and Sri. Hareesh Kumar N.T., learned counsel for the respondent. 2. Defendant is the appellant in the second appeal challenging the validity of the decree of permanent injunction passed in O.S.No.284/of 2010 in respect of the following property (hereinafter referred to as 'suit property'): SCHEDULE All that piece and parcel of Site No.3, having Khanushmari No.509/3, situated at Arishinakunte Village, Kasaba Hobli, Nelamangala Taluk, Bangalore Rural District measuring East to West 50 feet and North to South 30 feet and bounded on the - - 3 - HC-KAR NC: 2025:KHC:35950 RSA No. 488 of 2023 East by : Site No.2 West by : 25 Feet Road North by : Road South by : Site No.4. All that piece and parcel of Site No.4, having Khanushmari No.509/4, situated at Arishinakunte Village, Kasaba Hobli, Nelamangala Taluk, Bangalore Rural District measuring East to West 50 feet and North to South 30 feet and bounded on the East by :Site Nos.2 & 6 West by :25 Feet Road North by : Site No.3 North by South by : Site No.5. 3. The judgement and decree passed by the Trial Court was questioned by the appellant before the First Appellate Court in R.A.No.44/2018. 4. Learned judge in the First Appellate Court after securing the records, heard the arguments of the parties and by considered judgement dated 30.06.2022 dismissed the appeal and whereby decree of permanent injunction passed by the Trial Court came to be confirmed. - 4 - HC-KAR NC: 2025:KHC:35950 RSA No. 488 of 2023 5. Being further aggrieved by the same, defendant has filed the present appeal. 6. Facts in the nutshell for disposal of the present appeal are as under: 7. In the schedule of the plaint, the plaintiff has described the two sites as follows:- SCHEDULE All that piece and parcel of Site No.3, having Khanushmari No.509/3, situated at Arishinakunte Village, Kasaba Hobli, Nelamangala Taluk, Bangalore Rural District measuring East to West 50 feet and North to South 30 feet and bounded on the - East by : Site No.2 West by : 25 Feet Road North by : Road South by : Site No.4. All that piece and parcel of Site No.4, having Khanushmari No.509/4, situated at Arishinakunte Village, Kasaba Hobli, Nelamangala Taluk, Bangalore Rural District measuring East to West 50 feet and North to South 30 feet and bounded on the East by :Site Nos.2 & 6 West by :25 Feet Road - 5 - HC-KAR NC: 2025:KHC:35950 RSA No. 488 of 2023 North by : Site No.3 North by South by : Site No.5. 8. A suit for permanent injunction came to be filed by the plaintiff contending that plaintiff is the absolute owner in lawful possession and enjoyment of the suit property bearing No.3 having Khaneshumari No.509/3 situated at Arasinakunte Grama Panchayat, Kasaba Hobli, Nelamangala Taluk. 8. Suit property is a portion of the converted land in Surrey No.20/2C, Old Sy.No.20/2 measuring 0-10 guntas situated at Arasinakunte Village, which was converted for non agricultural purpose as per the Order dated 19.03.1992. 9. After the conversion of the land, property was transferred to Arasinakunte Village and was allotted Khaneshumari No.509. Property was divided into seven individual sites bearing Nos.509/1 to 509/7. Out of the aforesaid sites, plaintiff purchased two sites bearing - 6 - HC-KAR NC: 2025:KHC:35950 RSA No. 488 of 2023 Khaneshumari Nos.509/3 and 509/4. Plaintiff thereafter paid taxes and also obtained sanction to construct a commercial building. Plaintiff paid the licence fee to the Gram Panchayat. 10. Defendant who has no matter of right, title or interest over the suit property started obstructing the construction of the building which necessitated the plaintiff to file the suit for permanent injunction. 11. Pursuant to the suit summons, defendant entered appearance and filed written statement contending that plaintiff has not approached the Court with clean hands and 0-15 gutnas of land in Sy.No.20/2C and other adjoining land of Arasinakunte Village was acquired by the State of Karnataka for public purpose under the provisions of Land Acquisition Act and took possession and thereafter transferred the same to Commercial Tax Department 18.02.1994. - 7 - HC-KAR NC: 2025:KHC:35950 RSA No. 488 of 2023 12. It is further contended that in the year 2007, Government of Karnataka examined the proposal KSRTC seeking for the land to improve the passenger transport communities at the outskirts of Bangalore and by Order 30.05.2007, 4 acre 32 guntas of the land of Arasinakunte Village was transferred to KSRTC and directed to pay the consideration in a sum of Rs.2,40,00,000/- (Rupees Two Crores Forty Lakhs only) to the government treasury on 24.08.2007 and possession was delivered to KSRTC by Government Order dated 30.05.2007. 13. It is further contended that the defendant is in possession and enjoyment of the 0-15 gutnas of land in Sy.No.20/2C of Arasinakunte Village apart from the adjoining land which was acquired and allotted to the KSRTC. 14. It is further contended that plaintiff has no manner of right whatsoever and they have encroached - 8 - HC-KAR NC: 2025:KHC:35950 RSA No. 488 of 2023 upon the property of the defendant and thus sought for dismissal of suit. 15. Learned Trial Judge after raising necessary issues and recording the evidence of the parties, decreed the suit of the plaintiff. 16. Being aggrieved by the same, defendant filed an appeal before the First Appellate Court in R.A. No.44/2018 which on contest came to be dismissed by considered judgement dated 30.06.2022. 17. Being further aggrieved by the same, present second appeal is filed on the following grounds : The said description indicates that towards the North of the site No.3, the plaintiff states that there is a road on its North. The question of existence of the road on its north is a misleading boundary stated in the plaint and so also the sale deed executed by his Vendor produced at Ex.P2. The Trial court ought to have taken note of the fact the Ex.P6 produced by the plaintiff is clear that the site no.3 is to be located towards the South of the 15 guntas of land acquired by the State Government for formation of the Check post. This 15 guntas of land was in possession of the Commercial - 9 - HC-KAR NC: 2025:KHC:35950 RSA No. 488 of 2023 Department and thereafter, the said land has been transferred in favour of the Defendant/ Appellant herein. Under the circumstances, the plaintiff could not have laid any claim in respect of 15 guntas of land. The filing of the suit itself is an abuse of process of law and intended to illegally occupy the land belonging to the Defendant/ Appellant herein. The observation of the Trial court that, the property of the Defendant and the property of the plaintiff are altogether different properties is recorded by the trial court without giving credence to the documents produced by the Defendant/ Appellant herein and so also Ex.P6 produced by the plaintiff himself. The evidence of DW1 could not have been used by the trial court for the reason that, he has made a mistaken statement and the statement made by him do not amounts to admission on the part of the Defendant/Appellant herein. The Trial court failed to take note of the fact that the documents produced by the plaintiff stated to be for the sites No.3 & 4 which is shown in Ex.P6 do not relates to the land acquired under Ex.D1 the Final Notification dtd:28.07.1990. The finding recorded by the trial court that the Defendant No.1 has stated that the compound wall of their property was constructed in the year 2010 itself and therefore that, the plaintiff's property is the adjacent property of the defendant is an erroneous finding recorded by the trial court. The trial court failed to see that, the Depot is constructed in the land where check post building was in existence. In Ex.P6, it is clearly shown that infront of the check post a strip of land was acquired intended to provide parking of the vehicles has not been taken note of by the trial court. The trial court failed to - 10 - HC-KAR NC: 2025:KHC:35950 RSA No. 488 of 2023 see that, as per Ex.P6 towards the north of site no.3, the lands acquired in 22/2C is shown to be in existence. Therefore, the plaintiff cannot claim that there is a road towards north of the site No.3. In the guise of claiming the road towards north, the plaintiff has shown road towards the north of her property in the sale deed and she has constructed the building on the acquired property and the road shown in the north is the road which exists as National Highway. The plaintiff cannot claim her site adjoining to the National Highway No.4 and the construction made by this plaintiff is on the property of this defendant in the guise of making the construction of site No.3. The trial court failed to take note of the fact that as per the sketch at Ex.P6 itself the bus depot was not constructed in Sy.No.20/2C but the same was constructed in the other survey numbers. The plaintiff cannot claim any right, title and interest in 15 guntas of acquired land. The trial court observes that the plaintiff has produced the documents like assessment register, license, sketch at Ex.P9 to 14, photographs at Ex.P17 to Ex.P22 to show that she is in possession of the suit property and there is no evidence on record that the said photographs relates to unacquired possession of the property in fact the photographs relates to the part of the acquired property. Both the courts below has failed to take note of the fact that, the Village Panchayat was not authorized to approve the layout plan produced as Ex.P6. Even the Village Panchayat could not have registered the khatha and issued the sanctioned plan in respect of the agricultural land. No documents were produced before the trial court that the lands retained by the land - 11 - HC-KAR NC: 2025:KHC:35950 RSA No. 488 of 2023 owners was converted for non-agriculture use. In the guise of making construction on the unacquired land the respondent is encroached upon the property of the appellant on the basis of the documents which are no legal reliability. The trail court has observed that the total extent of land in Sy.No.20/2C measures 1Acre 2 guntas out of which 15 guntas is owned by the defendant/Appellant herein. The trial court has also observed that the 15 guntas of land is transferred by the Tax Department to the Defendant. The defendant has remitted a sum of Rs.2,40,000/- towards the price of the land to the Government of Karnataka. The Defendant has produced document to show that the defendant has paid the amount of Rs.2,40,000/- and the defendant has been put in possession of the property. The name of the defendant in 15 guntas of land is shown in RTC and the name of the defendant is also mutated in the Mutation Extract Register. The plaint in O.S.No.285/2010 which was filed by the KSRTC against the plaintiff in the present suit showing that the plaintiff in the guise of making construction on her property, she is encroachment in the property of the defendant. Under the circumstances, without there being any evidence on record that the building constructed by the plaintiff falls within the boundary of unacquired land the injunction could not have been granted. The First Appellate Court has dismissed the appeal filed by the Defendant on the ground that, the defendant has not produced the material to show that the suit schedule property and the property of the defendant is one and the same or in other - 12 - HC-KAR NC: 2025:KHC:35950 RSA No. 488 of 2023 words the suit schedule property is the part and parcel of the property of the defendant. On the basis of the said observation, the trial court has declined to interfere with the finding of the trial court. The Appellate court failed to see that it was for the plaintiff to prove that the property claimed by her is outside the acquired portion. The First Appellate court has casted the burden on the defendant and expected the defendant to show that the property of the plaintiff is not falling within the defendant's property. Hence, the finding of the First Appellate Court is unsustainable. The First Appellate Court observes that the possession of the plaintiff is required to be protected in view of the judgement of Supreme Court Reported in 2004(1) SCC 769 and 2013(3) SCC 666. The trail court failed to see that the said judgments are not applied to the present case. The plaintiff is not claiming possessory rights in the property of the defendant and that she is in settled possession of the defendant's property. The case put forth is that, she is making construction in her property and in the guise of making construction of the property on the basis of the injunction granted by the trial court she has misused the injunction order and has made construction over the portion of the property belonging to this defendant. When the identity is not established of the constructed area the injunction should not have been granted. Both the courts should have seen that, the plaintiff who has abused the process of law i.e., constructing of the building after obtaining an exparte order of injunction is not entitled to the property of the defendant is one and the same or in - 13 - HC-KAR NC: 2025:KHC:35950 RSA No. 488 of 2023 otherwards the suit schedule property is the part and parcel of the property of the defendant. On the basis of the said observation, the trial court has declined to interfere with the finding of the trial court. The Appellate court failed to see that it was for the plaintiff to prove that the property claimed by her is outside the acquired portion. The First Appellate court has casted the burden on the defendant and expected the defendant to show that the property of the plaintiff is not falling within the defendant's property. Hence, the finding of the First Appellate Court is unsustainable. The First Appellate Court observes that the possession of the plaintiff is required to be protected in view of the judgement of Supreme Court Reported in 2004(1) SCC 769 and 2013(3) SCC 666. The trail court failed to see that the said judgments are not applied to the present case. The plaintiff is not claiming possessory rights in the property of the defendant and that she is in settled possession of the defendant's property. The case put forth is that, she is making construction in her property and in the guise of making construction of the property on the basis of the injunction granted by the trial court she has misused the injunction order and has made construction over the portion of the property belonging to this defendant. When the identity is not established of the constructed area the injunction should not have been granted. Both the courts should have seen that, the plaintiff who has abused the process of law i.e., constructing of the building after obtaining an exparte order of injunction is not entitled to the judgement & decree in her favour and passing of such - 14 - HC-KAR NC: 2025:KHC:35950 RSA No. 488 of 2023 judgement & decree will lend assistance for illegal perpetration of possession over the property of the defendant. Hence, both the judgements are liable to be set-aside. 18. In the appeal, the following substantial questions of law are raised: (i) That, the Courts below erred in law in holding that, the plaintiff is entitled to the injunction as he has put up construction over the suit property during the pendency of the proceedings. (ii) Both the courts below in law could not have decreed the suit of the plaintiff when the plaintiff has failed to prove that, the property claimed by him do not form the part and parcel of the 15 guntas of land acquired under the Land Acquisition Act as per the final notification dtd: 25.07.1990. (iii) The judgements of both the courts are not sustainable in law for the reason that the burden was shifted on the defendant to prove that the plaintiff is not occupying the property owned by the defendant. - 15 - HC-KAR NC: 2025:KHC:35950 RSA No. 488 of 2023 19. Sri. P.D. Surana, learned advocate for the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that as per the schedule mentioned in the plaint, to the Northern side, it has been shown as highway, but no such highway is existing on the Northern side of the plaintiff's property and thus there is a serious dispute as to the identity of the very property of the plaintiff which would establish that the plaintiff has encroached upon the property of the appellant and sought for admitting the appeal on the aforesaid grounds. 20. He would also contend that plaintiff has suppressed the real facts before the Trial Court and both the Courts have ignored these facts while decreeing the suit of the plaintiff resulting in miscarriage of justice and sought for admitting the appeal on the aforesaid substantial questions of law. - 16 - HC-KAR NC: 2025:KHC:35950 RSA No. 488 of 2023 21. Per contra, learned counsel for the respondent supports the impugned judgment. 22. He would further contend that after the conversion of the portion of the property, seven sites were carved out in the converted land which came under the Arasinakunte Gram Panchayat limits and thereafter converted land which came under the Arasinakunte officials have given different sub-numbers for the converted land and out of seven sites, plaintiff has purchased two sites by registered sale deeds and plaintiff is put into the possession of the suit property. When the plaintiff wanted to put up the commercial complex after obtaining the plan and license, defendant started interfering which necessitates the plaintiff to file a suit and which has been rightly appreciated by both the Courts and sought for dismissal of the appeal. 23. Having heard the arguments of both sides, this Court perused the material on record meticulously. - 17 - HC-KAR NC: 2025:KHC:35950 RSA No. 488 of 2023 24. On such perusal of material on record, it is crystal clear that the plaintiff is claiming right over the the suit property by virtue of two sale deeds. However, the defendant has set up the contra title by virtue of 0-15 guntas of land in Sy.No.20/2C and 4-00 acres of land acquired which was given to the Commercial Department and later on transferred to the KSRTC. 25. Learned counsel for the appellant emphasises that Northern boundary of the plaintiff shows that there is a highway but no such highway is existing on the Northern boundary of the plaintiff's property. Thus, identity of the suit property is in dispute. 26. If that was so, nothing prevented the defendant to seek for appointment of the Court Commissioner to identify the land of the defendant and plaintiff before the Trial Court. - 18 - HC-KAR NC: 2025:KHC:35950 RSA No. 488 of 2023 27. No such efforts have been made. As a last attempt, before this Court, an application under Order XXVI Rule 9 vide I.A.No.1/2025 came to be filed. 28. It is settled principles of law and requires no emphasis that in the second appeal having regard to the scope of Section 100 of the Code of Civil Procedure, this Court is not expected to collect evidence of the parties as it would amount to considering the case on factual aspects. 29. Further, if the defendant is setting up a contra title, he must seek the necessary relief before the appropriate forum. Defendant cannot set up a contra title in a suit for bare injunction filed by the plaintiff without even paying the Court fee. 30. Taking note of these aspects of the matter, based on the oral and documentary placed by the plaintiff, decreeing of the suit by the Trial Court confirmed by the First Appellate Court needs no interference by this Court. - 19 - HC-KAR NC: 2025:KHC:35950 RSA No. 488 of 2023 31. Accordingly, following order: ORDER (i) Appeal grounds are meritless, accordingly appeal is dismissed. (ii) In view of dismissal of the appeal, pending I.As. would not survive for further consideration and are consigned to records. (iii) Dismissal of the suit shall not come in the way of the appellant working out its rights before the appropriate forum in accordance with law. Sd/- (V SRISHANANDA) JUDGE SNC List No.: 1 Sl No.: 61 CT-SG