- 1 - HC-KAR NC: 2025:KHC:31020 RFA No. 196 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA REGULAR FIRST APPEAL NO.196 OF 2023 (INJ) BETWEEN: SRI P.K. PURUSHOTHAMA S/O SRI P.M. KEMPAIAH, AGED ABOUT 39 YEARS, RESIDING AT NO.2903, S.R.S. NILAYA, S.R.S. ROAD, PEENYA, BANGALORE-58. …APPELLANT (BY SRI KALPANA P.V., ADVOCATE) AND: SRI H. MUNIYAPPA S/O LATE HANUMANTHAPPA, AGED ABOUT 66 YEARS, (SINCE DEAD BY LRS.) 1. SMT. MUNILAKSHMAMMA W/O LATE H. MUNIYAPPA, AGED ABOUT 60 YEARS, RESIDING AT NO.220, 4TH BLOCK, 10TH CROSS, PEENYA, BANGALORE-58. 2. SRI P.M. CHANDRASHEKAR S/O SRI MUNIYAPPA, AGED ABOUT 38 YEARS, 3. SRI P.M. HANUMANTHAPPA S/O SRI MUNIYAPPA, AGED ABOUT 35 YEARS, Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:31020 RFA No. 196 of 2023 4. SRI P.M. RAVIKUMAR S/O SRI MUNIYAPPA, AGED ABOUT 31 YEARS, RESPONDENT NOS.2 TO 4 ARE RESIDING AT NO.220, 4TH BLOCK, 10TH CROSS, PEENYA, BANGALORE-58. …RESPONDENTS (BY SRI VIJAYA KUMAR K., ADVOCATE FOR R-1 TO R-4) THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 14.12.2022 PASSED IN O.S.NO.17372/2006 ON THE FILE OF THE XIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU, DISMISSING THE SUIT FOR BARE INJUNCTION. THIS APPEAL COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA ORAL JUDGMENT The present regular first appeal is preferred by the plaintiff assailing the legality and correctness of the judgment and decree dated 14.12.2022 passed in O.S. No.17372/2006 on the file of the XIII Additional City Civil and Sessions Judge, Mayohall Unit, Bengaluru (CCH-22) (hereinafter referred to as ‘the Trial Court’ for short). By - 3 - HC-KAR NC: 2025:KHC:31020 RFA No. 196 of 2023 the judgment and decree, the Trial Court dismissed the suit seeking permanent injunction. 2. The plaintiff instituted suit seeking a decree of permanent injunction restraining defendant Nos.1 to 4 from interfering with his peaceful possession and enjoyment of the suit property. The suit property comprises site No.80 formed out of land bearing Sy. No.119 of Laggere Village, Yeshwanthapura Hobli, Bengaluru North Taluk, now situated at Rajagopalanagar Extension measuring East-West 24 feet and North-South 33 feet (hereinafter referred to as the ‘suit property’ for short) as bounded as follows: East : Property No.77 belonging to defendant No.1 West : Property No.82 belonging to P.M. Kempaiah, father of the plaintiff; North : Road and South: Property No.79. 3. The case of the plaintiff is that he is the absolute owner and is in lawful possession of the suit - 4 - HC-KAR NC: 2025:KHC:31020 RFA No. 196 of 2023 property, having acquired it under a registered sale deed dated 10.10.2006 executed by his father, who inturn had purchased the same from the original allottee – Shivaramaiah, through a General Power of Attorney and affidavit dated 25.02.1991. The original allottee was issued with a Hakkupatra dated 05.01.1973 by the Government in respect of Site No.80. It is further averred that although the Hakkupatra (original allotment) reflected the dimensions as East-West 40 feet and North-South 30 feet, the actual measurement of site No.80 and the adjacent sites was East-West 30 feet and North-South 40 feet. Due to the road formation and subsequent road widening, the North-South measurement was reduced to 33 feet. Additionally, defendant No.1 who is the owner of the adjacent site No.77 on the eastern side, encroached upon 6 feet of the suit property, thereby reducing the East-West dimension to 24 feet and North-South 33 feet. Accordingly, the plaintiff’s sale deed reflects a reduced extent of east-west 24 feet and North-South 33 feet. It is - 5 - HC-KAR NC: 2025:KHC:31020 RFA No. 196 of 2023 averred that when the plaintiff commenced construction over the suit property, defendant Nos.1 to 4 interfered with the plaintiff’s possession, Hence, the suit for injunction. 4. Defendants contested the suit by asserting that the suit property is not in existence, owing to the encroachment made by the adjacent site owner, the plaintiff’s father, who is the owner of property No.82. The defendants specifically denied any interference with the plaintiff’s possession and contend that they are in lawful possession of the site allotted to defendant No.1 under the Hakkupatra which measures 40 feet East-West and 30 feet North-South. On these grounds, the defendants sought for dismissal of the suit. 5. The Trial Court on the issue as to whether the measurement of the sites involved, namely the suit property and site No.77 belonging to the defendants, and the adjacent sites is as contended by the plaintiff East- - 6 - HC-KAR NC: 2025:KHC:31020 RFA No. 196 of 2023 West 30 feet and North-South 40 feet or as per the dimension shown in the respective Hakkupatra relied upon by the defendants, the Trial Court held that the suit being one for permanent injunction, the burden lies on the plaintiff to establish his lawful possession over the suit property measuring 24 feet East-West and 33 feet North- South as on the date of the suit. 6. The Trial Court considered the hand sketch marked through PW.3, particularly Ex.P.19 which was produced by the plaintiff himself and observed that according to the plaintiff’s document itself, site No.82 (owned by the plaintiff’s father) located to the west of the suit property, measures east-west 37 feet on the northern side and 39.3 feet on the southern side. This directly contradicted the plaintiff’s own pleading at paragraph No.10 of the plaint, wherein it is asserted that site No.82 was constructed within a measurement of East-West 30 feet and North-South 33 feet. The Trial Court observed this as a material contradiction, undermining the plaintiff’s - 7 - HC-KAR NC: 2025:KHC:31020 RFA No. 196 of 2023 case. The Trial Court further observed that if the plaintiff’s version of site No.80 measuring 30 feet East- West and 40 feet North-South is accepted, then it necessarily implies that the plaintiff’s father has encroached nearly 10 feet in Site No.80. In conclusion, the Trial Court held that the plaintiff has failed to establish lawful possession over the suit property as on the date of the suit and also failed to substantiate the alleged encroachment by the defendants. 7. Heard the learned counsel for the appellant and learned counsel for the respondents. 8. Learned counsel for the appellant submits that the plaintiff was put in possession of the suit property under a registered sale deed dated 10.10.2006. It is contended that the suit property originally measures East- West 30 feet and North-South 40 feet, but due to road widening and encroachment by the adjacent site owner (defendant No.1), the extent is reduced to 24 feet East- - 8 - HC-KAR NC: 2025:KHC:31020 RFA No. 196 of 2023 West and 33 feet North-South. She argues that the execution and validity of the sale deed in favour of the plaintiff has not been disputed by the defendants. Drawing attention to the cross-examination of DW.1, learned counsel emphasizes that DW.1 has admitted that there is a road on the northern side of both his house and the suit property, and that his house is adjoining the plaintiff’s property. Further, he has admitted that wherever a site abuts a road, its actual width tends to be lesser. Importantly, DW.1 also admitted that although all four sites are mentioned in Hakkupatra as East-West 40 feet and North-South 30 feet the actual dimensions vary. It is argued that DW.1 has specifically admitted that the suit property measuring 24 feet East-West x 33 feet North- South was sold to the plaintiff by one Kempaiah and that he has right, title and interest over the suit property. Learned counsel places reliance on Exs.D.13 and 14, which are documents produced by defendants themselves. These documents, it is argued, clearly show the correct - 9 - HC-KAR NC: 2025:KHC:31020 RFA No. 196 of 2023 measurement of site East-West 30 feet and North-South 40 feet and not the other way round as contended by the defendants. It is submitted that the admissions made by DW.1, coupled with the documents produced by the defendants, support the claim of the lawful possession over the suit property and contradict the defendants’ assertion that the plaintiff’s property does not exist in the stated dimension. 9. Learned counsel appearing for the respondents denied any interference and contended that the suit property, as described by the plaintiff, is not in existence. It is contended that they are in possession of their allotted site (site No.77) measuring East-West 40 feet and North- South 30 feet as per their Hakkupatra. It is argued that the plaintiff’s father, the owner of the adjacent site owner No.82 might have encroached on the suit property. That the plaintiff had not established lawful possession as on the date of the suit. - 10 - HC-KAR NC: 2025:KHC:31020 RFA No. 196 of 2023 10. In response to Exs.D.13 and 14, learned counsel for the respondents submits that although Ex.D.14 mentions the dimensions as ‘30 feet x 40 feet’, it does not specify the orientation or whether 30 feet is East-West measurement and 40 feet is North-South measurement. In the absence of such clarity, it cannot be conclusively inferred that the site measurements aligned with the plaintiff’s claim. Therefore, the said document does not support the plaintiff’s case that the actual dimensions of the sites were East-West 30 feet and North-South 40 feet and the contention to that effect raised by the appellant deserves to be rejected. 11. Having heard the learned counsel for the parties, the point that arises for consideration is: “Whether the plaintiff has established lawful possession over the suit property as on the date of the suit so as to entitle him to the relief of permanent injunction?” - 11 - HC-KAR NC: 2025:KHC:31020 RFA No. 196 of 2023 12. In a suit for bare injunction, the settled proposition is that, the plaintiff must prove the lawful possession as on the date of the suit. The plaintiff relies upon Ex.P.6-registered sale deed dated 10.10.2006, perusal of Ex.P.6 mentions that the site measures 24 feet East-West and 33 feet North-South due to the encroachment arising out of road formation. The plaintiff’s cause of action as pleaded in paragraph No.10 of the plaint is the 06 feet encroachment by defendant No.1. The sale deed neither makes any reference to the measurements in the Hakkupatra being incorrect nor encroachment. This omission weakens the plaintiff’s claim of prior knowledge and possession over the encroached portion. At paragraph No.10 of the plaint, the plaintiff alleges that a few days earlier to the date of execution of the sale deed, encroachment was noticed. At paragraph No.11 of the amended plaint states that the sale deed was executed upon knowledge of such encroachment. The plaintiff’s pleadings acknowledge that his father, owner of site No.82 - 12 - HC-KAR NC: 2025:KHC:31020 RFA No. 196 of 2023 has already constructed the house within the full extent of the allotted site. This is contradicted by Ex.P.19 (2) which shows the extent of site No.82 as East-West 37 feet on the northern side and 39.3 feet on the southern side, far exceeding the claim 30 feet width, thereby indicating an encroachment by the plaintiff’s father into site no.80. The details described in the plaint and the narrative of the measurements in the Hakkupatra were incorrect and are not supported by any records or rectification proceedings. Mere pleadings without cogent documentary evidence do not establish that the allotment under Hakkupatra was wrong. It is also pertinent to note that the plaintiff has not produced documentary evidence to substantiate the claim of road widening, which is stated to have reduced the extent of the suit property. In the absence of such material, the plea of reduction in measurement due to road formation remains unsubstantiated. 13. With respect to Ex.D.14 which is relied upon by the plaintiff to support the actual measurements of the - 13 - HC-KAR NC: 2025:KHC:31020 RFA No. 196 of 2023 site, it is important to note that the said document does not bear any directional orientation of the measurements. Though it mentions the dimension as 30 x 40 feet, it does not clarify that 30 feet refers to East –West extent and 40 feet to the North-South or vis-à-vis. In the absence of specific reference, the document cannot conclusively supports the plaintiff’s case that the correct measurement of the site is East-West 30 feet and North-South 40 feet and moreover, this document would not override the official dimensions recorded in Hakkupatra, unless there is any specific correction or rectification by the competent authority or any documentary evidence to indicate that the extent of the suit property has been reduced due to road widening. In the absence of any material to show the lawful and exclusive possession of the suit property as on the date of the suit, the Trial Court’s findings are supported by the evidence and do not suffer from any illegality or perversity warranting any interference and the - 14 - HC-KAR NC: 2025:KHC:31020 RFA No. 196 of 2023 point framed for consideration is answered accordingly and this Court pass the following: ORDER i. The regular first appeal is hereby dismissed. ii. The judgment and decree of the Trial Court stands confirmed. Sd/- ______________________ JUSTICE K.S. HEMALEKHA MBM List No.: 1 Sl No.: 15