- 1 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 24TH DAY OF SEPTEMBER 2025 PRESENT THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA REGULAR FIRST APPEAL NO. 100020 OF 2019 (INJ-) BETWEEN: 1. THE DISTRICT COMMISSIONER, MINI VIDHANA SOUDHA, NAVANAGAR, BAGALKOT-587101. 2. THE ASSISTANT COMMISSIONER, TALUKA ADHALITA BHAVAN, NAVANAGAR-BAGALKOT-587101. 3. THE TAHASILDAR, TALUKA ADHALITA BHAVAN, NAVANAGAR, BAGALKOT-587101. 4. THE CHIEF EXECUTIVE OFFICER, ZILLA PANCHAYAT, MINI VIDHANASOUDHA, NAVANAGAR, BAGALKOT-587101. 5. THE EXECUTIVE ENGINEER PWD DEPARTMENT, SECTOR NO.23, NAVANAGAR-BAGALKOT-587101. 6. THE ASSISTANT EXECUTIVE ENGINEER, PWP & IWT DEPARTMENT, QUALITY ASSURANCE, R YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD - 2 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 SUB-DIVISION, SECTOR NO.23, NAVANAGAR-BAGALKOT-587101. ...APPELLANTS (BY SRI. KESHAVA REDDY, AAG ALONG WITH SRI. ASHOK KATTIMANI, AGA) AND: SHRI CHANDRAKANT S/O. GURULINGAPPA DESAI, AGE: 42 YEARS, OCC: ADVOCATE, R/O. BAGALKOT, TQ & DIST: BAGALKOT-587101. …RESPONDENT (BY SRI. HARSH DESAI AND SRI. N.L. BATAKURKI, ADVOCATE FOR C/R1) THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING TO CALL FOR RECORDS; SET-ASIDE THE JUDGMENT AND DECREE DATED 10.10.2018 PASSED IN O.S.NO.9/2016 BY THE PRINCIPAL SENIOR CIVIL JUDGE, BAGALKOT, IN THE INTEREST OF JUSTICE. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 21.08.2025 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE S.R. KRISHNA KUMAR AND THE HON'BLE MR. JUSTICE C.M. POONACHA - 3 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE C.M. POONACHA) This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 19081, by the defendants challenging the judgment and decree dated 10.10.2018 passed in O.S.No.9/2016 on the file of Principal Senior Civil Judge, Bagalkot2, whereunder, the suit for mandatory injunction and other reliefs filed by the respondent/plaintiff, has been partly decreed by the Trial Court. 2. The parties will be referred to as per their rank before the Trial Court, for the sake of convenience. 3. It is the case of the plaintiff that he is the absolute owner in possession and enjoyment of the land bearing R.S.No.51/2A/1 measuring 5 acres 11 guntas and R.S.No.51/B measuring 37 guntas of Bagalkot District, out of which, in land bearing R.S.No.51/2B measuring 37 guntas, the Bagalkot- Badami road was constructed unauthorizedly, which is named as Biligiri Ranganabetta State Highway No.57 long back. The said 1 Hereinafter referred to as the ‘CPC’ 2 Hereinafter referred to as the ‘Trial Court’ - 4 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 road was widened for the purpose of public at large, and at that time, 30 guntas of land in Sy.No.51/2B3, was encroached illegally. That the plaintiff came to know about the encroachment in the year 2012, and subsequently filed an application before the defendant No.3-Tahasildar to measure the land bearing R.S.No.51/2B, and requested to give a report regarding the encroachment of said land. Accordingly, the defendant No.3- Tahasildar through the Taluka Surveyor measured the said land, and issued P.T. sheet endorsing that 30 guntas of suit area, was encroached by the Bagalkot-Badami Biliri Ranganabetta Road in the month of May-2015. The plaintiff had made an application dated 10.09.2015 to the defendants/Authorities, to initiate acquisition proceedings and for payment of compensation. That the defendant No.4/CEO, Zilla Panchayat, forwarded the application to the defendant No.1/Deputy Commissioner, for taking necessary steps in that regard, vide letter dated 07.09.2015. That the defendant No.3-Tahasildar also forwarded the request of the plaintiff to the defendant No.6-Assistant 3 Hereinafter referred to as the ‘suit property’ - 5 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 Executive Engineer4, vide letter dated 22.09.2015. That the defendant No.6/A.E.E replied to the plaintiff and denied the encroachment. Hence, the plaintiff filed the suit seeking for the following reliefs: A) “The Hon’ble Court be please issue mandatory injunction against defendant No.6 directing to remove the Bagalkot-Badami Bilagiri Ranganabetta S.H-57 Road so constructed in the plaintiffs suit land measuring 30 Guntas out of 37 Gunta in R.S.No.51/2B of Bagalkot and hand over the possession to the plaintiff Or In the alternate it is prayed that the Hon’ble Court be pleased direct the defendants No.1 to 6 to initiate acquisition proceeding and to pay compensation amount to he plaintiff pertaining to suit land having encroachment and construction of Bagalkot Badami Bilagiri Ranganabetta Road (S.H-57) in suit land. B) The Hon’ble Court be pleased to grant Rs.50,000/- PA as damages to the plaintiff in respect of suit land. C) Cost of the suit be awarded to the plaintiff. D) Such other relief be granted to the plaintiff.” 4 Hereinafter referred to as the ‘A.E.E.’ - 6 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 4. Upon receipt of suit summons, the defendants entered appearance in the suit. The defendant No.6 has filed its written statement, which has been adopted by the defendant Nos.1 to 5. The defendant No.6 in the written statement denied the case of the plaintiff regarding encroachment. It has further denied the report of the surveyor as per P.T. sheet dated 24.05.2016, contending that the said defendant had no notice of the survey. Hence, the defendants sought for dismissal of the suit. 5. Consequent to the pleadings of the parties, the Trial Court has framed the following issues: 1. “Whether the plaintiff proves that, his ownership of suit schedule property? 2. Whether the plaintiff proves that, the defendants have encroached suit schedule property? 3. Whether the plaintiff is entitled for relief? 4. What order or decree?” 6. The plaintiff examined himself as PW.1 and examined a witness as PW.2. Exs.P1 to Ex.P22 have been marked in evidence. The defendant No.6-A.E.E has been examined as - 7 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 DW.1. No other documents have been marked in evidence. The Trial Court, vide judgment and decree dated 10.10.2010, partly decreed the suit and passed the following: ORDER “The suit of the plaintiff is hereby partly decreed as follows: The defendants No.1 to 6 are hereby directed to initiate necessary steps for acquisition of 26Gts of land in Sy.No.51/2B out of 37 Gts within 03 months from the date of this order. The suit of the plaintiff in respect of relief of mandatory injunction is hereby dismissed. Draw decree accordingly. There shall be no order as to costs.” 7. Being aggrieved, the defendants have preferred the present appeal on 10.01.2019. 8. The appellants filed IA.No.1/2024 on 22.04.2024 under Order XLI Rule 27 read with Section 151 of the CPC, seeking to produce the village map, land plan, survey map and circular dated 26.02.2002. - 8 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 9. Learned Additional Advocate General appearing for the appellants/defendants and assailing the judgment and decree passed by the Trial Court contends that the Trial Court ought not to have granted the alternate relief of directing defendant Nos.1 to 6 to initiate acquisition proceedings and pay compensation, since the appellants are ready to return the land to the plaintiff. That I.A.No.1/2024 is required to be allowed since the documents produced along with the said application are necessary to decide the questions that arise for consideration in the appeal. It is further contended that during the pendency of the appeal, pursuant to various orders passed by this Court, survey has been conducted and the portion of the land of the plaintiff having been identified and the defendants expressing that they are ready to return the land to the plaintiff, the question of decreeing the suit of the plaintiff and granting the reliefs sought for does not arise. It is also contended on behalf of the appellants that the suit filed by the plaintiff is beyond the period of limitation and is liable to be rejected on the said ground alone. That the report prepared by the Court Commissioner before the Trial Court was erroneous and that the Trial Court ought not to have relied upon the report of the Commissioner to - 9 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 record a finding that the land of the plaintiff has been encroached. Hence, learned Additional Advocate General seeks for allowing of the above appeal and granting of the reliefs sought for. 10. Per contra, learned counsel for the respondent/plaintiff, justifying the judgment and decree passed by the Trial Court, contends that the plaintiff has adequately demonstrated that he is the owner of the suit property and also adequately demonstrated the encroachment made by the defendants. Hence, it is contended that the finding of the Trial Court with regard to ownership and encroachment is just and proper. It is also contended that in the survey conducted pursuant to various interim orders granted by this Court, the report of the survey would clearly indicate the encroachment made by the defendants as also the fact that the encroached portion has already been utilized for the road. Hence, it is contended that the question of granting the primary relief in the suit does not arise and that the judgment and decree passed by the Trial Court granting the alternate relief is just and proper and - 10 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 ought not to be interfered with by this Court in the present appeal. 11. The submissions of both the learned counsels have been considered and the material on record including the records of the Trial Court, has been perused. 12. The questions that arise for consideration are: i. Whether IA.No.1/2024 is required to be allowed? ii. Whether the Trial Court was justified in coming to the conclusion that the plaintiff has demonstrated that he is the owner of the property and that his property has been encroached by the defendants for the formation of the road? iii. Whether the Trial Court was justified in granting the alternate relief of directing the defendants to acquire the land? iv. Whether the judgment and decree passed by the Trial Court is just and proper?” Regarding Questions No.(i) to (iv): 13. It is deposed in the affidavit filed in support of I.A.No.1/2024 that the plaintiff has encroached upon the existing road and that the documents produced along with the application - 11 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 are necessary to decide the questions that arises for consideration in the appeal. 14. The respondent/plaintiff has filed a counter affidavit by way of objections to IA.No.1/2024, wherein it is contended that by way of an interim order dated 29.11.2019 passed by this Court in the above appeal, the appellants were directed to initiate acquisition proceedings while ordering upon IA.No.1/2019. It is contended that the appellants without following the order dated 29.11.2019 have subsequently filed IA.No.1/2024 on 22.04.2024. It is further averred that there is no explanation as to how the documents produced along with the application are necessary for adjudication of the issues that arise for consideration in the above appeal and that the filing of the application is a belated attempt on behalf of the appellants to place on record additional material, which ought not to be permitted. 15. It is the case of the plaintiff in the plaint that he is the absolute owner of, inter alia, land bearing Sy.No.51/2B measuring 37 guntas and that out of the said 37 guntas, a road called as “Biligiri Ranganabetta State Highway No.57” was - 12 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 constructed and that the road was also widened. It is pertinent to note that the property described as schedule-A to the plaint is property bearing No.51/2B measuring a total extent of 37 guntas of Bagalkot Taluk, out of which 30 guntas is alleged by the plaintiff to have been encroached for the construction of Badami Biligiri Ranganabetta State Highway No.57 road. 16. Defendant No.6/Assistant Executive Engineer, PWP and IWT Department, Quality Assurance, Sub-division, Sector No.3, Navanagar Bagalkot has filed a written statement, wherein it is admitted that RS No.51/2B of Bagalkot Taluk is situated adjacent to the Bagalkot Badami road. It is further averred that the said road was upgraded as a State Highway and assigned as State Highway No.57 and thereafter, re-named as Bagalkot Biligiri Ranganabetta State Highway No.57. It is specifically denied that 30 guntas of land of the plaintiff has been encroached for construction of the road. 17. The Trial Court, while adjudicating upon issue Nos.1 and 2 with regard to the ownership of the plaintiff of the suit schedule property and as to whether the plaintiff has proved the encroachment, has recorded the following findings: - 13 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 “11. With the rival contentions urged by both sides, it is just and necessary to go through the materials available on record. Admittedly, the plaintiff has filed this suit for the relief of mandatory injunction directing the defendant No.6 to remove Badami-Biligiri Ranganabetta State Highway No.57 road constructed over the suit land by encroaching 30Gts of land in the land bearing Sy.No.51/2B totally measuring 37Gts and for alternative relief directing the defendants No.1 to 6 to initiate the acquisition proceedings to pay the compensation amount for encroached area. According to plaintiff, he is the owner of suit schedule property and defendant No.6 while widening the Badami-BilIgiri Ranganabetta State Highway No.57 road encroached 30Gts of land. The claim of the plaintiff is denied by the defendants in its entirety and same can be seen from the averments made in para No.1 of the written statement, but as far as ownership of the plaintiff over the suit property is concerned, the defendants have not taken specific contention. The existence of suit schedule property adjacent to Badami-Biligiri Ranganabetta State Highway No.57 is not in dispute and same can be seen from the averments made in para No.2 of written statement of the defendant No.6. The plaintiff to prove his ownership over the suit property produced RTC extract as per Ex.P1 for the year 2015-16 wherein it is discloses that, the suit schedule property bearing Sy.No.51/2B measuring 37Gts is standing in the name of the plaintiff. The contents of Ex.P1 RTC extract further discloses that, as on the date of filing of this suit, the plaintiff is the owner of the suit property. Except Ex.P1 RTC extract, the plaintiff has not - 14 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 produced any other documents to prove his ownership and contents of Ex.P1 can be looked in to so as to consider the ownership of plaintiff over the suit property, on the back ground of failure on the part of the defendants to dispute the ownership of the plaintiff over the suit property in a specific terms. Apart from that, the existence of suit property adjacent to Badami-Biligiri Ranganabetta State Highway No.57 road is also unequivocally admitted by the defendants. Hence, I have no hurdles to hold that, the plaintiff is the owner of the suit property. It is important to note that, the plaintiff has made specific allegation against the defendant No.6 stating that, at the time of widening Badami- Bilagiri Ranganabetta State Highway No.57 road, they have encroached 30Gts of land. The allegation of encroachment is seriously disputed on the ground that, widening of road work was taken up on the existing road and they have not at all encroached any of the portion of the suit property. On the background of above said contention taken up by the defendants, it is for the plaintiff to establish the allegation of encroachment. Whether the plaintiff succeeded in establishing the encroachment or not is to be discussed. Hence, it is just and necessary to go through the materials available on record. It is pertinent to note that, the plaintiff has filed I.A.No.1 under Order 26 Rule 10 R/w Sec.151 of CPC praying this court to appoint Court Commissioner to measure the suit and to submit the detailed report. Accordingly, the Tahasildar, Bagalkot was appointed as Court Commissioner in view of the no objection submitted by the defendants and the surveyor attached to the Tahasildar Office Bagalkot visited the - 15 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 disputed property, measured the disputed land and filed his report before this court. The defendants have submitted no objection to report of the Court Commissioner. The materials available on record further discloses that, the Court Commissioner was also examined before this court as P.W.2 who in his chief-examination specifically deposed that, after surveying the suit property he came to know that, 26Gts of land was encroached by the defendant No.6 where the widening of road was taken up. Further the P.W.2 has specifically mentioned encroachment portion under “ABCLJE” in the Ex.P.22 sketch prepared by him. During the course of cross- examination of P.W.2, the learned counsel appearing for the defendants made an attempt to show that, the Court Commissioner has not measured the properties situated on the northern and southern side of the suit property. The Court Commissioner has accepted that, he has not measured the land situated towards north and south of the suit property. According to me, the failure on the part of the Court Commissioner to measure the properties situated towards north and south of suit property will not come to the aid of the defendants to contended that, the report prepared by the Court Commissioner is wrong, for a simple reason that, the defendants have not filed their objections to the report of the Court Commissioner. From the evidence of P.W.2 and also contents of Ex.P.22 it can be safely held that, 26Gts of land was encroached by the defendant No.6 while widening Badami-Bilagiri Ranganabetta State Highway road. Furthermore, the - 16 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 D.W.1 who is the representative of defendant No.6 Department examined before this court to dispute the claim of the plaintiff, but the attempt made by the D.W.1 in is chief examination is not supported with any of the documentary evidence. During the course of cross- examination of D.W.1, he stated that, the Court Commissioner without identifying the boundary stone conducted the survey. The said contention cannot be considered in view of the failure on the part of the defendants to file their objections to the report of Court Commissioner. 12. During the course of argument, the learned counsel for defendants would submit that, the plaintiff in his plaint pleaded that, 30Gts of land was encroached by the defendant, but the same came to be false from the report of the Court Commissioner, wherein it is mentioned as only 26Gts and further he drawn the attention of this court towards the discrepancy in the Ex.P.2 P.T sheet and Ex.P.22 P.T sheet. On the back ground of the above contentions raised by the defendants, I have carefully gone through the contents of Ex.P.2 and Ex.P.22 P.T sheets. As I have already stated above, the Ex.P.2 P.T sheet was prepared in the year 2015-16, wherein it was reported that, 30Gts of land of the plaintiff was encroached, but in the Ex.P.22, the encroachment is mentioned to an extent of 26Gts. On careful perusal of the contents of Ex.P.2 and Ex.P.22 P.T sheets it is clearly discloses that, there is a discrepancy in the extent of land one encroached by the defendant No.6. The contents of - 17 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 Ex.P.2 and measurement shown in the said P.T sheet cannot be accepted as a whole for a simple reason that, it was prepared prior to filing of the suit and Ex.P.22 is prepared after filing of this suit and that too in the presence of defendants. Apart from that, the Ex.P.22 P.T sheet prepared by the officials of the defendants No.1 to 3 and they cannot be allowed to deny its contents and also cannot be allowed to take advantage of the discrepancy of the extent mentioned in the said P.T sheet. The evidence of P.W.2 and contents of Ex.P.22 is itself sufficient to hold that, 26Gts of land was encroached by the defendant No.6 during widening of Badami-Biligiri Ranganabetta State Highway road. Nothing has been elicited from the mouth of plaintiff as well as Court Commissioner to disbelieve their version with regard to the encroachment of land belongs to the plaintiff. Accordingly, I answer issues No.1 and 2 in the affirmative.” (emphasis supplied) 18. It is pertinent to note here that the Trial Court has noticed that the defendants have not specifically denied the case of the plaintiff that he is the owner of the suit property. However, the allegation of encroachment has been denied. While considering the aspect regarding encroachment, the Trial Court has relied upon the testimony of PW.2 i.e., the Tahasildar, Bagalkot who was appointed as the Court Commissioner, upon - 18 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 an application filed by the plaintiff under Order XXVI Rule 10 read with Section 151 of CPC. The Trial Court has also noticed that the representative of defendant No.6 – department, who was examined as DW.1 has adduced only oral evidence and no documentary evidence has been produced. It is also noticed that the defendants did not file any objections to the Commissioner Report. That the Commissioner has been examined by PW.2 who has also been cross-examined by the learned counsel for the defendants. The Trial Court appreciating the testimony of PW.2 as well as the P.T sheet (Ex.2 and Ex.P.22), recorded a finding that the evidence of PW.2 and Ex.P.2 would clearly demonstrate that 26 guntas of land has been encroached by defendant No.6 during the widening of the Badami Biligiri Ranganabetta State Highway Road. 19. It is forthcoming from the records of the Trial Court that a Court Commissioner was appointed pursuant to an application filed by the plaintiff, which was not opposed by the defendants. The Tahasildar, Bagalkot, who was appointed as the Court Commissioner, conducted a survey of the suit property in the presence of the plaintiff and a representative of defendant - 19 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 No.5. The Commissioner, who was examined as PW.2, specifically deposed that there was an encroachment of 26 guntas of land in the suit property, i.e., R.S.No.51/2B, due to the formation of a road. Although the defendants have denied the allegation of encroachment, the material on record clearly demonstrates that 26 guntas of the plaintiff’s land in R.S.No.51/2B has been encroached upon due to road formation, which finding recorded by the Trial Court in that regard is just and proper. 20. It is pertinent to note here that during the pendency of the present appeal this Court has passed various orders requiring the parties to conduct joint inspection. In that regard it is pertinent to note here that affidavit dated 31.07.2025 of the Assistant Commissioner and Land Acquisition Officer, Bagalkot Sub-Division, Bagalkot has been filed, wherein it is deposed that pursuant to the direction issued by this Court, a meeting was convened by the Land Acquisition Officer with the plaintiff on 12.09.2024 and 25.09.2024, and that there was no consensus reached with regard to the quantum of compensation that was to be paid for the land of the plaintiff. Hence, it is deposed that as - 20 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 there was no consensus arrived at, the beneficiary has decided to return the land in question to the land owner. It is further deposed that JMC was conducted on 24.01.2025 and the land of the plaintiff which has been encroached for formation of the road has been identified and demarcated. 21. By a memo filed on 19.08.2025 by the appellants, copies of the joint inspection report, sketch and copies of photographs have been produced whereunder, it is placed on record that a joint survey was conducted on 07.08.2025 in the presence of the plaintiff and a joint inspection report has been prepared, which clearly demonstrates that 26 guntas of land has been encroached for formation of the road and that the said encroached portion of the land is to be returned to the plaintiff. 22. It is clear from the aforementioned that the road in question has been formed by encroaching 26 guntas of the property of the plaintiff in R.S.No.51/2B and no acquisition proceedings have been initiated for the purpose of acquiring the said extent of 26 guntas. In the aforementioned fact situation, the legal position in that regard is required to be noticed: - 21 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 (i) The Hon’ble Supreme Court in the case of Kolkata Municipal Corporation and Another Vs. Bimal Kumar Shah and Others5, while considering a fact situation, wherein the Corporation had entered upon the property of the writ petitioner and placed its men and material in the property of the writ petitioner. It was the contention of the Corporation that exercising powers under Section 352 of the Calcutta Municipal Corporation Act, 19806, the property of the writ petitioner was acquired. The learned Single Judge held that the Corporation did not have power to acquire property under Section 352 of the Corporation Act, and a Division Bench disposed of the appeal directing the Corporation to acquire the property under Sections 536 or 537 of the said Act. Challenging the said order, the Corporation approached the Hon’ble Supreme Court. In the said factual matrix, the Hon’ble Supreme Court held that the right to property constitute seven sub-rights and held as follows: 5 (2024) 10 Supreme Court Cases 533 6 Hereinafter referred to as the ‘Corporation Act’ - 22 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 “30. What then are these sub-rights or strands of this swadeshi constitutional fabric constituting the right to property? Seven such sub-rights can be identified, albeit non-exhaustive. These are: (i) The duty of the State to inform the person that it intends to acquire his property – the right to notice, (ii) The duty of the State to hear objections to the acquisition – the right to be heard, (iii) The duty of the State to inform the person of its decision to acquire the right to a reasoned decision, (iv) The duty of the State to demonstrate that the acquisition is for public purpose – the duty to acquire only for public purpose, (v) The duty of the State to restitute and rehabilitate – the right of restitution or fair compensation, (vi) The duty of the State to conduct the process of acquisition efficiently and within prescribed timelines of the proceedings – the right to an efficient and expeditious process, and (vii) The final conclusion of the proceedings leading to vesting - the right of conclusion.” (iii) Upon noticing the said sub-rights, the Hon’ble Supreme Court propounded seven principles, which are as follows: (a) The right to notice; - 23 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 (b) The right to be heard; (c) The right to a reasoned decision; (d) The duty to acquire only for public purpose; (e) The right of restitution or fair compensation; (f) The right to an efficient and expeditious process; (g) The right of conclusion.” (ii) The Hon’ble Supreme Court in the case of Bernard Francis Joseph Vaz and Others Vs. Government of Karnataka and Others7, after considering various of its earlier judgments, noticing its earlier judgment in the case of Tukaram Kana Joshi Through Power-of- Attorney Holder Vs. Maharashtra Industrial Development Corporation8, wherein it was held that, “ the right to property is not only a constitutional statutory right, but also a human right”; noticing its earlier judgment in the case of Vidya Devi Vs. State of Himachal Pradesh9, held, inter alia, that: 7 2025 SCC Online SC 20 8 (2013) 1 SCC 353 9 (2020) 2 SCC 569 - 24 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 (a) Property could be expropriated only with due process of law and upon just and fair compensation; (b) The obligation to pay compensation, though not expressly included in Article 300-A, can be inferred in that Article; (c) To forcibly dispossess a person of his private property without following due process of law would be violative of a human right, as also the constitutional right under Article 300-A of the Constitution; (d) The right to property could be interfered with by the State in exercise of its power of “eminent domain”, by acquiring the same but the same must be for a public purpose and reasonable compensation thereof must be paid; (e) The right to property cannot be taken away except in accordance with law, which must be strictly construed; (f) In a democratic polity governed by the rule or law, the State could not have deprived a citizen of - 25 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 their property without the sanction of law and the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode; (g) The time is the essence in determining and payment of compensation; (iii) The Hon’ble Supreme Court in the case of Ultra-Tech Cement Limited Vs. Mast Ram and Others10, while considering Section 38 of the Right to Fair Compensation and Acquisition Act, 189411, held that payment of full and final compensation to the landowners is the precursor to taking possession of the land sought to be acquired from such persons. (iv) A Co-ordinate Bench of this Court in the case of P.G. Belliappa Vs. The Commissioner, Bangalore Development Authority, Bengaluru12, held as under: 10 (2025) 1 Supreme Court Cases 798 11 Hereinafter referred to as the ‘Act, 1894’ 12 2020(1) Kar.L.J. 504 (DB) - 26 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 “19. As pointed out by the learned counsel appearing for BDA, from time to time, BDA passed resolutions offering 100%, 75%, 50% of the area of the acquired land in lieu of taking over of lands without taking recourse to acquisition proceedings. It is clear that BDA cannot be a judge in its own cause and decide the extent of compensation payable in respect of the land which it has taken over without resorting to acquisition proceedings. If BDA wants to take over the land without acquisition, it can be done only with the consent of the owner or a person having interest in the land after arriving at an agreement regarding payment of compensation. 20. We may note here that such an action on the part of BDA is in complete violation of the right of the respondent guaranteed under Article 300-A of the Constitution of India. In this regard, reliance was placed on a decision of the Apex Court in the case of Lalaram and Others Vs. Jaipur Development Authority and Another13, (2016) 11 SCC 31. In paragraph 124 of the said decision, the Apex Court held thus: “124. The right to property though no longer a fundamental right is otherwise a zealous possession of which one cannot be divested save by the authority of law as is enjoined by Article 300-A of the Constitution of India. Any callous inaction or apathy of the State and its instrumentalities, in securing just compensation would amount to dereliction of a 13 IX (2015) SLT 211 - 27 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 constitutional duty, justifying issuance of writ of mandamus for appropriate remedial directions.” 23. Thus, this a clear case of gross violation of the right of the respondent guaranteed under Article 300-A of the Constitution of India. Moreover, the conduct of BDA shows gross arbitrariness which violates Article 14 of the Constitution. Therefore, after noticing that the respondent has been deprived of such a large extent of land from the year 2002 without paying any compensation, the only course open for this Court is to direct restoration of the schedule land to the respondent. However, as it is the claim of BDA that the schedule land is already utilised for public purposes, we propose to direct that the order directing restoration of possession will not be acted upon if proceedings for compulsory acquisition are initiated within the time fixed by this Court, with a rider that if BDA or the State Government fail to complete the acquisition process and to make payment of compensation to the respondent within a reasonable time, a fresh petition can be filed by the respondent for seeking possession.” (emphasis supplied) 23. The cases relied upon by the learned counsel for the appellant/State pertain to factual situations, wherein acquisition proceedings have been initiated, and various aspects pertaining to the same were called in question, which is entirely different from the factual matrix of the present case wherein the - 28 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 appellants have formed a road by encroaching upon the property of the respondent/plaintiff, and the plaintiff filed a suit seeking for appropriate reliefs with respect to the property encroached. 24. It is also forthcoming from the aforementioned that the property of the plaintiff has already been utilized for the road which is in existence. The stand of the appellants/defendants that is now taken during the consideration of the present appeal is that, they are ready to return the land. It is clear from the photographs annexed along with the memo and affidavits filed in the present appeal that, the appellants/defendants are attempting to use heavy machinery to undo the road that has been constructed in the property of the plaintiff for the sole purpose of attempting to place on record material in justification of their stand that they are ready to return the land to the plaintiff. It is clear that the land of the plaintiff has already been utilized for formation of the road and as the road has already been formed on the land of the plaintiff, the question of appreciating and upholding the stand of the appellants/defendants that they are ready to return the land to the plaintiff does not arise. - 29 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 25. It is also clear and forthcoming from the aforementioned that the land of the plaintiff has been utilized without initiating any acquisition proceedings. Hence, it is clear that the plaintiff is entitled for adequate relief for the wrongful utilization of the land. 26. The Trial Court, while considering issue No.3 as to the nature of relief that is to be granted, has recorded the following findings: “14. With the above contention raised by both sides, I have carefully gone through the averments made in para No.1 as well as para No.2 of the plaint. On careful reading of the same, it goes to show that, in the year 2012, the plaintiff measured the land bearing R.S.No.51/2A/1 measuring Acres 11Gts and nowhere pleaded that, the plaintiff came to about the encroachment in the year 2012. The averments made in para No.2 of the plaint it is specifically stated that, he came to know about the encroachment in the month of May 2015. Hence, the contention raised by the learned counsel appearing for the defendants cannot be believed. Furthermore, the contention regarding the limitation has not raised by the defendants in their written statement and no issues were framed to that effect. On this ground also, the defendants cannot be allowed to say that, the suit of the plaintiffs is barred by law of limitation. The oral as well as documentary evidence placed on record by the plaintiff - 30 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 would goes to show that, the defendant No.6 have encroached 26Gts of land during widening Badami-Biligiri Ranganabetta State Highway road. 15. The plaintiff by way of instant suit has sought for the relief of mandatory injunction directing the defendant No.6 to remove the road constructed over the encroached portion and also sought for alternative relief for issuance of direction to the defendant No.6 to initiate the acquisition proceedings so as to pay the compensation to the plaintiff. In view of the alternative relief claimed by the plaintiff, the relief of mandatory injunction cannot be granted, as the road constructed in the encroached portion is for the use of public at large and if the road is directed to be removed, thereby the general public will be put to great hardship. By considering the said aspect, the grievance of the plaintiff could be met out by granting alternative relief. Accordingly, I answer this issue partly in the affirmative.” (emphasis supplied) 27. It is clear from the aforementioned that the Trial Court while recording a finding that the alternate relief is required to be granted has held that the primary relief of return of the land cannot be granted as the road has been constructed in the encroached portion and is in use of the public. It is further held that if the road is directed to be removed, the same will cause great hardship to the general public. - 31 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 28. The finding of the Trial Court that the alternate relief sought for by the plaintiff is liable to be granted is just and proper in view of the fact that the road has already been constructed. 29. The contention raised by the appellants in the above appeal that the suit has been instituted beyond the period of limitation was considered by the Trial Court as is forthcoming from the impugned judgment and while noticing the same has recorded that a contention in that regard was raised during the course of arguments and noticing the said contention, it was held by the Trial Court that since the plea of limitation was not raised by the defendants in the written statement and since no issue was framed in that regard, the contention of the defendants was rejected. The finding of the Trial Court rejecting the contention of limitation is just and proper and in the absence of the defendants raising the plea of limitation in the written statement, the contention put forth in the present appeal is liable to be rejected. 30. In view of the legal position as noticed above, it is clear that the Trial Court was justified in coming to the conclusion that the property of the plaintiff has been encroached - 32 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 as noticed above. In the said context, it is pertinent to note here that, the documents produced along with I.A.No.1/2024, will in no manner aid the case of the appellants, since the same are not required for the purpose of adjudication of the question that arises for consideration in the present appeal. Hence, I.A.No.1/2024 is liable to be rejected, and question No.(i) framed for consideration is answered in the negative. 31. In view of the discussions made above, question Nos.(ii), (iii) and (iv) framed for consideration is answered in the affirmative. 32. During the pendency of the present appeal, this Court attempted to explore whether the parties could arrive at an amicable settlement of the matter. For that purpose, various interim orders were passed, directing the parties to hold joint meetings, conduct spot inspection, etc. Several reports/documents have been filed in that regard. Pursuant therto, the appellants have taken the stand that they are willing to return the encroached portion of land to the plaintiff. However, as already discussed above, the said stand/contention - 33 - HC-KAR NC: 2025:KHC-D:13185-DB RFA No. 100020 of 2019 of the appellants has been considered and found to be untenable and is therefore liable to be rejected. 33. In view of the discussions made above, the findings recorded by the Trial Court while granting the relief are just and proper, and are required to be upheld. Hence, the question No.(iv) framed for consideration is answered in the affirmative. 34. Hence, the following: ORDER i) The above appeal is dismissed with costs; ii) The judgment and decree dated 10.10.2018 passed in O.S.No.9/2016 on the file of Principal Senior Civil Judge, Bagalkot, is confirmed. Sd/- (S.R. KRISHNA KUMAR) JUDGE Sd/- (C.M. POONACHA) JUDGE PMP,ND List No.: 1 Sl No.: 48