- 1 - HC-KAR NC: 2025:KHC:30106 RFA No. 2170 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA REGULAR FIRST APPEAL NO. 2170 OF 2023 (INJ) BETWEEN: SRI. N.JAYARAM S/O LATE N.NANJAPPA AGED ABOUT 50 YEARS R/A NO.35/1, OLD NO.V-8 PIPE LINE MAIN ROAD MALLESHWARAM BENGALURU-560003. …APPELLANT (BY SRI MUKKANNAPPA S.B., ADVOCATE) AND: 1. SMT. SAROJAMMA W/O R.G.RAMASWAMY AGED ABOUT 56 YEARS R/A NO.34, OLD NO.V-8 PIPE LINE MAIN ROAD MALLESHWARAM BENGALURU-560003 2. THE ASSISTANT EXECUTIVE ENGINEER BBMP WARD NO.77(DATTATREYA WARD) GANDHINAGAR SUB DIVISION DR.T.C.M ROYAN ROAD BENGALURU-560003 Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30106 RFA No. 2170 of 2023 3. THE EXECUTIVE ENGINEER BBMP WARD NO.77(DATTATREYA WARD) GANDHINAGAR SUB DIVISION DR.T.C.M ROYAN ROAD BENGALURU-560003 4. THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE N.R.SQUARE, BENGALURU-560002 …RESPONDENTS (BY SRI GOPALA KRISHNA B.N., ADVOCATE FOR R1; SMT. SINCHANA M.R., ADVOCATE FOR R2 TO R4) THIS RFA FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 18.08.2023 PASSED IN OS.NO.1122/2018 ON THE FILE OF THE XII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, DISMISSING THE SUIT FOR INJUNCTION. THIS RFA, COMING ON FOR ADMISSION, 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 judgment and decree in O.S.No.1122/2018 dated 18.08.2023, on the file of the XII Additional City Civil and Sessions Judge(CCH No.27), - 3 - HC-KAR NC: 2025:KHC:30106 RFA No. 2170 of 2023 Bengaluru (hereinafter referred to as ‘trial Court’ for short). By the impugned judgment and decree, the trial Court dismissed his suit. Brief facts: 2. The suit was for permanent injunction to restrain the defendants from interfering with his peaceful possession and enjoyment of Municipal No.35/1 (schedule- A property) and also sought to restrain defendant No.1 demolish and reconstruction of any structure within Municipal No.35/2 (schedule-B property) without licence and sanctioned plan. 3. It is averred in the plaint that the plaintiff is the owner in possession and enjoyment of schedule-A property. The plaintiff has acquired title in respect of schedule-A property in light of a partition suit filed by him and schedule-A property was allotted to his share. It is averred that schedule-B property was purchased by - 4 - HC-KAR NC: 2025:KHC:30106 RFA No. 2170 of 2023 defendant No.1 under a registered sale deed dated 20.01.2006. 4. It is further stated in the plaint that he had instituted a suit in O.S.No.1882/2011 against the owners of the property bearing Municipal No.34. It is submitted that two properties are separated and demarcated by boundaries. It is averred that to the West of the schedule- B property is an open drain, which overflows during monsoon and inundates schedule-B property. As the result, the soil within the schedule-B property is a loose soil, unfit for raising any construction. It is further stated that defendant No.1 suddenly commenced dismantling of the structure within the schedule-B property and that the demolition work was undertaken by defendant No.1 endangering the structures within schedule-A property and a complaint was lodged before the appropriate authority. It is stated that the construction undertaken by defendant No.1 is an illegal construction, having been commenced without licence or sanction plan. - 5 - HC-KAR NC: 2025:KHC:30106 RFA No. 2170 of 2023 5. Further that defendant No.1 by demolishing the existing structures is endangering the safety of the remaining portion of the construction within the property of the plaintiff. Since the construction is being undertaken without laying foundation of living any requisite setback. 6. Pursuant to the suit summons issued, defendants appeared and defendant No.1 filed his written statement, admitting that the plaintiff is owner in possession and enjoyment of the schedule-A property. The defendants contended that schedule-B property was purchased by defendant No.1 under a registered sale deed dated 20.01.2006 from N. Dayananda and after purchasing the said property has been transferred in his name and he is in peaceful possession and enjoyment of schedule-B property. It is stated that the house property, which is shown in schedule-B property was old house and in a dilapidated condition. During last year due to heavy rain, the plastering of wall fell down, defendant No.1 had undertook the repair work in the said property. - 6 - HC-KAR NC: 2025:KHC:30106 RFA No. 2170 of 2023 7. It is stated that husband of defendant No.1 and his brothers are residing in Eastern side of schedule-A property since 1950 and subsequently, on 2006, defendant No.1 purchased the schedule-B property from the relative of the plaintiff. Since then the plaintiff colluded with one Ramamurthy, who is the plaintiff in O.S.No.8016/2010 against husband of defendant No.1 and his brothers and said suit was partly decreed on 11.02.2013, against the said order, Ramamurthy had preferred RFA.No.1022/2013 and the said appeal came to be dismissed on 17.03.2015. It is stated that the plaintiff has also filed a suit against husband of defendant No.1 and his brothers in O.S.No.1182/2011 and the said suit has been dismissed on 29.05.2018. It is stated that in order to grab the suit schedule property, the frivolous suit has been filed against the defendants. 8. The trial Court framed necessary issues. In order to substantiate their claim, the plaintiff examined himself by PW.1, marked documents as Ex.P1 to Ex.P31. - 7 - HC-KAR NC: 2025:KHC:30106 RFA No. 2170 of 2023 On the other hand, defendant No.1 examined himself as DW.1, marked documents at Ex.D1 to Ex.D17. Defendants Nos.3 to 5 did not choose to file any written statement and not contest the suit. 9. The trial Court considering the oral and documentary evidence observed that the plaintiff has failed to prove that defendant No.1 was interfering his lawful possession and enjoyment of schedule-A property. Further observed that plaintiff has also failed to establish that the soil in schedule-B property is wet and loosened and thus a permanent structure cannot be put up. The trial Court held that there was a construction over the suit schedule-B property and the plaintiff failed to prove that the construction so made caused any impediments in enjoying his easementary rights. The trial Court further observed that if any construction carried out by defendant No.1, that would not cause any personal injury and damages to his property, that nature of claim would be in an independent capacity and cannot be in the present suit - 8 - HC-KAR NC: 2025:KHC:30106 RFA No. 2170 of 2023 and by the judgment and decree, the trial Court dismissed the suit. 10. Heard learned counsel appearing for the appellant and learned counsel appearing for the respondents and perused the material on record. 11. Learned counsel for the appellant submits that schedule-A property is the absolute property of the appellant/plaintiff which is situated adjacent to the schedule-B property owned by respondent No.1/defendant No.1, and West of defendant No.1's property is a open drain, which over overflows during the monsoon, as a result, the soil within defendant No.1's property is loose soil unfit for raising construction. It is argued that construction on schedule-B property is being carried out without laying proper foundation or setback and DW.1 has categorically stated that he has not taken any security measure to prevent the damages to the schedule-A - 9 - HC-KAR NC: 2025:KHC:30106 RFA No. 2170 of 2023 property and the crucial admission of DW.1, the trial Court failed to consider. 12. Per contra, learned counsel appearing for respondent No.1/defendant No.1 would contend that defendant No.1 is trying to repair the structures, which was already there in schedule-B property and thus the structures there being is not been disputed by the plaint as could be seen from the prayer of the plaint. Learned counsel for respondent No.1 submits that the plaintiff having failed to establish any interference by defendant No.1 to the schedule-A property and further that schedule- B property being the exclusive property of defendant No.1, he has put up construction earlier and defendant No.1 was trying to put up repairs, which aspect has been rightly considered by the trial Court and the same does not warrant any interference by this Court. - 10 - HC-KAR NC: 2025:KHC:30106 RFA No. 2170 of 2023 13. Having heard the learned counsel for the parties, the point that arise for consideration in this appeal is: “Whether the trial Court was justified in dismissing the suit for injunction and whether the same warrants any interference by this Court? 14. The prayer in the plaint reads as under: “i) of perpetual injunction, restraining the defendant No.1 or anybody claiming through her or under her, from interfering with the peaceful possession and enjoyment of the suit schedule-A property; ii) of perpetual injunction, restraining the defendant No.1 or anybody claming through or under her, from demolition and reconstruction of the structures within the Schedule-B property, without licence and sanction plan; and - 11 - HC-KAR NC: 2025:KHC:30106 RFA No. 2170 of 2023 iii) grant such other relief including costs as deemed fit in the circumstances of the case in the interest of justice and equity.” 15. It is not in dispute that the plaintiff is the absolute owner of schedule-A property and defendant No.1 is the owner of schedule-B property. The grievance of the plaintiff is that the schedule-B property is a loose soil, unfit for raising any construction, and the construction which is now put on by defendant No.1 endangers the structure within schedule-A property. The plaintiff, though asserting apprehended injury due to demolition and alleged reconstruction activity undertaken by defendant No.1, on the adjacent schedule-B property, failed to produce cogent evidence to substantiate actual interference with his lawful possession on schedule-A property. Further, the trial Court rightly observed that the construction activities on schedule-B property, which is admittedly owned by defendant No.1, could not be interdicted in the absence of proof that the construction - 12 - HC-KAR NC: 2025:KHC:30106 RFA No. 2170 of 2023 was unlawful, or that it violated statutory building norms to the extent of causing imminent harm to the plaintiff’s property. 16. Although the plaintiff alleged that the soil condition in schedule-B property was weak due to drainage overflow, no evidence was placed on record to demonstrate that the soil was indeed unfit for construction, or the construction posed any structural threat to schedule-A property. 17. Additionally, the trial Court rightly held that if any damage were to occur due to defective construction or lack of setback, the remedy would lie in a properly framed suit for damages or under municipal law, and not by an injunction suit. 18. The trial Court on appreciation of entire oral and documentary evidence, rightly dismissed the suit of the plaintiff and the same does not warrant any interference by this Court. The point framed for - 13 - HC-KAR NC: 2025:KHC:30106 RFA No. 2170 of 2023 consideration is answered accordingly and this Court pass the following: ORDER i. The Regular Fist Appeal is hereby dismissed. ii. The judgment and decree dated 18.08.2023 passed in O.S.No.1122/2018 on the file of XII Additional City Civil and Sessions Judge (CCH.No.27) Bengaluru stands confirmed. Sd/- _____________________ JUSTICE K.S. HEMALEKHA AT List No.: 1 Sl No.: 15