- 1 - HC-KAR NC: 2025:KHC:29732 RFA No. 1706 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY, 2025 BEFORE THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA REGULAR FIRST APPEAL NO. 1706 OF 2023 (INJ) BETWEEN: DR. SRIKANTH K.N., S/O. NARAYAN RAO, AGED ABOUT 49 YEARS, GURUKRUPA, NO 9, III CROSS, GAVIPURAM EXTENSION, BENGALURU – 560019. …APPELLANT (BY SRI. RUDRAPPA P.,ADVOCATE) AND: 1. K.SANATH KUMAR, MAJOR 2. RAMADEVI W/O K.SANATH KUMAR, MAJOR BOTH ARE RESIDING AT NO.C-20, ALL INDIA RADIO QUARTERS, YELAHANKA NEW TOWN, BENGALURU - 560064. 3. SAPTHAGIRI BUILDERS NO 18, B.K.COMPLEX, 21ST MAIN ROAD, BANASHANKARI 2ND STAGE, BENGALURU – 560070. Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:29732 RFA No. 1706 of 2023 REPRESENTED BY ITS PROPRIETOR, CHITTI BABU. …RESPONDENTS (BY SRI. N.MANOHAR, ADVOCATE FOR R1 AND R2; R3 - SERVED) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC., AGAINST JUDGMENT AND DECREE DATED 31.07.2023 PASSED IN OS NO. 4395/2016 ON THE FILE OF THE LVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE(CCH -59), BENGALURU, DISMISSING THE SUIT FOR INJUNCTION. THIS REGULAR FIRST APPEAL , COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA ORAL JUDGMENT Assailing the legality and correctness of the judgment and decree in O.S.No.4395/2016 dated 31.07.2023 on the file of LVIII Additional City Civil and Sessions Judge, Bangalore City (CCH.No.59) (hereinafter referred to as ‘trial Court’ for short), the plaintiff is before this Court in this Regular First Appeal. By the impugned order, the trial Court dismissed the suit filed for mandatory injunction. 2. Heard the learned counsel for the appellant and learned counsel for the respondents. - 3 - HC-KAR NC: 2025:KHC:29732 RFA No. 1706 of 2023 Brief facts: 3. Suit was filed for mandatory and permanent injunction directing the defendants to demolish the structures erected in the portion of the property, which is approximately 312.50 sq. ft. belong to the plaintiff and also restraining the defendants from carrying out any construction work in the disputed portion. 4. The case of the plaintiff is that he has purchased two sites bearing Nos.35 and 36, which are ‘A’ and ‘B’ schedule properties from defendant No.3 under a registered sale deed dated 29.07.2009 and since from the date of purchase, the plaintiff has been in peaceful possession and enjoyment of the same. That in the year 2016, defendant Nos.1 and 2 who are the neighbors have started construction in their site bearing No.34 and defendant Nos.1 and 2 taking advantage of the absence of the plaintiff encroached an extent of 312.50 sq. ft. on North-West side suit property. - 4 - HC-KAR NC: 2025:KHC:29732 RFA No. 1706 of 2023 5. The defendants appeared and defendant Nos.1 and 2 have filed their written statement inter alia denying about any interference caused by them. According to the defendants, they have obtained sanction plan and licence for construction of a residential building in the site No.34 purchased by them measuring East to West 50 feet and North to South 30 feet. The defendants contended that without seeking a relief of declaration, the simple suit for bare injunction is not maintainable. 6. Before the trial Court, the plaintiff examined himself as PW.1, marked documents at Ex.P1 to Ex.P16. On the other hand, defendant No.1 examined himself as DW.1, marked documents at Ex.D1 to Ex.D15. At the instance of the plaintiff, the Court Commissioner was appointed and he submitted the report. Court Commissioner was examined as CW.1 and his report was marked as Ex.C1 and Ex.C2. - 5 - HC-KAR NC: 2025:KHC:29732 RFA No. 1706 of 2023 7. The trial Court, considering the oral and documentary evidence, observed that the plaintiff has failed to prove that the defendants have encroached the particular boundary in the plaint schedule property and that the plaintiff is not entitled for the relief of mandatory injunction to demolish the alleged construction made by the defendants. The trial Court observed that when PW.1 has admitted that the defendants have encroached and put up construction in the suit property, the suit seeking relief for mandatory injunction without seeking possession cannot be granted and relied upon the decision of this Court in the case of Aralappa Vs. Jagannath and Others1 (Aralappa) and by the impugned order, dismissed the suit seeking mandatory injunction. 8. Learned counsel appearing for the appellant would submits that the Court Commissioner in his report, has clearly indicated about the encroachment of 12.5 sq. ft. on one side. Although there is categorical finding by the 1 AIR 2007 KAR page 91 - 6 - HC-KAR NC: 2025:KHC:29732 RFA No. 1706 of 2023 Court Commissioner establishing the encroachment by the defendants, the trial Court has fell in error in dismissing the plaintiff’s suit for mandatory injunction. It is contended that the plaintiff, being the absolute owner of the suit property by virtue of a registered sale deed for valuable consideration is entitled for relief, especially when an encroachment by the defendants has been established and therefore, the trial Court ought not to have dismissed the suit of the plaintiff. 9. Per contra, the learned counsel appearing for the respondents justifying the judgment and decree of the trial Court contends that suit for mandatory injunction as filed is not maintainable. It is argued that the plaintiff specifically alleged that the defendants have encroached upon a portion of the suit property, and when it is established that the plaintiff is not in possession of the encroached portion, the appropriate remedy would have been to file a suit for possession along with a prayer for - 7 - HC-KAR NC: 2025:KHC:29732 RFA No. 1706 of 2023 mandatory injunction. Hence, there is no error committed by the trial Court in dismissing the suit. 10. Having heard the learned counsel for the parties, the point that arises for consideration is: “Whether the judgment and decree of the trial Court warrants any interference in the present facts and circumstances of the case?” 11. The suit is one for mandatory and permanent injunction. The plaintiff has specifically alleged encroachment by the defendants, which implies that the plaintiff is not in possession. In such circumstances, the appropriate remedy would have been to institute a suit for possession along with a consequential relief of mandatory injunction. 12. The Apex Court in the case of Anathula Sudakar Vs. P. Buchi Reddy (dead) by Lrs’ and Others2 (Anathula Sudakar) has laid down clear principles in regard to the suits for prohibitory injunction relating to 2 (2008) 4 SCC 594 - 8 - HC-KAR NC: 2025:KHC:29732 RFA No. 1706 of 2023 immovable property and at para Nos.13 and 21 has held as under: “13. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly. 13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto - 9 - HC-KAR NC: 2025:KHC:29732 RFA No. 1706 of 2023 and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. 21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under: (a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on - 10 - HC-KAR NC: 2025:KHC:29732 RFA No. 1706 of 2023 the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202] ). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the - 11 - HC-KAR NC: 2025:KHC:29732 RFA No. 1706 of 2023 exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.” (Emphasis supplied) 13. A suit for injunction is fundamentally concerned with possession and can be maintained if the plaintiff proves possession of the suit property. 14. Therefore, when the plaintiff is in lawful possession of the property and such possession is interfered with by defendants, a suit for an injunction simpliciter is maintainable. However, where the plaintiff is not in possession, or where the possession is disputed, the plaintiff must file suit for possession and not a mere suit - 12 - HC-KAR NC: 2025:KHC:29732 RFA No. 1706 of 2023 for injunction. From the facts in the present case, the plaintiff is not in possession of the encroached portion, hence suit for mandatory and permanent injunction without seeking possession is not maintainable. For the foregoing reasons, point framed for consideration is answered accordingly and this Court passed the following: ORDER I. The Regular First Appeal is hereby dismissed. II. The judgment and decree dated 31.07.2023 passed in O.S.No.4395/2016 on the file of LVIII Additional City Civil and Sessions Judge, Bangalore City (CCH.No.59) stands confirmed. Sd/- ____________________ JUSTICE K.S. HEMALEKHA AT List No.: 1 Sl No.: 11