- 1 - HC-KAR NC: 2025:KHC:57262 RFA No. 135 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S RACHAIAH REGULAR FIRST APPEAL NO. 135 OF 2020 (DEC/INJ) BETWEEN: SRI.H.NAGARAJ S/O LATE B.N. HANUMAIAH AGED ABOUT 60 YEARS R/AT NO.3 6TH CROSS 40 FEET ROAD, MANJUNATH NAGAR, 1ST PHASE, BANGALORE – 560 010 … APPELLANT (BY SRI.M.ASWATHANARAYANA REDDY, ADVOCATE) AND: 1. MR. K. RANGASWAMY S/O LATE MAISTRY KEMPAIAH AGED ABOUT 74 YEARS 2. MR. K. KRISHNAMURTHY S/O LATE MAISTRY KEMPAIAH AGED ABOUT 71 YEARS BOTH ARE R/AT 4/1, 1ST CROSS MUNESWARA BLOCK, PALACE GUTTAHALLI, BANGALORE – 560 003 Digitally signed by SREEDHARAN BANGALORE SUSHMA LAKSHMI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:57262 RFA No. 135 of 2020 3. THE COMMISSIONER BRUHATH BANGALORE MAHANAGARA PALIKE (BBMP), N.R. SQUARES BANGALORE – 560 002 4. THE ASSISTANT EXECUTIVE ENGINEER MALLESWARAM SUB-DIVISION BRUHAT BANGALORE MAHANAGARA PALIKE (BBMP) BANGALORE – 560 003 …RESPONDENTS (BY SRI.IAN ISIDORE LEWIS, ADV. FOR R1 & R2; SRI. N.R.JAGADEESWARA, ADV. FOR R3 & R4) --- THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 27.11.2019 PASSED IN OS NO.7928/2010 ON THE FILE OF THE XXVII ADDITIONAL CITY CIVIL JUDGE, BENGALURU CITY, DECREEING THE SUIT FOR DECLARATION AND INJUNCTION. THIS APPEAL COMING ON FOR HEARING, BEFORE THE PRINCIPAL BENCH AT BENGALURU, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE S RACHAIAH - 3 - HC-KAR NC: 2025:KHC:57262 RFA No. 135 of 2020 ORAL JUDGMENT 1. This appeal has been filed by the defendant No.1 being aggrieved by the judgment and decree dated 27.11.2019 in O.S No.7928/2010 on the file of XXVII Additional City Civil and Sessions Judge, Bengaluru. 2. The ranks of the parties henceforth will be considered as per their rankings before the Trial Court, for convenience. Factual matrix of the case: 3. The plaintiffs are the children of Mestri Kempaiah. The said Mestri Kempaiah had three sons. The partition of the properties was effected on 30.10.1976. The said partition deed has been duly registered before the Sub Registrar, Gandhinagar, Bengaluru. As per the said partition deed, the plaintiff No.1 was allotted the property bearing No.4/1, 1st Cross, Muneshwara Block, Palace Guttahalli, Bengaluru – 560003, bounded on the East : by Rehmathulla’s property, West : by K.Krishnamurthy’s property, North : by Road, South : by Road. The - 4 - HC-KAR NC: 2025:KHC:57262 RFA No. 135 of 2020 measurement of the property is East to West : 43.6 feet, North to South : 70 feet. 4. Similarly, plaintiff No.2 was allotted property bearing No.4/1-1, 1st Cross, Muneshwara Block, Palace Guttahalli, Bengaluru – 560 003, bounded on East : by Rangaswamy’s property, West : by Late Chandrashekar’s property, North by Road and South by 1st Cross, Muneshwara Block. 5. It is submitted that the properties of the plaintiffs had a road, namely, ‘Nagappa Street Approach Road’. The said road was measuring North to South : 32 feet. The plaintiffs have produced document No.6 to demonstrate that there was a road existed since 35 years. It is further submitted that the plaintiffs along with other residents, had approached the Commissioner of Bengaluru City Corporation with a request to complete the unfinished work of the said ‘Nagappa Road Approach Road’ and a representation was made on 14.03.2007 before the Commissioner of BBMP. The 2nd defendant, who is the Commissioner of BBMP, took the task of completing the unfinished work. A copy of the letter dated 14.03.2007 is - 5 - HC-KAR NC: 2025:KHC:57262 RFA No. 135 of 2020 produced as document No.7 to substantiate the existence of the road. 6. It is further submitted that, the defendant No.1 is stated to be the owner of the property bearing No.26, New No.41, 1st Main Road, Rajmahal, Guttahalli, Bengaluru, contended that he has got the said property by a registered release deed dated 18.01.2007. The katha also stands in his name. Originally, the said property was measuring East to West : 43 feet, North to South : 100 feet. The defendant No.1 further contended that, on 28.03.2008 in the interest of the public at large, he has surrendered 5 feet x 43 feet in favour of 2nd and 3rd defendants for the purpose of sewage and water supply. He has produced an endorsement dated 28.03.2008 to that effect. 7. It is further contended that, on 12.05.2009, the defendant No.1 requested the jurisdictional police to give suitable protection for the purpose of the construction of a compound wall in the schedule property. On the same day, the Work Inspector of Ward No.99, Aramane Nagara, Bengaluru had inspected the schedule property and - 6 - HC-KAR NC: 2025:KHC:57262 RFA No. 135 of 2020 measured the schedule property by demarcating the actual measurement of the suit schedule property. In fact, the defendant No.1 had filed a suit in O.S 4481/2010 against the defendants No.2 and 3 for injunctive relief. The matter is pending for adjudication. 8. Heard Sri.M.Ashwathnarayana Reddy, learned counsel for the appellant, Sri.Ian Isidore Lewis, learned counsel for respondents No.1 and 2 and and Sri.N.R.Jagadeeswara, learned counsel for respondents No.3 and 4. 9. It is the submission of the learned counsel for the appellant that the findings of the Trial Court in decreeing the suit are untenable and opposed to the facts and law. Therefore, the same is liable to be set aside. 10. It is further submitted that the allegation of the plaintiffs is that 32 feet road had existed and it was named as ‘Nagappa Street Approach Road’. The same has been encroached by the defendant No.1 and erected the compound wall, which is absolutely not tenable for the reason that the plaintiffs have not produced any sketch, or report from the concerned officer or in other words, no documents were produced from the Estate Department of - 7 - HC-KAR NC: 2025:KHC:57262 RFA No. 135 of 2020 BBMP to demonstrate that 32 feet road existed. Therefore, in the absence of cogent evidence regarding the existence of the road, the Trial Court has arrived at a conclusion by stating that such a road existed, appears to be not proper. 11. It is further submitted that the plaintiffs have encroached the road and constructed a building thereon by violating the sanctioned plan. It is further submitted that the City Survey Sketch, which is marked as Ex.D7 has not been considered by the Trial Court. 12. It is further submitted that the appellant herein had surrendered 5 feet x 43 feet to respondents No.2 and 3 for the purpose of laying sewage and water lines as per Ex.D13. Such being the fact, the Trial Court has committed an error regarding the existence of 32 feet road, which is erroneous and not proper and therefore, the findings of the Trial Court has to be set aside. Making such submissions, learned counsel for the appellant prays to allow the appeal. 13. Per contra, learned counsel for respondents vehemently justified the judgment and decree passed by the Trial - 8 - HC-KAR NC: 2025:KHC:57262 RFA No. 135 of 2020 Court and submitted that the Trial Court while appreciating the evidence on record, opined that the road existed prior to encroachment was made by the appellant No.1. 14. It is further submitted that respondent Nos.1 and 2, who are the plaintiffs in the original suit, have contended and proved the existence of the road prior to the purchase of property by the appellant herein. Thereafter, it is also established that the road was blocked by the appellant. The findings of the Trial Court are appropriate and proper. Therefore, the order passed by the Trial Court has to be upheld. Making such submissions, learned counsel for the respondents prays to dismiss the appeal. 15. Heard the learned counsel for the respective parties and perused the findings of the Trial Court. As per the averments of the plaint, the defendant No.1/appellant had encroached the road which was existed and the same was measuring 32 feet width x 100 feet length. The said road was called - Nagappa Street Approach Road. To substantiate the said contention, the plaintiffs have relied on several documents, and got them marked as Exs.P1 to - 9 - HC-KAR NC: 2025:KHC:57262 RFA No. 135 of 2020 P34. On going through the said documents, nowhere it is stated that, 32 feet road was existed on the northern side of the property of the plaintiffs. Even the sale deeds produced by the plaintiffs did not disclose the existence of 32 feet width road. 16. It is contended in O.S.No.4481/2010 filed by the appellant against the BBMP that permanent injunction is required to be granted in respect of the schedule property. The Trial Court decreed the suit by holding that defendant No.1 / appellant is in possession of the property measuring East to West : 43 feet, North to South : 95 feet. 17. It is further noted that, the appellant herein had executed relinquishment deed in favour of BBMP in respect of property measuring 5 feet x 40 feet for the purpose of laying the sewage and water lines. 18. In fact, the Trial Court had appointed the Court Commissioner at the instance of the parties for the purpose of conducting an inspection and submitting a report on the ground reality. The Court Commissioner submitted the report, which is marked as Ex.C1. As per - 10 - HC-KAR NC: 2025:KHC:57262 RFA No. 135 of 2020 the said report, there was no road existed measuring 32 feet width. However, Ex.C2 – the sketch produced by the Court Commissioner would indicate that there were three manholes present in the said road. The third manhole is in the property of appellant and the same has been closed by the appellant by erecting the compound wall. Even in the said report, nowhere it is stated that 32 feet road was existed prior to the alleged encroachment. 19. When the decree in favour of the appellant was passed by the Trial Court and granted permanent injunction in respect of the property measuring 43 feet x 90 feet, which is the subject matter of the suit, and Court Commissioner had submitted his report that there was no such road existed. Moreover, the BBMP has entered into relinquishment deed stated to be executed by the appellant in favour of BBMP, the findings of the Trial Court that road was existed prior to purchase of the property by the appellant cannot be sustained. 20. The Trial Court has committed an error in holding that the road was existed in the said suit schedule property. - 11 - HC-KAR NC: 2025:KHC:57262 RFA No. 135 of 2020 Therefore, the judgment and decree passed by the Trial Court has to be set aside. 21. In the light of the observation made above, I proceed to pass the following: ORDER i) The appeal is allowed. ii) The judgment and decree dated 27.11.2019 passed in O.S No.7928/2010 by the XXVII Additional City Civil Judge, Bengaluru, is set aside. iii) Draw decree accordingly. Sd/- (S RACHAIAH) JUDGE BSS/UN List No.: 19 Sl No.: 2