- 1 - HC-KAR NC: 2025:KHC:43703 RSA No. 1220 of 2009 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MRS. JUSTICE M G UMA REGULAR SECOND APPEAL NO. 1220 OF 2009 (INJ) BETWEEN: TOWN MUNICIPAL COUNCIL, HUNSUR - 571 105, MYSORE DISTRICT. REPRESENTED BY ITS CHIEF OFFICER. …APPELLANT (BY SRI. S.B. TOTAD, ADVOCATE) AND: THE CHURCH OF SOUTH INDIA TRUST ASSOCIATION (REGISTERED) HAVING ITS REGISTERED OFFICE AT CHENNAI, REPRESENTED BY ITS GENERAL POWER OF ATTORNEY HOLDER REV. D.P. SHETTIAN BISHOP OF KARNATAKA SOUTHERN DIOCESE, BULMUT, MANGALORE - 575 001. …RESPONDENT (THE CHURCH OF SOUTH INDIA TRUST ASSOCIATION (REG) BY GPA HOLDER REV. SRI. D.P. SHETTIAN BISHOP (PARTY-IN-PERSON) (ABSENT)) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 13.03.2009 PASSED IN R.A.NO.30/2001 ON THE FILE OF THE ADDL CIVIL JUDGE, (SR. DN.) AND JMFC, HUNSUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED23.08.2001 PASSED IN OS.NO.21/1995 ON THE FILE OF THE CIVIL JUDGE, (JR. DN.) AND JMFC, HUNSUR. Digitally signed by PRASHANTH N V Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:43703 RSA No. 1220 of 2009 THIS RSA, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE M G UMA ORAL JUDGMENT The defendant in O.S.No.21/1995 on the file of the learned Civil Judge (Jr.Dn.) at Hunsur (hereinafter referred to as 'the Trial Court', for short), is impugning the judgment and decree dated 23.08.2001 decreeing the suit of the plaintiff for permanent injunction and restraining him from putting up any permanent structure in between the compound wall and Jhansi Laxmi Bai (JLB) Road towards the northern side of the schedule properties as the plaintiff is having right of ingress and egress to the schedule properties, and also the right of use of frontage to the same which was confirmed in the judgment dated 13.03.2009 passed in RA.No.30/2001 on the file of the learned Additional Civil Judge (Sr.Dn) and JMFC, Hunsur (hereinafter referred to as 'the First Appellate Court', for short). 2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court. - 3 - HC-KAR NC: 2025:KHC:43703 RSA No. 1220 of 2009 3. Facts of the case in brief are that, the plaintiff has filed the suit O.S.No.21/1995 against the defendant claiming permanent injunction restraining the defendant-the Town Municipal Council from interfering with his peaceful possession and enjoyment over the suit schedule property. The schedule appended to the plaint describes the property bearing Municipal Nos.1276, 1277, 1278 and 1279 measuring East to West 276 feet including the road margin on each side and North to South 306 feet including the road margin on each side consisting of a church, residential quarters with the boundaries mentioned therein. 4. It is the contention of the plaintiff that, the Church of South India Trust Association (R) (hereinafter referred to as 'the Trust') is incorporated under Indian Companies Act, and it is the owner of the property measuring East to West 150 feet and North to South 306 feet of Hunsur Town. The property was originally belonging to his highness Maharaja of Mysore, who granted the piece of land in favour of Wesleyan Methodist Missionary Society under the Registered Deed dated 29.05.1880 for the purpose of running the school with a condition not to sell the same. The Wesleyan Methodist - 4 - HC-KAR NC: 2025:KHC:43703 RSA No. 1220 of 2009 Missionary Society became the owner, which constructed the building over the property. Subsequently, the chairman of the said Missionary died on 19.04.1896, transferred the rights in favour of the plaintiff Trust and thus it is the absolute property of the plaintiff. The Trust put up various constructions including the compound wall. The property was measuring 276 feet including the road margin on both sides, and North to South 306 feet including the road margin as the drainage in between the shops were closed to make it a single shop. 5. It is contended that the plaintiff is having access to the public road on the northern side i.e. to JLB road. The plaintiff while constructing the compound, left the road margin on all the four sides. However, he is having right over the road margin to have the right of frontage to enable him to have access to the public road. 6. It is contended that the plaintiff being the Town Municipal Council, passed a Resolution during 1991 to construct the shop premises on the northern road margin of the suit schedule property which is in fact the absolute and exclusive property of the plaintiff. To resist the illegal acts of the - 5 - HC-KAR NC: 2025:KHC:43703 RSA No. 1220 of 2009 defendant, the plaintiff filed suit O.S.No.248/1991 seeking permanent injunction. The defendant in the meantime, dropped the idea of constructing the shops and the suit came to be dismissed for default i.e. for non-prosecution. However, again on 28.02.1991, the officials of the defendant Municipal Council started measuring the road margin with an intention to put up the permanent structure. Therefore, the plaintiff has approached this Court seeking permanent injunction restraining the defendant from interfering with its peaceful possession and enjoyment over the suit schedule properties. 7. The defendant has appeared before the Trial Court and filed written statement denying the contentions taken by the plaintiff. It is contended that the plaintiff is the owner of the property within four walls of the compound. But the claim made by the plaintiff beyond the compound wall on the northern side, is not maintainable. It is also contended that the plaintiff had filed the suit in O.S.No.248/1991, when the defendant started putting up construction, however, no temporary injunction was granted. An appeal was preferred against the same. Both the appeal as well as the suit came to be dismissed for default. The defendant who is owning shop premises on the northern side - 6 - HC-KAR NC: 2025:KHC:43703 RSA No. 1220 of 2009 and the plaintiff is having sufficient space for entry and exit. The plaintiff cannot have any right over the land between his compound wall and the road and therefore the suit for permanent injunction is not maintainable. It is contended that the plaintiff has an eye on the public property belonging to the defendant and thus filed the suit claiming the land beyond the compound wall. 8. It is contended that, adjacent to the compound wall of the plaintiff, the defendant has put up few shop premises, rented out the same to various persons who have set up 8 petty shops and they are paying rent to the defendant. Therefore, it is contended that, it was the defendant who is in possession and enjoyment of the disputed land and prays for dismissal of the suit. 9. On the basis of these pleadings, the Trial Court framed the following issues for consideration. "(i) Whether the plaintiff proves that it is in lawful possession of the suit schedule property on the date of suit? - 7 - HC-KAR NC: 2025:KHC:43703 RSA No. 1220 of 2009 (ii) Whether the plaintiff proves that the defendant interfered with its possession? (iii) To what decree or order?" 10. The plaintiff examined PW.1 and got marked Exs.P1 to 9. Defendant examined DW.1 and got marked Exs.D1 to 3. The Court Commissioner's sketch, mahazar and the report were marked as Exs.C1 to 3. The Trial Court, after taking into consideration all these materials on record, came to the conclusion that the plaintiff is entitled for the relief of permanent injunction and accordingly decreed the suit as stated above. 11. Being aggrieved by the same, the defendant has preferred appeal in RA.No.30/2001. The First Appellate Court on re-appreciation of the materials on record, dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved by the same, the defendant is before this Court. 12. Heard Sri. S.B. Totad, learned counsel for appellant. The respondent remained absent and has not chosen to defend - 8 - HC-KAR NC: 2025:KHC:43703 RSA No. 1220 of 2009 the appeal. Perused the materials including the Trial Court records. 13. Learned counsel for the appellant contended that, as per the schedule appended to the plaint, the property owned by the plaintiff is measuring East to West 276 feet and North to South 306 feet. Admittedly, the plaintiff has put up compound wall on all the four sides. The only disputed portion is on the northern side of the schedule property. 14. Learned counsel submitted that the Assistant Executive Engineer of Zilla Panchayat was appointed as Court Commissioner to measure the property and to submit the report. Accordingly, the Court Commissioner visited the spot, measured and prepared the sketch as per Ex.C1 and submitted the report as per Ex.C3. As per Exs.C1 and 3, the plaintiff is in possession of property measuring 288 feet from North to South 13 feet open space is available beyond the compound up to the road margin i.e. JLB road, Hunsur. This area measuring North to South 274.3 feet, 13 feet on the eastern side and 14 feet on the western side ((13x14) / 274.3 feet) is the disputed land. There are two gates on the northern side wall of the plaintiff to - 9 - HC-KAR NC: 2025:KHC:43703 RSA No. 1220 of 2009 have entry and exit from and to the public road. Except the right of entry and exit, the plaintiff cannot have any other right over the disputed land. 15. The Court Commissioner has noted 8 shop premises including a open site. Admittedly, the plaintiff had filed similar suit during 1991, and when no temporary injunction was granted, the suit came to be dismissed for default i.e. for non- prosecution. Hence, the present suit came to be filed in the year 1995. The plaintiff who examined PW.1, has categorically admitted in the cross-examination that it is the defendant who is in possession of petty shops in the disputed land even prior to 1991. Under such circumstances, the contention of the plaintiff that he is in possession of the land cannot be accepted. 16. Learned counsel submitted that Ex.P9 is the registered Transfer Document dated 12.03.1963 said to have been executed in favour of the plaintiff. The plaintiff is claiming right under Ex.P9. As per this document, the plaintiff acquired title only in respect of the land measuring East to West 276 feet, North to South 288 feet on the western side and 382 feet on the Eastern side respectively, in all around 20,000 sq. feet, - 10 - HC-KAR NC: 2025:KHC:43703 RSA No. 1220 of 2009 but now the plaintiff is claiming more than 21,000 sq. feet for which it has no right. 17. Learned counsel further submitted that the plaintiff is claiming right over the disputed land falling beyond the northern compound wall and contended that he is having right of entry and exit, and for use of frontage, that means to say, plaintiff is claiming easementary right over the said property against the defendant. But no relief of declaration was sought by the plaintiff, but the suit is only for bare injunction. On this count also, the suit of the plaintiff was liable to be dismissed. 18. Learned counsel submitted that PW.1 is not the competent person to speak and represent the plaintiff and to depose on its behalf. Ex.P1 is the Special Power of Attorney executed by a person said to be authorised by the plaintiff Association. But no such document is produced before the Court authorizing it either to sign the plaint or to execute Ex.P1 authorizing PW.1 to represent the plaintiff. Therefore, the suit of the plaintiff is not maintainable. 19. Learned counsel submitted that the defendant being the State was not served with a notice as required under - 11 - HC-KAR NC: 2025:KHC:43703 RSA No. 1220 of 2009 Section 80 of CPC. He placed reliance on the decision of this Court in Bhatkal Town Municipality, Bhatkal Vs. Smt. Bibi Rabia since deceased by her LRs1, to contend that in the absence of notice under Section 80 of CPC, the plaintiff is not entitled for any relief. [para 18 and the last para - similar facts and circumstances]. 20. Learned counsel submitted that the Trial Court in para 12 of its judgment categorically recorded a finding that the plaintiff is not in possession of the disputed land. It also recorded a finding that it is the defendant who is in possession of the disputed portion of the land. The Trial Court also commented as to why the plaintiff had put up the compound wall leaving the property which it is now claiming right after putting the compound wall on all the four sides. But in-spite of that, it proceeded to decree the suit granting the relief which the plaintiff had never asked for. When the plaintiff has also sought for permanent injunction, restraining the defendant from interfering with its peaceful possession and enjoyment of the property, the Trial Court decreed the suit restraining the 1 RSA.No.1047 of 2003 D.D.30TH AUGUST 2012 - 12 - HC-KAR NC: 2025:KHC:43703 RSA No. 1220 of 2009 defendant from putting up any construction in between the compound wall and the JLB road towards the northern side of the schedule property, as the plaintiff is having right of ingress and egress to the schedule property, and also right of frontage. This relief granted by the Trial Court in the absence of any prayer for declaration is bad under law. 21. Learned counsel also submitted that the First Appellate Court ignoring all these facts and circumstances, proceeded to dismiss the appeal without any basis. As per Section 81 of the Municipalities Act, the land that was abutting to the public road belongs to the defendant and not to the plaintiff, the plaintiff cannot have any right over the same. Under such circumstances, the learned counsel prays for allowing of the appeal and dismissal of the suit of the plaintiff in the interest of justice. 22. This Court vide order dated 06.06.2013, has framed the following substantial questions of law for consideration: (i) Whether the judgment impugned passed by the Appellate Court is sustainable, as it has framed a substantial issue to decide whether the disputed vacant space lying in between the plaintiff's - 13 - HC-KAR NC: 2025:KHC:43703 RSA No. 1220 of 2009 northern compound wall and the J.L.B. Road belongs to the plaintiff - Trust, when the suit is suit simplicitor for an order of injunction without seeking any declaration of title and interest? (ii) Whether the suit filed by the plaintiff was maintainable without seeking a substantial relief of declaration as the grant of injunction would depend on the existence of legal right in respect of property in question? 23. The plaintiff has approached this Court seeking grant of permanent injunction restraining the defendants from interfering in any manner with peaceful possession and enjoyment of the suit schedule property by the plaintiff and for costs. 24. It is the specific contention of the plaintiff that the schedule appended to the plaint with Municipal Nos.1276, 1277, 1278 and 1279 measuring East – West : 276 Feet including road margin on each side and North – South : 306 Feet including the road margin on each side consisting of the church, residential quarters with boundaries mentioned therein are the absolute properties of the plaintiff. - 14 - HC-KAR NC: 2025:KHC:43703 RSA No. 1220 of 2009 25. The plaintiff is having access from the northern side to the public road i.e., JLB road. While constructing the compound wall on the northern side, plaintiff left road margin and is having gates to have access to the main road. The Court Commissioner was appointed when the matter was pending before the Trial Court, and the report with sketch are marked as Ex.C1. As per the sketch and the report, the land which is exclusively belonging to the plaintiff – Association is marked and is surrounded by a Pakka compound wall with two gates on the northern compound wall to have access to the JLB road. As many as seven shop premises are also shown with one vacant place in between shop Nos.4 and 6, said to be constructed by the defendant. It is this portion of the land which is said to be the disputed land and the plaintiff is aggrieved by construction of Pakka shop premises by the defendant over this stretch of land laying in between the compound wall of the plaintiff and the JLB road. 26. The schedule appended to the plaint refers to the above said municipal numbers with measurements consisting of church etc., with boundaries mentioned therein on the northern side of JLB road. The prayer made by the plaintiff in the plaint - 15 - HC-KAR NC: 2025:KHC:43703 RSA No. 1220 of 2009 is to restrain the defendant from interfering in any manner with the peaceful possession and enjoyment of the suit schedule property by the plaintiff. Strangely, it is not the contention of the plaintiff that the defendant is interfering with the suit schedule property i.e., admittedly belonging to the plaintiff. The evidence and materials that are placed before the Court including Exs.C1 and C3 – the Commissioners sketch and report, the disputed property is between the compound wall and the JLB road, which is situated beyond the schedule property. The plaintiff is not claiming any right over this stretch of land laying beyond the compound of the schedule property on the northern side and admittedly, there are already few shops premises constructed by the defendant. But in the plaint, there is no such details available. No prayer is sought in respect of said stretch of land, which is measuring North-South : 13 Feet and East – West : 274.3 Feet. Of course, there are two gates affixed to the compound wall put up by the plaintiff through which, the plaintiff may have access to the public road. Apart from that the plaintiff is not asserting any right over this stretch of land. - 16 - HC-KAR NC: 2025:KHC:43703 RSA No. 1220 of 2009 27. When the plaintiff has sought for permanent injunction, Section 38 of the Specific Relief Act is to be taken into consideration. Perpetual injunction could be granted in favour of the plaintiff only to prevent breach of an obligation existing in its favour, whether expressly or by implication. 28. Section 2 (a) of Specific Relief Act defines the word 'obligation' to include every duty enforceable by law. The plaintiff has not pleaded nor spoken through its witnesses as to what is the obligation that is available in its favour against the defendant in respect of disputed stretch of land. Unfortunately, plaintiff has not described disputed stretch of lands in the schedule appended to the plaint. Nor, there is any assertion of right over the said stretch of land. But as I have already noted, the description of the property in the schedule measures East – West 276 Feet and North – South : 306 Feet but it is stated that it includes road margin on each side. 29. It is relevant to refer Section 81 of the Karnataka Municipality Act, 1964, which deals with Municipal property. As per Section 81(2), all property of the nature specified therein and not being specifically reserved by the Government, shall be - 17 - HC-KAR NC: 2025:KHC:43703 RSA No. 1220 of 2009 vested in and belonging to the Municipal Counsel, including public street and pavements. Very fact that the plaintiff has put up the pakka compound wall on all the four sides of the schedule property with gates for its access to the public road discloses that the plaintiff is claiming right over the property only laying inside the compound wall and not beyond that. Therefore, the disputed stretch of land shown in Ex.C1, which measures 13 feet from North-South is abutting the public road which can be referred to as the road margin, and when the plaintiff is not claiming any manner of right, title or interest over the same, naturally it belongs to the defendant - municipality. Under such circumstances, the plaintiff could have made clear in the plaint about the nature of the right he is claiming over the said stretch of land. 30. As referred to above under Section 38 of the Specific Relief Act, only when there is an obligation in favour of the plaintiff or against the defendant, the perpetual injunction could be granted. Here the plaintiff has not made it clear as to what is the obligation in favour of the plaintiff and against the defendant to seek perpetual injunction, in respect of the land in question. If at all the plaintiff is seeking right of easement to - 18 - HC-KAR NC: 2025:KHC:43703 RSA No. 1220 of 2009 have an access to his property from the public road by making use of the gates referred to in the Commissioners Sketch Ex.C1. The said right is never disputed by the defendant and it is not the contention of the plaintiff that the defendant is interfering with such right. 31. Section 4 of the Indian Easements Act defines the word easement as the right which the owner or occupier of certain land possess for the beneficial enjoyment of that land. Even though plaintiff has never mentioned about any such right existing in his favour, and even though plaintiff has not claimed any declaration of such right in his favour, the Trial Court proceeded to decree the suit granting permanent injunction restraining the defendants from putting up any permanent structure in between the compound wall and JLB road towards northern side of the schedule property, as the plaintiff is having right of ingress and egress to schedule property and also right of free frontage to the same. This relief granted by the Trial Court was never sought by the plaintiff in the plaint as discussed above. At the cost of repetition it is to be stated that plaintiff has filed a simple suit for bare injunction seeking to restrain the defendant from interfering in any manner with the - 19 - HC-KAR NC: 2025:KHC:43703 RSA No. 1220 of 2009 peaceful possession and enjoyment of the schedule property by the plaintiff and for costs. 32. If the plaintiff wants to have right of easement of any nature as referred to by the Trial Court in the impugned judgment, plaintiff is required to seek declaration of such right as required under Section 34 of the Specific Relief Act. Unless the plaintiff seeks declaration that he is entitled for such a right in respect of the property, bare suit for permanent injunction could not have been decreed by the plaintiff. When no such relief is claimed by the plaintiff, the Trial Court could not have ventured to the grant of such relief as granted in the present case. 33. Unfortunately, even the First Appellate Court ignoring all these facts, proceeded to confirm the judgement passed by the Trial Court. Therefore, the suit filed by the plaintiff for bare injunction without seeking a substantial relief of declaration that he was having right of ingress and egress to the schedule property and also had the right of free frontage to schedule property is not maintainable. Therefore, I answer the - 20 - HC-KAR NC: 2025:KHC:43703 RSA No. 1220 of 2009 substantial questions of law Nos.1 and 2 against the plaintiff and in favour of the defendant/appellant. 34. The impugned judgment and decree passed by the Trial Court decreeing the suit of the plaintiff and also the judgment of the First appellate Court confirming the judgment of the Trial Court are liable to be set aside, even though they are having concurrent findings. 35. Accordingly, I proceed to pass the following: ORDER (i) The appeal is allowed with cost. (ii) The judgment and decree dated 23.08.2001 passed in OS.No.21/1995 on the file of the learned Civil Judge (Jr.Dn.) at Hunsur and the judgment dated 13.03.2009 passed in RA No.30/2001 on the file of the learned Additional Civil Judge (Sr.Dn) and JMFC, Hunsur are set aside. (iii) Consequently, the suit of the plaintiff in OS.No.21/1995 on the file of the Trial Court for permanent injunction is dismissed. - 21 - HC-KAR NC: 2025:KHC:43703 RSA No. 1220 of 2009 Registry is directed to send back the Trial Court records along with copy of this judgment. Sd/- (M G UMA) JUDGE MKM/BH CT:VS List No.: 1 Sl No.: 2