- 1 - HC-KAR NC: 2025:KHC:36705 RSA No. 1375 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL No.1375 OF 2020 (INJ) BETWEEN: 1. CHIKKARAMEGOWDA S/O LATE SIDDEGOWDA AGED ABOUT 58 YEARS RESIDING AT KANAKANAGARA WARD NO.17, K R NAGAR TOWN-571 602 2. RAMACHANDRA M P S/O PUTTASWAMY AGED ABOUT 48 YEARS RESIDING AT KANAKANAGARA WARD NO.17 K R NAGAR TOWN-571 602 3. N C MALLESH S/O LATE L E CHANDRAPPA AGED ABOUT 59 YEARS R/O NARALAPURA VILLAGE KASABA HOBLI PERIYAPATNA TALUK MYSURU DISTRICT-571 602 4. M C SHIVANNA S/O LATE CHIKKEGOWDA AGED ABOUT 59 YEARS R/O MADHUVANAHALLI VILLAGE K R NAGAR MYSURU DISTRICT-571 602 …APPELLANTS (BY SRI T N VISWANATHA, ADVOCATE) ® Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:36705 RSA No. 1375 of 2020 AND: 1. SMT. LAKSHMAMMA W/O LATE BORALINGEGOWDA AGED ABOUT 73 YEARS RESIDING AT NO.2/316 2ND CROSS, VINAYAKA BADAVANE, K R NAGAR TOWN MYSURU DISTRICT-571 602 2. THE MUNICIPALITY K R NAGAR TOWN MYSURU DISTRICT-571 602 (R2 DELETED VIDE COURT ORDER DATED 27.10.2021) 3. PANCHAYATH DEVELOPMENT OFFICER DODDEKOPPALU GRAMA PANCHAYATH DODDEKOPPALU VILLAGE K R NAGAR TALUK MYSURU DISTRICT-571 602 …RESPONDENTS (VIDE ORDER DATED 27.10.2021, SERVICE OF NOTICE TO R1 IS HELD SUFFICIENT; VIDE ORDER DATED 27.10.2021, R2 STANDS DELETED; R3 – SERVED AND UNREPRESENTED) THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE 1908 AGAINST THE JUDGMENT AND DECREE DATED 16.09.2020 PASSED IN R.A.No.74/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, K.R.NAGAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 18.08.2018 PASSED IN OS.No.475/2014 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, K.R.NAGARA. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA - 3 - HC-KAR NC: 2025:KHC:36705 RSA No. 1375 of 2020 ORAL JUDGMENT Heard Sri T.N. Viswanatha, learned counsel for the appellants. None appears for the respondents. 2. Appellants in the second appeal had filed suit before the trial Court in O.S.No.475/2014 for perpetual and mandatory injunction. The trial Court after due trial, decreed the suit of the plaintiffs. 3. Being aggrieved by the same, defendant No.1 filed an appeal before the First Appellate Court in R.A.No.74/2018. 4. Learned Judge in the First Appellate Court, after securing the records, heard the arguments of the parties and by considered judgment dated 16.09.2020, reversed the findings recorded by the trial Judge and dismissed the suit of the plaintiffs inter alia holding in para 27 and 28 which reads as under: “27. From the available materials on record, it is prima facie disclosed that the suit is filed by the 1st plaintiff in his independent capacity. He is seeking a relief of mandatory injunction directing the 1st defendant to remove the encroachment made by her over the suit schedule property. - 4 - HC-KAR NC: 2025:KHC:36705 RSA No. 1375 of 2020 Therefore, it is necessary to prove the existence of public road, its measurement and also the boundaries in order to identify the actual measurement of encroachment stated to have been made by the 1st defendant/appellant over the suit property. Even such being the case, the trial court has come to the wrong conclusion that the suit of the plaintiff for the relief of mandatory injunction without seeking the declaration is also maintainable. It is also observed by the trial court that, the plaintiffs have not mentioned the boundaries of the suit property. Further, though, there is no any iota of evidence to prove the identification of the suit property/public road, the trial court has wrongly observed that the parties have admitted the identification of the suit property. In this regard, the trial court has relied upon the judgments cited by the plaintiffs i.e., i) AIR 2003 NOC 273 (KANT) between Dr. Poorna Prajna and Others Vs Shanthadevi. ii) HCR 2016 KANT 525 between Channamallaiah and others Vs H.H.Siddappa and Another, iii) HCR 2015 KANT 917 between KMB Enterprises (M/S) and Others Vs Abhayananda Associates (M/s) and others. But, in the absence of boundaries and measurement the property cannot be identified. This being a suit for mandatory injunction, it is necessary to prove the existence and identification of the suit property. Further, it is also necessary to prove the actual measurement and also the encroachment - 5 - HC-KAR NC: 2025:KHC:36705 RSA No. 1375 of 2020 stated to have been made by the defendant No.1. Therefore, the decisions relied by the plaintiffs before this court are not applicable to the facts and circumstances of the case on hand. 28. Apart from this, in Para 19 of the judgment, the Trial Court has also observed that, the plaintiffs have failed to prove that there is 30 feet road. In other words, the plaintiffs have also fails to prove the actual encroachment made by the 1st defendant over the suit schedule property/road. When the plaintiffs have fails to prove the actual measurement of the property encroached by the 1st defendant, the trial court could not be granted a relief of mandatory injunction in favor of the plaintiffs by directing the defendants No.2 remove the illegal construction on the suit schedule property. For this reason also I am of the opinion that the Judgment and Decree of trial Court is arbitrary. If at all, the 1st plaintiff intended to claim the suit schedule property as a public road even then the plaintiffs have to claim the relief of declaration and it has been illegally encroached by the 1st defendant. Therefore, viewed from any angle, the case of the plaintiffs is not maintainable in the form of public interest litigation as there is no any public interest involved over the suit schedule property. In other words, the plaintiffs have also fails to prove that the public at large have interested over the suit schedule property. In other word, the plaintiffs - 6 - HC-KAR NC: 2025:KHC:36705 RSA No. 1375 of 2020 have also failed to prove the existence of plaint schedule road.” 5. Being aggrieved by the same, appellants have filed the present appeal. 6. Appeal came to be admitted on the following substantial question of law: “Whether the finding recorded by the first Appellate Court interfering on issue No.1 in Original Suit No.475/2014 on the file of the Principal Civil Judge and JMFC, Krishnarajanagar, is just and proper ?” 7. Sri T.N. Vishwanatha, learned counsel for the appellants reiterating the grounds urged in the appeal memorandum vehemently contended that in the sale deed of the plaintiffs, Northern boundary is shown as road, but there was no measurement of the road of 30 feet, which resulted confusion in the mind of the First Appellate Court. 8. It is his further submission that the defendant No.1 had encroached on the public road and therefore, the plaintiff was entitled to seek relief of permanent injunction and mandatory injunction without seeking the declaration as the - 7 - HC-KAR NC: 2025:KHC:36705 RSA No. 1375 of 2020 road is a public road and it is because of the defendant encroached on the road, the width of the road abutting to the side of the plaintiff got diminished in its width. 9. Therefore, the trial Judge was justified in decreeing the suit of the plaintiff which has not been properly appreciated by the learned Judge in the First Appellate Court and sought for answering the substantial question of law in favour of the appellants and prays to allow appeal. 10. Respondents are served with the notice and remained absent. 11. In the light of the arguments put forth on behalf of the appellants, this Court perused the material on record meticulously. 12. On such perusal of the material on record, it is crystal clear that the plaintiff is the owner of 0.2¼ guntas of the land in Sy.No.40 of Kalenahalli village, Kasaba Hobli, K.R.Nagara Taluk with boundaries on the Eastern side remaining land of the vendor, Western side land of the plaintiff, Northern side road and Southern side property belonging to Basavaraju and Govindegowda. - 8 - HC-KAR NC: 2025:KHC:36705 RSA No. 1375 of 2020 13. Later on, the land was converted for residential use and plaintiff has constructed the house thereon. 14. It is the specific case of the plaintiff that at the time of formation of the layout, as per the requirements of the panchayath, 30 feet wide road was to be left for the ingress and egress and also for the free movement of general public and vehicles. 15. As per the said requirement, plaintiff has constructed the house and on the Northern side of their house, there existed road having width of 30 feet. It is the defendant who encroached the portion of the road which is situated in front of the house of the plaintiff which was sought to be removed by filing a suit for permanent injunction and mandatory injunction. 16. Suit on contest came to be decreed by the learned trial Judge by holding that there was an encroachment on the suit property. 17. Defendant No.2 who is none other than the Municipality of K.R. Nagar town, specifically filed the written statement contending that defendant No.1 had encroached on - 9 - HC-KAR NC: 2025:KHC:36705 RSA No. 1375 of 2020 the public road and made a construction thereof. Contents of written statement is discussed by the trial Court in paragraph 20 of its judgment which is culled out which reads as under: “20. ISSUE No.3: The plaintiffs contended that, defendant No.1 has tried to interfere with the suit property. The defendant No.1 has encroached the suit property put up construction on the public road. On perusing the evidence of PW-1 specifically contended that, the defendant No.1 has put up construction on the suit property. The plaintiffs produced the resolution of Doddekoppalu Gram Panchayath marked as Ex.P.16. On perusing the same, in Doddekoppalu Gram Panchayath the members have made resolution that, the defendant No.1 has put up construction on the public road and also issued notice to the defendant No.1 to remove the illegal construction as per Ex.P.16 and 17. These documents clearly shows that, the defendant No.1 has constructed building on public road. The defendant No.1 is also not denied the construction of building on the suit property. On the other hand, she has contended that, there is no suit schedule property. In the light of the above discussions and findings given on issue No.1 and 2, it has been held that, the public road is existing. The defendant No.1 also not specifically denied the interference on the suit property. The defendant No.2 in his written - 10 - HC-KAR NC: 2025:KHC:36705 RSA No. 1375 of 2020 statement, he has stated that, the defendant No.1 has put up construction on the road. The defendant No.3 also state that, the defendant No.1 has put up construction on the road. The documents and evidence on record clearly shows that, the defendant No.1 has put up construction on the road by blocking the public road. Thereby, the evidence and documents on record are sufficient to hold that, the defendant No.1 has constructed the building on the public road. Hence, the plaintiffs have proved the interference by the defendant No.1. Accordingly, I answer issue No.3 in the affirmative.” 18. In other words, the fact of encroachment of the public road is not only established by the say of the plaintiffs but also by the written statement of defendant No.2 who is neutral to the parties. 19. When such is the factual finding, learned Judge in the First Appellate Court expecting the plaintiff to file a suit for declaration and then seek a mandatory injunction does not stand to logic, inasmuch as plaintiff is not the owner of the road, but he is only user of the road. 20. Moreover, it is a public road and therefore, what type of declaration the plaintiff was required to seek cannot be - 11 - HC-KAR NC: 2025:KHC:36705 RSA No. 1375 of 2020 comprehended from the reasoning assigned by the learned Judge in the First Appellate Court. 21. Admittedly, when a neutral person like defendant No.2 in the written statement itself has specifically contended that there is an encroachment made by defendant No.1 while constructing the house and encroached upon the portion of the road, all that the First Appellate Court was required to do is to direct defendant No.1 to remove the construction on the public road. 22. Instead, directing the plaintiff to seek for declaratory decree and without seeking declaration and mandatory injunction is incorrect and illogical. 23. Accordingly, substantial question of law framed at the time of admitting the appeal is to be held in favour of the appellants and judgment of the First Appellate Court needs to be set aside and judgment and decree passed by the trial Court needs to be restored. 24. Accordingly, the following order is passed: ORDER (i) Regular Second Appeal is allowed. - 12 - HC-KAR NC: 2025:KHC:36705 RSA No. 1375 of 2020 (ii) Consequently, judgment and decree dated 16.09.2020, passed by Senior Civil Judge, K.R. Nagar in R.A.No.74/2018 is hereby set aside. (iii) Judgment and decree dated 18.08.2018, passed by Principal Civil Judge and JMFC., K.R. Nagar in O.S.No.475/2014 is restored. (iv) No order as to costs. Sd/- (V SRISHANANDA) JUDGE MR