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2025 DAILYLAW 91893 (KAR)

C M SIDDEGOWDA v. C S BASAVARAJU

RSA/1465/2007 · 2025-09-11

Anant Ramanath Hegde

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Judgment text

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- 1 - HC-KAR NC: 2025:KHC:36073 RSA No. 1465 of 2007 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 1465 OF 2007 (PAR) BETWEEN: SRI C M SIDDEGOWDA, S/O HANUMANTHAPPA, AGED ABOUT 61 YEARS, (DECEASED) A1(a) SMT ERAMMA, W/O LATE C M SIDDEGOWDA, A1(b) SRI C S THEERTHA, D/O LATE C M SIDDEGOWDA, A1(c) SRI C S CHANDREGOWDA, S/O LATE C M SIDDEGOWDA, A1(d) SRI C S CHIKKEGOWDA, S/O LATE C M SIDDEGOWDA, A1(e) SRI C S PREMKUMAR, S/O LATE C M SIDDEGOWDA, A1(f) SRI C S MAHESH, S/O LATE C M SIDDEGOWDA, ALL ARE RESIDENTS OF CHEELANYAKANAHALLI, HALEBEEDU HOBLI, BELUR TALUK, HASSAN DISTRICT. …APPELLANTS (BY SRI A N MATTARA, ADV. FOR APPELLANTS 1(a to c, e & f ) Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:36073 RSA No. 1465 of 2007 AND: 1. C S BASAVARAJU, S/O SIDDEMALLEGOWDA, AGED ABOUT 63 YEARS, (DECEASED) R1(a) MRS.PALAKSHI, W/O C S BASAVARAJU, ADULT. R1(b) MRS.KALA, W/O PRAKASH, ADULT. R1(c) MRS.INDRANI, W/O KANTHARAJU, ADULT. R1(d) MRS.SUDHA, W/O SADASHIVA, ADULT NO.1 IS THE WIDOW AND NO.R1(a) to R1(d) ARE CHILDREN OF LATE C S BASAVARAJU, ALL ARE R/O CHEELANYAKANAHALLI, HALEBEEDU HOBLI, BELUR TALUK, HASSAN DISTRICT. …RESPONDENTS (BY SRI JAGADEESHACHARI, ADVOCATE FOR R1(a to d)) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 22.2.2007 PASSED IN R.A.NO.215/2006 ON THE FILE OF THE ADDL.SESSIONS JUDGE & PRESIDING OFFICER, FAST TRACK COURT-III, HASSAN, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 3.2.2006 PASSED IN OS.NO. 66/1998 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) AND JMFC BELUR. - 3 - HC-KAR NC: 2025:KHC:36073 RSA No. 1465 of 2007 THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT This Second Appeal is against the divergent finding in a suit for permanent injunction and mandatory injunction. 2. The plaintiff sought decree for permanent injunction in respect of the property described in the schedule as property No.35 measuring 33 feet East-West and 75 feet North-South. 3. The mandatory injunction in respect of a lane/passage/passage which is said to be measuring 12 feet. It is not mentioned as to whether the measurement is in length or width. 4. In paragraph No.7 of the plaint and in the description to the suit property, the Western boundary of the suit property for which relief of injunction is sought is - 4 - HC-KAR NC: 2025:KHC:36073 RSA No. 1465 of 2007 described as 12 feet lane/passage/passage and thereafter, the property of Siddegowda and Gangamma. 5. Defendant contested the suit and disputed the existence of lane/passage as alleged by the plaintiff. 6. After the trial, Trial Court granted relief of injunction in respect of the property bearing Sy.No.35 measuring 33 feet East-West X 35 feet North-South, though in the description of the property, the North-South measurement is shown as 75 feet. 7. The prayer for mandatory injunction in respect of the alleged lane/passage/passage is rejected. 8. Plaintiff filed appeal before First Appellate Court challenging the decree rejecting the prayer for mandatory injunction and defendant accepted the decree granting permanent injunction in respect of property bearing Sy.No.35 measuring 33 feet East-West X 35 feet North- South. - 5 - HC-KAR NC: 2025:KHC:36073 RSA No. 1465 of 2007 9. First Appellate Court in terms of the impugned judgment and decree allowed the appeal in part and set- aside the judgment passed by the Trial Court rejecting the relief of mandatory injunction and granted mandatory injunction in respect of 12 feet lane/passage/passage and directed removal of the constructions made therein. 10. This Regular Second Appeal is admitted on 06.06.2007 to consider the following substantial question of law: "Whether the Lower Appellate Court was justified in granting a decree of mandatory injunction when there was no relief of declaration prayed by the plaintiff?" 11. Learned counsel appearing for the defendant/ appellants would urge that in case the plaintiff is to seek mandatory injunction, it is incumbent upon the plaintiff to seek relief of declaration and without relief of declaration, there cannot be relief of mandatory injunction. - 6 - HC-KAR NC: 2025:KHC:36073 RSA No. 1465 of 2007 12. Learned counsel for the appellants would also submit that existence of 12 feet lane/passage/passage is seriously disputed by the defendant and the same is not established. 13. Even assuming the plaintiff’s contention based on the sale deed is accepted, the said sale deed does not refer to the existence of 12 feet lane/passage as contended by the defendant. At the most, the lane/passage which is mentioned in the sale deed is 9 feet which is shown as 3 gajas in the sale deed. 14. Referring to the recital in the sale deed, learned counsel for the appellants would urge that the property of the plaintiff at the most would extend to the Eastern boundary of the said lane/passage and not beyond or up to the western boundary of the said lane/passage. Thus, the plaintiff cannot claim ownership over the alleged lane/passage. - 7 - HC-KAR NC: 2025:KHC:36073 RSA No. 1465 of 2007 15. Learned counsel appearing for the respondents would contend that the plaintiff’s grandfather had purchased the property and in the sale deed reference is made to the existence of the lane/passage. It is urged that the plaintiff contended that even villagers are making use of the said lane/passage since long time as such the defendant has no right to put any obstruction on the said lane/passage so as to obstruct the use of the lane/passage by the plaintiff and villagers. 16. Thus, learned counsel for the respondents would contend that even if it is assumed that the lane/passage is not the property sold to the plaintiff’s grandfather, the lane/passage is to be treated as public lane/passage for the benefit of the plaintiff and the villagers and obstruction in the public lane/passage is sought to be removed and in such an event, relief of declaration is not required. 17. This Court has considered the contentions raised at the bar and perused the records. - 8 - HC-KAR NC: 2025:KHC:36073 RSA No. 1465 of 2007 18. It is noticed that a report is submitted relating to the spot inspection. It is admitted that the Court had appointed a Court Commissioner to measure the property and to submit the report. It is also brought to the notice of the Court that the person who was appointed as Court Commissioner delegated the work to another person without there being any specific authorization in the order, as such the report is inadmissible. 19. On going through the contents of the sale deed more particularly, the description of the property purchased, it appears that the property which is sold to the plaintiff’s ancestor is not the lane/passage. 20. Reference is made to the lane/passage to identify the boundary on the Western side. The said sale deed gives an impression that the boundary of the plaintiff’s property is upto the Eastern boundary of the lane/passage. 21. In that view of the matter, it appears that the lane/passage is not the property purchased by the plaintiff. - 9 - HC-KAR NC: 2025:KHC:36073 RSA No. 1465 of 2007 Nevertheless, existence of the lane/passage mentioned in the said sale deed. From the averment made in paragraph No.7 of the plaint, it appears that the plaintiff made a claim that the suit lane/passage was used by the public. 22. In that view of the matter, the Trial Court was required to frame an issue as to whether the lane/passage is used by the plaintiff as well as the public. The Trial Court is also required to consider as to whether the disputed lane/passage is a public lane/passage. However, that issue is not framed and there is no discussion on the said aspect. 23. Without deciding as to whether the property in dispute i.e., the alleged lane/passage is public lane/passage or whether the disputed lane/passage is the property of the plaintiff, defendant or anyone else, the matter has been decided by First Appellate Court granting relief of mandatory injunction. 24. Under these circumstances, this Court is of the view that the judgment and decree passed by First Appellate Court granting mandatory injunction is unsustainable. - 10 - HC-KAR NC: 2025:KHC:36073 RSA No. 1465 of 2007 25. Since this Court has noticed that proper issues are not framed relating to the nature of the alleged lane/passage and issues are required to be framed. Hence, the following issues are framed: (i) Whether the suit lane/passage as alleged by the plaintiff is the lane/passage used by the plaintiff and the general public? ii) Whether plaintiff proves obstruction on the suit lane/passage by the defendant? 26. In the aforementioned facts and circumstances of the case, the substantial question of law need not be answered at this stage and does not arise for consideration. The said question would arise only in case the Court records a finding that the property is the property of the defendant. 27. Since the plaintiff claimed right over the alleged lane/passage on the premise that it is a lane/passage used by the plaintiff and the villagers, the relief of declaration is not necessary if the plaintiff establishes that it is a public lane/passage. - 11 - HC-KAR NC: 2025:KHC:36073 RSA No. 1465 of 2007 28. If it is established that the property belongs to the defendant, then the suit, for want of necessary relief of declaration must fail. 29. Parties should be given an opportunity to lead evidence on the aforementioned issues. 30. Ideally, this Court would have remitted the matter to the Trial Court to frame issues and to pass appropriate order. However, considering the fact that the suit is of the year 1998, this Court deems it appropriate to remit the matter to First Appellate Court to frame issue/s and permit the parties to lead evidence in support of the claim of respective parties and to pass appropriate order/judgment. 31. Hence, the following: ORDER (i) The Regular Second Appeal is allowed in- part. - 12 - HC-KAR NC: 2025:KHC:36073 RSA No. 1465 of 2007 (ii) The judgment and decree dated 22.02.2007 in R.A. No. 215/2016 on the file of Fast Track III at Hassan are set aside. (iii) The matter is remitted to First Appellate Court to record evidence on the aforementioned issue and permit the parties to lead evidence and thereafter to pass appropriate order/ judgment. (iv) It is made clear that parties are also permitted to produce additional documents in case they wish to in support of their claim. (v) Parties shall appear before First Appellate Court on 10.10.2025. (vi) Both the parties shall co-operate for early disposal of the case. (vii) It is made clear that nothing is expressed on the merits of the matter and all contentions of the parties are kept open. - 13 - HC-KAR NC: 2025:KHC:36073 RSA No. 1465 of 2007 (viii) Registry to send the records to First Appellate Court forthwith. SD/- (ANANT RAMANATH HEGDE) JUDGE GVP List No.: 1 Sl No.: 13 ...