1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF JANUARY, 2026 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM RFA NO. 190 OF 2010 (INJ) BETWEEN: 1 . KASTURI BHADAVANE KSHEMABIVRIDDHI SANGH (R) NO.368, 6TH CROSS, KASTHURI BHADAVANE RAJAGOPALANAGARA, PEENYA II STAGE BANGALORE-560 058 REP BY ITS PRESIDENT RAMEGOWDA C.M. ...APPELLANT (BY SRI. RAMESH CHANDRA, ADVOCATE) AND: 1 . SRI. H. SRINIVASAIAH S/O HANUMANTHAPPA AGED ABOUT 65 YEARS SHIVAKOTE VILLAGE HESARUGHATTA VILLAGE BANGALORE NORTH TALUK 2 . SRI. N. NARAYANASWAMY S/O NARASAPPA AGED ABOUT 60 YEARS GORGHONTE PALYA JHARKABHANDE KAVAL YELAHANAKA HOBLI BANGLAORE NORTH TALUK 2 3 . BRUHUT BANGALORE MAHANAGARA PALIKE N.R.SQUARE, BANGALORE REP BY ITS COMMISSIONER …RESPONDENTS (BY SRI. T. SESHAGIRI RAO, ADVOCATE FOR C/R1 AND R2; SRI. S.N. PRASHANTH CHANDRA, ADVOCATE FOR R3) THIS RFA IS FILED UNDER ORDER 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 16.10.2009 IN O.S. NO. 5030/2006 ON THE FILE OF THE IX ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE DISMISSING THE SUIT FOR PERMANENT INJUNCTION. THIS RFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 13.01.2026, THIS DAY JUDGMENT WAS PRONOUNCED THEREIN, AS UNDER: CORAM: HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM C.A.V. JUDGMENT The captioned appeal is filed by the plaintiff against the judgment and decree passed by the Trial Court in O.S.No.5030/2006 wherein the suit filed by the plaintiff seeking perpetual injunction restraining the defendants from obstructing the use of suit road come to be dismissed. 3 2. For the sake of brevity, the parties are referred to as per their rankings before the Trial Court. 3. Facts leading to the case are as under: The plaintiff instituted the suit in a representative capacity under Order I Rule 8 of the Code of Civil Procedure seeking a decree of permanent injunction restraining the defendants from interfering with the use of the east–west road described in the plaint schedule. It was the specific case of the plaintiff that defendants No.1 and 2 had formed a residential layout in the subject land and, having developed the same, had sold all the sites therein. According to the plaintiff, the roads formed in the said layout constitute the only means of access for the residents, and despite having alienated all the sites, defendants No.1 and 2 were attempting to obstruct the use of the existing east–west road. Hence, the suit. 4. On service of summons, the defendants entered appearance and filed their written statement, stoutly denying 4 all the averments made in the plaint and contesting the suit on all available grounds. 5. The Trial Court, after framing the issues and affording opportunity to the parties to lead oral and documentary evidence, answered the issues against the plaintiff and dismissed the suit. 6. Aggrieved by the judgment and decree passed by the Trial Court, the plaintiff has preferred the present appeal. 7. Learned counsel appearing for the plaintiff has taken this Court through the order sheets dated 01.08.2013 and 08.08.2013 to contend that the Trial Court had appointed a Court Commissioner on two occasions. Referring to the additional material now placed before this Court, he submits that the existence of an east–west road running between Sites Nos.46, 47, 58 and 59 stands clearly established through local inspection. Placing reliance on the commissioner’s report, which has now become part of the record, learned counsel would contend that the dismissal of the suit is unsustainable. 5 He would further submit that the evidence on record demonstrates that defendants No.1 and 2 have sold all the sites formed in the layout and have not retained any portion thereof. In such circumstances, the site owners are entitled to use the existing east–west road, and the Trial Court erred in non-suiting the plaintiff. 8. Per contra, learned counsel appearing for defendants No.1 and 2 has seriously opposed the appeal. He would contend that the suit, having been instituted in a representative capacity, is not maintainable in the absence of any authorization or resolution as contemplated under Section 15 of the Karnataka Societies Registration Act, 1960. Referring to the evidence on record, he submits that the suit is filed by a society without any valid resolution of its governing body. He would further argue that the plaintiff has failed to establish the very existence of the alleged east–west road. It is also contended that a suit for injunction simplicitor is not maintainable when the existence of the road itself is in dispute. Strong objection is raised to the evidentiary value of 6 the commissioner’s report obtained at the appellate stage. Placing reliance on Exs.D1 to D4, being the sale deeds pertaining to Sites Nos.46, 47, 58 and 59, learned counsel would submit that no road is shown on the northern side of Sites Nos.46 and 59, nor is any road indicated on the southern side of Sites Nos.47 and 58. Any claim contrary to the recitals in the registered sale deeds, according to him, is barred under Section 92 of the Indian Evidence Act, and consequently, the commissioner’s reports are liable to be ignored. 9. In the light of the rival submissions urged by the learned counsel appearing for the parties, the following points arise for consideration: i. Whether the suit instituted in a representative capacity is hit by Section 15 of the Karnataka Societies Registration Act, 1960? ii. Whether the judgment and decree of the Trial Court holding that the plaintiff failed to establish the 7 existence of the suit schedule east–west road suffer from perversity and call for interference by this Court? iii. Whether the commissioner’s report, particularly the report submitted by the Assistant Executive Engineer of BBMP, having not been seriously contested by the defendants, forms part of the record under Order XXVI Rule 10A of the Code of Civil Procedure and can be relied upon for adjudication? iv. Whether defendants No.1 and 2, having admittedly sold all the sites formed in the layout, have the locus standi to oppose the present suit? Findings on point No.(i): 10. The defendants have undoubtedly contested the suit on merits. However, a careful scrutiny of the written statement reveals that the plea regarding non-maintainability of the suit for want of a resolution as contemplated under Section 15 of the Karnataka Societies Registration Act, 1960, was never raised before the Trial Court. The objection now 8 sought to be canvassed is conspicuously absent from the pleadings. 11. The records further disclose that the plaintiff had filed an application under Order I Rule 8 of the Code of Civil Procedure seeking permission of the Court to prosecute the suit in a representative capacity. The order sheet unmistakably reveals that by order dated 19.06.2006, the Trial Court allowed the said application and expressly granted permission to the plaintiff to proceed under Order I Rule 8 of CPC. The said order was neither questioned nor assailed by the defendants at any stage of the proceedings before the Trial Court. 12. In that view of the matter, this Court is of the considered opinion that the defendants cannot be permitted, at the appellate stage, to non-suit the plaintiff by raising a purely technical objection which was never pleaded, argued, or adjudicated before the Trial Court. It is a settled principle that a plea touching upon maintainability, particularly one 9 founded on facts, cannot be permitted to be raised for the first time in appeal, especially when the parties have gone to trial fully conscious of the nature of the proceedings and have led evidence on merits. 13. The judgments relied upon by the learned counsel for the defendants in B.H. Inamdar vs. B.F. Swamy1, Jagdam Ram vs. Asarfi Ram and Others2 and Charan Singh and Another vs. Darshan Singh and Others3 do not advance the case of the defendants, as the factual matrix and the legal context in which those decisions were rendered are clearly distinguishable from the present case. Accordingly, Point No.1 is answered in the Negative. Findings on Point Nos.(ii) to (iii): 14. The core controversy in the present appeal revolves around the existence of the east–west road and the entitlement of the residents to use the same. On an appreciation of the pleadings and evidence, the conduct of 1 ILR 1991 Kar 1654 2 AIR 1937 Patna 149 3 (1975)1 SCC 298 10 defendants No.1 and 2 appears to be inconsistent and, to say the least, curious. 15. It is not in dispute that defendants No.1 and 2 were the original owners of the land, who developed the same by forming a layout and selling individual sites. Paragraph No.3 of the written statement assumes considerable significance, as it unequivocally discloses that the defendants have sold all the sites formed in the layout. This admission stands fortified not only by the documentary evidence but also by the oral testimony. In the cross-examination of D.W.1, there is a categorical admission that all the sites have been sold and that no portion of the layout is retained by the defendants. 16. Despite such clear admissions, defendant No.1, while lodging a complaint before the jurisdictional police, asserted that the plaintiff and other site owners were encroaching upon Site Nos.46 and 59. This assertion is rendered wholly suspect, for the simple reason that the owners of Sites Nos.46 and 59 have admittedly not raised any 11 grievance or objection. More strikingly, while defendant No.1 claimed in the criminal proceedings that he had retained Sites Nos.46 and 59, the tabular statement furnished in the written statement, particularly in paragraph No.4, clearly admits the sale of those very sites. Such mutually destructive stands seriously erode the credibility of the defendants’ case. 17. Once it is admitted that defendants No.1 and 2 have divested themselves of both title and possession in respect of all the sites in the layout, their locus standi to obstruct or regulate the use of a road claimed to be a common access within the layout becomes highly doubtful. The defendants, having ceased to have any proprietary interest, cannot be permitted to assert dominion over access ways allegedly meant for the benefit of the site owners. 18. The defendants have further contended that the recitals in the sale deeds pertaining to Site Nos.46, 47, 58 and 59 do not disclose the existence of any east–west road and, therefore, any reliance on the commissioner’s report would be 12 barred under Section 92 of the Indian Evidence Act. According to them, since the sale deeds do not refer to such a road, no oral or extrinsic evidence can be adduced to contradict the contents of the registered instruments. 19. Having examined the records in their entirety, this Court finds that the factual backdrop of the case is peculiar. The layout in question is admittedly not approved by any competent planning authority. The sites appear to have been carved out in agricultural land, giving rise to what are commonly described as revenue layouts. In such cases, it is not uncommon that internal roads are left unrecorded in individual sale deeds, particularly when the vendors themselves have formed the layout without statutory sanction. 20. In this context, the local inspection conducted through the Court Commissioner assumes relevance. The commissioner has specifically identified and demarcated the disputed east–west road, situate between Sites Nos.46, 47, 58 and 59. The report, more particularly the report submitted by 13 the Assistant Executive Engineer, has not been effectively or seriously contested by the defendants. In the absence of any substantive challenge, the said report forms part of the evidentiary record under Order XXVI Rule 10A of the Code of Civil Procedure and is required to be evaluated along with other evidence. 21. Having regard to the nature of the layout, the admissions of the defendants, and the physical features noted during local inspection, this Court is of the view that it would be appropriate and indeed necessary to extract and reproduce the sketch appended to the commissioner’s report, depicting the location and alignment of the disputed east–west road, so as to appreciate the controversy in its proper perspective. 14 2nd Cross 3rd Cross Road 3 shops belongs to Road Hanumantappa Site No.58 Site No. 47, Ramamurti’s B Bakery House C 78 feet Road towards Road towards Peenya IInd Stage 23½ Basappana Katte 75 feet A D Site No.46 Site No.59 3rd A Cross House belonging to Sheds Road Ramakrishna Index - Electric Line sketch not to scale N ABCD - Road Under Consideration 22. The sketch furnished by the Assistant Executive Engineer of the BBMP, extracted hereinabove, clinches the entire controversy between the parties. The commissioner’s report, read along with the sketch, clearly depicts the existence of an east–west road measuring approximately 23½ feet in width and about 75 feet in length. The suit road 15 unmistakably runs in an east–west direction. Though the registered sale deeds executed by defendants No.1 and 2 in respect of Site Nos.46, 47, 58 and 59 do not make a specific recital regarding the existence of this road, the local inspection conducted by the commissioner unequivocally establishes that such a road does exist on the ground. 23. The contention urged on behalf of the defendants that the recitals in the sale deeds must prevail over the commissioner’s report is wholly misconceived. Section 92 of the Indian Evidence Act bars oral evidence only for the purpose of contradicting, varying, adding to, or subtracting from the terms of a written contract. The commissioner’s report does not seek to alter or contradict any contractual term contained in the sale deeds. It merely records the physical features and factual position as existing on the ground. The report, therefore, does not offend Section 92 of the Evidence Act. 16 24. On the contrary, the first proviso to Section 92 expressly permits evidence to establish any fact which would explain the document or throw light on the surrounding circumstances. The existence of a road used as a common access by the residents of the layout, though not expressly mentioned in individual sale deeds, can certainly be established by independent evidence, including local inspection. It is also significant to note that the defendants appear to be contesting the matter as if they are espousing the cause of the site owners, who themselves have not disputed either the existence of the east–west road or the right of access claimed by the residents. 25. The manner in which the defendants have contested the suit is a crucial circumstance that cannot be ignored. Defendants No.1 and 2, having developed the layout and admittedly sold all the sites therein, are strangely and persistently contesting a suit relating to a road over which they no longer retain either title or possession. The only reasonable inference that can be drawn from such conduct is 17 that, if the plaintiffs were to fail, the individual site owners may be left to assert competing claims over the disputed road, thereby defeating the common and collective rights of the residents of the layout. Such conduct disentitles the defendants from seeking any equitable consideration at the hands of this Court. 26. In that context, the objection raised by the defendants regarding the maintainability of the suit for want of a resolution authorising the institution of proceedings deserves to be rejected outright. At the outset, it must be noticed that no such plea was raised in the written statement. The defendants did not dispute the representative character of the plaintiff nor the competence of the person instituting the suit at the earliest opportunity. It is trite that an objection touching upon the authority to institute a suit is a mixed question of fact and law, which necessarily requires specific pleadings and an opportunity to the plaintiff to meet the same. In the absence of such a plea, the defendants are precluded 18 from raising the contention for the first time at the appellate stage. 27. Further, the suit having been instituted in a representative capacity under Order I Rule 8 of the Code of Civil Procedure, and the Trial Court having granted permission to prosecute the suit in that capacity, the proceedings cannot be rendered non-maintainable on a hyper-technical objection relating to the production of a resolution, particularly when no prejudice whatsoever is demonstrated. The objection regarding maintainability is clearly an afterthought and does not go to the root of the jurisdiction of the Court. 28. This Court, having taken cognizance of the commissioner’s report submitted by the Assistant Executive Engineer of the BBMP, cannot lose sight of its role under Section 96 of the Code of Civil Procedure. As an Appellate Court and the final fact-finding authority, this Court is duty- bound to independently assess and appreciate the oral and documentary evidence on record. In the peculiar facts of the 19 present case, though the suit is one for injunction simplicitor, the dispute regarding the existence of the suit road could be effectively resolved only through local inspection. 29. It is in that backdrop that this Court, by order dated 08.08.2013, appointed the Assistant Executive Engineer of the BBMP as a Court Commissioner to conduct a local inspection and submit a report. Even the earlier Advocate Commissioner had depicted the existence of an east–west road, though that report was contested by the defendants. However, the report submitted by the Assistant Executive Engineer, a technical officer, has not been seriously or effectively disputed. The said report, therefore, has a direct and decisive bearing on the core controversy relating to the existence of the suit schedule road. 30. On an examination of the commissioner’s sketch and report, this Court has no hesitation in holding that the existence of the suit road stands clearly substantiated. The road not only provides access to the owners of Site Nos.46, 20 47, 58 and 59, but the sketch also reveals the presence of several cross-roads connecting the layout. The existence and preservation of the suit road is thus of vital importance to all the site owners in the layout formed by the defendants. 31. It is indeed unfortunate that the defendants, despite having sold all the sites, have subjected the residents to prolonged civil litigation by raising untenable objections. The material evidence placed on record, particularly the commissioner’s report, cannot be ignored. In order to do substantial justice and to secure the ends of justice, this Court is constrained to place reliance on the said report. 32. Accordingly, this Court holds that the plaintiffs are entitled to the relief of perpetual injunction. The defendants are liable to be restrained permanently from interfering with or obstructing the use of the suit schedule east–west road, so as to preserve the common rights of the residents of the layout. Point Nos.(ii) and (iii) are answered in the Affirmative and point No.(iv) is answered in the 'Negative'. 21 33. For the following reasons, this Court passed the following: ORDER i. The Regular First Appeal is hereby allowed. ii. The judgment and decree dated 16.10.2009 passed in O.S. No.5030/2006 on the file of the IX Additional City Civil Judge, Bengaluru, are hereby set aside. iii. The suit filed by the plaintiff is hereby decreed. iv. The defendants, their agents, servants, or any person claiming through or under them, are hereby permanently restrained from obstructing or interfering with the plaintiff’s lawful use and enjoyment of the schedule east–west road. v. In the facts and circumstances of the case, there shall be no order as to costs. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE HDK