- 1 - HC-KAR NC: 2026:KHC:3607 RFA No. 1280 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR FIRST APPEAL NO. 1280 OF 2019 (DEC) BETWEEN: SMT SEETHA, AGED ABOUT 63 YEARS, W/O ANAND, RESIDING AT NO.9, VIDYAPEETA CIRCLE, BSK 1ST STAGE, KATRIGUPPE MAIN ROAD, BENGALURU - 560050. …APPELLANT (BY SRI SHRIKANTH B AND SRI NAGESH P, ADVOCATES) AND: SMT SARASWATHAMMA, AGED ABOUT 68 YEARS, W/O K.N.NARASIMHAIAH, RESIDING AT NO.5, VIDYAPEETA CIRCLE, BSK 1ST STAGE, KATRIGUPPE MAIN ROAD, BENGALURU - 560050, REP. BY HER GPA HOLDER SRI K.N.PUTTEGOWDA @ PUTTARAJU, AGED ABOUT 68 YEARS, S/O K.N.NARASIMHAIAH, RESIDING AT NO.5, VIDYAPEETA CIRCLE, BSK 1ST STAGE, KATRIGUPPE MAIN ROAD, BENGALURU - 560050. …RESPONDENT (BY SRI R A DEVANAND, ADVOCATE FOR C/RESPONDENT) Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:3607 RFA No. 1280 of 2019 THIS RFA IS FILED U/S.96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 15.03.2019 PASSED IN OS.NO.5257/2006 ON THE FILE OF THE X ADDL.CITY CIVIL AND SESSIONS JUDGE, BANGALORE DECREEING THE SUIT FOR DECLARATION, RECOVERY OF POSSESSION AND DAMAGES. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT This appeal is filed against the decree dated 15.03.2019 for declaration of title and possession. The appeal is filed by the sole defendant. 2. The plaintiff has filed a suit in O.S.No.5257/2006 on the file of X Additional City Civil Judge, Bangalore claiming to be the absolute owner of the property bearing Corporation No.21/5 situated at Sunkenahalli, Bengaluru. According to the plaintiff, the property measures East to West 30 feet + 40/2 and North to South 55 + 50/2 including 3 square feet built-up area A.C. sheet residential house. The boundary of the property is also provided. 3. On perusal of the plaint, it is evident that the plaintiff has sought declaration in respect of 'B' schedule - 3 - HC-KAR NC: 2026:KHC:3607 RFA No. 1280 of 2019 property and 'B' schedule property is part of 'A' schedule property. The 'B' schedule property measures 30 feet East- West. On the Eastern side, it measures 1 foot North-South. On the Western side, it measures 9 feet and it comprises two rooms. 4. The defendant raised the contention that 'B' schedule property is his property and he has not encroached any portion of the plaintiff's property. Defendant also raised the contention that he being the prior purchaser of his site bearing No.9 and 10 carved out of Sy.No.21, the plaintiff has purchased the property knowing fully well that the property is in his possession and the sheds mentioned in the 'B' schedule property are also the sheds belonging to the defendant, as such he has prayed for dismissal of the suit. 5. Since the dispute is relating to the encroachment, the Surveyor was appointed before the Trial Court to measure the property. The Surveyor has submitted the report and the report is not objected by the defendant. The Court placed reliance on the said survey report, which indicated - 4 - HC-KAR NC: 2026:KHC:3607 RFA No. 1280 of 2019 encroachment on the Southern side and accordingly the suit is decreed. 6. Learned counsel appearing for the defendant/ appellant would urge that the report itself would indicate that the plaintiff is in possession of excess land than what is purchased under the sale deed. It is his contention that the plaintiff purchased 1,837.5 square feet of land and the report would indicate that he is in possession of 1,840 square feet. Thus, he is in possession of 2.5 square feet more than what he has purchased under the sale deed. Thus, it is urged that the plaintiff is not entitled to the relief as he is already in possession of more land than what he has purchased. 7. It is further contended that when the plaintiff made an attempt to get his name entered in the property records, the defendant filed objection before the Corporation officials and they directed the plaintiff to get his sale deed rectified as he is not in possession of the extent of land which is said to have been purchased. Thus, he would urge that even before the plaintiff purchased the property the defendant is in possession of the property, which is now sought to be described as 'B' - 5 - HC-KAR NC: 2026:KHC:3607 RFA No. 1280 of 2019 schedule property, as such, the plaintiff is not entitled to the relief of possession. 8. Learned counsel appearing for the plaintiff/ respondent would urge that the encroachment on the Southern side where the defendant is a neighbour, is very much established through the report of the Court Commissioner and merely because the plaintiff is in possession of 2.5 square feet on the Western side which does not belong to the defendant, the suit for possession in respect of 'B' schedule property which is established to be the property of the plaintiff cannot be dismissed and the Trial Court has rightly granted a decree for possession. 9. It is his further contention that excess 2.5 square feet of land which is said to be in possession of the plaintiff is adequately considered by the Trial Court and the Trial Court has held that excess possession on the Western side cannot be the reason to dismiss the suit for possession when the plaintiff has established his title over 'B' schedule property. 10. The Court has considered the contentions raised at the Bar and perused the records. - 6 - HC-KAR NC: 2026:KHC:3607 RFA No. 1280 of 2019 11. The following points arises for consideration: (i) Whether the appellant has made out a case to hold that the report submitted by the Court Commissioner is incorrect? (ii) Where the appellant has made out a case to hold that he was already in possession of the property when the plaintiff purchased the property, as such the plaintiff is not entitled to possession of 'B' schedule property? 12. From the materials placed on record it is evident that the plaintiff purchased the property bearing Site No.21/5 in Sunkenahalli, Bengaluru under the registered sale deed dated 02.05.1998 Said sale transaction is not in dispute. The defendant had purchased the property bearing Site No.9 and 10 carved out of Sy.No.21, under the registered sale deed dated 15.12.1975. Said purchase of the property by defendant is also not in dispute. 13. The question is whether the plaintiff is able to establish that the defendant has encroached the 'B' schedule property. Since the issue was relating to the encroachment, the Court appointed the Surveyor to measure the property. - 7 - HC-KAR NC: 2026:KHC:3607 RFA No. 1280 of 2019 Surveyor after issuing notice to both the parties measured the property in the presence of both sides and submitted the report. The report would indicate that the property i.e., 'B' schedule property is in occupation of the defendant. The Surveyor has opined that 'B' schedule property is in occupation of the defendant and said property is part and parcel of the property purchased by the plaintiff as per the boundaries mentioned in the sale deed in the name of the plaintiff. 14. Though the learned counsel for the defendant would urge that even before the plaintiff purchased the property, the defendant had purchased the property and defendant was in possession of the property which was adjacent to his property, as such the suit for possession is not maintainable and the defendant himself has put the structure/sheds in the said property. 15. It is to be noticed that the suit for possession is filed based on the title. It is not the case of the defendant that she has obtained the title of the property by adverse possession. This being the position, it hardly makes any difference whether the defendant was in possession of the - 8 - HC-KAR NC: 2026:KHC:3607 RFA No. 1280 of 2019 property even before the plaintiff purchased the property. If the property is transferred under the sale deed by the plaintiff’s vendor, unless the defendant establishes adverse possession over the said portion of the property, the title passes to the plaintiff in view of the sale deed executed by the plaintiff’s vendor. Since the defendant has not established adverse possession, the plaintiff’s title over the property is established. 16. As far as possession is concerned, as already noticed, the suit is one for possession and possession is found to be with the defendant and the report would indicate that the defendant is in possession of the plaintiff’s property which is described as 'B' schedule property. Under these circumstances, the Trial Court has decreed this suit. 17. Learned counsel for the defendant/appellant would urge that he did not cross-examine the Court Commissioner and the Trial Court ought to have given an opportunity to cross- examine the Court Commissioner. It is to be noticed that no such request is made by the defendant when the case was pending before the Trial Court. - 9 - HC-KAR NC: 2026:KHC:3607 RFA No. 1280 of 2019 18. It is also urged that the Commissioner has not measured the property of the defendant and unless the defendant's property is measured, the alleged encroachment of the defendant cannot be ascertained and the Commissioner could not have recorded a finding that the defendant has encroached the plaintiff's property. 19. It is to be noticed that the defendant has not filed objection to the report of the Commissioner. The defendant has not requested the Court Commissioner to measure his property. There was no such application. The defendant has accepted the report of the Court Commissioner and for the first time before this Court in appeal the defendant cannot raise a contention that his property should have been measured by the Court Commissioner. 20. This Court does not find error on the part of the Trial Court in relying on the report of the Court Commissioner which is not challenged by the defendant. 21. Under the circumstances, no ground is made out to interfere with the judgment and decree passed by the Trial Court. - 10 - HC-KAR NC: 2026:KHC:3607 RFA No. 1280 of 2019 22. Accordingly, the Appeal is dismissed. Sd/- (ANANT RAMANATH HEGDE) JUDGE GVP List No.: 1 Sl No.: 24