This ₹ second appeal challenging a permanent prohibitory injunction between family members regarding boundary dispute property. Held no substantive question of law arose.
Appeal dismissed; existing injunction in favor of plaintiffs remains inforce.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
RSA No. 1582 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR REGULAR SECOND APPEAL NO. 1582 OF 2014 (INJ)
BETWEEN:
…APPELLANTS
Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA
(BY SRI. KESHAVA BHAT A.,ADVOCATE)
AND:
RSA No. 1582 of 2014
…RESPONDENTS
(BY SRI. G. BALAKRISHNA SHASTRI, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC PRAYING TO SET ASIDE THE JUDGEMENT AND DECREE DTD 06.08.2014 PASSED IN R.A. NO. 57/2007 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM, MANGALORE, DISMISSING THE APPEAL AND CONFIRMING JUDGEMENT AND DECREE DTD 01.03.2007 PASSED IN OS. NO. 589/2000 ON THE FILE OF I ADDITIONAL CIVIL JUDGE (JR.DN.), MANGALORE, D.K.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Defendant Nos. 1 and 2 have filed this appeal
praying to set aside the judgment and decree dated 06.08.2014 passed in R.A. No. 57/2007 by Principal Senior Civil Judge and CJM, Mangaluru confirming the judgment and decree passed by the I Additional Civil Judge (Junior Division), Mangaluru dated 01.03.2007 in O.S. No. 589/2000.
RSA No. 1582 of 2014
grand father of plaintiff No. 3 as per registered partition deed dated 29.06.1950. Thereafter as per registered partition deed between father of P. Subba Rao and another, properties were divided. Late P. Subba Rao executed a Will dated 08.03.1992 and bequeathed item No. 1 property to plaintiff No. 1 and item No. 2 to B. Balakrishna Rao – husband of plaintiff No. 2 and father of
RSA No. 1582 of 2014
plaintiff No. 3. According to the plaintiffs after the death of P. Subba Rao they came into possession of the properties
by mutating the revenue records as per the family arrangement dated 10.11.1998. All the plaintiffs have been in peaceful possession and enjoyment of the suit schedule property. B. Balakrishna Rao died subsequent to the death of P. Subba Rao. Thereafter his share has been inherited by the plaintiff Nos. 2 and 3 and Smt. Mamatha and B. Sudhindra Rao - other two children of B. Balakrishna Rao. The plaintiffs contend that they are in possession and enjoyment of the suit schedule property by virtue of the Will and family arrangement agreement and all the revenue records have been mutated in their name. It is the further case of the plaintiffs that from the year 1914 there was a mud wall in between the property of plaintiffs and defendants and it is situated on the southern boundary of the suit schedule property. The plaintiffs claim that they are in possession and enjoyment of the property situated on the northern side of the wall. Mud wall due to heavy soil erosion was damaged year by year and in its
RSA No. 1582 of 2014
place the plaintiffs and their predecessors have planted trees in a row. It is the further case of the plaintiffs that the defendants made a false claim to hold cattle shed and portion of land in possession of the plaintiffs. The defendants made an attempt to interfere with the plaintiffs’ peaceful possession and enjoyment of the suit schedule property and made an attempt to encroach the property belonging to the plaintiffs and plaintiffs resisted the acts of the defendants. With this plaintiffs’ claimed prohibitory injunction against the defendants.
defendants contend that the plaintiffs started to dig the property near boundary and therefore defendants suspected that there is an encroachment made by the plaintiffs into the defendants’ property and to ascertain exact encroachment made by the plaintiffs into defendants’ property they filed application before the Assistant Director of Land Records (ADLR) to survey the property. They contend that the ADLR after issuing notice conducted survey and at that time it was confirmed that the plaintiffs had encroached upon the property belonging to the defendants. The defendants requested the plaintiffs to handover the encroached portion of the property and to stop further encroachment and they made an attempt to erect barbed wire fencing all along the property belonging to them. The defendants contended that the plaintiffs and their predecessors never planted any trees in between the property of plaintiffs and defendants. The defendants never claimed old cattle shed and portion of land which is now said to be in possession of the plaintiffs. The defendants contended that there is no danger to the
RSA No. 1582 of 2014
possession of the plaintiffs in respect of the property and defendants never tried to trespass into suit schedule property. The defendants contend that in order to resist the plaintiffs from further encroaching it is necessary to seek permanent prohibitory injunction and therefore they filed counter claim against the plaintiffs in respect of the property bearing survey No. 29-8 or survey No. 29-14B situated at Boloor B village of Mangaluru taluk.
RSA No. 1582 of 2014
iii. Whether the defendants prove that the plaintiffs are trespassing the property of the defendant in Sy.No. 29/8 and 29/14B of Bollor B Village?
Aggrieved by the said judgment and decree passed by the
RSA No. 1582 of 2014
trial Court the defendants filed appeal in R.A. No. 57/2007 before the Principal Senior Civil Judge and CJM, Mangaluru (first appellate Court). The first appellate Court after hearing arguments has formulated the following points for consideration.
i. Whether the impugned judgment and decree passed by the I Addl. Civil Judge (Jr.Dvn.,) Mangalore, in O.S. No. 589/2000 dated 01.03.2007 is perverse, capricious and contrary to law?
RSA No. 1582 of 2014
been proposed by the appellants in the appeal memo.
property. Ex.P.1 is the registered partition deed dated 17.06.1914 in which the property bearing survey No. 29-
30 is shown as measuring 20 cents. Ex.P.2 – partition deed dated 29.06.1950 reveal that there is a recital regarding both item Nos. 1 and 2 of the suit schedule property. Ex.P.3 has been executed by B. Subba Rao bequeathing the suit schedule property in favour of the plaintiffs. The RTCs which are at Ex.P.8 and Ex.P.9 reveal that the plaintiffs are the owners of suit schedule property. The first appellate Court has taken note of the suggestion
made by the counsel for the defendants in the crossexamination of P.W.1 that there is a mud wall situated on the southern side of 10 cents of the land belonging to P.W.1. Said mud wall bifurcates the property of the plaintiffs and the property of the defendants. In the crossexamination of P.W.1 it is also suggested to him that towards the southern side of suit schedule property, property of the plaintiffs bearing survey No. 29-8 is situated and mud wall bifurcates the property of defendants RS 29-30 and the property of the plaintiffs i.e.,
RSA No. 1582 of 2014
29-8. The defendants contend that there is encroachment
towards the northern side on the survey No. 29-8 by the plaintiffs. Ex.D.10 is the survey sketch dated 31.10.2000
prepared by the surveyor after issuing notice as per Ex.D.8. In the said survey sketch there is no
encroachment by the plaintiffs in the property of the defendants. The property of the defendants is having survey No. 29-14B and it is situated on the eastern side of the suit schedule property. On the basis of the oral and documentary evidence the trial Court and the first appellate Court have come to the conclusion that the plaintiffs are in possession of the suit schedule property. The first appellate Court has observed that the defendants themselves have admitted that the plaintiffs are in possession of the disputed area. The first appellate Court has observed that if the plaintiffs have encroached as stated by the defendants, the defendants are at liberty to take possession of the said property under due process of law by establishing that they are the true owners of the disputed area. The trial Court and the first appellate Court
RSA No. 1582 of 2014
rightly appreciating the evidence on record have rightly decreed the suit of the plaintiffs and dismissed the counter
claim of the defendants. No substantive question of law arises for consideration. Hence, appeal is dismissed.
Sd/JUDGE
LRS
List No.: 1 Sl No.: 21
3 issues framed by the court
Whether the findings of the courts below regarding possession and granting injunction were just and correct?
Whether the courts below erred in not directing parties to measure properties and fix boundaries?
Whether the courts below erred in not considering the survey sketch and report filed by appellants?
Smt. H. Jayalaxmi
Miss Ramadevi
Sri. B. Shridhara Rao
Mrs. Seethalaxmi
Sri Praveen Rao
Shivashankar Amannavar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
