Regular Second Appeal regarding permanent injunction and mandatory demolition of wall for alleged encroachment. High Court held appellants failed to prove possession due to contradictory evidence and lack of surveys, dismissing appeal and confirming First Appellate judgment.
Appeal dismissed; judgment and decree of 10.02.2007 in R.A.no.68/2003 confirmed.
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. 1863 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH, 2023 BEFORE
THE HON'BLE MR JUSTICE RAVI V HOSMANI
REGULAR SECOND APPEAL NO. 1863 OF 2007 (INJ)
BETWEEN:
AGED ABOUT 30 YEARS,
REP. BY GUARDIAN/MOTHER 1(a)
ALL ARE RESIDENCE OF K.G.SRINIVASAPURA, SOMPUR HOBLI, NELAMANGALA TALUK,
BANGALORE RURAL DISTRICT - 562 123.
Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka
BOTH ARE SONS OF LATE VENKATAPPA,
BANGALORE RURAL DISTRICT-562 123.
…APPELLANTS
(BY SRI. AMARESH A. ANGADI, ADVOCATE) (AMENDMENT CARRIED OUT AS PER THE ORDER DATED 20.03.2009)
AND:
RSA No. 1863 of 2007
ALL ARE R/AT K.G. SRINIVASAPURA, SOMPURA HOBLI, NELAMANGALA TALUK, BANGALORE RURAL DISTRICT-562 123.
…RESPONDENTS
(BY SRI. T SHESHAGIRI RAO, ADVOCATE FOR R1 TO R4)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 10.2.2007 PASSED IN R.A.NO.68/2003 ON THE FILE OF THE ADDL.DISTRICT & SESSIONS JUDGE/PRESIDING OFFICER, FAST TRACK COURT-IV, BANGALORE RURAL DIST, BANGALORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 09.01.2003 PASSED IN O.S.NO. 13/1986 ON THE FILE OF THE CIVI JUDGE (JR.DN.) & JMFC, NELAMANGALA.
THIS APPEAL, COMING ON FOR ARGUMENTS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging impugned judgment and decree dated
10.02.2007 passed by Addl. District & Sessions Judge, Fast track Court- IV, Bengaluru Rural District, Bengaluru, in R.A.No.68/2003, this appeal is filed.
RSA No. 1863 of 2007
respondents herein were defendants. O.S.no.13/1986 was filed seeking for relief of permanent injunction restraining defendants from interfering with peaceful possession and enjoyment of suit schedule property by plaintiffs; from constructing wall towards western side of suit property by encroaching 20 ft. X 28 ft. and for mandatory injunction directing defendants to demolish stone wall constructed to an extent of 20 ft. X 28 ft. towards western side etc.
Khaneshumari no.9/1 and 9/2 measuring East to West 75 ft., North to South 28 ft. situated at K.G. Srinivasapura, Sompura Hobli, Nelamangala Taluk (herein after referred to as 'suit property ' for short), was their undivided joint family property of plaintiffs and they were in possession and enjoyment of same. It was further stated that plaintiffs had constructed house in middle of suit property to an extent of 28 ft. X 10 ft. with remaining extent as vacant. It was stated that defendants having no right, title or interest over suit property, were trying to interfere with plaintiffs' peaceful possession and inspite of
RSA No. 1863 of 2007
repeated requests, they were trying to construct wall by encroaching upon western side of suit property to extent of 20 ft. East-West and 28 ft. North-South.
RSA No. 1863 of 2007
constructed another with loan raised from BDO Office. It was stated that though there was some vacant space on eastern portion of two houses, there was none on western side. Allegations of interference with peaceful possession and enjoyment of plaintiffs over suit property was denied. It was contended that rough sketch appended to plaint was incorrect.
"1. Whether the plaintiffs prove that they are in lawful possession and enjoyment
RSA No. 1863 of 2007
of the suit schedule property as on the date of suit?
2. Whether the plaintiffs prove that defendants are trying to construct a wall by encroaching east west 20ft. and north south 28ft. towards the west of the schedule property?
3. What order or decree?
Additional Issue
1. Whether the plaintiffs prove that the defendants have encroached upon the suit property about 20 x 28' and constructed a wall as shown in the suit sketch "AIJC"?"
plaintiff no.2 as PW.1 and another witness as PW.2. Exs.P.1 to P.5 were marked. On behalf of defendants, DWs 1 to 3 were examined and Exs.D.1 to 7 were got marked.
2 and additional issue in affirmative and issue no.3 by decreeing suit and granting mandatory injunction directing defendants to demolish stone wall constructed over extent of
20 ft. X 28 ft. in suit property towards western side. It also granted permanent injunction restraining defendants from interfering with plaintiffs peaceful possession and enjoyment of suit property.
RSA No. 1863 of 2007
R.A.no.68/2003 on several grounds. It was contended that judgment and decree passed by trial Court was contrary to law, facts of case and evidence on record. It was contended that as per deposition of plaintiffs, boundaries of suit property were incorrect. Location of defendants house towards western side was incorrect. It was contended that when in plaint itself plaintiffs had shown area earmarked with letters 'AIJC' as in occupation of defendants, trial Court wrongly held that encroachment by defendants was after filing of suit. It was further contended that as per evidence, defendants were already in possession of disputed portion, therefore plaintiffs were not entitled for relief of permanent injunction or mandatory injunction.
following points for consideration:
2. Whether plaintiffs prove their lawful possession over the suit schedule property as on the date of suit?
RSA No. 1863 of 2007
3. Whether the Judgment and Decree passed by the trial Court needs to be set aside or modified?"
RSA No. 1863 of 2007
1 ILR 2021 Kar.3559,
2 2022 (1) SCC 115
RSA No. 1863 of 2007
they had failed to produce any evidence to establish boundaries of suit property. It was submitted that there was no specific evidence in respect of area and extent of encroachment. Merely on basis of hand sketch, which was in dispute, trial court had decreed suit and first appellant Court had rightly reversed same. It was submitted that plaintiffs failed to establish that they were in possession of suit property. It was submitted that since first appellate Court had re-examined entire evidence and arrived at conclusion, same would not be interfered with in exercise of jurisdiction under Section 100 of CPC.
RSA No. 1863 of 2007
also not in dispute that both properties were adjacent to each other. Defendants admit that plaintiff no.1 had constructed house in suit property and was residing there. They also admit that he had constructed another house on eastern side. But while plaintiffs claimed that there was vacant space on western side of suit property in between plaintiffs' house and defendants' house, which was encroached by defendants to extent of 20 ft X 28 ft., defendants deny existence of any vacant space between their house and of plaintiffs.
RSA No. 1863 of 2007
western side. It observed that though defendants had taken specific plea that plaintiffs have constructed new house and there was vacant site existing only on eastern side of old house, no such suggestion was made during cross-examination of PW1. It observed that a suggestion was put to PW.1 about panchayath being convened wherein plaintiffs had executed agreement.
RSA No. 1863 of 2007
RSA No. 1863 of 2007
"Whether the lower appellate Court was justified in reversing the judgment and decree of the trial Court insofar as the decree of mandatory injunction is concerned on the ground that the plaintiffs has not sought for possession of the property when the encroachment was during the pendency of the suit?"
RSA No. 1863 of 2007
Khaneshumari nos. 9/1 and 9/2 measuring East-West 75 ft., North - South 28 ft. They also stated that house measuring East-West 28 ft. and North-South 10 ft. was constructed in middle of suit property and remaining land was vacant and in their possession and enjoyment. There is also specific assertion about encroachment by defendants to an extent of 20 ft. EastWest and 28 ft. North-South by constructing wall towards western side of suit property.
RSA No. 1863 of 2007
sketch there is no specific evidence to establish boundaries or extent of encroachment, if any.
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title over suit property based on long standing unchallenged revenue entries.
RSA No. 1863 of 2007
first appellate Court has specifically observed that plaintiffs failed to discharge burden of establishing possession and encroachment. Indeed jurisdiction of first appellate Court under Section 96 of CPC to re-examine entire evidence on record, is well settled.
40. Consequently, following:
3 2022 SCC OnLine SC 311.
RSA No. 1863 of 2007
O R D E R
Appeal is dismissed. Consequently, judgment and decree 10.02.2007 passed by Addl. District & Sessions Judge, Fast Track Court-IV, Bengaluru Rural District, Bengaluru, in R.A.no.68/2003 is confirmed.
No order as to costs.
Sd/JUDGE
Psg*
3 issues framed by the court
Whether the lower appellate Court was justified in reversing the judgment and decree on the ground that the plaintiffs has not sought for possession of the property when the encroachment was during th
Whether the plaintiffs were in possession of the entire suit property as on the date of filing the suit to claim permanent/mandatory injunction?
Whether the First Appellate Court erred in concluding that encroachment occurred prior to the filing of the suit based on lack of specific evidence?
Colour shows how this judgement treated each authority
Smt. Jayamma Venkatram vs. Smt. Ashraf Jahan BegumReferred¶85
Smt.Jayamma Venkatram and Anr. Vs. Smt. Ashraf Jahan Begum and Another, ILR 2021 Kar.3559 · Who else cites this
V. Prabhakara vs. Basavaraj K.Explained¶86
V. Prabhakara Vs. Basavaraj K. (Dead) by Lr. & Anr., 2022 (1) SCC 115 · Who else cites this
Hardial Singh vs. Balbir KaurDistinguished¶139
Hardial Singh Vs Balbir Kaur & Another, 2022 SCC OnLine SC 311 · Who else cites this
K. BasavarajExplained¶139
K.Basavaraj
Sri. Venkataswamaiah (Lr.) others
Smt. Mariyamma
Sri Srinivas
Sri Naveen Kumar
Sri Govindaiah
Ravi V Hosmani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
