Chandrashekar M Vs Sri Manjunath M

CHANDRASHEKAR M S/O MALLANNA AGED ABOUT 55 YEARS R/A SY.NO 130/1 5^TH MAIN, HOSAKAREHALLI CHURCH ROAD(GOVT SCHOOL ROAD) VEERABHADRANAGAR OPPORTUNITY PES COLLEGE 100 FEET RING ROAD, BSK 3^RD STAGE. BANGALORE-560 085

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Digitally signed by PANKAJA S Location: HIGH COURT OF KARNATAKA

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(BY SMT. B.V VIDYULATHA, ADVOCATE)

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…APPELLANT

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AND:

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SRI MANJUNATH M S/O LATE MURGESH AGED ABOUT 58 YEARS R/AT NO 130, OPP PES COLLEGE, GOVERNMENT SCHOOL ROAD, 100 FEET RING ROAD, BSK 3^RD STAGE, BANGALORE-560 085

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SRI SIDDARAJU S/O KUTTURAPPA AGED ABOUT 64 YEARS

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SRI VIJAYENDRA S/O MALLIKURJANA SHETTY AGED ABOUT 55 YEARS

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SRI PAPANNA S/O MUNISWAMY AGED ABOUT 60 YEARS

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RESPONDENT NO.2 TO 4 ARE R/AT SY NO 130/1, HOSAKARAHALLI VILLAGE, GOVERNMENT SCHOOL ROAD, 5^TH MAIN (CHURCH ROAD), VIRABADRA NAGARA OPPOSITE TO PES COLLEGE, 100 FEET RING ROAD, BSK 3^RD STAGE, BANGALORE-580 085

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…RESPONDENTS

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(BY SRI. VIDYADHARA H.N, ADVOCATE FOR R1, VIDE ORDER DATED 05.06.2025, NOTICE TO R2 TO R4 IS DISPENSED WITH)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 24.03.2018 PASSED IN OS No.6569/2014 ON THE FILE OF THE XXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, PARTLY DECREEING THE SUIT FOR DECLARATION, POSSESSION, MANDATORY INJUNCTION AND PERMANENT INJUNCTION.

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THIS APPEAL, COMING ON FOR FURTHER ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE MR. JUSTICE RAJESH RAI K

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE RAJESH RAI K)

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Defendant No.1 in O.S.No.6569/2014 is before this Court in this appeal.

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The learned XXV Additional City Civil & Sessions Judge, Bangalore (for brevity, " the Trial Court ") has decreed the suit in part in O.S.No.6569/2014 vide judgment dated 24.03.2018 in the following terms:

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"The suit of the plaintiff is hereby decreed in part. The plaintiff is hereby declared as the absolute owner of the suit schedule property. The defendant Nos.1 to 4 are hereby directed to hand over the vacant possession of the schedule ‘A’ to ‘D’ properties by demolishing / removing the illegal construction put up therein to the plaintiff within four months from the date of this order. Failing which the plaintiff is at liberty to take steps as per law.

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The relief of permanent injunction sought by the plaintiff is hereby rejected.

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So far as the mesne profits as claimed by the plaintiff is concerned the same shall be

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determined in a separate enquiry under Order 5 Rule 20 C.P.C."

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For the sake of convenience, the parties are

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referred to by their ranks before the Trial Court.

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The abridged facts of the case are as under:

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The suit in O.S. No.6569/2014 was filed by the plaintiff for declaration, permanent injunction & possession of the suit schedule properties against defendant Nos. 1 to 4.

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It is case of the plaintiff that Sy.No.130 of Hosakerehalli village measuring 4 acres was granted to his father late M.Murugesh and that his father was carrying on quarrying business in the adjacent land bearing Sy.No.87 of Hosakerehalli village. His father had two wives namely Salamma and Papamma and through his first wife i.e., Salamma, he had two sons and two daughters namely the plaintiff - Manjunath, Dharmashekar, Jayamma, Bhagyamma; through his second wife i.e., Papamma, he had five children namely Mallika, Vadivelu, Vijayakumar, Kala and Anjana. It is further stated that on account of misunderstanding in the

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family, the plaintiff filed a suit for partition in O.S.No.2502/1992 and an extent of 3 acres was divided between the plaintiff and other members of the joint family and the remaining 1 acre was allotted to his share. In the said suit, a decree for partition was drawn on 08.12.1995, in which, the plaintiff's share was shown as No.5 in “A” Block, No.5 in “B” Block, No.14 in “C” Block, 06 guntas in 'D' Block and in all, these four portions measured 24 guntas and after survey, the same was assigned as Sy.No.130/1. The plaintiff’s name was thereafter entered in the revenue records and his name was mutated in the revenue records as owner and khathedar. Thus, the plaintiff was the absolute owner in possession and enjoyment of the suit schedule properties.

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However, in the month of June 2006, during survey by survey department, the plaintiff noticed the illegal constructions by defendants in ‘A’ Block in Sy.No.130/1. The portion of encroachment by the 1^st defendant was to the extent of 20 x 30 feet described in the schedule ‘A’ of the plaint. After encroaching the said property, the 1^st defendant has also put a temporary shed with asbestos sheet. As against the said illegal construction, the plaintiff caused a notice to the 1^st defendant

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to hand over possession. Thereafter, the 1^st defendant, despite notice, did not hand over the suit schedule property. As such, the plaintiff filed a suit in O.S.No.3386/2009 seeking the relief of permanent injunction and mandatory injunction in respect of schedule ‘A’ property. He also filed a suit against defendant No.2 in O.S.No.3388/2009 in respect of schedule “B’ property, against defendant No.3 in O.S.No.3389/2009 in respect of schedule “C” property and against defendant No.4 in O.S.No.3387/2009 in respect of schedule “D" property. It is his further case that the said suits filed by him against the defendants were dismissed since the plaintiff had sought only mandatory injunction and not the relief of possession. Thus, he has preferred the present suit.

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Though the plaintiff served the defendants through

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substituted service, they remained absent and hence, they were placed ex-parte .

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The Trial Court, thereafter, recorded the evidence and framed the following issues:

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(1) Whether the plaintiff proves that he is the absolute owner of the suit schedule property ?

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(2) Whether the plaintiff proves the alleged encroachment by the defendants in suit “A” to “D” schedule properties as contended by him in the plaint ?

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(3) Whether the plaintiff is entitled for possession of the suit schedule properties ?

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(4) Whether the plaintiff is entitled for the relief of permanent injunction?

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(5) Whether the plaintiff is entitled for mesne profits ?

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(6) Whether the plaintiff is entitled for the reliefs as sought by him ?

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(7) What order or decree ?

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The plaintiff was examined as PW.1 and he marked

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12 documents as Exs.P1 to P12. The Trial Court, after considering the oral and documentary evidence, has passed the judgment and decree as aforesaid.

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Being aggrieved by the said judgment and decree, only defendant No.1 is before this Court in this appeal.

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We have heard Smt.B.V.Vidyulatha, learned

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Amicus Curiae for the appellant/defendant No.1 and Sri

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Vidyadhara H.N, learned counsel appearing for respondent No.1/plaintiff and perused the records.

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Learned counsel for the appellant/defendant No.1

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contended that the Trial Court has erred while decreeing the suit filed by the plaintiff without extending an opportunity to the defendants to contest the matter. According to her, the plaintiff intentionally to avoid notice to the defendants, had mentioned the wrong address and thus, the appellant was placed exparte along with other defendants in O.S.No.6569/2014.

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It is contended by her that the earlier four suits

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filed against the defendants in respect of same schedule properties were dismissed and as such, the present suit filed was barred under Order II Rule 2 as well as Order XII of CPC.

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It is also contended that respondent No.1 though urged that the suit schedule properties were granted land in favour of his deceased father, has failed to produce any grant certificate to that effect and as such, allowing of appeal exparte

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on the ground that there were no contra evidence to disbelieve the case of respondent No.1 is untenable.

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It is further contended that respondent No.1 has intentionally shown site 30' X 20' belonging to the appellant as encroached portion of Sy.No.130/1 and that he is a land grabber who used to file frivolous suit against the innocent persons/landowners and get the favourable orders showing the wrong address.

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In such circumstances, it could be gathered that the plaintiff intentionally kept the defendants in dark and obtained a decree. She contends that the impugned decree has far reaching civil consequences and since appellant/defendant No.1 has valuable defence in the suit, an opportunity deserves to be granted to the appellant to contest the suit on merits. As such, she prays to allow the appeal.

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Per contra , learned counsel for respondent No.1/plaintiff contended that though sufficient opportunity has been provided to the defendants before the Trial Court by serving notice to the defendants even through substituted

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service, they failed to contest the suit. Hence, the defendants were placed exparte .

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He further contended that earlier four suits filed by the plaintiff against the defendants were dismissed since the plaintiff has sought only mandatory injunction and not for possession and as such, he filed the present suit seeking possession of the encroached portion and thus the suit is not barred by any law as contended by the defendant/appellant.

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He also contended that the constructions put up by the defendants, which were shown as “A” to “D” schedules, were illegal, unauthorized and as such, the plaintiff was entitled to the possession of the said properties, since the defendants have no manner of right, title and interest over the portions illegally occupied by them. As such, the plaintiff was also entitled for mesne profits.

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In such circumstances, the Trial Court, after careful examination of the materials produced before it, has rightly passed impugned judgment and decree, which does not call for

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any interference by this Court. Hence, he prays to dismiss the appeal.

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Having considered the submissions made by the learned Amicus Curiae for the appellant/defendant No.1 and learned counsel appearing for respondent No.1/plaintiff, the only point that arises for our consideration in this appeal is:

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Whether defendant No.1 deserves to be provided with an opportunity to contest the suit on merits?

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It could be gathered from records that the earlier four suits filed by the plaintiff/respondent No.1 against defendants/appellant were dismissed on the ground that the plaintiff has failed to prove that the defendants have encroached suit schedule properties and illegally constructed a house in the said portions.

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As it is contended by the appellant/defendant No.1 that the property belonging to the appellant has been wrongly described as the encroached portion in the suit schedule, the said aspect has to be decided in a full fledged trial providing an

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opportunity to the appellant/defendant to defend himself on merits.

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Having regard to the aforesaid aspects and having

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regard to the relief sought for in the suit, which had far reaching consequences and also considering the social and financial status of the appellant, we are of the view that appellant/defendant No.1 deserves to be granted an opportunity to contest the suit on merits.

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Consequently, the point for determination raised by

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this Court is answered in the ' affirmative '. Hence, the following:

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ORDER

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i. The appeal is allowed .

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ii. The impugned judgment and decree dated 24.03.2018 passed by the Trial Court in O.S.No.6569/2014 is set aside * as against defendant No.1 in respect of suit 'A' schedule property.

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iii. The suit is remitted back to the Trial Court for reconsideration in accordance with law.

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Inserted vide court order dated 05.12.2025

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iv. The parties shall appear before the Trial Court on 28.10 .2025 without expecting any further notice from the Trial Court.

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v. If the Trial Court considers that any fresh issue arises, it may frame issues and thereafter record the evidence of the parties.

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vi. The Trial Court is directed to dispose off the suit as early as possible and in accordance with the Karnataka (Case Flow management in Subordinate Courts) Rules, 2005.

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vii. The amount deposited by the appellant before this Court by virtue of the order dated 04.04.2025 shall be released to the appellant after due identification.

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Pending I.As., if any, also stand disposed of.

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The Registry is directed to return the Trial Court Records forthwith to the concerned Trial Court along with the certified copy of this judgment.

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The Registry shall return the documents to the appellant i.e., original/certified copies filed by him.

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*The Registry is directed to refund the court fee as per

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law to the appellant on due identification.

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