S.S. Shantha Hrudaya Vs Shivannagowda

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 15.4.2013 PASSED IN R.A.NO.57/2009 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, K.R.PET, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 14.10.2009 PASSED IN OS.NO.41/1999 ON THE FILE OF CIVIL JUDGE (JR.DN.) AND JMFC, KRISHNARAPETE.

¶23

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

¶24

CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

¶25

ORAL JUDGMENT

¶26

This appeal is directed against the concurrent finding in a suit for declaration and mandatory injunction. The suit is decreed. The defendants’ appeal is dismissed, confirming the judgment and decree passed by the Trial Court, granting declaration as well as the mandatory injunction. Hence, the present second appeal by the defendants.

¶27

The appeal was admitted on 13.07.2021 to answer the following substantial questions of law:

¶28

(a) Whether the admission by the plaintiffs regarding encroachment is with reference to the entire context of the case?

¶29

3 - NC: 2025:KHC:30666 RSA No. 1311 of 2013

¶30

HC-KAR

¶31

(b) Whether the existence of galli is supported by the documents on record.

¶32

Heard the learned counsel appearing for the

¶33

appellants.

¶34

It is noticed that initially the suit is filed for relief of declaration that the passage shown as A, B, C and D in the sketch appended to the plaint, which is between the house of the plaintiffs and defendants, is said to be a common passage meant for the general public.

¶35

The plaintiffs sought an injunction against the defendants in the use of the aforementioned passage. Later, an application is filed to amend the plaint and to incorporate one additional prayer wherein the plaintiffs sought mandatory injunction against the defendant to remove the structure put in a place shown as ‘A’ and ‘B’ in the sketch appended in the plaint which according to the plaintiffs blocked the passage and is done during the pendency of the suit.

¶36

Defendants disputed the plaintiffs’ claim relating to

¶37

8 feet wide passage as alleged. Defendants contended that the width of the passage is 5 feet. After the plaint was amended,

¶38

4 -

¶39

NC: 2025:KHC:30666 RSA No. 1311 of 2013

¶40

HC-KAR

¶41

the defendants also filed an additional written statement disputing the encroachment alleged in the amended plaint.

¶42

The defendants have also drawn a sketch in the written statement pertaining to the suit property. According to the defendant, the space between the plaintiffs’ house and the defendants’ house is occupied by a drainage measuring 2 ½ feet East – West, and the said drainage is running North – South.

¶43

Defendants in the written statement have taken a stand that earlier, between the house of the plaintiffs and the house of the defendants, there existed a space measuring 5 feet. It is further stated that the space was used by the plaintiffs and the defendants for cleaning purposes. The defendants further contend that the drainage was built by the Government between the house of the plaintiffs and the defendants and thereafter, the plaintiffs have encroached around 2 ½ to 3 feet and built a new house. And in this behalf Panchayat has issued a notice to the plaintiffs to demolish the wall encroached by the plaintiffs. Thus, the defendants prayed for dismissal of the suit.

¶44

5 -

¶45

NC: 2025:KHC:30666 RSA No. 1311 of 2013

¶46

HC-KAR

¶47

The Trial Court has held that the plaintiffs have proved the existence of the passage between the plaintiffs' house and the defendants’ house, and the Trial Court has come to the conclusion that the defendants have blocked the passage and granted the decree for mandatory injunction.

¶48

The First Appellate Court has also dismissed the

¶49

appeal, concurring with the finding of the Trial Court.

¶50

Learned counsel appearing for the defendants/

¶51

appellants would urge the following contentions:

¶52

(a) The existence of 8 feet passage between the house of the plaintiffs and the house of the defendants is not established. The encroachment by the plaintiffs is established as the Panchayat has itself issued notice to remove the supporting wall built by the plaintiffs.

¶53

(b) There is no encroachment by the defendants and house of the plaintiffs and the defendants is now separated by a drainage built by the Government and the Trial Court without ascertaining as to width of the passage has erroneously concluded that the existence of 8 feet

¶54

6 - NC: 2025:KHC:30666 RSA No. 1311 of 2013

¶55

HC-KAR

¶56

passage is established and further has erroneously concluded that the defendants have blocked the passage.

¶57

(c) It is further submitted that the First Appellate Court has not reappreciated the evidence as required under Section 96 of the Code of Civil Procedure and based on Ex.P4 has concluded that the defendants have encroached ‘A’ ‘B’ portion.

¶58

This Court has considered the contentions raised at

¶59

the bar and perused the records.

¶60

As far as the existence of 8 feet passage is concerned, no document was produced to uphold the contention that there existed a passage measuring 8 feet between the house of the plaintiffs and defendants. However, what is to be noticed is that the defendants have admitted the existence of 5 feet passage, and it is the case of the defendants that the Government has built the drainage between the house of the plaintiffs and the defendants, and because of this, the width of the passage has come down.

¶61

7 -

¶62

NC: 2025:KHC:30666 RSA No. 1311 of 2013

¶63

HC-KAR

¶64

It is his further contention that the plaintiffs have also built a supporting wall adjacent to the drainage, as such the width of the passage is reduced and without noticing this aspect, which is established in view of the notice issued by the Panchayat both Courts erred in holding that the defendants have blocked the passage.

¶65

This Court has considered the documents placed before the Court and also the photographs. From the photographs, it is quite apparent that 5 feet passage or 8 feet passage as contended by the respective parties, is not in existence. It appears that there is an encroachment by both sides. The plaintiffs’ encroachment is established in view of the notice issued by Panchayat which directed the plaintiffs to demolish the supporting wall. In the statement filed by the defendants who have taken a contention that government has put up a 2 ½ feet drainage system in the passage between the house of the plaintiffs and defendants, which according to the defendants is part of the passage measuring 5 feet in width.

¶66

It is apparent that the defendants also had put-up a wall on the edge of the drainage. In addition to that, on the

¶67

8 - NC: 2025:KHC:30666 RSA No. 1311 of 2013

¶68

HC-KAR

¶69

Northern side, there is a structure built between the compound wall and the residential house of the defendants. Whether that structure is built on the passage or not is not established.

¶70

This being the position, the Court could not have come to the conclusion that the defendants had blocked the passage. There may be encroachment by both sides as the width of the passage is neither 8 feet as contended by the plaintiffs, nor 5 feet as contended by the defendants. Excluding the width of the drainage, which is said to be 2 ½ feet the remaining portion must have been encroached by either party. In that case, both parties are at liberty to approach Panchayat for the removal of encroachment by either of the parties.

¶71

The Trial Court and the First Appellate Court could not have granted a decree for mandatory injunction against the defendants without ascertaining as to how much portion is encroachment by either the plaintiffs or the defendants. In that view of the matter, the impugned judgments and decrees passed by the Trial Court and the First Appellate Court have to be set-aside.

¶72

Hence, the following:

¶73

9 - NC: 2025:KHC:30666 RSA No. 1311 of 2013

¶74

HC-KAR

¶75

ORDER

¶76

(i) Appeal is allowed .

¶77

(ii) The judgment and decree dated 15.04.2013 in R.A.No.57/2009 on the file of Senior Civil Judge (Sr. Dn.), Krishnarajpet, Mandya are set-aside.

¶78

(iii) The judgment and decree dated 14.10.2009 in O.S. No.41/1999 on the file of Civil Judge (Jr. Dn.) Krishnarajpet, Mandya are set-aside.

¶79

(iv) Consequently, the suit of the plaintiffs is dismissed.

¶80

(v) However, liberty is reserved to both the plaintiffs and the defendant to approach the jurisdictional Panchayat for removal of the encroachment if any, made on the passage.

¶81

(vi) If such an application is filed, Panchayat shall determine as to the width of the passage between the house of the plaintiffs and the defendants and thereafter shall arrive at appropriate conclusion after affording opportunity to both the parties to substantiate their respective claims.

¶82

(vii) The dismissal of this suit should not come in the way of Panchayat taking appropriate

¶83

10 - NC: 2025:KHC:30666 RSA No. 1311 of 2013

¶84

HC-KAR

¶85

decision on the application for removal of the encroachment.

¶86

(viii) It is made clear that this Court has not recorded a finding that the plaintiffs or the defendants have not encroached any portion or has not recorded a finding that the plaintiffs and defendants have encroached any portion of the passage in dispute. The encroachment, if any, and the extent of such alleged encroachment, is to be decided by the Panchayat.

¶87

(ix) Panchayat shall dispose of the application filed by the parties within 3 months from the date of receipt of the application.

¶88

Sd/(ANANT RAMANATH HEGDE) JUDGE

¶89

GVP, KA

¶90

List No.: 1 Sl No.: 22

S.S. Shantha Hrudaya v. Shivannagowda

Case brief

What is this about?

What did the court decide?

S.S. Shantha Hrudaya v. Shivannagowda

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Sri Madappa Vs Smt Thimmakka

Vedamurthy Vs Shivalingaiah

Sri Chikkamunivenkatappa Vs Sri R Venkataramanaiah

Chandrashekar .v Vs M/S Canfin Homes Limited

Mubarak Pasha Vs Syed Safdar Bareed

Sri. S Suresh Vs Navanagara Urban Co-Operative Bank Ltd.