C M Siddegowda Vs C S Basavaraju — Karnataka HC (2025) — LawSathi Research

C M Siddegowda Vs C S Basavaraju — Karnataka HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Second Appeal allowed in part: the judgment and decree dated 22.02.2007 in R.A. No. 215/2016 (recited thus in the operative order; captioned elsewhere as R.A.No.215/2006) set aside; matter remitted to the First Appellate Court to frame the aforementioned issues, permit parties to lead evidence and produce additional documents, and pass appropriate order/judgment; parties to appear before the First Appellate Court on 10.10.2025; nothing expressed on the merits and all contentions kept open; Registry to send records forthwith.

Issue for consideration

Whether the Lower Appellate Court was justified in granting a decree of mandatory injunction when there was no relief of declaration prayed by the plaintiff? +2 more

Ratio / Principle

The person appointed as Court Commissioner delegated the measurement work to another person without any specific authorization in the order; consequently, the commissioner's spot-inspection report is inadmissible.

Key takeaways

On the contents of the sale deed, the property sold to the plaintiff's ancestor did not include the lane/passage; the lane is referred to only to identify the western boundary and the plaintiff's property extends up to the Eastern boundary of the lane, so the lane is not the property purchased by the plaintiff.ratio¶21
Since the plaint averred that the suit lane/passage was used by the public, the Trial Court was required to frame an issue whether the lane is used by the plaintiff as well as the public and whether it is a public lane/passage; that issue was not framed and there was no discussion on the aspect.ratio¶22
Without deciding whether the disputed lane/passage is a public passage or whose property it is, the First Appellate Court granted mandatory injunction; in the view of this Court, that judgment and decree is unsustainable.

Detailed headnote1 paragraphs

HIGH COURT OF KARNATAKA AT BENGALURU (Single Judge, Anant Ramanath Hegde, J.) - NC: 2025:KHC:36073 - RSA No.1465 of 2007 (PAR) u/S.100 CPC, decided 11.09.2025. Defendants in a suit for permanent injunction over Sy.No.35 (Belur Taluk, Hassan District) and mandatory injunction over an alleged 12-feet lane/passage assailed the First Appellate Court's decree granting mandatory injunction and directing removal of constructions. Held: (1) the Court Commissioner's measurement report is inadmissible as the work was delegated without specific authorization; (2) per the sale deed, the lane/passage was not conveyed to the plaintiff's ancestor - it is referred to only to identify the western boundary, the plaintiff's land extending up to the lane's Eastern boundary; (3) neither court below framed or tried the question whether the lane is used by the plaintiff and the general public / is a public passage, and the First Appellate Court granted mandatory injunction without deciding ownership or public-user status, rendering its decree unsustainable. The admitted substantial question (justifiability of mandatory injunction absent a prayer for declaration) was left unanswered at this stage: declaration is unnecessary if public user is established, but the suit must fail for want of declaration if the lane belongs to the defendant. Appeal allowed in part; first appellate decree set aside; matter remitted to the First Appellate Court with the two issues framed by this Court, liberty to lead evidence and produce additional documents; no expression on merits.

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NC: 2025:KHC:36073 RSA No. 1465 of 2007

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 11^TH DAY OF SEPTEMBER, 2025

BEFORE

THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

REGULAR SECOND APPEAL NO. 1465 OF 2007 (PAR)

BETWEEN:

SRI C M SIDDEGOWDA, S/O HANUMANTHAPPA, AGED ABOUT 61 YEARS, (DECEASED)

A1(a) SMT ERAMMA, W/O LATE C M SIDDEGOWDA,

A1(b) SRI C S THEERTHA, D/O LATE C M SIDDEGOWDA,

A1(c) SRI C S CHANDREGOWDA, S/O LATE C M SIDDEGOWDA,

A1(d) SRI C S CHIKKEGOWDA, S/O LATE C M SIDDEGOWDA,

Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA

A1(e) SRI C S PREMKUMAR, S/O LATE C M SIDDEGOWDA,

A1(f) SRI C S MAHESH, S/O LATE C M SIDDEGOWDA,

ALL ARE RESIDENTS OF CHEELANYAKANAHALLI, HALEBEEDU HOBLI, BELUR TALUK, HASSAN DISTRICT.

…APPELLANTS

(BY SRI A N MATTARA, ADV. FOR APPELLANTS 1(a to c, e & f )

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AND:

C S BASAVARAJU, S/O SIDDEMALLEGOWDA, AGED ABOUT 63 YEARS, (DECEASED)

R1(a) MRS.PALAKSHI, W/O C S BASAVARAJU, ADULT.

R1(b) MRS.KALA, W/O PRAKASH, ADULT.

R1(c) MRS.INDRANI, W/O KANTHARAJU, ADULT.

R1(d) MRS.SUDHA, W/O SADASHIVA, ADULT

NO.1 IS THE WIDOW AND NO.R1(a) to R1(d) ARE CHILDREN OF LATE C S BASAVARAJU, ALL ARE R/O CHEELANYAKANAHALLI, HALEBEEDU HOBLI, BELUR TALUK, HASSAN DISTRICT.

…RESPONDENTS

(BY SRI JAGADEESHACHARI, ADVOCATE FOR R1(a to d))

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 22.2.2007 PASSED IN R.A.NO.215/2006 ON THE FILE OF THE ADDL.SESSIONS JUDGE & PRESIDING OFFICER, FAST TRACK COURT-III, HASSAN, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 3.2.2006 PASSED IN OS.NO. 66/1998 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) AND JMFC BELUR.

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

CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

ORAL JUDGMENT

This Second Appeal is against the divergent finding in a suit for permanent injunction and mandatory injunction.

The plaintiff sought decree for permanent injunction in respect of the property described in the schedule as property No.35 measuring 33 feet East-West and 75 feet North-South.

The mandatory injunction in respect of a lane/passage/passage which is said to be measuring 12 feet. It is not mentioned as to whether the measurement is in length or width.

In paragraph No.7 of the plaint and in the description to the suit property, the Western boundary of the suit property for which relief of injunction is sought is

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described as 12 feet lane/passage/passage and thereafter, the property of Siddegowda and Gangamma.

Defendant contested the suit and disputed the existence of lane/passage as alleged by the plaintiff.

After the trial, Trial Court granted relief of injunction in respect of the property bearing Sy.No.35 measuring 33 feet East-West X 35 feet North-South, though in the description of the property, the North-South measurement is shown as 75 feet.

The prayer for mandatory injunction in respect of the alleged lane/passage/passage is rejected.

Plaintiff filed appeal before First Appellate Court challenging the decree rejecting the prayer for mandatory injunction and defendant accepted the decree granting permanent injunction in respect of property bearing Sy.No.35 measuring 33 feet East-West X 35 feet NorthSouth.

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First Appellate Court in terms of the impugned judgment and decree allowed the appeal in part and setaside the judgment passed by the Trial Court rejecting the relief of mandatory injunction and granted mandatory injunction in respect of 12 feet lane/passage/passage and directed removal of the constructions made therein.

This Regular Second Appeal is admitted on 06.06.2007 to consider the following substantial question of law:

"Whether the Lower Appellate Court was justified in granting a decree of mandatory injunction when there was no relief of declaration prayed by the plaintiff?"

Learned counsel appearing for the defendant/ appellants would urge that in case the plaintiff is to seek mandatory injunction, it is incumbent upon the plaintiff to seek relief of declaration and without relief of declaration, there cannot be relief of mandatory injunction.

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Learned counsel for the appellants would also submit that existence of 12 feet lane/passage/passage is seriously disputed by the defendant and the same is not established.

Even assuming the plaintiff’s contention based on the sale deed is accepted, the said sale deed does not refer to the existence of 12 feet lane/passage as contended by the defendant. At the most, the lane/passage which is mentioned in the sale deed is 9 feet which is shown as 3 gajas in the sale deed.

Referring to the recital in the sale deed, learned counsel for the appellants would urge that the property of the plaintiff at the most would extend to the Eastern boundary of the said lane/passage and not beyond or up to the western boundary of the said lane/passage. Thus, the plaintiff cannot claim ownership over the alleged lane/passage.

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Learned counsel appearing for the respondents would contend that the plaintiff’s grandfather had purchased the property and in the sale deed reference is made to the existence of the lane/passage. It is urged that the plaintiff contended that even villagers are making use of the said lane/passage since long time as such the defendant has no right to put any obstruction on the said lane/passage so as to obstruct the use of the lane/passage by the plaintiff and villagers.

Thus, learned counsel for the respondents would contend that even if it is assumed that the lane/passage is not the property sold to the plaintiff’s grandfather, the lane/passage is to be treated as public lane/passage for the benefit of the plaintiff and the villagers and obstruction in the public lane/passage is sought to be removed and in such an event, relief of declaration is not required.

This Court has considered the contentions raised at the bar and perused the records.

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It is noticed that a report is submitted relating to the spot inspection. It is admitted that the Court had appointed a Court Commissioner to measure the property and to submit the report. It is also brought to the notice of the Court that the person who was appointed as Court Commissioner delegated the work to another person without there being any specific authorization in the order, as such the report is inadmissible.

On going through the contents of the sale deed more particularly, the description of the property purchased, it appears that the property which is sold to the plaintiff’s ancestor is not the lane/passage.

Reference is made to the lane/passage to identify the boundary on the Western side. The said sale deed gives an impression that the boundary of the plaintiff’s property is upto the Eastern boundary of the lane/passage.

In that view of the matter, it appears that the lane/passage is not the property purchased by the plaintiff.

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Nevertheless, existence of the lane/passage mentioned in the said sale deed. From the averment made in paragraph No.7 of the plaint, it appears that the plaintiff made a claim that the suit lane/passage was used by the public.

In that view of the matter, the Trial Court was required to frame an issue as to whether the lane/passage is used by the plaintiff as well as the public. The Trial Court is also required to consider as to whether the disputed lane/passage is a public lane/passage. However, that issue is not framed and there is no discussion on the said aspect.

Without deciding as to whether the property in dispute i.e., the alleged lane/passage is public lane/passage or whether the disputed lane/passage is the property of the plaintiff, defendant or anyone else, the matter has been decided by First Appellate Court granting relief of mandatory injunction.

Under these circumstances, this Court is of the view that the judgment and decree passed by First Appellate Court granting mandatory injunction is unsustainable.

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Since this Court has noticed that proper issues are not framed relating to the nature of the alleged lane/passage and issues are required to be framed. Hence, the following issues are framed:

(i) Whether the suit lane/passage as alleged by the plaintiff is the lane/passage used by the plaintiff and the general public?

ii) Whether plaintiff proves obstruction on the suit lane/passage by the defendant?

In the aforementioned facts and circumstances of the case, the substantial question of law need not be answered at this stage and does not arise for consideration. The said question would arise only in case the Court records a finding that the property is the property of the defendant.

Since the plaintiff claimed right over the alleged lane/passage on the premise that it is a lane/passage used by the plaintiff and the villagers, the relief of declaration is not necessary if the plaintiff establishes that it is a public lane/passage.

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If it is established that the property belongs to

the defendant, then the suit, for want of necessary relief of declaration must fail.

Parties should be given an opportunity to lead evidence on the aforementioned issues.

Ideally, this Court would have remitted the

matter to the Trial Court to frame issues and to pass appropriate order. However, considering the fact that the suit is of the year 1998, this Court deems it appropriate to

remit the matter to First Appellate Court to frame issue/s and permit the parties to lead evidence in support of the claim of respective parties and to pass appropriate order/judgment.

Hence, the following:

ORDER

(i) The Regular Second Appeal is allowed inpart .

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(ii) The judgment and decree dated 22.02.2007 in R.A. No. 215/2016 on the file of Fast Track III at Hassan are set aside.

(iii) The matter is remitted to First Appellate Court to record evidence on the

aforementioned issue and permit the parties to lead evidence and thereafter to pass appropriate order/ judgment.

(iv) It is made clear that parties are also permitted to produce additional documents in case they wish to in support of their claim.

(v) Parties shall appear before First Appellate Court on 10.10.2025.

(vi) Both the parties shall co-operate for early disposal of the case.

(vii) It is made clear that nothing is expressed on the merits of the matter and all contentions of the parties are kept open.

NC: 2025:KHC:36073 RSA No. 1465 of 2007

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(viii) Registry to send the records to First Appellate Court forthwith.

SD/(ANANT RAMANATH HEGDE) JUDGE

GVP

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