Mrs S S Soundari Vs Mr Dayananda G v

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1 - NC: 2026:KHC:2278 RFA No. 11 of 2011

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF JANUARY, 2026

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BEFORE

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THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR FIRST APPEAL NO. 11 OF 2011 (DEC/INJ)

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BETWEEN:

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MRS. S.S. SOUNDARI MAJOR, AGED ABOUT 62 YEARS W/O LATE A. SANDHYAVOO RESIDENT OF NO.47, NAOH STREET, SHIVAJINAGAR, BANGALORE - 560 051 REPRESENTED BY P.A. HOLDER MR. S.J. NEPOLEAN AGED ABOUT 35 YEARS, S/O MRS. S.S. SOUNDARI RESIDING AT NO.47, NAOH STREET, SHIVAJINAGAR, BANGALORE - 560 051.

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…APPELLANT

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Digitally signed by SHARADAVANI B Location: High Court of Karnataka

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(BY SRI. N. JAI PRAKASH, ADVOCATE)

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AND:

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MR. DAYANANDA G.V, AGED ABOUT 58 YEARS S/O MR. G.V. APPANNA NO.83, 5TH MAIN, AMARJYOTHI LAYOUT, SANJAYNAGAR, BANGALORE - 560 094.

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…RESPONDENT

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(BY SRI. SHAILESH Y. SHANKAR, ADVOCATE FOR SRI. C. GOWRISHANKARA, ADVOCATE)

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NC: 2026:KHC:2278 RFA No. 11 of 2011

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HC-KAR

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THIS RFA IS FILED U/SEC.96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 31.08.2010 PASSED IN O.S.15927/2003 ON THE FILE OF THE XXVIII-ADDL. CITY CIVIL AND SESSIONS JUDGE, MAYO HALL UNIT, BANGALORE CITY, PARTLY DECREEING THE SUIT FOR THE DECLARATION AND INJUNCTION.

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

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The captioned appeal is by the unsuccessful plaintiff, who is partially aggrieved by the decree rendered by the Trial Court in O.S.15927/2003 wherein the plaintiff's claim over schedule B property is declined and the suit is dismissed insofar as schedule B property is concerned.

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For the sake of brevity, the ranks of the parties

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are referred as per their ranking before the Trial Court.

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Facts leading to the case are as under:

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The plaintiff instituted O.S.No.15927/2003 seeking the reliefs of declaration, mandatory injunction, perpetual

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injunction and damages. The gist of the plaintiff’s claim is that the schedule ‘B’ property is an integral and inseparable portion of the schedule ‘A’ property. It is the specific case of the plaintiff that her husband had purchased the schedule ‘A’ property under a registered sale deed dated 07.04.1980 from its previous owner. Upon the death of her husband on 12.05.1996, the plaintiff, being the sole surviving legal heir, claims to have succeeded to the entire schedule ‘A’ property measuring east–west 60 feet and north–south 30 feet.

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It is further contended by the plaintiff that the defendant’s property is situated to the western side of her property and that the defendant has encroached upon a portion of her land, which is described as schedule ‘B’ property. According to the plaintiff, while intending to put up a construction on the schedule ‘A’ property, she got the land measured through an engineer and during such measurement noticed the alleged encroachment by the defendant. On further enquiry, she claims to have found

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that the defendant had high-handedly extended a devamule by encroaching upon her property, giving rise to the present cause of action. On these premises, the suit came to be instituted seeking declaration of title, removal of the encroachment by way of mandatory injunction and consequential reliefs.

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The defendant, upon service of summons, entered appearance and filed a written statement stoutly denying all the averments made in the plaint. The defendant asserts independent title over Site No.83, which, according to him, was purchased under a registered sale deed dated 01.08.1991. It is the defendant’s specific case that Site No.83 forms part of an approved layout formed by a cooperative society. Without prejudice to his claim of ownership, the defendant has also set up an alternative plea of adverse possession, contending that he has been in continuous, open and uninterrupted possession of the schedule ‘B’ property for more than two decades and has thus perfected title by prescription.

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Both parties were afforded full opportunity to lead oral and documentary evidence in support of their respective claims. Upon appreciation of the material on record, the Trial Court, while answering Issue No.1, held that the plaintiff had successfully established her title to the schedule ‘A’ property measuring east–west 60 feet and north–south 30 feet. However, while considering Issue No.4, the Trial Court concluded that the plaintiff had failed to establish the alleged encroachment by the defendant and consequently held that she was not entitled to seek possession of the schedule ‘B’ property. Aggrieved by the refusal to grant relief in respect of schedule ‘B’ property, the plaintiff has preferred the present appeal.

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Heard the learned counsel appearing for the appellant–plaintiff and the learned counsel appearing for the respondent–defendant. Perused the pleadings, oral and documentary evidence, and the impugned judgment and decree.

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In the light of the rival contentions urged and the

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material placed on record, the following points arise for consideration in this appeal:

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i. Whether the finding of the Trial Court holding that the plaintiff is not entitled to possession of the schedule ‘B’ property is perverse and calls for interference by this Court?

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ii. Whether the finding of the Trial Court that the plaintiff has failed to prove the alleged encroachment in respect of schedule ‘B’ property suffers from perversity or misappreciation of evidence warranting appellate interference?

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iii. What order?

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9. Finding on points No.i and ii:

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The plaintiff has instituted the present suit seeking the reliefs of declaration and mandatory injunction, alleging that the defendant has encroached upon the western

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portion of the plaintiff’s property, which is described as schedule ‘B’ property. Before this Court proceeds to examine the plaintiff’s allegation of encroachment, it would be apposite to advert to the foundational title document relied upon by the plaintiff, which is marked as Ex.P.1. Since the relief sought is premised on alleged encroachment, the boundaries assigned to the property under the plaintiff’s sale deed assume decisive significance. Ex.P.1 evidences the purchase of Site Nos.5 and 12 carved out of Survey No.68/4. The schedule appended to the said sale deed reads as under:

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“All that piece and parcel of the vacant sites Nos.5 and 12 out of Survey No.68/4, situated at Nagasetty Halli Village, Kasaba Hobli, Bangalore North Taluk, measuring East to West 60 feet or 18.29 meters and North to South 30 feet or 9.14 Meters and totally measuring 167.17 Sq.mtrs bounded on the East by Road, West by Site No.1 , North by Site No.13 and 4 and South by Site Nos.11 & 6.”

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EMPHASIS SUPPLIED

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On a plain and careful reading of the boundaries

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recited in Ex.P.1, it is manifest that the property purchased by the plaintiff is bounded on the western side by Site No.1. This recital assumes critical importance, as the defendant is not claiming any right over Site No.1, but

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asserts ownership over a distinct property bearing Site No.83. Admittedly, the defendant’s site forms part of an approved layout. In this backdrop, it becomes necessary to advert to the defendant’s title deed, marked as Ex.D.4, to ascertain the location, boundaries, and extent of the defendant’s property. The schedule appended to Ex.D.4 reads as under:

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"SCHEDULE PROPERTY

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All that piece and parcel of vacant site bearing No.83, eighty three formed out of Survey No.68/3 (Sixty Eight over three) of Nagashetty Halli, Bangalore formed by the Amarjyothi House building Cooperative Society Ltd, Bangalore.

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Measuring East to West 60 ft or 18.3 Mtrs. (Sixty ft or Eighteen Point Three Meters) and North to south 40 ft or 12.2 Mtrs (Forty ft or Twelve Point Three Meters) total area being 266.66 Sq. Yards (Two hundred sixty six point sixty six square yards) or 223.23 Sq.Mtrs.(Two hundred twenty three point twenty three mtrs).

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BOUNDED ON:

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The East by : Open land,

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The West by : 30 ft Road, Now called 5th Main Road,

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The North by Site No.82, Now house Constructed in Site No.82

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The South by Site No.84, House constructed in Site No.84."

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EMPHASIS SUPPLIED.

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A comparative reading of Ex.P.1 and Ex.D.4

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clearly discloses that the properties claimed by the plaintiff and the defendant emanate from different survey numbers and are bounded by entirely different adjoining properties. Notwithstanding the above, the plaintiff has alleged encroachment without securing any survey report from a competent technical authority prior to the institution of the suit. Be that as it may, the boundaries furnished by the plaintiff in the plaint itself require close scrutiny, as they appear to be at variance with the boundaries recited in the plaintiff’s own title deed. The schedule ‘B’ property described in the plaint reads as under:

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"B SCHEDULE"

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All that piece and parcel portion of the residential of the immovable property bearing old site Nos.5 and 12, carved out of Sy. No. 68/4, Nagashettahalli village, Kasaba Hobli, Bangalore North Taluk, presently jurisdiction of within the the revenue Bangalore City Corporation and assigned No.5.

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Nagashettahalli, Bangalore, In ward No. 100 (Sanjayanagar revenue zone) and together with all rights, privileges appurtenances the under and measuring: and

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EAST TO WEST:

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On the Northern side: 11.5 feet

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On the Southern side: 5 feet NORTH TO SOUTH: 30 FEET

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And bounded on:

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EAST BY: Remaining portion of the "A"

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Schedule property

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WEST BY: Property of the Defendant

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NORTH BY: Private Property

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SOUTH BY: Private Property."

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EMPHASIS SUPPLIED

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On examining the above schedule, this Court finds a glaring inconsistency. While the plaintiff’s title deed at Ex.P.1 categorically shows Site No.1 as the western

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boundary, the plaint schedule now describes the

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defendant’s property as abutting the western side of the plaintiff’s land. This contradiction goes to the very root of the plaintiff’s case. The plaintiff, without first establishing contiguity between the two properties through acceptable documentary or technical evidence, has rushed to the Court with a comprehensive suit alleging encroachment. It is in this context that the admissions elicited during the cross-examination of the plaintiff assume crucial significance. The relevant portions of the cross-

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examination are extracted verbatim as under:

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"1. It is that the property purchased by my father is the property which is mentioned in the Schedule of Ex.p-I and the said Schedule is correct.

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2. I did not make any attempts to father's my got the vendor It is true that my father property to him. purchased the property from Sachidanandam. It is true that the property we purchased which is a single site has 2 numbers i.e. No.5 and 12. Earlier property we purchased was a revenue site and within NagashettiHalli village.

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3. It is true that as per Ex.P-1 the boundary of both site No.5 and 12 by clubbing together is shown in the document. As per Ex.P-1 the property is bounded on the

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east by road, west by Site No.1, north by Site No.13 and 4 and south by 11 and 6.

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4. It is true that while constructing I have not left any set back on southern and western side of the building. I do not know in whose name the Khata of our property stood in the year 2000."

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These admissions, when read conjointly,

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substantially clinch the controversy. The plaintiff has unequivocally admitted the correctness of the boundaries mentioned in Ex.P.1. The plaintiff further admits that Site Nos.5 and 12 together constitute a single site and that the property was originally a revenue site. The third admission conclusively establishes that the western boundary of the plaintiff’s property is Site No.1, and not the defendant’s site.

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More importantly, the fourth admission strikes at the very foundation of the plaintiff’s allegation of encroachment. The plaintiff admits in unequivocal terms that he has not left any setback on the western side of his construction. This admission clearly indicates that the

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plaintiff himself has occupied the entire width of his property up to the western boundary. If no vacant space existed on the western side, the question of the defendant encroaching upon any portion of the plaintiff’s land does not arise.

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On an independent and holistic assessment of the oral and documentary evidence, particularly Ex.P.1 and Ex.D.4, this Court finds that the theory of encroachment propounded by the plaintiff is wholly unsubstantiated. The plaintiff’s own title document contradicts the narrative set out in the plaint. The suit appears to have been instituted on conjectures and assumptions rather than on legally sustainable evidence.

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This conclusion is further fortified by the plaintiff’s admission in the subsequent cross-examination conducted on 31.08.2004, wherein the plaintiff admits that he does not possess any documentary evidence to establish the alleged encroachment. The plaintiff has neither produced a

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survey sketch prepared by a competent authority nor established the exact extent of the alleged encroachment. The rough sketch relied upon by the plaintiff does not inspire confidence and cannot substitute a lawful survey.

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In the absence of proof regarding contiguity of properties, precise identification of the alleged encroached portion, and reliable technical evidence, the plaintiff has failed to discharge the burden cast upon him. Consequently, this Court finds that the Trial Court was fully justified in declining the relief sought in respect of schedule ‘B’ property.

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This Court has independently re-appreciated the entire oral and documentary evidence and has bestowed anxious consideration upon the crucial admissions elicited during cross-examination. No perversity or illegality is found in the findings recorded by the Trial Court. Accordingly, the dismissal of the suit insofar as schedule

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