M/S Elements 5 Development Consultants Vs the Commissioner

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NC: 2026:KHC:10325 RFA No. 2169 of 2023

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF FEBRUARY, 2026

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BEFORE

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THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR FIRST APPEAL NO. 2169 OF 2023 (INJ)

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BETWEEN:

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M/S ELEMENTS 5 DEVELOPMENT CONSULTANTS A REG. PARTNERSHIP FIRM HAVING ITS OFFICE AT NO. F 133, 7^TH CROSS MANYATHA RESIDENCY NAGAVARA BENGALURU - 560045. REPRESENTED BY ITS PARTNER SRI NARESH DANDAPAT AND SRI ASHFAQ RAUF

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Digitally signed by AL BHAGYA Location: HIGH COURT OF KARNATAKA

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M/S INDUS VALLEY HOMES PVT LTD A PRIVATE LIMITED COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT 1956 HAVING ITS REGISTERED OFFICE AT NO. 6/A, 2^ND FLOOR KABRA EXCELSIOR, 7^TH MAIN, 1^ST BLOCK KORAMANGALA BENGALURU - 560034. REPRESENTED BY ITS POWER OF ATTORNEY HOLDER M/S ELEMENTS 5 DEVELOPMENT CONSULTANTS REPRESENTED BY ITS PARTNER SRI NARESH DANDAPAT AND SRI ASHFAQ RAUF

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…APPELLANTS

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(BY SRI. CHANDRA SHEKAR .R, ADVOCATE)

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NC: 2026:KHC:10325 RFA No. 2169 of 2023

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HC-KAR

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AND:

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THE COMMISSIONER BRUHAT BENGALURU MAHANAGARA PALIKE NOW CALLED AS BBMP N R SQUARE, BENGALURU.

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…RESPONDENT

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(BY SRI. SATYANAND .B.S, ADVOCATE)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 04.08.2023 PASSED IN OS.NO. 25347/2019 ON THE FILE OF THE LXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FOR INJUCNTION.

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THIS APPEAL, COMING ON FOR DICTATING ORDERS, 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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Captioned appeal is by the unsuccessful plaintiff directed against the judgment and decree dated 4.8.2023 passed in O.S.No.25347/2019 whereby the plaintiff's suit seeking permanent injunction against the BBMP is rejected.

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For the sake of convenience the parties are referred to as per their rank before the trial Court.

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NC: 2026:KHC:10325 RFA No. 2169 of 2023

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HC-KAR

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The facts leading to the case are as under:

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The case of the plaintiffs, in brief, is that plaintiff No.1 purchased Schedule ‘A’ property under a registered Sale Deed dated 07.10.2013. It is their specific assertion that the land in question had already been converted from agricultural to non-agricultural residential purpose by virtue of an Official Memorandum dated 14.12.2009. The vendor of plaintiff No.1 is stated to have derived title under a registered Partition Deed. Plaintiff No.2 claims to have acquired Schedule ‘B’ property under a registered Sale Deed dated 18.06.2015 from his vendor, who in turn had purchased the same under a prior registered Sale Deed. The plaintiffs further contend that they have jointly purchased Schedule ‘C’ property under a registered Sale Deed dated 11.12.2015. On the strength of these registered conveyances, the plaintiffs assert lawful possession and enjoyment of the suit schedule properties.

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The present suit is instituted on the specific allegation that during the first week of 2018, officials of

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the defendant–authority, accompanied by men and

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machinery, allegedly attempted to interfere with and dispossess the plaintiffs from the suit schedule properties without authority of law. The plaintiffs claim to have caused issuance of a legal notice dated 07.12.2018 calling upon the defendant not to interfere with their peaceful possession. It is further alleged that on 21.02.2019, the officials of the defendant once again threatened dispossession, thereby compelling the plaintiffs to institute the present suit seeking relief of perpetual injunction.

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Upon service of summons, the defendant – Bruhat Bengaluru Mahanagara Palike (BBMP) entered appearance and filed a detailed written statement, stoutly denying the plaint averments. The defendant contended that the suit is wholly misconceived and instituted only to thwart lawful action initiated against the plaintiffs, who,

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according to the defendant, have encroached upon an existing 20 feet Government road leading to Bellandur village and serving as an access road. It is specifically

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pleaded that the existence of the 20 feet road is reflected

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in official records and that the plaintiffs have suppressed this material fact while seeking equitable relief. On these grounds, the defendant sought dismissal of the suit.

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On the basis of the rival pleadings, the Trial Court framed appropriate issues for consideration. Both parties adduced oral as well as documentary evidence in support of their respective claims.

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During the course of trial, a Court Commissioner was appointed, who conducted local inspection and submitted his report. The Trial Court, upon appreciation of the oral evidence, documentary material, and the Commissioner’s report, dismissed the suit holding

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that the defendant had successfully substantiated the existence of the 20 feet road by producing cogent rebuttal evidence and, therefore, the plaintiffs were not entitled to the relief of perpetual injunction.

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HC-KAR

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Heard the learned counsel appearing for the

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plaintiffs and the defendant/BBMP. Perused the records of the Trial Court.

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In the light of the rival submissions and material on record, the following points arise for consideration:

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"(i) Whether the finding of the Trial Court

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that the defendant has proved the existence of the 20 ft. road and consequently that the plaintiffs are not entitled to the relief of perpetual injunction suffers from perversity or illegality warranting interference?

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(ii) What order?"

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Finding on Point No.(i):

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On a careful consideration of the pleadings of

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the rival parties, the core controversy that emerges for adjudication is with regard to the existence of a 20 feet

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HC-KAR

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Government road, which according to the defendant– Bruhat Bengaluru Mahanagara Palike (BBMP), runs on the southern side of the suit schedule property and leads towards Bellandur village. The plaintiffs have not stepped into the witness box and have chosen to prosecute the suit through their GPA holder, who was examined as P.W.1. Before adverting to the documentary evidence and the Commissioner’s report relied upon by the defendant, it is necessary to scrutinize the material admissions elicited during the cross-examination of P.W.1.

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P.W.1 has categorically admitted that on the western side of the suit property, Doddamma Devi Temple is situated. At that juncture, he was confronted with the photographs marked as Ex.D1 (a–g). Upon confrontation, P.W.1 admitted that a road passing on the southern side of the suit property is visible in the said photographs. This admission is clear, unambiguous, and strikes at the very root of the plaintiffs’ case. Though, in the latter part of the cross-examination, P.W.1 made a feeble attempt to dilute

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the impact of this admission by denying the existence of a tar road, such subsequent denial cannot efface the earlier categorical admission. It is a settled principle that admissions made in cross-examination constitute substantive evidence and bind the party unless satisfactorily explained.

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Another significant admission elicited from P.W.1 pertains to the filing of O.S.No.1947/2016 by local residents alleging obstruction of the very same road by the plaintiffs. This admission assumes considerable importance. The plaintiffs, while seeking an equitable relief of injunction, have not disclosed this litigation in the plaint. Suppression of a material fact, particularly when the relief sought is discretionary and equitable in nature, disentitles a party from claiming such relief. The nondisclosure of the earlier suit clearly undermines the bona fides of the plaintiffs.

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NC: 2026:KHC:10325 RFA No. 2169 of 2023

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Having examined the admissions elicited in

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cross-examination, this Court now turns to the documentary evidence and the report of the Court Commissioner. The Commissioner’s photographs, forming part of Ex.C1, unmistakably depict the existence of a road running east to west on the southern side of the plaintiffs’ property. The mahazar drawn at the spot further corroborates the physical existence of the said road. What is more damaging to the plaintiffs’ case is that the sketches marked as Exs.P21 to P23, produced by the plaintiffs themselves, clearly indicate the existence of a 20 feet road on the southern side of the suit property. These documents, emanating from the plaintiffs, directly contradict their plea that no such road exists. In addition, the photographs produced by the defendant at Exs.D5 and D6 also depict the temple structure and the abutting road running east to west, thereby lending further corroboration to the defendant’s case.

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HC-KAR

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On an overall assessment of the oral and

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documentary evidence, particularly (i) the categorical admissions of P.W.1, (ii) photographs at Ex.D1 series, (iii) Google Map imagery placed on record, (iv) the Commissioner’s report and photographs at Ex.C1, (v) the plaintiffs’ own sketches at Exs.P21 to P23, and (vi) the defendant’s photographs at Exs.D5 and D6, this Court finds that the existence of a 20 feet road running on the southern side of the suit schedule property, leading towards Doddamma Devi Temple and Bellandur village, stands conclusively established. The evidence, when read conjointly, forms a consistent and unimpeachable chain pointing to the existence of the public road. The finding recorded by the Trial Court on this aspect is thus firmly rooted in rebuttal evidence and does not suffer from perversity.

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In the light of the foregoing discussion, the

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plaintiffs’ case is bound to fail. The essential ingredients for grant of a perpetual injunction namely, proof of lawful

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NC: 2026:KHC:10325 RFA No. 2169 of 2023

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HC-KAR

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possession and credible threat of unlawful interference are conspicuously absent. The plaintiffs have failed to

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establish lawful possession over the disputed portion abutting the road. On the contrary, the material on record probabilises the defendant’s case that the plaintiffs have encroached upon a public road. The defendant, being a statutory authority entrusted with the maintenance and protection of public roads, is well within its powers to remove encroachments in accordance with law. Courts cannot grant injunction to protect an encroachment over public property. An equitable relief cannot be extended to a party whose claim is tainted by suppression and contrary to the record.

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The learned Trial Judge has meticulously

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appreciated the entire material on record and has arrived at the conclusion that the plaintiffs have failed to establish

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lawful possession or illegal interference by the defendant. The findings recorded are based on proper appreciation of evidence and do not warrant interference by this Court.

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NC: 2026:KHC:10325 RFA No. 2169 of 2023

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