Meenakshi K Vs Assistant Executive Engineer

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NC: 2026:KHC:1107 RSA No. 1151 of 2023

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8^TH DAY OF JANUARY, 2026

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BEFORE

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THE HON'BLE MR. JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 1151 OF 2023 (INJ)

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BETWEEN:

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MEENAKSHI K., 80 YEARS, W/O LATE ANANDA RAO, KUDUMBLADI HOUSE, KEDILA VILLAGE, BANWALA TALUK, DK - 574 220.

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PURANDARA K., 54 YEARS, S/O LATE ANANDA RAO, KUDUMBLADI HOUSE, KEDILA VILLAGE, BANWALA TALUK, DK - 574220.

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Digitally signed by ANUSHA V Location: High Court of Karnataka

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HARISH K., 52 YEARS, S/O LATE ANANDA RAO, KUDUMBLADI HOUSE, KEDILA VILLAGE, BANWALA TALUK, DK - 574220.

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YASHAVANTHA K 49 YEARS, S/O LATE ANANDA RAO, KUDUMBLADI HOUSE, KEDILA VILLAGE, BANWALA TALUK, DK - 574 220.

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…APPELLANTS

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[BY SRI DIVAKARA K N., ADVOCATE FOR A1, A3 & A4 (VC); SRI PURANDARA - APPELLANT NO.2 - PARTY-IN-PERSON]

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AND:

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ASSISTANT EXECUTIVE ENGINEER, PANCHAYATRAJ, ENGINEERING DIVISION, BANTWALA TALUK, DK.

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NC: 2026:KHC:1107 RSA No. 1151 of 2023

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HC-KAR

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THE EXECUTIVE ENGINEER DK PANCHAYATHRAJ ENGINEERING DIVISION, ASHOKA NAGARA, MANGALORE, DK.

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THE CHIEF EXECUTIVE OFFICER, DAKSHINA KANNADA, ZILLA PANCHAYATH, AHOKA NAGAR, MANGALORE.

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DEPUTY COMMISSIONER, REP BY GOVT OF KARNATAKA, DAKAHINA KANNADA DISTRICT.

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PANCHAYAT DEVELOPMENT OFFICER, KEDILA GRAMA PANCHAYATH, KEDILA VILLAGE, BANWALA TALUK, DK.

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ADAM, 56 YEARS, GOODINABALI HOUSE, MITTUR, IDKIDU VILLAGE, CONTRACTOR, PANCHAYATHRAJ ENGG., SUB DIVISION, BANTWAL TALUK, DK.

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…RESPONDENTS

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[BY SRI B.S.GURUSWAMY, AGA FOR R1 TO R5 (PH); NOTICE TO R6 IS D/W V/O DATED 08.01.2026]

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 17.03.2023 PASSED IN RA.NO.9/2021 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, BANTWAL, D.K. DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 09.06.2021PASSED IN O.S.NO.109/2012 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, BANTWAL, D.K.

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

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CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

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NC: 2026:KHC:1107 RSA No. 1151 of 2023

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HC-KAR

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ORAL JUDGMENT

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Challenging judgment and decree dated 17.03.2023 passed by Principal Senior Civil Judge and JMFC, Bantwal, D.K., in R.A.no.9/2021 and judgment and decree dated 09.06.2021 by Principal Civil Judge and JMFC, Bantwal, Dakshina Kannada, in O.S.no.109/2012, this second appeal is filed.

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Sri Divakara K.N., Akshay S., learned counsel for appellants no.1 and 3 to 5 submitted that appeal was by plaintiffs in O.S.no.109/2012 filed for relief of permanent injunction restraining respondents/defendants from widening existing 3 metre roadway in plaint 'A' schedule properties bearing Sy.no.200/4A, measuring 0.56 cents and in Sy.no.200/5, measuring 0.28 cents, situated at Kedila village, Bantwal Taluk, Dakshina Kannada District (hereinafter referred to as ' Suit Properties ' ) or from interfering with peaceful possession of same, except to extent of making use of 3 metre roadway and directing defendants to restore it to its original condition etc.

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In plaint, it was stated that one K. Ananda Rao was absolute owner of Suit Properties and on death of K. Ananda

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Rao, plaintiffs succeeded to same and that there existed 3 metre width road in it running from Karimajal to Patrakodi locality and that it was private properties and defendants did not have any manner of right to widen 3 metre roadway. However, defendants no.1 to 5 had engaged defendant no.6 to form concrete road on said 3 metre roadway. Plaintiff no.2 filed objections on 09.03.2012 before defendant no.5 against widening of road. However, due to bonafide mistake, he had mentioned only item no.1 of Suit Properties .

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It was further stated, at instance of defendants no.1 to 5, defendant no.6 and his men forcibly trespassed into

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Suit Properties and began spreading earth on either side of road to widen 3 metre road to 6 - 7 metres width. On 19.03.2012, plaintiffs lodged complaint with Puttur Police Station and issued legal notice on 23.03.2012. However, Police did not take any action and defendant no.6 commenced laying of concrete road. It was alleged that in process of laying of concrete road, defendants had shifted portion of road towards northern portion of Suit Properties , where there existed, no road earlier. Therefore, Suit Properties were required to be restored to original state.

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NC: 2026:KHC:1107 RSA No. 1151 of 2023

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HC-KAR

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On service of suit summons, though defendants no.1 to 5 appeared through counsel and filed written statement. Defendant no.6 did not appear and was placed exparte . In their written statement, defendants denied plaint averments and disputed right of plaintiffs over any portion of existing road. It was stated that road in question existed since 50 years and was not being widened as alleged. Level of road was raised by dumping mud before laying of concrete road thereon and work carried out was only to develop existing road and not to lay any new road. Defendants also stated that work was taken up and completed in March 2012 and there was no water tank as alleged by plaintiffs and therefore allegation of water tank having been closed by defendant no.6 was not true. On said pleadings sought for dismissal of suit.

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Based on pleadings, trial Court framed following:

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ISSUES

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1) Whether the plaintiffs prove that, they are in peaceful possession and enjoyment of the suit schedule property?

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2) Whether the plaintiffs prove that the defendants are trying to widen 3 meter width roadway into 7 meter?

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3) Whether the plaintiffs prove that the defendants formed concrete road to a

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width of 3 meter by violating the court order?

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4) Whether the plaintiffs prove that they are entitled for relief as sought in the suit is entitled for relief as claimed in the suit?

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5) What Decree or Order?

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ADDITIONAL ISSUE

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1) Whether the defendant no.5 proves that, the suit is not maintainable without previous sanction from Zilla Panchayath as per Sec.295(2) of Karnataka Panchayath Raj Act?

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Thereafter, plaintiff no.2 examined himself as PW.1

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along with another witness as PW.2 and got marked Exhibits-P1 to P45. On other hand, defendants did not chose to lead oral evidence but got marked Exhibit-D1 - Sketch by confrontation of PW.1with it.

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Thereafter, trial Court answered issues no.1 to 4 in negative; additional issue no.1 in affirmative and issue no.5 by dismissing suit. Aggrieved, plaintiffs preferred appeal in R.A.no.9/2021 on various grounds.

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Based on contentions urged, first appellate Court

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framed following points for its consideration:

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1) Whether the findings of trial Court holding that, the plaintiffs failed to

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NC: 2026:KHC:1107 RSA No. 1151 of 2023

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prove the title and possession over the suit schedule property is correct?

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2) Whether the interference with judgment and decree of the trial Court is necessary?

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3) What order or Decree?

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On consideration, it answered point no.1 in

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affirmative; point no.2 in negative and point no.3 by dismissing appeal leading to this second appeal.

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Learned counsel submitted that admittedly suit was for permanent injunction. Though there was no issue raised about title of plaintiffs over Suit Properties before trial Court, while deciding appeal, first appellate Court framed an issue regarding plaintiffs' title over Suit Properties and dismissed appeal by holding same in negative. It was submitted, in absence of opportunity to plaintiffs to establish their title over Suit Properties by framing an appropriate issue, first appellate Court was not justified in dismissing appeal on said finding. It was submitted, plaintiffs had led evidence to substantiate claims based on records and there was no rebuttal evidence by defendants. Defendants in fact admitted about carrying out work development of road. Under such circumstances,

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dismissal of appeal by first appellate Court by giving finding on title would not only be in violation of principles of natural justice, but also in violation of Order XLI Rule 31 of Code of Civil Procedure, 1908, (' CPC ', for short). And drawing attention of this Court to I.A.no.2/2025 filed for impleading Kaikamba Devaru as additional plaintiff out of abundant caution. Learned counsel for appellants submitted that matter may be remitted back to trial Court with a direction to frame an issue regarding title and provide opportunity to plaintiffs to lead evidence on same. On said ground submitted that substantial question of law arose for consideration and sought for allowing appeal.

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On other hand, Sri B.S. Guruswamy, learned Additional Government Advocate for respondents no.1 to 5 - State opposed appeal. It was submitted, while passing impugned judgment, trial Court at para no.11 of judgment observed that except oral evidence plaintiffs have not placed any material before Court to prove that they are in possession and enjoyment of Suit Properties and they did not produce any document to establish that they are legal heirs of K. Ananda Rao or they had become administrators of Kalikamba Devaru and whether their names are entered in Column-12 of Record

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NC: 2026:KHC:1107 RSA No. 1151 of 2023

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of Rights (' RoR ', for short). It also observed that Kalikamba Devaru was not a party to suit and on said basis held that plaintiffs failed to prove they were in possession and enjoyment of Suit Properties and dismissed suit.

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It was submitted that first appellate Court in para no.20 had concurred with said observations. It was submitted, defendants no.1 to 5 being Government Officials there would be requirement of notice under Section 295 (2) of Karnataka Panchayath Raj Act, 1993, (' KPR Act ', for short). Taking note of non-compliance of said provision and failure of plaintiffs to establish title, first appellate Court had dismissed appeal. Therefore, no substantial question of law arose for consideration and sought dismissal of appeal.

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Heard learned counsel for parties and perused impugned judgment and decree.

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This appeal is by plaintiffs against concurrent judgments dismissing suit for permanent injunction. Main grounds urged are that in absence of an issue having been framed about plaintiffs' title over Suit Properties; first appellate Court was not justified in framing point about title and

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dismissing appeal answering it in negative. Secondly, that RoR of Suit Properties produced by plaintiffs showed name of Kalikamba Devaru in Column-12 and same was not made as party to suit about which, plaintiffs were not provided opportunity.

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In view of nature of contentions urged, it is found appropriate to dispose of appeal at stage of admission itself. Therefore, appeal is admitted to consider following substantial question of law.

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"Whether first appellate Court erred in giving a finding on title when such issue was not framed and considered by trial Court?"

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It is not in dispute that present suit is for permanent injunction. Suit was filed by plaintiffs claiming to be legal representatives of late K. Ananda Rao, who was stated to be absolute owner of plaint Suit Properties . Plaintiffs produced RoR and khata in respect of Suit Properties which would indicate K. Ananda Rao as owner. Defendants contended that there existed 3 metre roadway on Suit Properties and that road belonged to Government and was developed from tar road to

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NC: 2026:KHC:1107 RSA No. 1151 of 2023

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concrete road without widening or encroachment on any private property. Said assertion was considered as denying or disputing title of plaintiffs, but no specific issue regarding title was framed by trial Court.

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Hon'ble Supreme Court in case of Anathula Sudhakar v. P. Buchi Reddy , reported in (2008) 4 SCC 594

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held, in a suit of injunction there would be no need for trial Court to spell on plaintiff's title over Suit Properties . However, it is also settled law that trial Court would be justified in going into question of title incidentally. In instant case, plaintiffs' grievance is against defendants widening road beyond 3 metres as it stood earlier. Plaintiffs do not claim any relief insofar as 3 metres wide road. Normally, trial Court as well as first appellate Court would not be required to labour on deciding title in respect to land over which 3 metres road was in existence. They were required to decide whether defendants were seeking for widening road by encroaching on any part of plaintiffs' land. If, incidentally question of title arose, Courts would require to frame specific issue, provide opportunity and thereafter decide same.

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NC: 2026:KHC:1107 RSA No. 1151 of 2023

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Perusal of impugned judgments passed by trial

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Court would indicate that there is no specific issue regarding title of plaintiffs over Suit Properties, but first appellate Court dismissed appeal virtually spelling on title while answering point no.1. As such, same would be in violation of Order XLI Rule 31 of CPC. At same time, it is seen that there is observation about non-compliance with Section 295 (2) of KPR Act, which is held to be not complied. Said finding is sought to be questioned on ground that in case of encroachment beyond existing road, action cannot be stated to be in exercise of powers under Act and would not attract protection. In light of same it would require reconsideration.

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Therefore, it is found fit to remit matter back to trial Court for fresh disposal by providing opportunity to plaintiffs to lead evidence on title. Need for impleading Kalikamba Devarur as a party to suit could also be reconsidered by trial Court. Therefore, I.A.no.2/2025 is dismissed as unnecessary with liberty to file said application before trial Court itself. Likewise, I.A.no.3/2023 filed for production of additional documents is also disposed of to be filed before trial Court upon framing of issue regarding title.

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NC: 2026:KHC:1107 RSA No. 1151 of 2023

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HC-KAR

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In view of above discussion, substantial question of law is answered in favour of appellants/plaintiffs. Appeal is allowed ; impugned judgment and decree dated 17.03.2023 passed by Principal Senior Civil Judge and JMFC, Bantwal, D.K., in R.A.no.9/2021 and judgment and decree dated 09.06.2021 by Principal Civil Judge and JMFC, Bantwal, Dakshina Kannada, in O.S.no.109/2012 are set aside.

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Matter is remitted back to trial Court with specific direction to frame issue regarding plaintiffs' title to Suit Properties (which shall be incidental to other issues), as additional issue no.2 and provide opportunity to parties to lead evidence thereon and to pass fresh judgment in accordance with law.

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In view of disposal of appeal, I.As.no.1 and 2 of 2023 are dismissed as unnecessary.

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Sd/(RAVI V HOSMANI) JUDGE

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GRD

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List No.: 1 Sl No.: 35

Meenakshi K v. Assistant Executive Engineer

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Meenakshi K v. Assistant Executive Engineer

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