Karnataka High Court (Single Judge, V. Srishananda J.) — Regular Second Appeals under S.100 CPC — property and encroachment dispute between adjacent owners in Kote Ramadevara Temple Street, Holenarasipura Town (Hassan district). Plaintiff M.A. Rajaiah sued in O.S.No.92/1995 (declaration, possession, mandatory injunction to demolish wall, damages) and O.S.No.15/1996 (declaration, mandatory injunction to demolish sajja and close windows, possession, permanent injunction), alleging that defendant Vishnupadachar encroached 2 ft x 40 ft / 2 ft x 27 ft into a lane (oni) on the eastern side of his property and built beyond sale-deed measurements. Both suits were dismissed by the Trial Courts; on first appeal, R.A.No.32/2007 decreed declaration with Rs.51,000/- damages but refused mandatory injunction, while R.A.No.26/2002 decreed the suit as prayed, including mandatory injunction to close the windows and remove the sajja. Held, dismissing RSA Nos.198/2010 and 339/2010 and allowing RSA No.337/2010: (a) a plaintiff seeking declaration and consequential reliefs is duty bound to prove that the property exists as per the sale-deed measurements; the plaints suppressed the petty shop of Chaluvashetty and a public gutter within the property, and the measurements varied; (b) the Court Commissioner's report (Ex.C-1/C-2), rendered on a court-settled memo of instructions and tested in cross-examination, was rightly accepted — both Courts below found no encroachment; (c) the defendant's construction of 20 ft (against 18½ ft in his sale deed) was explained by the removal of 5-ft-thick mud walls; (d) the window pre-existed in the ground-floor old house when the defendant purchased in 1979, so no objection lies to its opening in the first floor; (e) the Municipality — whose records on the oni were the subject of writ proceedings (W.A.Nos.4683/2002 and 4685/2002, with a direction to enquire after the civil suit) — was neither impleaded nor was any official summoned; (f) whether the construction violated the sanction plan is a matter for separate proceedings, there being no issue or counterclaim; (g) the declaratory decree was left undisturbed, the refusal of mandatory injunction upheld, and the direction to close the windows and remove the sajja held unsustainable. Substantial questions framed on 11.02.2010 were answered partly in the affirmative (subject to further proceedings before the Municipality); the questions framed on 17.04.2026 were answered in the affirmative in RSA Nos.198/2010 and 339/2010 and in the negative in RSA No.337/2010. RSA Nos.198/2010 and 339/2010 dismissed; RSA No.337/2010 allowed; no order as to costs.
