Karnataka High Court
Smt Nagamma vs Sri N Nagaraj on 13 February, 2026
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NC: 2026:KHC:9346
RFA No. 2114 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR FIRST APPEAL NO. 2114 OF 2025 (DEC/INJ)
BETWEEN:
SMT. NAGAMMA,
W/O. VENKATESH,
AGED ABOUT 41 YEARS,
R/A. NO.183, 23RD CROSS,
MARUTHINAGARA SLUM,
ITTAMADU,
BSK 3RD STAGE,
BANGALORE - 560 085.
...APPELLANT
(BY SRI. CHANDRASHEKAR SWAMY K B., ADVOCATE)
AND:
Digitally signed
1. SRI. N. NAGARAJ,
by
SHARADAVANI B S/O NANJAPPA,
Location: High
Court of AGED ABOUT 63 YEARS,
Karnataka
R/AT NO.24, 23RD B CROSS,
MARUTHINAGARA SLUM,
ITTAMADU, BSK 3RD STAGE,
BANGALORE - 560 085.
2. SRI. PUNEETH KUMAR N,
S/O N. NAGARAJU,
AGED ABOUT 29 YEARS,
R/AT NO.24, 23RD 'B' CROSS,
MARUTHINAGARA SLUM,
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RFA No. 2114 of 2025
HC-KAR
ITAMADU BSK 3RD STAGE,
BANGALORE - 560 085.
3. THE COMMISSIONER,
BRUHATH BENGALURU MAHANAGARA PALIKE,
N.R. SQUARE,
BANGALORE - 560 002.
4. THE COMMISSIONER,
KARNATAKA SLUM CLEARANCE BOARD,
NO.55, RISALVAR ROAD,
SHESHADRIPURAM,
BANGALORE - 560 020.
...RESPONDENTS
(BY SRI. THIMMAIAH K H., ADVOCATE FOR R1 AND R2;
SRI.BATHE GOWDA K.V., ADVOCATE FOR R3;
SRI.R.MANJUNATH, ADVOCATE FOR R4)
THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 17.06.2025 PASSED IN
OS NO.2285/2022 ON THE FILE OF X ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU., DISMISSING THE SUIT
FOR PERMANENT PROHIBITORY INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
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NC: 2026:KHC:9346
RFA No. 2114 of 2025
HC-KAR
ORAL JUDGMENT
The captioned appeal is by the unsuccessful plaintiff assailing the order of the learned Judge passed on a primary issue regarding maintainability of the suit.
2. For the sake of brevity, the parties are referred to as per their rankings before the Trial Court.
3. Facts leading to the case are as under:
The plaintiff instituted the present suit seeking a declaration that the structure standing on Schedule 'B' property was illegally demolished by the defendants. The plaintiff has further sought a decree of permanent injunction restraining defendants No.1 to 3 from dispossessing her from Schedule 'A' property or from interfering with or trespassing upon the suit site.
4. Upon service of summons, the defendants entered appearance and filed their written statement. Defendant No.1 asserted absolute ownership over Site No.24, having purchased the same under a registered sale deed dated -4- NC: 2026:KHC:9346 RFA No. 2114 of 2025 HC-KAR 20.05.2003 from her vendor, K. Krishnaiah. The defendants contended that one Raju, who is the brother- in-law of the present plaintiff, had encroached upon a portion of the said property, thereby compelling them to institute a suit in O.S.No.4678/2005 seeking declaration of title and mandatory injunction for removal of the unauthorized construction put up by the said Raju. The said suit came to be decreed by judgment and decree dated 22.04.2009, which was subsequently affirmed by this Court in RSA No.611/2009.
5. It is further contended that in execution of the said decree, the defendants initiated proceedings in E.P.No.462/2022 and successfully enforced the decree. The defendants have also pointed out that the present plaintiff filed an obstruction application under Order XXI Rules 97, 98 and 101 of the Code of Civil Procedure, 1908 (for short, 'CPC') in the said execution petition. -5-
NC: 2026:KHC:9346 RFA No. 2114 of 2025 HC-KAR
6. In view of these pleadings, the learned Trial Judge framed preliminary issues and permitted the parties to address arguments thereon. Upon consideration, the Trial Court answered Additional Issue No.1 against the plaintiff and held that the present suit was not maintainable, particularly when the plaintiff had already invoked the remedy of obstruction under Order XXI Rule 97 CPC in E.P.No.462/2022. Holding that the suit was barred under Section 47 read with Order XXI Rule 101 of CPC, the learned Judge dismissed the suit as not maintainable.
7. Heard the learned counsel appearing for the plaintiff and the learned counsel for the defendants. Perused the impugned order. In the backdrop of the rival contentions and material on record, the following points arise for consideration:
(i) Whether the finding of the learned Trial Judge dismissing the suit as not maintainable on a preliminary issue is perverse -6- NC: 2026:KHC:9346 RFA No. 2114 of 2025 HC-KAR and warrants interference at the hands of this Court?
(ii) What order?
Finding on point No.(i):-
8. On meticulous examination of the records, it clearly emerges that defendant No.1 had earlier instituted a suit in O.S.No.4678/2005 against one Raju, who is none other than the brother-in-law of the present plaintiff, seeking declaration of title and consequential relief of mandatory injunction for removal of unauthorized construction. The said suit was decreed by the competent Civil Court granting both declaration and mandatory injunction. The judgment and decree were carried in appeal and ultimately affirmed by this Court in RSA No.611/2009, thereby attaining finality.
9. The present plaintiff has now instituted the instant suit asserting title over Site No.183 situated in Sy.No.3 of -7- NC: 2026:KHC:9346 RFA No. 2114 of 2025 HC-KAR Maruthi Nagar Slum, Ittamadu, BSK III Stage, Bengaluru, more fully described as Schedule 'A' property. The plaintiff contends that the process for issuance of possession certificate from BBMP in respect of Schedule 'A' property is in progress. It is her specific allegation that defendants No.1 to 3 have high-handedly demolished a portion of the property measuring 10 x 13 feet, described as Schedule 'B' property, and that such demolition was carried out by fabricating documents and without authority of law.
10. On closer scrutiny of the pleadings and materials placed on record, this Court finds that the Schedule 'B' property, which is now alleged to have been demolished, appears to form part of the subject matter of the earlier suit in O.S.No.4678/2005. If the demolition was undertaken in execution of a decree for mandatory injunction passed by a competent Civil Court and affirmed by this Court in RSA No.611/2009, the plaintiff cannot be permitted to circumvent the decree by instituting an independent suit.
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11. Once a decree has attained finality, the remedy of an aggrieved party lies in challenging the decree in accordance with law or establishing independent title in appropriate proceedings wherein the decree itself is put in issue. The present plaintiff, however, has neither challenged the decree passed in O.S.No.4678/2005 nor sought any declaratory relief to nullify or avoid its binding effect. Instead, she seeks a declaration that the demolition effected pursuant to such decree is illegal. Such a course is impermissible in law.
12. It is also significant to note that the plaintiff had already invoked the remedy available under Order XXI Rule 97 of the CPC by filing an obstruction application in the execution proceedings. Having chosen to avail the statutory remedy in execution, the plaintiff cannot simultaneously or subsequently maintain a separate suit seeking declaration that the demolition carried out in execution of the decree is illegal. The scheme of Section 47 read with Order XXI Rule 101 CPC clearly contemplates -9- NC: 2026:KHC:9346 RFA No. 2114 of 2025 HC-KAR that all questions arising between the parties to the execution proceedings or their representatives relating to right, title or interest in the property shall be determined by the executing court and not by way of a separate suit.
13. Therefore, unless the plaintiff establishes her independent title by appropriately challenging the earlier decree or seeking comprehensive declaratory relief, she cannot in isolation seek a declaration that the demolition pursuant to a binding decree is illegal.
14. At this juncture, learned counsel for the plaintiff would submit that though a third-party application was filed under Order XXI Rule 97 CPC in the execution proceedings, the same was rejected and the order was challenged before this Court. It is further submitted that since the decree was enforced during the pendency of such proceedings, the petition became infructuous and was accordingly withdrawn.
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15. Be that as it may, the fact remains that the plaintiff has not questioned the decree passed in O.S.No.4678/2005, which has attained finality upon affirmation by this Court. In the absence of any challenge to the foundational decree, the present suit seeking declaration that the demolition effected in execution thereof is illegal is clearly not maintainable.
16. In that view of the matter, this Court does not find any legal infirmity or perversity in the order of the Trial Court answering the preliminary issue against the plaintiff and dismissing the suit as not maintainable. For the foregoing reasons, Point No.(i) is answered in the 'Negative.' Finding on point No.(ii):-
17. For the foregoing reasons, this Court passes the following:
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NC: 2026:KHC:9346
RFA No. 2114 of 2025
HC-KAR
ORDER
The appeal is devoid of merits and
accordingly stands dismissed.
However, this order will not come in the way of the plaintiff in pursuing remedy strictly in accordance with law.
Sd/-
(SACHIN SHANKAR MAGADUM) JUDGE HDK List No.: 1 Sl No.: 6