Karnataka High Court
Sri. T. Krishnappa vs Sri. B. Nagaraju on 25 September, 2025
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NC: 2025:KHC:38980
RFA No. 1107 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
REGULAR FIRST APPEAL NO.1107 OF 2022 (INJ)
BETWEEN:
SRI T. KRISHNAPPA
S/O THAMMAIAH,
AGED ABOUT 69 YEARS,
RESIDING AT NO.133,
KARIYAMMANA AGRAHARA,
BELLANDUR POST,
BENGALURU-560103.
...APPELLANT
(BY SRI NAGAIAH, ADVOCATE)
AND:
Digitally signed by
MAHALAKSHMI B M 1. SRI B. NAGARAJU
Location: HIGH S/O LATE BASAPPAIAH,
COURT OF AGED ABOUT 85 YEARS,
KARNATAKA
RESIDING AT NO.133,
KARIYAMMANA AGRAHARA,
BELLANDUR POST,
BENGALURU-560103.
2. SRI NANJUNDAIAH
S/O LATE CHUNCHAPPA,
ANJANAPPA,
AGED ABOUT 70 YEARS,
R/AT KARIYAMMANA AGRAHARA,
BELLANDUR POST,
BENGALURU-560103.
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NC: 2025:KHC:38980
RFA No. 1107 of 2022
HC-KAR
3. SMT. ASHWATHAMMA
W/ N. RAMAKRISHNAIAH,
AGED ABOUT 72 YEARS,
RESIDING AT NO.603,
AECS LAYOUT, 'C' BLOCK,
1ST CROSS,
NEAR KUNDALAHALLI,
BENGALURU-560037.
4. M/S. M.S. RAMAIAH DEVELOPERS
AND BUILDERS PVT. LTD.,
NO.D-4, UTILITY BUILDING,
J.C. ROAD,
BENGALURU-560002,
REPRESENTED BY
SRI M.S. SEETHARAM.
...RESPONDENTS
(BY SRI R.B. SADASIVAPPA, ADVOCATE FOR C/R-3;
SRI S.V. BHAT, ADVOCATE FOR R-1 & R-2;
SMT. G.K. BHAVANA, ADVOCATE FOR R-4)
THIS RFA IS FILED UNDER SECTION 96 OF THE CPC,
AGAINST THE JUDGMENT AND DECREE DATED 22.03.2022
PASSED IN O.S.NO.6223/2012 ON THE FILE OF THE LXVIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
CITY, DISMISSED THE SUIT FOR INJUNCTION.
THIS APPEAL COMING ON FOR ORDER, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA
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NC: 2025:KHC:38980
RFA No. 1107 of 2022
HC-KAR
ORAL JUDGMENT
The present regular first appeal is preferred by the plaintiff challenging the judgment and decree dated 22.03.2022 passed in O.S. No.6223/2012, on the file of LXVIII Additional City Civil and Sessions Judge, Bengaluru City (CCH-69) (hereinafter referred to as 'trial court' for short), whereby the plaintiff's suit for permanent injunction came to be dismissed.
2. Factual matrix:
2.1. Original Survey No.23 measured 9 acres 6
guntas of cultivable and 6 guntas of karab land. Upon phodi, it was bifurcated into Survey Nos.23/1, 23/2, 23/3 and 23/4.
i. Survey No.23/1 measuring 2 acres 27 guntas of cultivable plus 5 guntas of karab was sold to M. S. Ramaiah Developers (defendant No.4).
ii. Survey No.23/2 measuring 1 acre 21 guntas of cultivable plus 3 guntas of karab was sold to defendant No.4.-4-
NC: 2025:KHC:38980 RFA No. 1107 of 2022 HC-KAR iii. Survey No.23/3 (suit property) measuring 21 guntas of cultivable plus 1 gunta of karab purchased by plaintiff under Ex.P1-sale deed, mutated in his name under Ex.P2 and subsequently, converted for non-agricultural use.
iv. Survey No.23/4 measuring 4 acres 17 guntas of cultivable plus 7 guntas of karab owned by defendant Nos.1 and 2, portion sold to Salarpuria Builders and Developers and acquired by the State.
2.2 Plaintiff claims to be the absolute owner of 22 guntas in Survey No.23/3, purchased from K.K. Muniyappa under Ex.P1. Property was mutated in his name and converted. The plaintiff alleged that the defendants interfered and attempted to encroach by putting up compound wall on 26.08.2012 and sought permanent injunction.
2.3. Phodi bifurcated Sy. No.23/2 into Survey No.23/2 (22 guntas) assigned to defendant No.3 (Smt. -5- NC: 2025:KHC:38980 RFA No. 1107 of 2022 HC-KAR Aswathamma), survey No.23/5 (1 acre 1 gunta) assigned to defendant No.4 (M.S Ramaiah Developers).
i. The plaintiff's appeal against the Tahsildar's order dated 06.01.2012, was dismissed by the Deputy Director of Land Records ('DDLR' for short) (Ex.D2) on 31.10.2012, confirming that defendant Nos.1 and 2 had encroached upon 18 guntas of Survey No.23/3. The Survey Sketch (Ex.D9) corroborated the encroachment.
ii. O.S. No.7948/2012 (Exs.D24 and D25) filed by defendant No.4 against the plaintiff in respect of Survey No.23/5 was decreed, restraining the plaintiff from interfering with defendant No.4's property.
iii. O.S. No.45661/2019 (Ex.D22) filed by the plaintiff for declaration and injunction over the same schedule property is pending adjudication.
2. 4 The Trial Court observed that the plaintiff has proved title through Ex.P1 and Ex.P2. The defendants had admitted the plaintiff's ownership. However, the -6- NC: 2025:KHC:38980 RFA No. 1107 of 2022 HC-KAR possession was not proved. Exs.D2 and D9 indicated that 18 guntas was encroached by defendant Nos.1 and 2. In the cross-examination, plaintiff admitted that defendant Nos.3 and 4 had not encroached and held that proper remedy was declaration and recovery, not injunction simplicitor and accordingly, dismissed the suit.
3. Learned counsel appearing for the appellant submits that the trial Court erred in dismissing the suit despite clear admission by defendants themselves.
i. In cross-examination, DW.2-General Manager of defendant No.4's company categorically admitted the ownership of the plaintiff over the schedule property. Defendant No.4 further admitted that he had not interfered with the possession and enjoyment of the plaintiff's 22 guntas in Survey No.23/3. Once such admission was on record, there was no justification for the trial Court to doubt the plaintiff's title and possession.
ii. Even defendant Nos.1 and 2, in their written statement and pleadings, admitted the plaintiff's -7- NC: 2025:KHC:38980 RFA No. 1107 of 2022 HC-KAR ownership over 22 guntas in Survey No.23/3. The trial Court ought to have drawn an adverse inference against them for not contesting the plaintiff's title, and should have confined the dispute only to the question of interference.
iii. The trial Court misdirected itself by treating the plaintiff's suit as one for declaration and possession, though relief sought was only for injunction. When both sides admitted plaintiff's ownership and no credible evidence of interference was produced by defendant Nos.3 and 4, the trial Court was bound to grant injunction protecting the plaintiff's peaceful possession.
iv. The trial Court has relied heavily on Ex.D2, the DDLR's order and certain stray admission of the plaintiff in cross-examination, without appreciating the consistent admission of defendants themselves. The approach of the trial Court has resulted in miscarriage of justice. -8-
NC: 2025:KHC:38980 RFA No. 1107 of 2022 HC-KAR
4. Per contra, learned counsel appearing for respondent No.3 would urge the following grounds:
i. Ex.D9 (Survey Sketch) established that 18 guntas out of 22 guntas in Survey No.23/3 had been encroached upon by defendant Nos.1 and 2. The cross examination of PW.1 also makes it clear that, although the plaintiff is the owner of Survey No.23/3, he is not in possession thereof, since 18 guntas is admittedly occupied by defendant Nos.1 and 2.
ii. The plaintiff himself candidly admitted during cross-examination that defendant No.3 has not encroached upon the suit schedule property. The allegation of encroachment against defendant No.3 is therefore baseless and unsustainable.
iii. The order of the DDLR categorically holds that defendant Nos.1 and 2 have encroached upon the suit land, and has not been challenged by the plaintiff. -9-
NC: 2025:KHC:38980 RFA No. 1107 of 2022 HC-KAR Consequently, that finding has attained finality and is binding on the parties.
iv. The survey sketch at Ex.D9 has not been seriously disputed by the plaintiff. Once Ex.D9 is accepted, it conclusively shows that defendant Nos.1 and 2 alone have encroached upon the property, and that defendant No.3-respondent No.3 has no role in such encroachment.
v. It is the submission that the suit against defendant No.3-respondent No.3 is wholly misconceived, in light of the categorical admission of plaintiff, that defendant No.3 interfered with the suit schedule property. The dismissal of suit as against defendant No.3/respondent No.3 by the trial Court is therefore just and proper and no interference is called for in the appeal.
5. Learned counsel appearing for respondent Nos.1 and 2 submits that:
i. These defendants are the owners of the property which situated towards the eastern side of
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NC: 2025:KHC:38980 RFA No. 1107 of 2022 HC-KAR plaintiff's Survey No.23/3. They have categorically denied having interfered with or encroached upon the plaintiff's 22 guntas. The defence is fortified by paragraph No.5 of their written statement, which makes it clear that the plaintiff has no cause of action against them.
ii. The main allegation in the plaint is against defendant No.4, who has purchased lands in Survey Nos.23/1 and 23/2 and allegedly attempted to put up a compound wall. Even the plaintiff has admitted that the alleged interference is traceable primarily to defendant No.4.
iii. In the cross-examination dated 28.03.2015, PW.1 admitted that there has been no quarrel or dispute between himself and defendant Nos.1 and 2 in respect of the eastern boundary from 1990 till the date of the suit. Though at one stage the plaintiff alleged encroachment, he later admitted that the issue of construction was with the other defendants. In paragraph No.15 of the judgment,
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NC: 2025:KHC:38980 RFA No. 1107 of 2022 HC-KAR the trial Court rightly recorded plaintiff's admission that any alleged encroachment was historical and not a present act of interference.
iv. The plaintiff filed O.S. No.45661/2019 Ex.D22 seeking declaration and injunction shows that the plaintiff is not in possession.
v. Once the plaintiff admitted lack of possession and suppression of material facts, the remedy lay in declaration and recovery of possession, not injunction, simplicitor. Plaintiff has failed to prove possession and hence, the trial Court was justified in dismissing the suit.
vi. It is submitted that the trial Court has correctly appreciated the pleadings, the admission and documentary evidence and the same does not warrant any interference.
6. Learned counsel appearing for respondent No.4 submits that:
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NC: 2025:KHC:38980 RFA No. 1107 of 2022 HC-KAR i. Under Ex.D2 the plaintiff himself preferred an appeal before the DDLR, which was dismissed with a categorical finding that 18 guntas of the suit property in Survey No.23/3 had been encroached by defendant Nos.1 and 2. As on the date of filing of the present suit, the plaintiff was fully aware of this encroachment. However, instead of seeking recovery of possession, he instituted a bare suit for injunction, which is not maintainable in law.
ii. Defendant No.4 instituted O.S. No.7948/2012 (Exs.D24 and D25) against the plaintiff in respect of Survey No.23/5 measuring 1 acre 1 gunta, which had been purchased by defendant No.4 under a registered sale deed. The said suit was decreed, and the plaintiff was permanently restrained from interfering with the possession and enjoyment of defendant No.4's property. Therefore, the allegation that defendant No.4 ever interfered with Survey No.23/5 is contrary to record and wholly untenable.
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NC: 2025:KHC:38980 RFA No. 1107 of 2022 HC-KAR iii. Reports of the Tahsildar, Bangalore East Taluk, after conducting survey and phodi, have confirmed that it is defendant Nos.1 and 2 who encroached upon the suit schedule property. Ex.D2 and other records coupled with the plaintiff's own admission conclusively established that defendant No.4 has not encroached.
iv. In cross-examination, PW.1 admitted that he had not complained to the revenue authorities regarding encroachment by defendant Nos.1 and 2. He further admitted that defendant Nos.3 and 4 have not encroached upon the suit property.
v. During the pendency of the present suit, the plaintiff instituted O.S. No.45661/2019 seeking declaration on the plea that he was unaware 'as to who had encroached his property'. This stand is wholly inconsistent with his admission in cross-examination that he knew defendant Nos.1 and 2 had encroached. Such
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NC: 2025:KHC:38980 RFA No. 1107 of 2022 HC-KAR contradictory conduct shows that the plaintiff is not entitled for equitable relief.
vi. It is submitted that the plaintiff, being aware about the encroachment by defendant Nos.1 and 2 having lost possession, ought to have sought declaration and recovery. As against respondent No.4 there is no cause of action. The present appeal is, therefore, misconceived and liable to be dismissed.
7. Having heard the learned counsel on both sides, the point that arises for consideration is:
"Whether the trial Court was justified in dismissing the suit holding that the plaintiff has failed to establish possession relying upon Exs.D2 and D.9?"
8. The plaintiff claims ownership of Survey No.23/3 measuring 22 guntas. The ownership of the plaintiff is not in dispute. In a suit for injunction, the plaintiff has to prove the possession as on the date of suit. Ex.D2 is the order of the DDLR, wherein the plaintiff had challenged the order of the Tahsildar dated 06.01.2012
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NC: 2025:KHC:38980 RFA No. 1107 of 2022 HC-KAR regarding bifurcation of Survey No.23/2 into Survey No.23/2 and Survey No.23/5 and the phodi/sketch relating to Survey No.23/3. The appeal was dismissed, with a categorical finding that defendant Nos.1 and 2 (owners of Survey No.23/4) had encroached upon 18 guntas of the plaintiff's land in Survey No.23/3. Ex.D5 is the survey sketch report dated 10.08.2012 prepared by the Survey Department. The revenue proceedings conducted on the encroachment dispute between the plaintiff and defendants confirmed that encroachment of 18 guntas of Survey No.23/3 by defendant Nos.1 and 2 (owners of Survey No.23/4), Exs.D2 and D9 clearly establish that the plaintiff has lost possession to the extent of 18 guntas due to the encroachment by defendant Nos.1 and 2.
9. PW.1, in his cross-examination, admitted that as per the DDLR order in Appeal No.21/12-13, the property in Survey No.23/3 was encroached by defendant Nos.1 and 2. Further, PW.1 admitted that he has not complained to the Revenue Authority stating that
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NC: 2025:KHC:38980 RFA No. 1107 of 2022 HC-KAR defendant Nos.1 and 2 encroached upon the suit schedule property. He further admitted that respondent Nos.3 and 4
- defendants Nos.3 and 4 have not interfered with the plaintiff's possession and thus, the suit as against them is one without cause of action. Exs.D2 and D9 coupled with the categorical admission of the plaintiff regarding the encroachment of 18 guntas by defendant Nos.1 and 2 and his further admission that defendant Nos.3 and 4 had not encroached, clearly establish the same. Once an encroachment is established, the plaintiff's remedy lies in declaration and recovery and not injunction. This position is settled in light of the decision of the Apex Court in the case of Anathula Sudhakar vs P. Buchi Reddy (dead) by L.Rs and Others1 (Anathula Sudhakar) wherein the Apex Court has summarized at paragraph No.21 as under:
"21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
1
(2008) 4 SCC 594
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NC: 2025:KHC:38980 RFA No. 1107 of 2022 HC-KAR
(a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202] ). Where the averments regarding title
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NC: 2025:KHC:38980 RFA No. 1107 of 2022 HC-KAR are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a
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NC: 2025:KHC:38980 RFA No. 1107 of 2022 HC-KAR more comprehensive declaratory suit, depending upon the facts of the case."
10. The Apex Court held that where the title is not in dispute but possession is lost, a suit for injunction is not maintainable. Declaration and possession must be sought. The plaintiff has already instituted O.S. No.45661/2019 for declaration of title and permanent injunction against the defendants. The said suit is pending adjudication. The subject matter and the suit property in both suits are identical and the plaint in O.S. No.45661/2019 is marked as Ex.D22. The plaintiff has failed to establish any interference by defendants, more particularly respondent Nos.3 and 4 and on the other hand, Exs.D2 and D9 have established an encroachment of 18 guntas by defendant Nos.1 and 2.
11. For the foregoing reasons, the point framed for consideration is answered, holding that the trial Court has properly appreciated the oral and documentary evidence,
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NC: 2025:KHC:38980 RFA No. 1107 of 2022 HC-KAR the findings that the plaintiff has title and not possession is sound, the dismissal of the suit was therefore correct and does not warrant any interference and this Court pass the following:
ORDER I. The regular first appeal is dismissed. II. The judgment and decree dated 22.03.2022 passed in O.S. No.6223/2012, on the file of LXVIII Additional City Civil and Sessions Judge, Bengaluru City (CCH-69) is hereby confirmed.
Sd/-
______________________ JUSTICE K.S. HEMALEKHA MBM List No.: 1 Sl No.: 20