Karnataka High Court
M Murthy vs M Pankajakshi on 14 May, 2025
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NC: 2025:KHC:18338
RFA No. 429 of 2008
C/W RFA No. 861 of 2009
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF MAY, 2025
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 429 OF 2008 (INJ)
C/W
REGULAR FIRST APPEAL NO. 861 OF 2009 (INJ)
IN RFA NO. 429 OF 2008
BETWEEN
M MURTHY,
S/O K MANICKAM,
AGED ABOUT 60 YEARS,
R/AT NO.3, HENNUR ROAD,
I CROSS, ST.THOMAS TOWN POST,
BANGALORE-560 084.
...APPELLANT
(BY SRI S SHAKER SHETTY, ADVOCATE [V/C])
Digitally signed AND:
by NANDINI R
Location: HIGH M PANKAJAKSHI,
COURT OF
KARNATAKA W/O N DESAN,
AGED ABOUT 60 YEARS,
OLD CORPN NO.20/3,
NEW NO.38, III CROSS,
VIVEKANANDANAGAR,
BANGALORE-560 033.
...RESPONDENT
(BY SRI K RAMESH RAO, ADVOCATE [PH])
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 23.02.2008 PASSED IN
OS.NO.5455/1996 ON THE FILE OF THE IX ADDL. CITY CIVIL
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NC: 2025:KHC:18338
RFA No. 429 of 2008
C/W RFA No. 861 of 2009
JUDGE, BANGALORE, PARTLY DECREEING THE SUIT FOR
PERMANENT INJUNCTION.
IN RFA NO 861 OF 2009
BETWEEN:
P KESHAVAN,
S/O PERUMAL,
AGED ABOUT 63 YEARS,
PREMISES BUILT ON SITE NO.88,
OF SY.NO.82/2 OF LINGARAJAPURAM,
III CROSS ROAD, VIVEKANANDANAGAR,
BANGALORE-560 033.
PRESENTLY R/AT NO.47,
III CROSS, VIVEKANANDANAGAR,
BANGALORE-560 033.
...APPELLANT
(BY SRI S SHAKER SHETTY, ADVOCATE [V/C])
AND:
1. M PANKAJAKSHI,
W/O N DESAN,
AGED ABOUT 62 YEARS,
PREMISES NO.20/3, III CROSS ROAD,
VIVEKANANDANAGAR,
BANGALORE-560 033.
2. MOHAMED AKBAR,
FATHERS NAME NOT KNOWN
TO THE APPELLANT,
MAJOR,
NO.34, K.NO.4TH STREET,
ARMSTRONG ROAD CROSS,
BHARATHINAGAR,
BANGALORE-560 011.
(DELETED AS PER THE ORDER OF COURT ON 10.02.2010)
...RESPONDENTS
(BY SRI K RAMESH RAO, ADVOCATE FOR R1;
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NC: 2025:KHC:18338
RFA No. 429 of 2008
C/W RFA No. 861 of 2009
R2 IS DELETED V/O DATED 10.02.2010)
THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 13.8.2009 PASSED IN
O.S.NO.7557/1994 ON THE FILE OF THE XXII ADDL. CITY
CIVIL JUDGE BANGALORE, DECREEING THE SUIT FOR
MANDATORY INJUNCTION.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT AND COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT', THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
CORAM: HON'BLE MR. JUSTICE C M JOSHI
CAV JUDGMENT
Aggrieved by the judgment and decree dated 23.02.2008 passed in O.S.No.5455/1996 passed by learned IX Additional City Civil Judge, Bangalore and judgment and decree dated 13.08.2009 passed in O.S.No.7557/1994 by learned XXII Additional City Civil Judge, Bangalore, decreeing the suits for injunction, the defendant No.1 therein are in appeals.
2. The subject matter of the dispute being a 20 feet wide cross road situated in between the property of the plaintiff and that of defendant No.1 in both the suits, -4- NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 these appeals are clubbed and are taken up together though they were tried separately before the trial Court.
3. The parties would be referred to as per their ranks before the trial Court for the sake of convenience.
4. Brief facts of the case in OS No.5455/1996 are as below:
The plaintiff-M.Pankajakshi, is the owner in possession of the residential premises in site No.20/3 of III Cross, Vivekananda Nagar, Bengaluru. Earlier, the said site was numbered as Site No.9 and later, it was numbered as site No.28. The layout was formed in Sy.No.82/2 of Lingarajpuram. The plaintiff purchased the site under Sale Deed dated 22.06.1981 and later, she got a building plan sanctioned and constructed a house in the same. The plaintiff contends that there is 20 feet wide cross road (hereinafter referred to as 'suit road' for short) on the western side of her site, which gives her access to the third main road of the said area. She claims that it is -5- NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 the only road to approach her house and is used for ingress and egress to her house.
a) It is the case of the plaintiff - M.Pankajakshi that one Mohamed Akbar was the owner of site Nos.28 and 47, which were across the site of the plaintiff, situated on the western side of the 20 feet wide cross road. He attempted to encroach upon suit road in the year 1982 and tried to build a compound wall. The plaintiff filed O.S.No.10181/1982 against Mohamed Akbar and the Municipal Corporation. After contest, the said suit came to be decreed on 01.10.1988 and has become final.
b) The site No.28, which was earlier owned by the said Mohamed Akbar was sold to one Sumathi. In turn, she sold the same to defendant No.1 in O.S.No.5455/1996 i.e., Sri M.Murthy. The said defendant No.1 with a malafide intention of encroaching the suit road, obtained a sanctioned plan and tried to put up construction by dumping building materials. A request to defendant No.2-
Corporation went in vain. Therefore, the plaintiff- -6-
NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 Pankajakshi filed O.S.No.5455/1996 against the said Murthy seeking permanent injunction.
c) In OS No. 5455/1996 the plaintiff has sought following prayers:
"WHEREFORE, she prays that this Hon'ble Court may be pleased to pass a judgment & decree by granting permanent injunction:
i) to restrain the Defendant No.1, his supporters, henchmen etc., from interfering with the peaceful use and enjoyment of the 20 feet Cross Road, by the plaintiff and her family members, by restraining the Defendant No.1 from encroaching into the suit schedule property by putting up any structure;
ii) to direct the Defendant No.2 not to sanction the plan till the disposal of this suit;
iii) to grant such other relief or reliefs as this Hon'ble Court deems fit to grant;
iv) to award cost of this suit, in the interest of justice and equity."
d) Defendant No.1 in O.S.No.7557/1994- P.Keshavan had purchased the site No.47 from Mohamed Akbar during pendency of O.S.No.10181/1982. The said P.Keshavan started repeating the illegal activities of -7- NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 Mohamed Akbar and despite the protest, he was able to put up a construction and compound wall by encroaching an area of 8 feet over the suit road, which is in violation of the decree. Contending that such illegal construction is liable to be demolished, she sought for permanent injunction as well as mandatory injunction against defendant No.1-P.Keshavan. The said Mohamed Akbar is arrayed as defendant No.2 in O.S.No.7557/1994.
e) In OS No. 7557/1994 the plaintiff has sought following prayers:
"WHEREFORE, under the above circumstances, the plaintiff prays that this Hon'ble court be pleased to pass a judgment and decree of Mandatory Injunction and also prohibitory Injunction against the defendants directing them:
(a) to pull down the unlawful and unauthorised construction and the compound wall put up on the encroached 8 feet space in the 20 feet cross Road forthwith and clear the space;
(b) to restrain/prevent the defendants permanently from interfering in the use and enjoyment of this 20 feet wide cross Road by the plaintiff and his family members to reach her residential premises; -8-
NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 II. against the first defendant, second defendant and the third defendant (i) for contempt of court for violating the judgment/decree and the directions passed in O.S. 10181/82, of the Hon'ble City Civil Judge, Mayo Hall, Bangalore and (ii) send them to civil prison and take such further action necessary in the circumstances;
III. Grant costs of this suit, and further grant such and similar reliefs deem fit under the circumstances in the interest of justice and equity."
5. In O.S.No.7557/1994, the said Keshavan did not file any written statement for considerably long time. Later, he sought to file the written statement seeking leave of the Court. The trial Court rejected the same by considered order dated 03.12.2007, which was challenged in W.P.No.1024/2008. The writ petition also came to be dismissed on 14.03.2008 (Ex.P27) and thereby the right to file a written statement got extinguished.
6. In O.S.No.5455/1996, defendant No.1- M.Murthy though admitted that the plaintiff is the owner of her site, denied the version of the plaintiff that there was any obstruction or encroachment by him. He contended -9- NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 that there was a proposal to form 20 feet vide road at the time of the formation of the layout, but the plaintiff and adjacent owners have unauthorizedly extended and encroached on it by about 14 feet. Therefore, he alleged that the plaintiff has not approached the Court with clean hands. He distanced himself away from any knowledge of O.S.No.10181/1982 as he was not a party to it. However, he admitted that Keshavan was the purchaser of the site from Mohamed Akbar and that he was his neighbour. Thus, he contended that there is no such encroachment by him and as such, the suit is liable to be dismissed.
7. Defendant No.2-Municipal Corporation filed its written statement contending that the suit is not maintainable in law and the averments made in the plaint are not within its knowledge. It denied the allegations of encroachment and sought for dismissal of the suit.
8. Based on the above contentions, following issues/points were framed and answered by the trial Court:
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 ISSUES IN O.S.5455/1996
1. Whether the plaintiff proves her alleged lawful use and enjoyment of the suit schedule property, along with her family members, as on the date of the suit?
2. Whether the plaintiff further proves the alleged obstructions by the defendants?
3. Whether the plaintiff is entitled to the suit relief sought against the defendants?
4. What Order or Decree?POINTS IN O.S.7557/1994
1. Whether the plaintiff proves the existence of 20' cross road as alleged by her to the west of her property?
2. Whether the plaintiff proves that defendant No.1 has encroached 8*28' in the said road and put up construction?
3. Whether the suit for mere mandatory injunction is not maintainable?
4. Whether plaintiff is entitled for the reliefs sought for?
5. What decree or order?
9. In both suits, the power of attorney holder of the plaintiff-Pankajakshi was examined as PW.1. One witness was examined on her behalf in O.S.No.5455/1996
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 as PW.2. Exs.P1 to P42 were marked in O.S.No.7557/1994 and Exs.P1 to P32 were marked in O.S.No.5455/1996. Defendant No.1 in O.S.No.7557/1994 being a Power of Attorney Holder of defendant No.1 in O.S.No.5455/1996, deposed in both the suits as DW.1. One witness, M.R.Johans was examined as DW.2 in both these suits. Ex.D1 to D34 were marked in O.S.No.7557/1994 and Ex.D1 was marked in O.S.No.5455/1996.
10. After hearing the arguments, O.S.No.5455/1996 was decreed on 23.02.2008 and O.S.No.7557/1994 was decreed on 13.08.2009. Being aggrieved, defendant No.1-Murthy, in O.S.No.5455/1996 approached this Court in RFA.No.429/2008 and defendant No.1-P.Keshavan, in O.S.No.7557/1994 approached this Court in RFA.No.861/2009.
11. On the appeals being admitted, the respondent/plaintiff has appeared through her counsel in both these appeals. The trial Court records have been secured.
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009
12. The arguments by learned counsel Sri S.Shaker Shetty, appearing for appellant in both the appeals and the arguments by learned counsel Sri K.Ramesh Rao, appearing for the respondent/plaintiff in both the appeals are heard.
13. In RFA.No.861/2009, the appellant has filed an application in IA.No.1/2023 for appointment of Court Commissioner. The same was resisted by the respondent by filing objections. The arguments on main appeal as well as the application are heard.
Arguments:
14. Learned counsel appearing for the appellant Sri Shaker Shetty has argued the matter elaborately on the following aspects:
a) The injunction claimed in both suits is in respect of the alleged encroachment on a public road. Therefore, the remedy for an injunction in rem had to be sought by invoking the provisions of Section 91 of CPC. It is
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 submitted that the suit should have been filed in representative capacity and therefore, the present suit is not maintainable.
b) The road, which is the subject matter of the suit is belonging to the Municipal Corporation and therefore, the provisions of the Municipal Corporations Act are applicable. As such, the suit is not maintainable since an efficacious remedy is available under the said Act.
c) The Court fee paid is only in respect of one prayer but there being two prayers, there is insufficient Court fee paid. Such contention was raised by the defendant in O.S.No.5455/1996 in paragraph No.11 of the written statement. The trial Court should have framed a preliminary issue in that regard and as such, the decree is liable to be set aside.
d) The plaintiff-Pankajakshi never entered the witness box, and it was the only her GPA Holder who deposed before the Court. The GPA being of the year
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 2001, PW.1 had no personal knowledge and therefore, such evidence deserves to be discarded. In this regard, he placed reliance on the judgment in the case of Janki Vaishdeo Bhojwani and Another v. IndusInd Bank Ltd., and Others1.
e) In O.S.No.5455/1996, the Corporation has contended that there is no such road in existence. Therefore, there could not be any construction on the alleged road by the defendants.
f) The plaintiff contends that the defendant No.1- Murthy has stored construction material and it is only the apprehension that he may construct a building. Therefore, the trial Court has not appreciated the evidence in a proper way. In fact, there is no such construction made by the said defendant. The cross-examination of PW.1 was not considered by the trial Court in appropriate manner but only the conduct of the defendant was elaborately 1 AIR 2005 SC 439
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 discussed. The trial Court has adopted different yardstick for the plaintiff and the defendant.
g) It is submitted that the Sale Deeds at Ex.P2, P4, P5 and P10 show that there is a road adjoining the site. But the width of the suit road is not mentioned anywhere. The site of the defendant measures 30 feet X 40 feet and there is no encroachment made by him even to the extent of 1 inch. It is submitted that the O.S.No.10181/1982 being an injunction suit simpliciter, it has no effect on the present suit.
h) Lastly, he submits that to render justice in the case, the application filed by the appellant under Order XXVI Rule 9 of CPC seeking to appoint a Court Commissioner to identify the suit road be allowed.
i) In support of his contentions, he placed reliance on following decisions:
1. Mathew Phillips v. P. O. Koshy2 to contend that when it is violation of the conditions of the building 2 AIR 1966 MYS 74(V 53 C 20)
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 permission granted by the Municipal Corporation, it is for the Corporation to take action. The case on hand being the obstruction of the way to the plaintiff's property, it is not a case of violation of the building bylaws. As such the applicability cannot be accepted.
2. M/s. Vora Automotives Pvt. Ltd v. Gopalrao Namdeorao Pohre and Others3 is also a case of violation of the building bylaws and the building permission itself being in contradiction to such bylaws, can very well be distinguished from the facts of the case on hand.
3. Jaipur Vidyut Vitran Nigam Ltd. and Others v. MB Power (Madhya Pradesh) Limited and Others4 is a case where the Apex Court held that when a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that statutory remedy. In the case on hand, there is no such statutory remedy available to the plaintiff. The Corporation has taken a stand that there is no such suit road. Therefore, the above decision has no applicability to the facts of the case. 3 AIR 1993 BOM 151 4 AIR 2024 SC 721
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009
4. Srikant Kashinath Jituri and Others vs Corporation of city of Belgaum5 deals with the challenge to the tax revision by the Municipal Corporation, obviously, the suit was held to be not maintainable. Clearly, the facts can be distinguished.
5. Janki Vashdeo Bhojwani and Another v. Indusind Bank Ltd., and Others (AIR 2005 SC 439)- lays down that the power of attorney holder cannot depose in place and instead of the principal. It is relevant to note that the law is clarified in a subsequent reference to a larger bench in A C Narayanan Vs State of Maharashtra and another6 where it was held that if the PA holder has personal knowledge of the facts, he is at liberty to depose in the matter. In the cases on hand, the PW1 is the son of the plaintiff. This judgment also clarifies the position laid in the judgment of S Kesari Hanuman Goud Vs Anjum Jehan7 which is relied by the appellants.
6. Vidhyadhar v. Manikrao and another8 lays down that when a party to the suit so not enter the witness box, adverse inference to be drawn. The facts reveal that the defendant had not examined 5 (1994) 6 SCC 572 6 (2014)11 SCC 790 7 2013 AIR SCW 3561 8 AIR 1999 SC 1441
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 himself or his power of attorney, to establish his case. In the cases on hand, the PW1 is none else than the son of the plaintiff.
7. Union of India and Others vs Vasavi Cooperative Housing Society Limited and Others9 deals with the burden of proof and holds that the revenue records do not confer title and a declaration of title cannot be based on revenue records. As there is no claim for declaration of title in the present cases, this judgment is of no relevance to the cases on hand.
8. Devasahayam (dead) by LRs vs P. Savithramma and Others10 deals with the principle that a decree without jurisdiction is nullity. It was a case for eviction and the Rent Control Act being applicable, a decree by Civil court was held to be nullity. This Court having concluded that the trial Court had jurisdiction, the decision is inapplicable.
9. State of Punjab and Others v. Dr. R. N. Bhatnagar and Another11 lays down that a pure question of law can be raised for the first time in the appeal. There can be no qualms for this proposition. The question of law regarding the jurisdiction is considered and answered by this Court. 9 (2014) 2 SCC 269 10 (2005) 7 SCC 653 11 AIR 1999 SC 647
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009
10. Veeragouda and Others vs Shantakumar @ Shantappagowda12 lays down that the question of Court Fee raised in the written statement needs to be heard as preliminary issue, in accordance with Order 14 rule 2 of CPC. In the case on hand (OS 5455/1996), it was not urged by the defendant that it should be heard as preliminary issue. However the trial Court has considered it and ordered to draw the decree only if the Court fee is made good by the plaintiff.
11. Rajendra Shankar Shukla and Others vs State of Chattisgarh and Others13 deals with the role of the local bodies and Town Planning authority in formation of the lay-outs. Obviously, the role of the Town Planning Authority, which formed the layout is not in question in the present case. The appellants have not produced any material to show that the layout formed did not have the suit road at all. Hence this decision is of no relevance to the cases on hand.
12. Satheedevi v. Prasanna and Another14 deals with the way the Court fee has to be calculated when a document of title is sought to be annulled. 12 ILR 2009 KAR 887 13 (2015) 10 SCC 400 14 AIR 2010 SC 2777
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 It was held that the value mentioned in the document is relevant but not the market value. Obviously, this judgment is not no relevance.
13. In State of Bihar and others Vs Sri Radha Krishna Singh15 the Apex Court, in para 143 summarised the position of the effect of a judgment in personam and a judgment inter-partes. It is relevant to note that an admission given by the previous holder in title of the property of the property of the defendant is a relevant fact, albeit the judgment may not be in rem. Evidently, the statement made by the vendor of the defendants was ante-litem, so far as the defendants are concerned.
14. Nagindas Ramadas Vs Dalpatram Ichharam alisas Brijram16 is a case which dealt with the admissions made in pleadings and evidence. It was held that admissions made by parties at or before hearing of a case are on higher footing than evidentiary admissions. In the case on hand, the admission by the vendor of defendant No.1 in an earlier proceeding, that too in the pleadings is obviously on the higher footing. Therefore, this judgment is helpful to the case of the plaintiff. 15 AIR 1983 SC 684 16 (1974) 1 SCC 242
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009
15. Per contra, learned counsel appearing for the respondent/Plaintiff has submitted his elaborate arguments on following aspects:
a) The vendor of the appellants admits in the written statement filed in O.S.No.10181/1982, which is at Ex.P12, that there exists a 20-foot suit road. This aspect has been considered by the trial Court in O.S.No.5455/1996 elaborately. When the vendor of the appellants has categorically admitted in his pleadings the existence of 20 feet width suit road, there is no reason for the appellants to dispute the same.
b) The requirement of the suit road is very much essential for the plaintiff since she has no other alternative road. On the other hand, the site of the defendants being a corner site is accessible from the third main road and therefore, the necessity is for the plaintiff.
c) The trial Court has precisely addressed the question as to what the width of suit road is and has come
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 to a conclusion that the width of such road is 20 feet. He submits that the pivotal question that is required to be addressed is width of the road and nothing else. If the width of the road is held to be 20 feet, the illegal construction of the defendants is liable to be removed.
d) He points out to the conduct of DW.1 and allege that he being a purchaser during the pendency of the earlier suit, is bound by finding in the said suit. Despite that, he purchases the site from Mohamed Akbar and therefore, the findings and the conclusions are binding upon him.
e) It is submitted that in O.S.No.5455/1996, Sri.Keshavan is the GPA Holder of Mr.Murthy. They are relatives and therefore, his evidence is of collusive nature.
f) It is submitted that the Corporation was a party before the trial Court but for the best reasons known to the appellants, they have not arrayed the Municipal Corporation as a necessary party in the appeal. Therefore,
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 they cannot contend that the provisions of the Municipal Corporation Act should have been invoked by the plaintiff.
g) So far as I.A.No.1/2023 is concerned, he submits that a similar application was filed before the trial Court and it came to be dismissed and later, such order came to be confirmed by this Court also. It is submitted that when the width of the suit road is reduced from 20 feet to 12 feet and the defendants admitting that there is a passage of 6 feet, the alleged encroachment is established and therefore, there is no need for appointment of the Court Commissioner. He submits that the alleged encroachment by the plaintiff and all such other site holders on the eastern and western side of the suit road having not been pleaded and such site holders not being a party to the suit, the appointment of the Court Commissioner would not be of any relevance. Therefore, he seeks rejection of the application as well as dismissal of the appeals.
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009
16. In the light of the above submissions, the points that arise for consideration in both these appeals are as below:
i) Whether there is need for appointment of the Court Commissioner as prayed in I.A.No.1/2023 in RFA No.861/2009?
ii) Whether the trial Court was right in holding that the suit road is 20 feet vide?
iii) Whether the grant of mandatory injunction by the trial Court is proper?
17. The fact that both the appellants are the purchasers of site Nos.28 and 47 from one Mohamed Akbar, who was the defendant in O.S.No.10181/1982 is not in dispute. Obviously, the said Mohammed Akbar is defendant No.2 in O.S.No.7557/1994. He has not filed any written statement despite he had resisted the O.S.No.10181/1982. Evidently, the said suit came to be decreed and has attained finality.
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009
18. It is also an admitted fact that the said Mohamed Akbar had filed a suit in O.S.No.1326/1982 against the plaintiff and another, and the said suit came to be dismissed for non-prosecution. By virtue of these proceedings, the fact that emerges is that there exists a road in between the site of the plaintiff and the two sites belonging to the defendants/appellants. The only question would be what the width of the said road is and whether there is encroachment as contended by plaintiff. Reg. Point No.1:
19. It must be observed that in the written statement of Sri.M.Murthy, the larger question that there was encroachment by the plaintiff and that the measurements of the sites on the western and eastern side of the suit road is not raised. Now by filing an application under Order XXVI Rule 9 of CPC, the appellant wants to measure all the sites, which are situated on the western side of the suit road to demonstrate that the site purchased by Mohamed Akbar and later, by the appellants
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 has the same dimension as mentioned in their sale deeds. In other words, a contention which is not raised in the written statement is sought to be brought before the Court. As rightly pointed out by learned counsel for the respondent, the owners of all the sites are not made parties to the suit. Therefore, measuring the sites in the layout and then to conclude whether there existed a 20 feet-width suit road would be futile exercise. It would not help the Court in rendering effective judgment.
20. Moreover, such an application was filed before the trial Court and the trial Court had dismissed the same. It was challenged before this Court in WP No.7193/2009 and it also came to be dismissed.
21. It is pertinent to note that the Court Commissioner for measurement of the property would be a proper remedy if the evidence is insufficient or such report is necessary to elucidate the matter which is brought on record. When there is evidence to show that there existed a 20 feet road, as concluded by the trial
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 Court, and also in a previous suit, it is not necessary to appoint a Court Commissioner to render an effective judgment. The measurement of the sites purchased by the appellants and their adjoining holders would only result in enlarging the scope of the suit. It would result in ineffective and unwarranted facts to be brought on record, bereft of pleadings. If any such contention was to be taken, it was open for the appellants to implead all the holders of the sites in the layout and take a call to measure the entire layout afresh. Therefore, such an argument by learned counsel appearing for the appellant is devoid of any merit. Hence, the application deserves to be dismissed and hence, it is dismissed. The point No.1 is answered accordingly.
Point Nos.2 and 3:
22. As noted above, the fundamental question that needs to be addressed is about width of the suit road. The trial Court in both the suits filed by the plaintiff (which was disposed of by two different judges) has concluded that
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 there exists the road of the width of 20 feet. The first judgment rendered is the one in O.S.No.5455/1996. In this judgment, the trial Courts scans over the documents produced by the plaintiff and after rejecting several of the documents on the ground that they do not pinpoint the width of the road, in paragraph Nos.14 and 15, it observes as below:
"14. Ext.P.17 is a certified copy of the plaint presented in O.S 10181/82 filed by the plaintiff against Mohd Akbar for permanent injunction in respect of her property and the schedule property. Ofcourse, the western boundary of it is shown as just cross road. As its width is not pointed out, the plaintiff cannot obtain any benefit out of it. However, Ext.P.18 which is a certified copy of the written statement presented in the said suit by Mohd Akbar is of crucial importance for the plaintiff for simple reason that in Para-5 of it the defendant had categorically admitted the width of the road as 20' clinching the issue in question. As the 1st defendant has derived his title to his property from Mohd Akbar, he cannot differ from the said stand and contend to the contra. Thus, Ext.P.18 has emerged as a source of tangible help to the plaintiff.
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009
15. Ext.P.19 & Ext.P.19 (a) are the certified copy of the Judgment and Decree rendered in O.S 10181/82. The first issue that had been raised in the suit is of some importance for the plaintiff as it relates to her possession and enjoyment of the schedule road. The very fact that the first issue was answered in the affirmative would go a long way in sustaining her claim. But so far as the width of the schedule road is concerned, the plaintiff cannot expect any assistance out of it. Exts.P.20 to P.25 are copies of the representation, notices issued and postal acknowledgments pertaining to them. Exts. P.26 to P.30 are five photographs and Ext.P.26 (a) to Ext.P.30
(a) are their negatives. But except the fact they point out the availability of some space in between the two houses that are seen in them, they cannot forcefully point out that it is a cross road. But as it lies in between two houses, an inference that it is a cross road is possible. Ext.P.31 is a certified copy of the order sheet maintained in O.S.1326/82 filed by the Mohd Akbar against the plaintiff and another. Ext.P.32 is a certified copy of the plaint presented in it. The fact that it came to be dismissed for default is not in dispute. Nevertheless, the fact that Ext.P.32 has lent a helping had to be plaintiff cannot be lost sight of as it makes a categorically and clinching reference to the width of the cross road as 20'.
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009
23. After observing as above, it analyses the ocular evidence and holds that the DW.1-Keshavan has audacity in denying the suggestion that the width of the road is 20 feet in the face of the documents of his vendor which admit the width to be 20 feet. Ultimately, it concludes that it is not left with any doubt to say that the plaintiff has established existence of the suit road of the width of 20 feet subject to encroachment, if any.
24. The perusal of Exs.P18 and P32 would clearly establish that the vendor of the appellants, Mohammed Akbar had admitted in his written statement that the suit road measures 20 feet in width. The conclusions of the trial Court in this regard cannot be faulted with.
25. So far as the judgment in O.S.No.7557/1994 is concerned, the trial Court, after scanning over all the documents available in paragraph Nos.16 and 17, the trial Court observes as below:
"16. Ext.P.12 is the copy of the plaint in O.S No.10181/82 filed by present plaintiff against the
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 present defendant No.2. Mohamed Akbar, the vendor of defendant No.1. Ext.P.13 is the written statement filed by present defendant No.2 in the said case and at more than one place he has categorically admitted about the existence of 20' road to the west of plaintiff's property. I find from Para-5 of Ext.P.13 that at least at two places there is such admission made by defendant No.2 in the present case as defendant in that case. Now, it cannot be in the mouth of defendant No.1 P.Keshavan to contend that there is no 20' width road to the west of plaintiff's property, which is to the east of property purchased by him only to contend that there is a passage. It is a different aspect that the present defendant No.2 has intelligently manipulated first sale deed at Ext.D.1 and another sale deed in favour of present defendant No.1 at Ext.D.2 to show that in the first deed there is only a road on the east of site Nos. 28 & 47 belonging to him and subsequently only 6' common passage to the site Nos.28 & 47 sold to present defendant No.1 P Keshavan. The said sale deeds have no relevance and more particularly when Ext.D.2 has come into existence during the pendency of O.S No.10181/82 filed by present plaintiff against defendant No.2, the vendor of defendant No.1. It is relevant to note from the Judgment at Ext.P.14 in the said Original Suit that the said suit for injunction was filed on 24.31982 and was decreed on 1.10.1988. The present defendant
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 No.1 purchased under Ext.D.2 only on 15.11.1985 an area measuring 40*30' and obviously purchased during the pendency of previous suit. Therefore, the eastern boundary shown as 6' common passage in Ext.D.2 is nothing but an idea coined by defendant Nos. 1 & 2 to overcome the contention of the plaintiff about the 20' width cross road to the east of property if defendant No.2, later sold to defendant No.1, which is to the west of plaintiffs property.
17. With the candid admission of present defendant No.2 in the written statement in O.S No. 10181/82 as per Ext.P.13, it is unequivocally established that the plaintiff has successfully proved the width of the suit road as 20' and therefore, I hold this point in the Affirmative.
26. So far as the encroachment by the defendant- Keshavan to the extent of 8 feet X 28 feet is concerned, based on the principle of preponderance of probability, it concludes that, such encroachment is proved. In paragraph Nos.24, 25 and 26, it observes as below:
"24. If we compare Ext.D.6 - plan of defendant No.2 with the lay out plan at Ext.D.16, there seems to be no much change. However, if we peruse Ext.D.5-the approved sketch under which the present defendant
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 No.1 constructed his building, it is obvious that he has shown his site in a square manner and not as shown in Ext.D.6 or Ext.D.16. It is also relevant to note that a portion of the area has been dis-allowed by the sanctioning authority and this aspect of the matter has been admitted by D.W.2 at Para-8 of his cross- examination.
25. Let me now examine the evidence of DW 2, who is also a person residing in the nearby locality. He has stated in his chief-examination that there is no 20' width road adjacent to the property of plaintiff and defendant Nos 1 & 2. However, in the same alignment, after the main road, his property situate, is admitted. He has admitted at Page 4 of his evidence that to the east of his site, there was 20' wide cross road and his site is site No.48. A perusal there was Ext.D. 16 clearly shows the existence of plaintiff's property, property of defendant Nos. 1 & 2 as well that of this witness. He admits that there was a 20' wide cross road running north south between the properties of this witness and defendant No. 1 as well the property of the plaintiff on the other. With this, it is clearly admitted that there is existence of 20' width road. He has also deposed at Page No.7 stating that defendant No.1.Keshavan is making use 20' road. However, he has made candid admission that he recently measured the property of the plaintiff and
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 one Kumari and came to know that these two ladies have encroached on the road and as such, the width of the road is not now 20'. He admits that the plaintiff has to reach her house by passing through the said 20' road as picturised at Ext.D.32 - photograph. More importantly, he has admitted that defendant No.1 has constructed in the dis-allowed area. He admits that in the sale deeds there is mention of 20' proposed road.
26. From the above, it is evident that this witness admits the existence of 20' road as contended by plaintiff and also that there is shortage of the width of the road. He alleges that it is plaintiff Pankajakshi and one Kumari, who have encroached the road. In the absence of any defence by the defendants in the case, the said theory is nothing but an introduction only to defeat the case of the plaintiff and cannot be accepted. It is evident that now the width of the road is not 20' in full and therefore there is a probability of it being encroached by defendant No.2, though D.W.2 deposes that it is the plaintiff herself, who has encroached the road."
27. It is pertinent to note that there was no defence by defendant Keshavan by way of written statement. Therefore, the trial Court held that that there is more probability in the case of the plaintiff rather than the
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 argument addressed for the defendants. The documents which were relied on by the parties in O.S.No.5455/1996 are the same documents which were also relied in O.S.No.7557/1994. It is pertinent to note that in O.S.No.5455/1996, the trial Court refused to grant the relief of injunction to direct defendant No.2, not to sanction the plan since it fetters the statutory powers of the defendant No.2. It is worth noting that the exact measurement of the alleged encroachment, viz, 8 feet X 28 feet is not conclusively established. In other words, the judgment in O.S.No.5455/1996, which concerns the property of Murthy, which is situated on the southern side of the property of Keshavan, do not mention about any encroachment. The plaintiff is not seeking any mandatory injunction against the said Murthy. However, he contends encroachment and seek mandatory injunction in respect of the site No.47 owned by Keshavan (O.S.No.7557/1994).
28. If we see the photographs which are produced in both these suits, especially, Ex.P30 in
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 O.S.No.7557/1994, it is evident that the compound wall of the plaintiff-Pankajakshi is parallel to the compound walls of defendants-Murthy and Keshavan in both the suits and are in a straight line. When there is no allegation against Murthy of encroaching in the suit road to the extent of 08 feet and when the compound wall of Keshavan is also at the same line of the compound wall of Murthy, it must be held that there is no such encroachment of 08 feet into the road. There is no conclusive evidence which shows that there is encroachment of 8 ft X 28 ft as alleged.
29. This aspect was not appreciated by the trial Court, since the trial Court went on the premise that the defendant-Keshavan had not filed any written statement and it heavily relied on the oral testimony.
30. Under these circumstances, the contention of the plaintiff that Keshavan had encroached 08 feet into the road would not be justifiable. If we see the photographs, it appears that certain preparation for construction was made by the defendants and building materials were
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 stored, over which vegetation has grown. Therefore, apprehending that the defendants may encroach into the road, the plaintiff filed the suit.
31. It is also pertinent to note that in the building permission produced at Ex.D5 in O.S.No.7557/1992, the entire site of the defendant-Keshavan is measuring 30 feet in width and a portion which is protruding into the 06 feet of the set back has been disallowed by the Corporation. Thus, it can be seen that the Corporation had also acted in preventing any deviation from the building bylaws. Therefore, the conclusion of the trial Court that there is encroachment of 08 feet by defendant Keshavan into the suit road is not established. It is needless to say that when mandatory injunction is to be granted, the Courts are to be doubly cautious as it would result in economic implications also.
32. Under these circumstances, the point No.2 is answered in the 'Affirmative' and point No.3 is answered in the 'Negative'.
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009
33. The learned counsel appearing for the appellants has raised few other questions also:
i) Learned counsel for the appellants contended that the plaintiff should have filed a suit under Section 91 of CPC. Since there is a bar, the trial Court had no jurisdiction. The alleged encroachment by the defendants into the suit road is affecting the rights of the plaintiff for her ingress and egress. There are no other similarly placed people who were aggrieved by the acts of the defendants.
Therefore, the plaintiff's personal rights are infringed and as such, she filed the suit. There is no bar under Section 91 of CPC, which truncate the rights of an individual if such individual rights are infringed. Therefore, this argument of the learned counsel for the appellant cannot be sustained. The sub-section 2 of Section 91 makes this aspect clear.
ii) His second prong of the argument is that the road is the property of the Corporation and therefore, the provisions of the Municipal Corporations Act is applicable,
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 whereby, a suit in the present form is impliedly barred. It is worth noting that inaction on the part of the Municipal Corporation to prevent the encroachment by the wrong doers, if affects the rights of a citizen, he can very well enforce his rights, so far as, his rights are concerned. Therefore, simply because the allegedly encroachment is in the road owned by Corporation, it cannot be said that the suit is not maintainable. Nevertheless, the Municipal Corporation was made a party in both suits.
iii) In OS.No.5455/1996, there were two prayers and Court fee was paid for one prayer only and as such, the suit was defective. This aspect was noticed by the trial Court, and it has rejected the prayer for mandatory injunction seeking direction to defendant No.2. A direction was also issued that the decree be drawn only if fresh valuation slip along with the necessary Court Fee is filed. In pursuance to such direction, the deficit Court Fee was also paid and as such, the trial Court has drawn the
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 decree. In that view of the matter, this argument would not survive.
iv) Since the plaintiff-Pankajakshi never entered the witness box and only her GPA Holder had deposed, the suit was liable to be dismissed. In this regard, he relied on the judgment in the case of Vidyadhara Vs. Manik Rao (referred supra). It is relevant to note that the power of attorney holder, if has personal knowledge of the facts of the case, can definitely depose in the matter but he cannot depose the facts which were exclusively in the knowledge of his principal. This position is clarified in the judgment of the Apex Court in the case of A C Narayanan (referred supra). In O.S.No.7557/1994, it is one Sri.Laveen who deposed as PA holder of the plaintiff. It is also relevant to note that he is none else than the son of the plaintiff. Therefore, the son of the plaintiff deposing as PA holder of the plaintiff cannot be found fault with. Even in O.S.No.5455/1996, it is the said Laveen who has deposed as PW.1. Hence, the judgment cited by the learned
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 counsel appearing for the appellant can very well be distinguished.
v) Nextly, he contended that the defendant No.2- Corporation in its written statement contended that there is no cross-road. Therefore, the case of the plaintiff is unsustainable. It is pertinent to note that the defendant No.2-Corporation nowhere stated that the layout plan is incorrect. It only denied the plaint averments. However, while granting the building permission, it noticed the setback area and had disallowed the portion of the building. This indicates that it had taken note of the suit road on the eastern side of the property of the defendant. Hence, this argument is not of any relevance.
vi) Learned counsel for the appellants points out that in none of the sale deeds executed in favour of Mohammed Akbar and in favour of Murthy or Keshavan, the width of the road is not mentioned. Therefore, the trial Court erred in holding that the width of the road is 20 feet. The trial Court in both the suits categorically relied on the
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 admission in the form of the written statement by the erstwhile owner-Mohammed Akbar to hold that the width of the suit road is 20 feet. The said Murthy and Keshavan have derived the rights in respect of the sites owned by Mohammed Akbar. The sale deed of Mohammed Akbar though do not mention the width of the suit road, the fact that the passage is 06 feet vide mentioned in the sale deed of the defendant No.1-Murthy is nothing but an afterthought to say that a portion of the road belongs to the defendant No.1-Murthy. This aspect has been considered by the trial Court in para-No.19 of the judgment in O.S.No.5455/1996. Therefore, when Mohammed Akbar had admitted the width of the suit road to be 20 feet, it cannot be said that it was of the width of only 06 feet.
vii) His last contention is that since OS.No.10181/1982 was injunction suit simpliciter, it has no effect on the present suit. In this regard, he relies on the judgment in the State of Bihar Vs. Radha Krishna
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 Singh17. In the said judgment it was held that a judgment which is not inter-partes, is inadmissible in evidence except for limited purpose of proving as to who the parties were and what was the decree passed and the properties which were subject matter of the suit. It is worth to note that the factual background of the said case was in respect of the genealogy of the family of the party in that case. In the case on hand, the appellants are none else than the descendents in title of Mohammed Akbar who had suffered the decree in O.S.No.10181/1982. The decree in the said suit injuncted the said Mohammed Akbar, his men and supporters from interfering in the suit road. The appellants having purchased the property from the said Mohammed Akbar, the statements made by Mohammed Akbar in the said suit become relevant. Therefore, the above judgment cannot be made applicable to the facts and circumstances of this case.
17
AIR 1983 SCC 684
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009
34. In view the aforesaid reasons, the RFA.No.429/2008 deserves to be dismissed. However, RFA.No.861/2009 deserves to be allowed in part and the direction to pull down the compound wall cannot be sustained. The injunction not to encroach into the suit road alone is sustainable.
35. The defendants cannot obstruct the road leading to the house of the plaintiff in any way. The question whether they have constructed the compound wall in accordance with the building permission accorded by the Municipal Corporation and whether there is any violation of the same is kept open, for which, efficacious remedy is available under the provisions of the Municipal Corporations Act. With these observations, the following order is passed:
ORDER IA.No.1/2023 filed in RFA No.861/2009 is dismissed.
RFA.No.429/2008 is dismissed.
RFA.No.861/2009 is allowed-in-part.
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NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009 The mandatory injunction to pull down the compound wall of defendant No.1 in O.S.No.7557/1994 is rejected. However, the defendants are restrained from interfering in the use and enjoyment of the suit road by the plaintiff or her family members to reach her residential house. The impugned judgment and award is modified accordingly.
In both the appeals, costs are made easy.
Sd/-
(C.M.JOSHI) JUDGE NR/-List No.: 1 Sl No.: 1