Karnataka High Court
Kasturi Bhadavane Kshemabivriddhi ... vs Sri H Srinivasaiah on 20 January, 2026
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RFA NO. 190 OF 2010 (INJ)
BETWEEN:
1. KASTURI BHADAVANE
KSHEMABIVRIDDHI SANGH (R)
NO.368, 6TH CROSS, KASTHURI BHADAVANE
RAJAGOPALANAGARA, PEENYA II STAGE
BANGALORE-560 058
REP BY ITS PRESIDENT
RAMEGOWDA C.M.
...APPELLANT
(BY SRI. RAMESH CHANDRA, ADVOCATE)
AND:
1. SRI. H. SRINIVASAIAH
S/O HANUMANTHAPPA
AGED ABOUT 65 YEARS
SHIVAKOTE VILLAGE
HESARUGHATTA VILLAGE
BANGALORE NORTH TALUK
2. SRI. N. NARAYANASWAMY
S/O NARASAPPA
AGED ABOUT 60 YEARS
GORGHONTE PALYA
JHARKABHANDE KAVAL
YELAHANAKA HOBLI
BANGLAORE NORTH TALUK
2
3. BRUHUT BANGALORE MAHANAGARA PALIKE
N.R.SQUARE, BANGALORE
REP BY ITS COMMISSIONER
...RESPONDENTS
(BY SRI. T. SESHAGIRI RAO, ADVOCATE FOR C/R1 AND R2;
SRI. S.N. PRASHANTH CHANDRA, ADVOCATE FOR R3)
THIS RFA IS FILED UNDER ORDER 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 16.10.2009 IN O.S. NO.
5030/2006 ON THE FILE OF THE IX ADDL. CITY CIVIL AND
SESSIONS JUDGE, BANGALORE DISMISSING THE SUIT FOR
PERMANENT INJUNCTION.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 13.01.2026, THIS DAY JUDGMENT WAS
PRONOUNCED THEREIN, AS UNDER:
CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
C.A.V. JUDGMENT
The captioned appeal is filed by the plaintiff against the
judgment and decree passed by the Trial Court in
O.S.No.5030/2006 wherein the suit filed by the plaintiff
seeking perpetual injunction restraining the defendants from
obstructing the use of suit road come to be dismissed.
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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 suit in a representative
capacity under Order I Rule 8 of the Code of Civil Procedure
seeking a decree of permanent injunction restraining the
defendants from interfering with the use of the east-west road
described in the plaint schedule. It was the specific case of the
plaintiff that defendants No.1 and 2 had formed a residential
layout in the subject land and, having developed the same,
had sold all the sites therein. According to the plaintiff, the
roads formed in the said layout constitute the only means of
access for the residents, and despite having alienated all the
sites, defendants No.1 and 2 were attempting to obstruct the
use of the existing east-west road. Hence, the suit.
4. On service of summons, the defendants entered
appearance and filed their written statement, stoutly denying
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all the averments made in the plaint and contesting the suit on
all available grounds.
5. The Trial Court, after framing the issues and
affording opportunity to the parties to lead oral and
documentary evidence, answered the issues against the
plaintiff and dismissed the suit.
6. Aggrieved by the judgment and decree passed by
the Trial Court, the plaintiff has preferred the present appeal.
7. Learned counsel appearing for the plaintiff has
taken this Court through the order sheets dated 01.08.2013
and 08.08.2013 to contend that the Trial Court had appointed
a Court Commissioner on two occasions. Referring to the
additional material now placed before this Court, he submits
that the existence of an east-west road running between Sites
Nos.46, 47, 58 and 59 stands clearly established through local
inspection. Placing reliance on the commissioner's report,
which has now become part of the record, learned counsel
would contend that the dismissal of the suit is unsustainable.
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He would further submit that the evidence on record
demonstrates that defendants No.1 and 2 have sold all the
sites formed in the layout and have not retained any portion
thereof. In such circumstances, the site owners are entitled to
use the existing east-west road, and the Trial Court erred in
non-suiting the plaintiff.
8. Per contra, learned counsel appearing for
defendants No.1 and 2 has seriously opposed the appeal. He
would contend that the suit, having been instituted in a
representative capacity, is not maintainable in the absence of
any authorization or resolution as contemplated under Section
15 of the Karnataka Societies Registration Act, 1960. Referring
to the evidence on record, he submits that the suit is filed by a
society without any valid resolution of its governing body. He
would further argue that the plaintiff has failed to establish the
very existence of the alleged east-west road. It is also
contended that a suit for injunction simplicitor is not
maintainable when the existence of the road itself is in
dispute. Strong objection is raised to the evidentiary value of
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the commissioner's report obtained at the appellate stage.
Placing reliance on Exs.D1 to D4, being the sale deeds
pertaining to Sites Nos.46, 47, 58 and 59, learned counsel
would submit that no road is shown on the northern side of
Sites Nos.46 and 59, nor is any road indicated on the southern
side of Sites Nos.47 and 58. Any claim contrary to the recitals
in the registered sale deeds, according to him, is barred under
Section 92 of the Indian Evidence Act, and consequently, the
commissioner's reports are liable to be ignored.
9. In the light of the rival submissions urged by the
learned counsel appearing for the parties, the following points
arise for consideration:
i. Whether the suit instituted in a representative
capacity is hit by Section 15 of the Karnataka
Societies Registration Act, 1960?
ii. Whether the judgment and decree of the Trial Court
holding that the plaintiff failed to establish the
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existence of the suit schedule east-west road suffer
from perversity and call for interference by this Court?
iii. Whether the commissioner's report, particularly the
report submitted by the Assistant Executive Engineer
of BBMP, having not been seriously contested by the
defendants, forms part of the record under Order
XXVI Rule 10A of the Code of Civil Procedure and can
be relied upon for adjudication?
iv. Whether defendants No.1 and 2, having admittedly
sold all the sites formed in the layout, have the locus
standi to oppose the present suit?
Findings on point No.(i):
10. The defendants have undoubtedly contested the
suit on merits. However, a careful scrutiny of the written
statement reveals that the plea regarding non-maintainability
of the suit for want of a resolution as contemplated under
Section 15 of the Karnataka Societies Registration Act, 1960,
was never raised before the Trial Court. The objection now
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sought to be canvassed is conspicuously absent from the
pleadings.
11. The records further disclose that the plaintiff had
filed an application under Order I Rule 8 of the Code of Civil
Procedure seeking permission of the Court to prosecute the
suit in a representative capacity. The order sheet
unmistakably reveals that by order dated 19.06.2006, the
Trial Court allowed the said application and expressly granted
permission to the plaintiff to proceed under Order I Rule 8 of
CPC. The said order was neither questioned nor assailed by
the defendants at any stage of the proceedings before the
Trial Court.
12. In that view of the matter, this Court is of the
considered opinion that the defendants cannot be permitted,
at the appellate stage, to non-suit the plaintiff by raising a
purely technical objection which was never pleaded, argued,
or adjudicated before the Trial Court. It is a settled principle
that a plea touching upon maintainability, particularly one
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founded on facts, cannot be permitted to be raised for the first
time in appeal, especially when the parties have gone to trial
fully conscious of the nature of the proceedings and have led
evidence on merits.
13. The judgments relied upon by the learned counsel
for the defendants in B.H. Inamdar vs. B.F. Swamy1,
Jagdam Ram vs. Asarfi Ram and Others2 and Charan
Singh and Another vs. Darshan Singh and Others3 do not
advance the case of the defendants, as the factual matrix and
the legal context in which those decisions were rendered are
clearly distinguishable from the present case. Accordingly,
Point No.1 is answered in the Negative.
Findings on Point Nos.(ii) to (iii):
14. The core controversy in the present appeal revolves
around the existence of the east-west road and the
entitlement of the residents to use the same. On an
appreciation of the pleadings and evidence, the conduct of
1
ILR 1991 Kar 1654
2
AIR 1937 Patna 149
3
(1975)1 SCC 298
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defendants No.1 and 2 appears to be inconsistent and, to say
the least, curious.
15. It is not in dispute that defendants No.1 and 2 were
the original owners of the land, who developed the same by
forming a layout and selling individual sites. Paragraph No.3 of
the written statement assumes considerable significance, as it
unequivocally discloses that the defendants have sold all the
sites formed in the layout. This admission stands fortified not
only by the documentary evidence but also by the oral
testimony. In the cross-examination of D.W.1, there is a
categorical admission that all the sites have been sold and
that no portion of the layout is retained by the defendants.
16. Despite such clear admissions, defendant No.1,
while lodging a complaint before the jurisdictional police,
asserted that the plaintiff and other site owners were
encroaching upon Site Nos.46 and 59. This assertion is
rendered wholly suspect, for the simple reason that the
owners of Sites Nos.46 and 59 have admittedly not raised any
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grievance or objection. More strikingly, while defendant No.1
claimed in the criminal proceedings that he had retained Sites
Nos.46 and 59, the tabular statement furnished in the written
statement, particularly in paragraph No.4, clearly admits the
sale of those very sites. Such mutually destructive stands
seriously erode the credibility of the defendants' case.
17. Once it is admitted that defendants No.1 and 2
have divested themselves of both title and possession in
respect of all the sites in the layout, their locus standi to
obstruct or regulate the use of a road claimed to be a common
access within the layout becomes highly doubtful. The
defendants, having ceased to have any proprietary interest,
cannot be permitted to assert dominion over access ways
allegedly meant for the benefit of the site owners.
18. The defendants have further contended that the
recitals in the sale deeds pertaining to Site Nos.46, 47, 58 and
59 do not disclose the existence of any east-west road and,
therefore, any reliance on the commissioner's report would be
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barred under Section 92 of the Indian Evidence Act. According
to them, since the sale deeds do not refer to such a road, no
oral or extrinsic evidence can be adduced to contradict the
contents of the registered instruments.
19. Having examined the records in their entirety, this
Court finds that the factual backdrop of the case is peculiar.
The layout in question is admittedly not approved by any
competent planning authority. The sites appear to have been
carved out in agricultural land, giving rise to what are
commonly described as revenue layouts. In such cases, it is
not uncommon that internal roads are left unrecorded in
individual sale deeds, particularly when the vendors
themselves have formed the layout without statutory sanction.
20. In this context, the local inspection conducted
through the Court Commissioner assumes relevance. The
commissioner has specifically identified and demarcated the
disputed east-west road, situate between Sites Nos.46, 47, 58
and 59. The report, more particularly the report submitted by
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the Assistant Executive Engineer, has not been effectively or
seriously contested by the defendants. In the absence of any
substantive challenge, the said report forms part of the
evidentiary record under Order XXVI Rule 10A of the Code of
Civil Procedure and is required to be evaluated along with
other evidence.
21. Having regard to the nature of the layout, the
admissions of the defendants, and the physical features noted
during local inspection, this Court is of the view that it would
be appropriate and indeed necessary to extract and reproduce
the sketch appended to the commissioner's report, depicting
the location and alignment of the disputed east-west road, so
as to appreciate the controversy in its proper perspective.
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2nd Cross 3rd Cross
Road 3 shops belongs to Road
Hanumantappa Site No.58
Site No. 47, Ramamurti's
B Bakery House C
78 feet
Road towards Road towards
Peenya IInd Stage 23½ Basappana Katte
75 feet
A D
Site No.46 Site No.59 3rd A Cross
House belonging to Sheds Road
Ramakrishna
Index
- Electric Line sketch not to scale N
ABCD - Road Under Consideration
22. The sketch furnished by the Assistant Executive
Engineer of the BBMP, extracted hereinabove, clinches the
entire controversy between the parties. The commissioner's
report, read along with the sketch, clearly depicts the
existence of an east-west road measuring approximately 23½
feet in width and about 75 feet in length. The suit road
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unmistakably runs in an east-west direction. Though the
registered sale deeds executed by defendants No.1 and 2 in
respect of Site Nos.46, 47, 58 and 59 do not make a specific
recital regarding the existence of this road, the local inspection
conducted by the commissioner unequivocally establishes that
such a road does exist on the ground.
23. The contention urged on behalf of the defendants
that the recitals in the sale deeds must prevail over the
commissioner's report is wholly misconceived. Section 92 of
the Indian Evidence Act bars oral evidence only for the
purpose of contradicting, varying, adding to, or subtracting
from the terms of a written contract. The commissioner's
report does not seek to alter or contradict any contractual
term contained in the sale deeds. It merely records the
physical features and factual position as existing on the
ground. The report, therefore, does not offend Section 92 of
the Evidence Act.
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24. On the contrary, the first proviso to Section 92
expressly permits evidence to establish any fact which would
explain the document or throw light on the surrounding
circumstances. The existence of a road used as a common
access by the residents of the layout, though not expressly
mentioned in individual sale deeds, can certainly be
established by independent evidence, including local
inspection. It is also significant to note that the defendants
appear to be contesting the matter as if they are espousing
the cause of the site owners, who themselves have not
disputed either the existence of the east-west road or the
right of access claimed by the residents.
25. The manner in which the defendants have
contested the suit is a crucial circumstance that cannot be
ignored. Defendants No.1 and 2, having developed the layout
and admittedly sold all the sites therein, are strangely and
persistently contesting a suit relating to a road over which
they no longer retain either title or possession. The only
reasonable inference that can be drawn from such conduct is
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that, if the plaintiffs were to fail, the individual site owners
may be left to assert competing claims over the disputed road,
thereby defeating the common and collective rights of the
residents of the layout. Such conduct disentitles the
defendants from seeking any equitable consideration at the
hands of this Court.
26. In that context, the objection raised by the
defendants regarding the maintainability of the suit for want of
a resolution authorising the institution of proceedings deserves
to be rejected outright. At the outset, it must be noticed that
no such plea was raised in the written statement. The
defendants did not dispute the representative character of the
plaintiff nor the competence of the person instituting the suit
at the earliest opportunity. It is trite that an objection
touching upon the authority to institute a suit is a mixed
question of fact and law, which necessarily requires specific
pleadings and an opportunity to the plaintiff to meet the same.
In the absence of such a plea, the defendants are precluded
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from raising the contention for the first time at the appellate
stage.
27. Further, the suit having been instituted in a
representative capacity under Order I Rule 8 of the Code of
Civil Procedure, and the Trial Court having granted permission
to prosecute the suit in that capacity, the proceedings cannot
be rendered non-maintainable on a hyper-technical objection
relating to the production of a resolution, particularly when no
prejudice whatsoever is demonstrated. The objection
regarding maintainability is clearly an afterthought and does
not go to the root of the jurisdiction of the Court.
28. This Court, having taken cognizance of the
commissioner's report submitted by the Assistant Executive
Engineer of the BBMP, cannot lose sight of its role under
Section 96 of the Code of Civil Procedure. As an Appellate
Court and the final fact-finding authority, this Court is duty-
bound to independently assess and appreciate the oral and
documentary evidence on record. In the peculiar facts of the
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present case, though the suit is one for injunction simplicitor,
the dispute regarding the existence of the suit road could be
effectively resolved only through local inspection.
29. It is in that backdrop that this Court, by order
dated 08.08.2013, appointed the Assistant Executive Engineer
of the BBMP as a Court Commissioner to conduct a local
inspection and submit a report. Even the earlier Advocate
Commissioner had depicted the existence of an east-west
road, though that report was contested by the defendants.
However, the report submitted by the Assistant Executive
Engineer, a technical officer, has not been seriously or
effectively disputed. The said report, therefore, has a direct
and decisive bearing on the core controversy relating to the
existence of the suit schedule road.
30. On an examination of the commissioner's sketch
and report, this Court has no hesitation in holding that the
existence of the suit road stands clearly substantiated. The
road not only provides access to the owners of Site Nos.46,
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47, 58 and 59, but the sketch also reveals the presence of
several cross-roads connecting the layout. The existence and
preservation of the suit road is thus of vital importance to all
the site owners in the layout formed by the defendants.
31. It is indeed unfortunate that the defendants,
despite having sold all the sites, have subjected the residents
to prolonged civil litigation by raising untenable objections.
The material evidence placed on record, particularly the
commissioner's report, cannot be ignored. In order to do
substantial justice and to secure the ends of justice, this Court
is constrained to place reliance on the said report.
32. Accordingly, this Court holds that the plaintiffs are
entitled to the relief of perpetual injunction. The defendants
are liable to be restrained permanently from interfering with or
obstructing the use of the suit schedule east-west road, so as
to preserve the common rights of the residents of the layout.
Point Nos.(ii) and (iii) are answered in the Affirmative and
point No.(iv) is answered in the 'Negative'.
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33. For the following reasons, this Court passed the
following:
ORDER
i. The Regular First Appeal is hereby allowed.
ii. The judgment and decree dated 16.10.2009 passed in O.S. No.5030/2006 on the file of the IX Additional City Civil Judge, Bengaluru, are hereby set aside.
iii. The suit filed by the plaintiff is hereby decreed.
iv. The defendants, their agents, servants, or any person claiming through or under them, are hereby permanently restrained from obstructing or interfering with the plaintiff's lawful use and enjoyment of the schedule east-west road.
v. In the facts and circumstances of the case, there shall be no order as to costs.
Sd/-
(SACHIN SHANKAR MAGADUM) JUDGE HDK