The High Court
Case Details
- 1 - 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. (BY SRI S SHAKER SHETTY, ADVOCATE [V/C]) ...APPELLANT Digitally signed by NANDINI R Location: HIGH COURT OF KARNATAKA AND: M PANKAJAKSHI, W/O N DESAN, AGED ABOUT 60 YEARS, OLD CORPN NO.20/3, NEW NO.38, III CROSS, VIVEKANANDANAGAR, BANGALORE-560 033. (BY SRI K RAMESH RAO, ADVOCATE [PH]) …RESPONDENT 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 - 2 - 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. (BY SRI S SHAKER SHETTY, ADVOCATE [V/C]) ...APPELLANT 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) (BY SRI K RAMESH RAO, ADVOCATE FOR R1; …RESPONDENTS - 3 - 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 DELIVERED THE JUDGMENT’, THIS DAY, THE COURT 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
Legal Reasoning
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: - 10 - 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 - 11 - 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. - 12 - NC: 2025:KHC:18338 RFA No. 429 of 2008 C/W RFA No. 861 of 2009
Legal Reasoning
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 - 13 - 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 - 14 - 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 - 15 - 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) - 16 - 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 - 17 - 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
Decision
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. - 45 - 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/- JUDGE (C.M.JOSHI) NR/- List No.: 1 Sl No.: 1