HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15^TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL No.1375 OF 2020 (INJ)

BETWEEN:

1. CHIKKARAMEGOWDA S/O LATE SIDDEGOWDA AGED ABOUT 58 YEARS RESIDING AT KANAKANAGARA WARD NO.17, K R NAGAR TOWN-571 602

2. RAMACHANDRA M P S/O PUTTASWAMY AGED ABOUT 48 YEARS RESIDING AT KANAKANAGARA WARD NO.17 K R NAGAR TOWN-571 602

3. N C MALLESH S/O LATE L E CHANDRAPPA Digitally signed by AGED ABOUT 59 YEARS MALATESH R/O NARALAPURA VILLAGE K C KASABA HOBLI Location: PERIYAPATNA TALUK HIGH MYSURU DISTRICT-571 602 COURT OF KARNATAKA

4. M C SHIVANNA S/O LATE CHIKKEGOWDA AGED ABOUT 59 YEARS R/O MADHUVANAHALLI VILLAGE K R NAGAR MYSURU DISTRICT-571 602 …APPELLANTS (BY SRI T N VISWANATHA, ADVOCATE)

AND:

1. SMT. LAKSHMAMMA W/O LATE BORALINGEGOWDA AGED ABOUT 73 YEARS RESIDING AT NO.2/316

2^ND CROSS, VINAYAKA BADAVANE, K R NAGAR TOWN MYSURU DISTRICT-571 602

2. THE MUNICIPALITY K R NAGAR TOWN MYSURU DISTRICT-571 602 (R2 DELETED VIDE COURT ORDER DATED

27.10.2021)

3. PANCHAYATH DEVELOPMENT OFFICER DODDEKOPPALU GRAMA PANCHAYATH DODDEKOPPALU VILLAGE K R NAGAR TALUK MYSURU DISTRICT-571 602 …RESPONDENTS (VIDE ORDER DATED 27.10.2021, SERVICE OF NOTICE TO R1 IS HELD SUFFICIENT;

VIDE ORDER DATED 27.10.2021, R2 STANDS DELETED;

R3 – SERVED AND UNREPRESENTED)

THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE 1908 AGAINST THE JUDGMENT AND DECREE DATED 16.09.2020 PASSED IN R.A.No.74/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, K.R.NAGAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 18.08.2018 PASSED IN OS.No.475/2014 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, K.R.NAGARA.

THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

ORAL JUDGMENT

Heard Sri T.N. Viswanatha, learned counsel for the appellants. None appears for the respondents.

2. Appellants in the second appeal had filed suit before the trial Court in O.S.No.475/2014 for perpetual and mandatory injunction. The trial Court after due trial, decreed the suit of the plaintiffs.

3. Being aggrieved by the same, defendant No.1 filed an appeal before the First Appellate Court in R.A.No.74/2018.

4. Learned Judge in the First Appellate Court, after securing the records, heard the arguments of the parties and by considered judgment dated 16.09.2020, reversed the findings recorded by the trial Judge and dismissed the suit of the plaintiffs inter alia holding in para 27 and 28 which reads as under:

“27. From the available materials on record, it is prima facie disclosed that the suit is filed by the 1^st plaintiff in his independent capacity. He is seeking a relief of mandatory injunction directing the 1^st defendant to remove the encroachment made by her over the suit schedule property.

Therefore, it is necessary to prove the existence of public road, its measurement and also the boundaries in order to identify the actual measurement of encroachment stated to have been made by the 1^st defendant/appellant over the suit property. Even such being the case, the trial court has come to the wrong conclusion that the suit of the plaintiff for the relief of mandatory injunction without seeking the declaration is also maintainable. It is also observed by the trial court that, the plaintiffs have not mentioned the boundaries of the suit property. Further, though, there is no any iota of evidence to prove the identification of the suit property/public road, the trial court has wrongly observed that the parties have admitted the identification of the suit property. In this regard, the trial court has relied upon the judgments cited by the plaintiffs i.e., i) AIR 2003 NOC 273 (KANT) between Dr. Poorna Prajna and Others Vs Shanthadevi. ii) HCR 2016 KANT 525 between Channamallaiah and others Vs H.H.Siddappa and Another, iii) HCR 2015 KANT 917 between KMB Enterprises (M/S) and Others Vs Abhayananda Associates (M/s) and others. But, i