Allowed

Rajanna v. Govindachar

Karnataka HC30 Sept 2021RFA/201/2006

Case brief

AI extract

What is this about?

Suit for permanent and mandatory injunction over a house site was dismissed by the trial court for want of a prayer for declaration and possession, though it found the plaintiff in possession and the defendant's encroachment during the suit. The appellate court held no cloud on title arose, since the defendant claimed only the neighbouring site, allowed the appeal and directed removal of the struc

What did the court decide?

Appeal allowed; judgment and decree of the trial court set aside; suit for permanent and mandatory injunction allowed; defendant directed to remove the structure put up in the suit schedule property (

Rajanna Vs Govindachar — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30^TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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R.F.A.NO.201/2006 (INJ)

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BETWEEN:

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RAJANNA S/O THANGAVELU AGED ABOUT 40 YEARS R/AT L.B.S.NAGAR YELAHANKA BENGALURU-560064. … APPELLANT

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[BY SRI B.MANJUNATH, ADVOCATE]

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AND:

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GOVINDACHAR S/O RAJAPPACHAR AGED ABOUT 50 YEARS GOPAL AND BROS. TRACTOR BODY BUILDERS, B.B.ROAD VENKATALA, YELAHANKA POST BENGALURU-560064. … RESPONDENT

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[BY SRI PARASHURAM R. HATTARKIHAL, ADVOCATE]

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THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 26.10.2005 PASSED IN O.S.NO.5739/1997 ON THE FILE OF XVII ADDITIONAL CITY CIVIL JUDGE, BENGALURU (CCH NO.16), DISMISSING THE SUIT FOR PERMANENT INJUNCTION.

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THIS R.F.A. COMING ON FOR FURTHER ARGUMENTS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed challenging the judgment and decree dated 26.10.2005 passed in O.S.No.5739/1997 on the file of XVII Additional City Civil Judge at Bengaluru City (SCCH-16), dismissing the suit filed for the relief of bare injunction and also for the relief of mandatory injunction.

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The parties are referred to as per their original rankings before the Trial Court to avoid the confusion and for the convenience of the Court.

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The factual matrix of the case is that the plaintiff has filed a suit at the first instance for the relief of permanent injunction claiming that he is the absolute owner of the property bearing Site No.35 measuring 30 feet x 40 feet situated in Sy.No.10/1 from Maruthi House Building Co-operative Society Limited. His mother Late Poovangam had purchased the same under the Sale Deed No.3058 of 1969-70. The plaintiff’s mother passed away on 15.09.1975. Thereafter, khatha was changed in his name and he has paid the taxes and also paid the betterment charges and obtained the license for construction of the building.

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The defendant being the owner of the adjacent Site No.34 without any right, title or interest over the suit schedule property trying to interfere with the peaceful possession and enjoyment of the suit schedule property since last two months. The matter was also reported to the Municipal Council. The plaintiff also approached the local police for protection and also his property. The police failed to give protection on the ground that the matter was of civil nature. Subsequently, the plaintiff amended the plaint seeking the relief of mandatory injunction amending the plaint paragraph No.15(a) and (b).

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In pursuance of the suit summons, the defendant appeared and filed the written statement. In the written statement, it is contended that the plaintiff has to prove the ownership with regard to Site No.35. It is also contended that the plaintiff has fraudulently given false boundaries to Site No.35 and he has not produced the certified copy of the original plan of layout. It is contended that site No.35 is bounded on the East by societies vacant land; West by site No.34 belonging to the defendant; North by Site No.37 and not Site No.36 as alleged

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and South by Road. Thus, the plaintiff has fraudulently given false boundaries and tried to play fraud with the Court by

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identifying the property belonging to the defendant as site No.35. It is also contended that the plaintiff has admitted in paragraph No.12 of the plaint that site bearing No.34 belonging to the defendant. The site No.34 is bounded on East by Site No.35; West by Site No.38; North by Site No.36 and South by Road. The documents produced by the defendant clearly establishes the identity of site No.34. Thus, the plaintiff is guilty of suppression of real facts. The defendant denied all other averments made in the written statement. The defendant contended that the real facts are that the defendant is the owner in possession and enjoyment of site No.34 as admitted by plaintiff. Earlier Smt. S. Vijayalakshmi w/o Nagabhushan, Yelahanka, was the owner of site No.34. This defendant had purchased site No.34 from Smt. Vijayalakshmi vide registered sale deed dated 12.06.1996. The said Smt. Vijayalakshmi had obtained the license from Town Municipality, Yelahanka to put up construction in site No.34. The approved plan was also produced. Later, on 18.06.1997, Khatha was changed into the name of the defendant and now the Khatha stands in the name of the defendant. The defendant has paid upto date tax and tax receipt is also produced. After purchasing of site No.34, the

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defendant has put up construction up to roof level. Thus, the defendant is the owner of site No.34, which is also admitted. When such being the case, the plaintiff, who is politically powerful and started to interfere with the construction work in site No.34 and on a complaint by both the plaintiff and defendant, the Commissioner of Town Municipality, Yelahanka visited the spot along with layout plan for Maruthinagar, Yelahanka and after inspection issued an endorsement on 28.08.1997 stating that the defendant is putting up construction in site No.34 which is nothing to do with site No.35. Thus, the endorsement issued by the Commissioner of Yelahanka Town Municipality confirms the possession and enjoyment of site No.34 by the defendant. The defendant in the written statement itself given the descriptions of Site Nos.35 and 34. It is contended that the plaintiff has mislead the Court and obtained an interim order and hence, prayed this court to dismiss the suit.

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The defendant also filed the additional written statement after amending paragraph No.15(a) and 15(b) of the plaint averments. It is also contended that the very documents produced by the plaintiff, the report of the commissioner

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supported by the endorsement issued by Town Municipal Council, the defendant is in possession of the property i.e., Site No.34 and he had put up construction and he had not encroached the property of the plaintiff and also reiterated with regard to the boundaries prevailing in respect of both Site Nos.35 and 34. It is contended that the plaintiff himself is not sure about his own case and the plaintiff has not demarcated and specified the alleged encroachment. The alleged encroachment is false. The construction in site No.34 of defendant is within 30 feet x 40 feet of defendant’s site. There is no dispute regarding ownership of defendant to the site No.34, which measures 30 feet x 40 feet. It is contended that this defendant has not encroached any other property and also contend that the question of mandatory injunction does not arise. The boundaries furnished by the plaintiff are not clear. Hence, the suit itself is not maintainable.

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Based on the pleadings of the parties, the Trial Court

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framed the following issues:

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1. Whether the plaintiff proves that he is in lawful possession of suit schedule property as on the date of the suit?

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2. Whether the plaintiff further proves that during the pendency of the suit the defendant has put up illegal construction over the suit schedule property?

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3. Whether the plaintiff is entitled to the injunction prayed for?

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4. What order or decree?

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The plaintiff in order to prove his case examined

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himself as P.W.1 and got marked the documents at Exs.P.1 to

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On behalf of the defendant, the Special Power of Attorney holder Gopalachari examined as D.W.1 and he got marked the documents at Exs.D.1 and 12. The Commissioner was appointed and he filed a report which is marked as Ex.C1.

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The Trial Court after considering both oral and documentary evidence placed on record, dismissed the suit in answering issue Nos.1 and 2 as in the affirmative and while considering issue No.3 comes to the conclusion that the plaintiff without seeking the relief of declaration and consequential possession, the plaintiff is not entitled for the relief of mandatory

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injunction. Hence, the present appeal is filed by the plaintiff before this Court.

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The main contention of the appellant/plaintiff before this Court in this appeal is that though the Trial Court answered issue Nos.1 and 2 as in the affirmative but committed an error in not granting the relief of injunction and mandatory injunction in coming to the conclusion that the plaintiff has not sought for the relief of possession. Hence, the relief of mandatory injunction cannot be granted, which is wholly unnecessary when the Court itself has come to a conclusion that the plaintiff is in possession and during the pendency of the suit the defendant has interfered with the plaintiff’s possession and put up construction up to the lintel level. The Trial Court wholly erred in holding that without amending the plaint by seeking declaration and possession, no person can be evicted without due process of law in a suit for injunction.

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The learned counsel appearing for the appellant would vehemently contend that no dispute with regard to the ownership and defendant not claims any ownership in respect of the suit schedule property i.e., site No.35 and he claims the

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ownership in respect of Site No.34. Hence, no need to file any suit for the relief of declaration and seek for possession.

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The learned counsel would vehemently contend that

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when the court has answered issue Nos.1 and 2 as in the affirmative in coming to the conclusion that the plaintiff is in possession of site No.35 and also comes to the conclusion that there is an encroachment on the part of the defendant that too during the pendency of the suit ought to have granted the relief of mandatory injunction and also the injunction and committed an error.

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The learned counsel in support of his arguments relied upon the judgment of this Court in the case of Puttegowda alias Ajjegowda v. Ramegowda reported in 1996(5) Kar.L.J. 306 , wherein, this Court held that, when the suit is filed under the provisions of Specific Relief Act, 1963, Sections 34, 37 and 48 sought for the relief of perpetual injunction – Suit for - Relief of declaration of title not sought – Suit not to be dismissed on that ground – Court may grant injunction as substantial relief even without prayer for relief of declaration – Declaration is implicit in grant of perpetual

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injunction – Party seeking injunction to plead and prove his right, title and interest. The suit for permanent injunction cannot be dismissed simply on the ground that relief for decree for declaration of title has not specifically been claimed or mentioned in plaint if the plaint shows that plaintiff’s claim for injunction is based on his title or right asserted in the body of the plaint in other words plaint makes it clear that the suit has been filed for establishing title of plaintiff and on that basis is seeking the decree for permanent injunction against defendant.

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Per contra, learned counsel appearing for respondent/defendant would vehemently contend that the Trial Court after considering both oral and documentary evidence available on record rightly dismissed the suit. The learned counsel would vehemently contend that the plaintiff first of all has not identified the property and he vehemently contend that on the northern boundary of site No.35, it is mentioned as Site No.37 and the document which the plaintiff has relied upon before the Trial Court on the northern boundary site number mentioned as 36 and actually Site No.36 on the northern boundary is in respect of Site No.34 and not in respect of Site

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No.35. Hence, the plaintiff is claiming the right in respect of site No.34 based on the description of the wrong boundary, which is furnished in the plaint.

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The learned counsel also would vehemently contend that on the eastern side, site No.38 is in existence and on the western side, site No.35. The learned counsel also would vehemently contend that already in Site No.35, the construction was made by somebody else and now the plaintiff is claiming the possession and right in respect of site No.34 of the defendant. The learned counsel also would vehemently contend that subsequent to the Court Commissioner visit in Site No.38, they have already constructed the building. The boundary of site No.38 on the western side, Site No.34 which the plaintiff is claiming the possession and also the right. The learned counsel also would vehemently contend that when the plaintiff has got amended the plaint not specifically pleaded giving full description the extent of encroachment and construction and when the relief of mandatory injunction is not specifically pleaded regarding encroachment, question of granting any mandatory injunction also does not arise.

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The learned counsel in support of his arguments relied upon the judgment of the Apex Court in the case of T.V. Ramakrishna Reddy v. M. Mallappa and another passed in Civil Appeal No.5577/2021 D.D. 07.09.2021. The learned counsel referring to this judgment would vehemently contend that when there is a cloud on the title of the plaintiff, the plaintiff ought to have sought for the relief of declaration and possession and such relief has not been sought. Under the circumstances, the plaintiff is not entitled for any relief as sought in the suit. Hence, it does not require any interference of this Court.

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In reply to the arguments of learned counsel for the respondent, learned counsel for the appellant would vehemently contend that the Trial Court taken note of the answers elicited from the mouth of P.W.1 and also D.W.1 and so also relied upon the Commissioner’s report, which is produced before the Trial Court and no objection is filed to the Commissioner report and the Commissioner report is marked as Ex.C1. The Trial Court considering the evidence of the parties and also the Commissioner’s report rightly comes to the conclusion that there is an encroachment on the part of the defendant in respect of

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the suit schedule property but committed an error in dismissing the suit itself on the ground that not sought for the relief of declaration. Hence, prayed this Court to reverse the finding of the Trial Court.

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Having heard the contentions of the respective learned counsel and also on perusal of the grounds urged in the appeal memo, this Court has to re-appreciate the material and while re-appreciating the material available on record, the following points arise for the consideration of this Court:

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(i) Whether the Trial Court has committed an error in dismissing the suit answering issue Nos.1 and 2 as in the affirmative in coming to the conclusion that the plaintiff has not sought for the relief of declaration and possession?

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(ii) Whether the Trial Court has committed an error in dismissing the suit granting the relief of injunction and mandatory injunction that the plaintiff ought to have sought for the relief of declaration and possession?

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(iii) What order?

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Point Nos.(i) to (iii):

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The case of the plaintiff before the Trial Court is that the site No.35 belongs to him and he came to know that the defendant is interfering with his possession and immediately he has rushed to the Court seeking the relief of bare injunction at the first instance. It is also the contention of the plaintiff that during the pendency of the suit, the defendant has put up the construction up to the lintel level and sought for the relief of mandatory injunction contending that the said construction is made during the pendency of the suit even though the Court has granted an order of temporary injunction against the defendant. The defendant has denied the very contention of the plaintiff and the main contention of the defendant is that the boundaries mentioned in the plaint is mischievous and with fraudulent intention, the description of the properties shown in the plaint is not correct and showing mis-description of the boundaries claiming right in respect of site No.34 as that of Site No.35. The plaintiff in order to prove his case, he examined himself as P.W.1 and he reiterated the averments of the plaint in his affidavit and he also got marked the document as Ex.P1 to P11 and also the report of the Commissioner as Ex.C1.

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The plaintiff was also further examined and relied upon the documents – Exs.P12 to 14. He was subjected to cross-examination.

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In the cross-examination, it is elicited that he made the enquiry with the panchayath about the correctness of the boundaries of the site and also he admits that he tried to identify his property as per the boundaries. He obtained Ex.P10 after filing of the suit i.e., in the year 1997. He also admits that he did not try to verify the boundaries of his property after obtaining Ex.P10. It is elicited that towards the east of the said site there is site No.33 as seen from Ex.P10. Towards west there is site No.34. He admits that site No.34 belongs to the defendant. Towards north of the suit site, there is road and towards south there is property without number. The boundary description given in Ex.P9 is as per existence. Site Nos.21 to 24 as shown in Ex.P9 are that of Maruthi Badavara Gruha Nirmana Sangha. The photographs are also confronted to the witness and he admits the same and the same are marked as Exs.D1 to D3. It is suggested that the house constructed as seen in terms of photograph-Ex.D1, is constructed over in site No.34 and the

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same was denied. Witness says that it is constructed on site No.35. The shed seen in Ex.D2 is on site No.35/A. P.W.1 admits that the house as seen in Ex.D1, which has been completed construction is that of the defendant. He enquired with the Sangha about the existence of site No.35/A. He does not know as to who is the owner of the said site No.35/A. No document is produced to show that towards east of his site, there is site No.35/A. He had pointed out site No.35/A to the court commissioner when he visited the spot. The court commissioner had made a record to that effect. He admits that site Nos.32, 38, 34 and 35 are in one row. He also admits that site Nos.34 and 38 are belonging to the defendant. Except his site, there is some shortage in the measurement of other sites in north south direction. Site Nos.37, 36 and 33 towards the north of his site were taken over by some private party after survey claiming that the said sites belonging to them. It is elicited that over the said open space, one Akkayamma has put up shed and he does not know as to whether the said Akkayamma has signed on the record when the court commissioner had visited the spot. Rangappa the Secretary of the Sangha was present when the court commissioner has taken the measurement. Said Rangappa

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had identified the sites before the court commissioner. He admits that the case against Rangappa was also pending. He admits that as per Ex.P10, towards the east of his site there is no site No.35/A. He also enquired with the Municipality about the existence of site No.35/A and they told that there was no such site in existence. He admits that at the time of filing of the suit the site with boundaries description given in the schedule to the plaint was not in existence. It is suggested that he has encroached upon site No.34 and the same was denied and also he admits that he has not made any application for removal of the shed put up by Akkayamma. He admits that site No.34 belonging to the defendant and further admits that the same is bounded to the east by Site No.35, west by Site No.38. Towards north of it there is site No.36, which has been encroached by some other person. Site No.34 is bounded to the south by road.

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D.W.1, who is the Special Power of Attorney Holder of the defendant. He reiterated the averments of written statement in the affidavit filed before the Trial Court in lieu of his chief-examination. D.W.1 got marked the documents as Ex.D1 to D12. He was subjected to cross-examination.

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In the cross-examination, he admits that the

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defendant has put up in Hospet for his business. It is suggested that there is no any impediment for him to come before the court and to give evidence, the same was denied. He admits that what he has stated in his affidavit is about site No.38 owned by him. He also admits that in the written statement filed, there is no any mention about site No.38. But he admits that he can identify site Nos.38, 34 and 35 in Maruthinagar and he cannot identify the house that is seen in Ex.D3. The house shown to the witness is now marked at Ex.D3(a). It is suggested that house seen in Ex.D3(a) is the house of the defendant. It is suggested that towards the west of the house at Ex.D3(a) the vacant site is a site belonging to him and the same is denied. The shed seen in Ex.D3 is of the roadside in the same line. The shed in Ex.D3 is marked at Ex.D3(d). It is elicited that towards the west of the said shed there is a road. The shed is constructed on the road. Site No.32 is in between the said shed and the house at Ex.D3(a). He cannot give the distance between the road and the poles near his house. He admits that no document is produced to show that he own Site No.38. It is suggested that he is the owner of site No.38 and the same was

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denied. It is elicited that he does not remember as to where he was on 26.02.1998. He cannot state that what had happened on that day to his site. The defendant knows as to what had happened on that day. It is suggested that on 26.02.1998, the Court commissioner has inspected the spot and the same was denied. He does not know about the court commissioner measuring site Nos.32, 34, 35 and 38 on that day and submitted his report to the Court. His brother the defendant also does not know about the same. However, he admits that behind his site and the site of his brother there is a private land. There is vacant space behind his house. Towards the north of site No.34 there is recently built house. It is also elicited that he has been residing in his house since five years. It is elicited that foundation was done over site No.35. He also admits that he see a partly constructed house in Ex.D1. The area of the said construction is the area in dispute and that area is marked as Ex.D1(a). It is suggested that Site No.38 is still a vacant site as on today and the same was denied. It is suggested that if the defendant gave evidence before the Court, the truth will come out and on account of it, he came before the Court to give evidence on

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behalf of the defendant, the same was also denied. He admits that they do not have any right in respect of Site No.35.

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Having considered the oral and documentary evidence available on record it is the claim of the plaintiff before the Trial Court that the plaintiff is the owner of Site No.35. The defendant also claims that he is the owner of Site No.34. Hence, it is clear that the plaintiff and the defendant will not claim any right other than their respective properties.

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In the cross examination, the defendant deposed that he is not claiming any right in Site No.35. The only contention of the defendant that the plaintiff has given misdescription of the property while approaching the Court. But, on perusal of the document which have been placed by both the plaintiff and the defendant particularly the document at Ex.P1, no doubt, on the boundary of northern side, Site No.36 is mentioned and in the document at Ex.P10 also on the northern side boundary, Site No.36 is mentioned. However, the plaintiff while filing the suit has prepared a hand sketch which is marked as Ex.P9.

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The defendant also relied upon the document at Ex.D10 wherein also towards the northern boundary of site No.34, it is mentioned as Site No.36 and on the northern boundary of Site No.35, Site No.37 is mentioned. But there is no dispute with regard to the other boundaries of eastern side, western side and southern side. Towards the southern side, there is a road. It is also not in dispute between the parties that Site Nos.32, 38, 34 and 35 are in the same row. It is also important to note that DW1 in the cross examination categorically admits in page No.4 that foundation was done over Site No.35. But, it is the contention of the defendant that in Site No.34, he started the construction. Hence, the contention of the defendant that he had started the construction in Site No.34 not in Site No.35 cannot be accepted. Hence, the very contention that the plaintiff has given mis-description of the property cannot be accepted.

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I have already pointed out that eastern side, western side and southern side there is no dispute with regard to the boundary mentioned particularly, in Ex.P10 and Ex.D10. No doubt, there is some discrepancy in mentioning the northern

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boundary in respect of both the site numbers as Site Nos.36 and 37. As already pointed out that there is no dispute with regard to the Site Nos.32, 38, 34, 35 as they are in the same row. The defendant also not disputing the fact that on the western side of Site No.34, Site No.35 is in existence and the same was shown in the document which he had relied upon. Apart from that the Commissioner was also appointed before the Trial Court and he had filed the report which was marked as Ex.C1. None of the parties have filed any objections to the said report. The Trial Court while considering both the oral and documentary evidence and also the Commissioner’s report came to the conclusion that the defendant had encroached the property of the plaintiff during the pendency of the suit. The said finding was given while answering Issues No.1 and 2. In paragraph 13, the Trial Court discussed in detail with regard to the evidence of PW1 and DW1 and in page No.33, the Trial Court taken note of the Commissioner’s report who made the reference regarding the encroachment and existence of sites and held that from the evidence of PW1 and documents produced by the Commissioner as per reference document No.5, the Court can safely infer that as on the date of filing of the suit, the suit schedule property was

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vacant land and the defendant was trying to put up construction during the operation of the injunction order and hence, the plaintiff was unable to restrain the defendant from putting up construction and approached the Court on 30.08.1997 and also obtained police protection. Hence, the police could have issued notice to the defendant and stopped the further construction. It is also observed that there is one month gap between the filing of the suit and also obtained the police protection. It is also further observed that the contention of the defendant that he has constructed lintel level prior to the filing of the suit cannot be accepted.

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The Trial Court comes to the conclusion that the construction was made during the pendency of the suit even after granting the temporary injunction and the plaintiff was in lawful possession of the suit schedule property as on the date of filing of the suit and the defendant had put up the illegal construction over the suit schedule property and answered Issue Nos.1 and 2 as affirmative. But, erroneously comes to the conclusion that the plaintiff has not sought for the relief of declaration and possession. When the Trial Court had comes to

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the conclusion that during the pendency of the suit, in violation of temporary injunction, the construction was put up by the defendant by encroaching the property of the plaintiff, it ought to have taken note of the reliefs sought subsequent to the filing of the suit for seeking the relief of mandatory injunction. The very approach of the Trial Court that the plaintiff ought to have sought for the relief of declaration and possession cannot be accepted. No dispute regarding the title and both of them are not claiming the title in respect of same property and have no cloud on the title.

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The counsel appearing for the respondent relied upon the judgment of the Apex Court in the case of T.V.RAMAKRISHNA REDDY referred supra . No doubt, the

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Apex Court in the judgment held that when there is a cloud on the title of the plaintiff, the plaintiff has to seek for the relief of declaration. Now, in the case on hand, admittedly, the defendant is not claiming any right or disputing the right and title of the plaintiff in respect of the Site No.35. He admits that Site No.35 belongs to the plaintiff and also he claims his right in respect of Site No.34 and not in respect of Site No.35. When such being

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the case, the question of cloud on the title of the plaintiff’s property cannot be accepted. Hence, the judgment of the Apex Court is not applicable to the facts of the case on hand and it will not comes to the aid of the defendant.

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The counsel appearing for the plaintiff has relied upon the judgment of this Court in the case of PUTTEGOWDA referred supra wherein this Court held that even in the absence of seeking the relief of declaration of title has not been sought, the suit not to be dismissed on that ground that Court may grant injunction as substantial relief even without prayer for relief of declaration. It is observed that declaration is implicit in grant of perpetual injunction and further observed that in a suit for permanent injunction cannot be dismissed simply on the ground that relief for decree for declaration of title has not specifically been claimed or mentioned in plaint if the plaint shows that plaintiff’s claim for injunction is based on his title or right asserted in the body of the plaint in other words plaint makes it clear that the suit has been filed for establishing title of plaintiff and on that basis is seeking the decree for permanent injunction against defendant.

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I have already pointed out that in the case on hand

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also the claim of the plaintiff is that he is in possession in respect of Site No.35 and not in respect of Site No.34. I have already pointed out that DW1 who is the Power of Attorney holder, in the cross examination categorically admits that he has put up the foundation in Site No.35. When such admission is available on record and also the Trial Court comes to the conclusion that the plaintiff has proved the Issue Nos.1 and 2 and when the Trial Court pointed out that the defendant has encroached the property of the plaintiff and the plaintiff is in lawful possession of the suit schedule property (Site No.35), ought not to have dismissed the suit in coming to the conclusion that the plaintiff has not sought for the relief of declaration and possession. The question of seeking the relief of declaration and possession does not arise for the reason that it is the specific finding of the Trial court that during the pendency of the suit, the defendant continued with the construction and the level of construction is also up to the lintel level. It is not in dispute that the Trial Court has granted an order of temporary injunction in respect of Site No.35 and thereafter, the plaintiff has obtained police protection

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in order to prevent the defendant in continuing with the construction. When that finding given by the Trial Court, the Trial Court ought not to have dismissed the suit and the very approach of the Trial Court in dismissing the suit of the plaintiff is nothing but an error committed by it and lost it’s sight from the admission given by DW1 in his cross examination admitting that foundation was done in Site No.35. When the defendant is not claiming the right in respect of Site No.35, the Trial Court ought to have ordered for the relief of granting injunction as well as mandatory injunction to remove the structure put up in the suit schedule property.

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The main contention of the defendant’s counsel is that while seeking the relief of mandatory injunction, the plaintiff has not pleaded with regard to the extent of encroachment and put up the construction. In paragraphs 15(a) and 16(a) while amending the plaint, it is specifically pleaded that the encroachment is made in respect of suit schedule property i.e., in Site No.35. When such pleading is available on record before the Trial Court, the very contention of the defendant that the extent of encroachment is not stated cannot be accepted. The

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main contention of the plaintiff is that in Site No.35, the defendant had undertaken the construction and inspite of the order of temporary injunction, he continued with the same and hence, he sought for the relief of mandatory injunction to remove the structure put up by the defendant.

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I have already pointed out that the Trial Court considered both the oral and documentary evidence and comes to the conclusion that there is an encroachment. I have already pointed out that the Commissioner’s report is also clear that there is an encroachment and also the description of the property has been discussed in detail in the Commissioner’s report in Ex.C1. Ex.C1 is also given by the Assistant Executive Engineer, City Municipal Council, Yelahanka, stating that the suit schedule property situated within the jurisdiction of the said Municipal Council. The Commissioner also inspected the property and in his report also it is clearly mentioned that Site Nos.32, 38, 34, 35 are in the very same row and when such sites are in the same row, mere mentioning on the northern boundary by a different site number cannot take away the case of the plaintiff and only northern boundary will not disclose the

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case of the plaintiff with regard to the identification of the property is concerned. Eastern side, western side and southern side, there is no dispute between the parties in respect of the description of the property. The very contention of the defendant is that the property has not been properly described and fraudulently the plaintiff had pleaded the same also cannot be accepted. Hence, I am of the opinion that the Trial Court has committed an error in dismissing the suit and I answer all the points as affirmative.

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In view of the discussions made above, I pass the following:

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ORDER

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The appeal is allowed.

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The judgment and decree passed in O.S.No.5739/1997 dated 26.10.2005 on the file

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of the XVII Additional City Civil Judge, Bengaluru City is set aside.

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The suit filed by the plaintiff for the relief of permanent injunction and mandatory injunction is allowed and the defendant is directed to remove

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the structure as put up in the suit schedule property (i.e., Site No.35).

¶119

The Registry is directed to transmit the

¶120

records forthwith.

¶121

The Registry is directed to draw the decree accordingly.

¶122

Sd/JUDGE

¶123

cp*/SN

Rajanna v. Govindachar

Case brief

What is this about?

What did the court decide?

Rajanna v. Govindachar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Cases cited

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Coram

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