Dismissed

Raju v. Smt Jayamma

Karnataka HC29 Sept 2021RFA/611/2009

Case brief

AI extract

What is this about?

In this first appeal against a decree for declaration and injunction, the appellant challenged the finding that they encroached a 20 feet road. The High Court examined evidence, found the appellant failed to prove lawful title to the disputed area, and upheld the trial court's order removing the encroachment.

What did the court decide?

Appeal dismissed; decree passed in the original suit (declaration and injunction for removal of encroachment) is affirmed.

Raju Vs Smt Jayamma — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^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.611/2009 (DEC-INJ)

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BETWEEN:

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RAJU S/O LATE APPAIAH AGED ABOUT 33 YEARS R/AT ITTAMADU BANASHANKARI 3^RD PHASE BENGALURU-560 085.

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… APPELLANT

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[BY SRI B.V.MANJUNATH, ADVOCATE]

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AND:

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SMT. JAYAMMA W/O N.NAGARAJ

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AGED ABOUT 38 YEARS R/AT NO.24, 23^RD CROSS ITTAMADU, B.S.K. 3^RD STAGE 3^RD PHASE, BENGALURU-560 085.

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THE COMMISSIONER THE BRUHATH BENGALURU MAHANAGARA PALIKE, N.R.SQUARE BENGALURU-560 001.

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THE COMMISSIONER KARNATAKA SLUM CLEARANCE BOARD

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RISALDHAR ROAD SHESHADRIPURAM BENGALURU-560 020.

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(AMENDED VIDE COURT ORDER DATED 21.08.2015) … RESPONDENTS

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[BY SRI K.H.THIMMAIAH, FOR C/R1; SRI B.V.MURALIDHAR, ADVOCATE FOR R2; SRI D.VENUGOPAL, ADVOCATE FOR R3]

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THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 22.04.2009 PASSED IN O.S.NO.4678/2005 ON THE FILE OF THE XXXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY AND ETC.

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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 passed in O.S.No.4678/2005 on 22^nd April 2009 on the file of the

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XXXIII Additional City Civil and Sessions Judge, Bengaluru City.

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The parties are referred to as per their original

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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 plaintiff is the

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owner in possession of plaint ‘A’ schedule property which is more fully described in the schedule contending that the plaintiff had purchased a site formed in Sy.No.42 by one Krishnaiah who is the owner of the entire land bearing Sy.No.42 and the same is a private layout and he formed the sites within the internal main roads and cross roads for the beneficial enjoyment of the site owners. The plaintiff’s vendor had purchased a site No.24 measuring east to west 42 feet and north to south 30 feet in the said layout and he sold the said site with the very same measurement to the plaintiff through a registered sale deed dated 28^th May 2003 i.e., ‘A’ schedule property. The ‘A’ schedule property bearing No.24, katha No.42/2 situated at Ittamadu village, Uttarahalli hobli, Bangalore South taluk, and now, the said area is called as Manjunathanagara, Banashankari 3^rd phase, BMP Ward No.55.

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It is the case of the plaintiff that in view of the said sale deed, the plaintiff got entered her name in the khatha by

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Bangalore Mahangara Palike (BMP) as per PR No.64/2003-04 dated 22^nd August 2003 and the property is also subjected to the assessment and hence, the plaintiff is the owner of ‘A’ schedule property. It is further contended that the plaintiff by raising a loan from National Co-operative Bank Limited, Bull Temple road, Bangalore, after obtaining the sanctioned plan and licence from BMP, had constructed a residential house. It is further contended that to the north of the plaint ‘A’ schedule property, there is a 20 feet road which more fully described in the plaint as ‘B’ schedule property. To the north of this road i.e., plaint ‘B’ schedule property there is a site No.12. The plaintiff has got only this plaint schedule ‘B’ property road for the ingress and egress to her plaint ‘A’ schedule property.

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It is contended that The first defendant who had no

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manner of right and title over the plaint ‘B’ schedule property, encroached the site No.12 and also encroached upon the ‘B’ schedule road which is just in front of ‘A’ schedule property to the extent of east to west 40 feet and north to south 20 feet.

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The first defendant had put up an unauthorised construction over the plaint ‘B’ schedule property and because of the illegal and unauthorised construction by the first defendant over the ‘B’ schedule road, it has caused injury to the plaintiff to enjoy her ‘A’ schedule property. Inspite of the complaints given to the BMP to remove the same, they have not taken any action. Hence, without any other alternative, filed the suit seeking the relief of declaration and injunction against the defendants. It is contended that originally, the plaintiff had filed a suit against the first defendant and later, the second defendant had arrayed as party to the proceedings that is BMP Commissioner.

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In pursuance of the suit summons, the first

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defendant had appeared and filed his written statement contending that the first defendant and his sister-in-lawNagamma were in possession and enjoyment of the property measuring east to west 44 feet and north to south 33 feet in the slum area which comes in Ittamadu village, Bangalore South taluk. The area in which the first defendant was in occupation

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was site No.91 measuring 24 feet east to west and 33 feet north to south and his sister-in-law was in possession and enjoyment of east to west 20 feet and north to south 33 feet. It is also contended that the Government has re-surveyed Sy.No.3 and the major portion was re-surveyed in which, the slum dwellers were coming and it includes the first defendant and his sister-inlaw-Nagamma and prior to the allotment, the Government has prepared a sketch of the properties to be allotted to the slum dwelling allottees. The Government through Slum Clearance Board had allotted the portion of the area wherein the first defendant and his sister-in-law were dwelling and they were given site No.182 for the occupation of the first defendant and site No.183 for the occupation of his sister-in-law and in this regard photographs, identity certificates were also issued by the Karnataka Slum Clearnace Board to the first defendant and his sister-in-law. The first defendant had built an ACC sheet roofed house in his property No.182 and residing with his family and his house is much older than the property of the plaintiff. The first defendant contends that site No.102 will not come within the

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vicinity of the first defendant’s property and the first defendant further contends that there is no road contending as ‘B’ schedule property by the plaintiff to the north of the plaint ‘A’ schedule property. The first defendant also denies that the plaintiff is the owner of ‘A’ schedule property with a house constructed on it by getting approved plan and licence and all other averments made in the plaint are denied. It is contended that the plaintiff had produced the forged documents to encroach on the Government slum area and denies the allegation of the illegal encroachment as alleged in the plaint.

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Based is on the pleadings of the parties, the Trial

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Court had framed the following issues:

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1. Whether the plaintiff proves that she is the owner in possession of plaint A-schedule property with boundaries as contended in the plaint?

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2. Whether the plaintiff further proves that the defendant put up unauthorized construction on the road as per plaint schedule-B?

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3. Whether the defendant proves that the plaintiff has got road from the western side to approach his property?

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4. Whether the plaintiff is entitled to the mandatory injunction for the removal of plaint schedule-B?

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5. Whether the plaintiff is also entitled for the declaration and permanent injunction as sought for?

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6. What order or decree?

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In order to prove the case of the plaintiff, she

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examined herself as PW1 and also examined two witnesses who are the neighbouring owners of the house of the plaintiff as PW2 and PW3 and Court Commissioner also examined as PW4 and got marked the documents at Ex.P1 to P25. The first defendant examined himself as DW1 and got marked documents at Ex.D1 to D14. The Trial Court after considering both the oral and documentary evidence answered Issue No.1 as affirmative coming to the conclusion that the plaintiff is the owner in possession of ‘A’ schedule property and also answered Issue No.2 in favour of the plaintiff and Issue No.3 as Negative that the defendant has not proved that the

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plaintiff has got road from the western side to approach her property. The Trial Court also comes to the conclusion that the plaintiff is entitled to the mandatory injunction for the removal of plaint ‘B’ schedule property wherein a construction was made and also the plaintiff is entitled for the relief of declaration and injunction as against the defendant.

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Being aggrieved by the judgment and decree of the Trial Court, the present appeal is filed by the first defendant. The main contention of the defendant/appellant before this Court is that the Trial Court did not appreciate the documents at Exs.D1 to D3 which discloses that the suit schedule properties are situated in the declared slum zone area. The Court below did not go through the physical possession of the appellant and the appellant’s have constructed a structure long back. The learned Trial Judge has erroneously considered that the first respondent/plaintiff is the owner in possession of the ‘A’ schedule property and also erroneously comes to the conclusion that the plaintiff is entitled for the relief of mandatory injunction

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for removal of a structure found in schedule ‘B’. The Trial Court had committed an error in not appreciating that though the schedule property belongs to the declared slum zone, the second respondent-BMP also has no power to collect the tax and transfer the katha in the name of the first respondent herein and the same is illegal and it requires interference of this Court.

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The counsel for the appellant/first defendant in his argument vehemently contend that the defendants have constructed a building in site No.182 which was allotted by the Slum Clearance Board and they have not encroached any road and no such road was existed on the northern boundary of the plaintiff’s property. The counsel would vehemently contend that the Trial Court failed to consider the documents which have been placed before it and erroneously proceeded to pass an order of decree in favour of the plaintiff. The counsel would vehemently contend that the defendant/appellant is in possession of the property which has been allotted in favour of him by the Slum Board. The Trial Court also committed an error in not properly

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appreciating the evidence of the Commissioner who has been appointed by the Court. The counsel vehemently contend that the Commissioner who was appointed before the Trial Court is not a technical person to conduct the survey as he is an advocate and he cannot tell where the property is constructed by the first defendant whether it is in a slum board area or in the road as alleged by the plaintiff and hence, it requires interference of this Court.

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Per contra, the counsel appearing for the plaintiff/first respondent vehemently contend that the plaintiff had purchased the site No.24 measuring 42 feet east to west and 30 feet north to south. The same is carved out of Sy.No.42 and the same was purchased by one Krishnaiah in the year 2003 and he had also paid the betterment charges and obtained kahta in terms of Ex.P2 and also obtained approved plan as per Ex.P8. The same was also approved by Bangalore City Corporation. The counsel would vehemently contend that after obtaining the loan, constructed a house. The defendant illegally encroached

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upon the ‘B’ schedule property. In the sale deed it is specifically mentioned that there is an existence of 20 feet road. The defendant encroached upon the site No.24 and also in the ‘B’ schedule property portion he had constructed the building. Though, the complaint was given to the Bengaluru City Corporation i.e., the second defendant, they have not taken any action. But the documents at Exs.P19 and P20 to P24 clearly discloses the encroachment made by the first defendant.

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The first defendant relies upon only the document at Ex.D1 which is in respect of Sy.No.3 and in the crossexamination of DW1, he gives different version. In one breath, he claims that site No.91 and another breath he claims that site No.139 and thereafter it is renumbered as 182 and 183 but not produced any documents to show that on what basis these numbers are renumbered. The counsel also vehemently contend that the Commissioner’s report also supports the case of the plaintiff. The first defendant taking advantage of road which is dead-end, encroached the said road and also encroached the

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public road as the plaintiff has no other road to access her property. The counsel would also vehemently contend that neighbouring site owners of site Nos.14, 22 also examined as PW2 and PW3. The Trial Court considering the documents placed by the plaintiff and also the oral evidence of PW1 to PW3 and apart from the commissioner’s evidence-PW4 rightly comes to the conclusion that the defendant had encroached the ‘B’ schedule property and hence, decreed the suit and comes to the conclusion that the defendant has constructed an unauthorised and illegal construction over the ‘B’ schedule property and the same has to be removed and there are no grounds to interfere with the findings of the Trial Court.

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Having heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents and also on perusal of the material available on record, the points that arise for the consideration of this Court are:

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Whether the Trial Court has committed an error in decreeing the suit in coming to the conclusion that the defendant has encroached upon 20 feet

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road, which is in existence on the northern boundary of the ‘A’ schedule property?

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Whether the Trial Court has committed an error in directing to remove the encroached portion, which is in existence on the northern boundary of plaintiff’s property, which is more fully described as ‘B’ schedule property to the plaint?

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What order?

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Points No.1 and 2:

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Having heard the learned counsel appearing for the parties and also on perusal of the records and also the grounds urged in the appeal, this Court has to analyse and re-appreciate the material available on record since this Court being a first Appellate Court has to re-appreciate the question of fact and question of law. This Court being the first Appellate Court has to re-appreciate both the oral and documentary evidence available on record.

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The plaintiff in order to prove her case, she herself examined as PW1 and got marked the documents at Ex.P1 to P25. PW1 in her evidence, she reiterated the averments of the plaint in her affidavit and she was subjected to the crossexamination. In the cross examination, the defendant counsel elicited that before purchase of ‘A’ schedule property, she has not enquired about the said property either in the Corporation or before the revenue authorities. It was a vacant site. Ex.P19 was given to her by Krishnaiah at the time of purchase. It is elicited that in Ex.P19, site No.24 measuring east to west 42 feet and north to south 30 feet.

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It is suggested that the schedule ‘A’ property is not

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lying in Sy.No.42 of Ittamadu village and the same is denied. It is elicited that there is no layout as shown in Ex.P19 and the same is also denied. It is also elicited that ‘A’ and ‘B’ schedule properties are not come in Sy.No.42 as per Ex.P19 and the same is denied. He admits that ‘A’ schedule property is consists of 4 square building and first floor and its main door faces towards

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east. Towards the west of the said house there is a house belonged to somebody. It is elicited that the house in plaint ‘A’ schedule has not been constructed according to the plan Ex.P8 and the same is denied. He stated that there is no road in front of his house but there is a road to the north of his house. To the south of his house, there is others’ property belonged to Jayamma and Ramegowda. To the north of his property there is a road and after that there is a house and that has been built by the defendant. It is elicited that to the south to his house there is a road and the same is denied. It is suggested that to the east of his house there is a road and the same also denied.

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The plaintiff also examined PW2 who is the owner of

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the site No.22 and he also in his evidence deposed that towards the east of his house site No.23, west side of his house site No.21, towards south site No.28 and towards the north 20 feet road. The 20 feet road which runs from east to west and the said road were existed since from the formation of layout by the earnest land owner Krishnaiah. The said road is in Sy.No.42/2

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and the same is meant for the use of the site holders bearing site Nos. 21, 22, 23, 24 and site Nos. 12, 13, 14 and 15. It is also his evidence that 20 feet width road left by the land owner runs from east to west in front of site Nos.21, 22, 23, 24 and site Nos.12, 13, 14, 15 and the same is dead-end road at the point of the plaintiff’s site. It is also his evidence that the defendant taking advantage of dead-end road has put up an authorised temporary asbestos sheet sheds over the road measuring east to west 42 feet and north to south 20 feet without leaving any space to reach the house of the plaintiff. It is also his evidence that by virtue of the illegal construction put up by the first defendant over the road in front of the plaintiff’s house on the northern side virtually there is no road to reach the plaintiff’s house. PW2 was also subjected to cross examination. In the cross examination he admits that road is to the north of his site No.22. Site No.22 is at a distance of 22 to 25 feet from the house of the defendant. This 20 feet road ends at site No.24. It is elicited that he has not produced any documents to show that he is residing in site No.22.

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The plaintiff also examined PW3 who is site owner of site No.14 and he also reiterates that site No.14 is carved out of Sy.No.42/2. PW3 also gives the evidence similar to the evidence of PW2. He was also subjected to cross examination. In the cross examination he admits that he also purchased the site from one Krishnaiah and a question was put to the witness that the defendant had constructed the house in the slum area, the witness says that he has constructed after the road. 20 feet road is not the dead-end road. He has also not produced any document to show that he is residing at site No.14.

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The other witness PW4, who is an advocate appointed as Court Commissioner, in his evidence he says that he was appointed as Court Commissioner. He inspected the site and given the report. He says that in front of ‘A’ schedule property 3 feet 8 inch passage running east to west leading to the road. He has prepared the rough sketch based on the private layout plan, sale deed of the plaintiff, sanction plan of the plaintiff and also the memo of instructions filed by both the

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parties. The layout plan what he has stated is unapproved plan. In the memo of instructions of the defendant there was an instructions whether site No.12 exists or not as per the unapproved plan. It is elicited that he has not given any finding or opinion with regard to site No.12 and the same was denied. He admits that there are no road numbers.

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On the other hand, the first defendant has been examined as DW1 and also in his evidence he reiterates the contents of the written statement stating that he had constructed a building in the slum area where the allotment was made in favour of him. In the cross examination, a suggestion was made that in his affidavit he has stated that his father and mother were in possession of property No.91 and witness says that his father died in the year 1983 and his mother is alone in possession and enjoyment of the property No.91. It is suggested that they were not in possession and enjoyment of the property No.91 in 1984 and same was denied. He admits that he has no document for the property No.91 from 1984 to

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But he has produced the document from the year 1995 onwards. He admits that he has not produced document for the property No.91 from 1994 to June 2007. He also admits that Exs.D4 to D8 shows the name of the first defendant to the property No.139, slum area, Maruthinagar. The above site No.139 to the said property was not given by the slum board, but it was given by the elders of that area. Even to the property No.1, the number was given by the elders but not by the slum board. The numbers 91 and 139 to the said properties were given by the elders stating that the electricity charges is to be paid. Exs.D4 to D8 are the water bills from April 2007 to September 2007. He also admits that he has not made any application before the Water Board and the Electricity authorities for giving connections to the property No.139 and 91 and witness says that they themselves have come and after seeing the slum area they have provided the facility. He admits that in his written statement he has not stated that the property No.139 and 91 are one and the same. The property No.139 is not concerned to the property No.91. He admits that he has not

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produced any document to show that from the year 1984 to 2007, he was in possession and enjoyment of the property No.91. He further admits that to show the possession of the property No.91, he has produced Exs.D4-D11. He admits that in the year 1984, he was 11 years old. He also admits that he had no ration card for the year 1984, but, he had ration card from the year 1990 to show that he himself, his elder brother, younger brother and his mother are residing in property No.91. The ration card which was earlier in the name of his mother is cancelled and now, it is in his wife’s name. He also admits that he has not produced any documents to show about the extent of the property No.91 from the year 1984 to 2007. He admits that Ex.D14 was not prepared by any authority but it is prepared by the slum area people. The boundaries of the property No.91:east-house No.92, west-vacant site, north-road, southsite. According to Ex.D14, west of property No.91 it has been shown as property No.90, but it is not there, it is a vacant site. To the west of property No.90, there is Sy.No.42. In Ex.D14, the area of all sites have been shown as 30 x 40 feet. The

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question was put to him that in the written statement he has stated that his property is measuring 44 x 33 feet and on what basis he has pleaded the same. The witness says that it was given like that. But claims that at the time of creating the sites in the slum area it was given as 44 x 33 feet, but, he has not produced any documents to show that at the time of creating sites they have given area as 44 x 33 feet. It is elicited that he has not produced any document to show that Sy.No.3 of Ittamadagu village is a Government property and he created Ex.D14 and the same is denied.

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He was also subjected for further cross examination and he admits that Ex.D9 is concerned to the year September 2007 and the same is also pertains to the property No.182. Exs.D10 and D11 pertain to the property No.182. The electricity meter is in his name from six years. Exs.D4 to D8 pertain to the year 2007 and they are in his name. In Exs.D4 to D8, the name of the first defendant and the property No.139 is mentioned. The witness says that they are old numbers and the new number

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to the property as 182 was given about six months back i.e., on 13.07.2007. In Exs.D4 to D8, the new number 182 is not mentioned and a question was put to him that on what basis the numbers 182, 183 are given. Witness says that after surveying the slum, said numbers were given. He claims that his brother’s wife is residing in property No.183 for the last six years. There is no electricity and water facility to the property No.183 and there are no bills to the concerned property. He was also further cross examined and question was put to him that on what basis slum authorities to site No.91 have given the numbers as 182 and 183. The witness says that they are residing in the said property but, there is no document to show that site No.182 and 183 originally belongs to old site No.91 and also he has not produced any document to show how Sy.No.3 was before survey drawing Ex.D1 and also he does not know Sy.No.3 was before Ex.D1 like that and he does not know when the document came into existence.

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Having considered both the oral and documentary

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evidence, it is the claim of the plaintiff that he had purchased the property which is originally a revenue layout. The document at Ex.P19-layout plan is also produced before the Trial Court which discloses that a layout was formed in Sy.No.42. The layout discloses that on the northern side of Site No.24, there is a road of 20 feet. Hence, it is clear that there was a 20 feet road on the northern side of the suit schedule property which is more fully described as ‘B’ schedule property. Through out, the plaintiff has maintained that on the northern side, road is shown not only in his sale deed but also his vendor’s sale deed. I have already pointed out that the layout plan at Ex.P19, on the northern side it is mentioned as 20 feet road. It is also important to note that other side of 20 feet road, the owners of the site Nos.22 and 14 were also examined as PW2 and PW3 before the Trial Court. Both have also reiterated that on the northern side of the ‘A’ schedule property, there is a 20 feet road. PW1 is the owner of site No.24 and PW2 is the owner of site No.22 and on the northern side of their properties, there is a

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20 feet road. It is not only on the northern side of the plaintiff’s property but also on the site No.22 northern boundary is shown as 20 feet road. In the cross examination of PW1 and PW2 nothing is elicited that there was no such 20 feet road on the northern side of their properties and Site No.14 owner has been examined as PW3 and he also reiterates that the defendant has encroached upon the portion of the 20 feet road which is more fully described as ‘B’ schedule property.

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Apart from that, it is the claim of the first defendant that the property was allotted in his favour by the Slum Board. In the cross examination, he admits that site No.91 and 139 are distant properties. It is also his claim that the very same property No.91 was renumbered as site Nos.182 and 183 but in the cross examination he categorically admits that to show the change of the said number, no document placed before the Court except relying upon the documents at Exs.D4 to D8. Except the electricity and water bills, no other documents are produced before the Court. Ex.D1 is only the survey sketch

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which discloses that the same is slum area. In order to prove the factum of allotment of the property by the Slum Board in favour of the first defendant, no documents are placed before the Court. The document which have been relied upon by the first defendant is only the certificate issued by the Karnataka Slum Clearance Board and water demand notice at Exs.D4 to D9 and also the electricity bills at Exs.D10 and D11 and water charges payment receipt at Exs.D12 and D13 and also relies upon the document at Ex.D14- photocopy of the layout plan and these documents are not in respect of the title of the first defendant. He also admits that the property given to him by slum area people without specifying the measurement.

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In order to prove the fact that though site No.91 is renumbered as 182 and 183, no documents are placed before the Court. The Trial Court taken note of admission elicited from the mouth of DW1 regarding identity of the property but he admits that there is no document with regard to the identification of the property. When such being the case, the

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plaintiff has produced the documents to prove her title in respect of site No.24, as he had purchased the same from one Krishnaiah and thereafter he had obtained the plan from the Bengaluru City Corporation and constructed a building and boundary on the northern side it is specifically mentioned as 20 feet road.

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It is also important to note that the Commissioner was also appointed before the Trial Court and he also gave the report. In his report it is clear that on the northern side of the property of the plaintiff, it is only 3 feet 8 inch passage is exists. Hence, it is clear that the remaining road of 20 feet was encroached and the defendant is also not denied the fact that his house is on the northern side of the plaintiff’s property. When the plaintiff is shown that the northern side boundary of her property there is a 20 feet road and only an extent of 3 feet 8 inch passage is in existence, the Trial Court also appreciated the same and comes to a conclusion that the first defendant has to remove the same and the same is an unauthorized construction.

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The first defendant also not placed any document for having obtained the plan from any authority for the construction of the building since he claims that he constructed the building. It is also important to note that he is in portion of the property which is renumbered as site No.182, but, in order to prove the said fact no material is placed before the Court. The defendant himself not sure that how he got the property. Except saying that the said property was got from the slum board, no plan is obtained for the construction. Hence, it is clear from the evidence of PW1 to PW3 and apart from the Commissioner’s report that the defendant has encroached upon the 20 feet road which is in existence towards the northern side of the plaintiff’s property.

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I have already pointed out that the first defendant also not denied the fact that on the west side of his property, the plaintiffs property is in existence. Further it is contended that the property of the plaintiff also in slum area but in order to substantiate his contention, he has not placed any documentary

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proof before the Trial Court. The Trial Court has taken both the oral and documentary evidence available on record and particularly, cross examination of D.W.1 wherein he admits that no documents are placed with regard to identity of his property. Hence, it is clear that the first defendant has encroached the plaintiff’s property and thereafter he extended the construction towards the road which is more fully described as ‘B’ schedule property. Hence, I do not find any reason to reverse the finding of the Trial Court. While reversing the finding of the Trial Court, the appellant has to make out a case producing documentary evidence on record. If the Trial Court has ignored such material and given finding, then only the appellant can seek for reversal of the finding but no such material is placed on record stating that the Trial Court has not considered the material available on record. I have already pointed out that in the cross examination of PW1 to PW3 except the suggestions, nothing is placed on record to substantiate the contention of the defendants and answers were elicited from those witnesses.

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It is also important to note that this Court has

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directed the second respondent to submit a report before the Court and accordingly, the second respondent – BMP filed a report stating that the sketch which is produced along with the report discloses that item No.3 property belongs to the appellant and item No.4 is the property in which by existing building portion of Raju/appellant and others, but for which Jayamma claiming as road but there is no sign of road such as side drain and UGD but the sketch which is produced along with this report, it is clear that the passage of road is only 3 feet 9 inch which is in existence on the northern side of the property of the plaintiff and this report also substantiate the claim of the plaintiff. Along with the report also the BMP has produced GIS map which is downloaded from the BMP website. This report also substantiate the case of the plaintiff that there is an encroachment on the northern side of the property of the plaintiff.

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Having considered the material available on record,

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both the oral and documentary evidence and though it is contended by the appellant’s counsel that the Trial Court has committed an error in directing the defendant to remove the encroachment portion of building. When the documents are clearly discloses that with regard to the unauthorized construction on the road portion which is more fully described in ‘B’ schedule property, the very contention of the appellant’s counsel cannot be accepted. Hence, I do not find any merit in the appeal to reverse the finding of the Trial Court. Accordingly, Points No.1 and 2 are answered as negative.

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In view of the discussions made above, I pass the

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following:

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ORDER

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The appeal is dismissed.

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Sd/JUDGE

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Raju v. Smt Jayamma

Case brief

What is this about?

What did the court decide?

Raju v. Smt Jayamma

Case brief

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What the court decided

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