Dismissed

M/S Kiocl Ltd. v. Sri. U Ramadas Achar

Karnataka HC24 Aug 2023RSA/2603/2017

Case brief

AI extract

What is this about?

A second appeal by M/s KIOCL Ltd challenging the refusal of a mandatory injunction regarding property boundaries. The High Court modified an erroneous observation in the first appellate judgment but dismissed the appeal, upholding the lower courts' grant of perpetual injunctions and refusal of mandatory injunction.

What did the court decide?

Appeal dismissed; observation in First Appellate Court judgment modified; perpetual injunctions maintained; mandatory injunctions rejected.

M/S Kiocl Ltd. Vs Sri. U Ramadas Achar — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:30353 RSA No. 2603 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO.2603 OF 2017 (INJ)

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BETWEEN:

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M/S KIOCL LTD REP. BY ITS CHAIRMAN II BLOCK, KORAMANGALA BANGALORE 560 034

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THE ESTATE OFFICER KIOCL LTD, KAVOOR MANGALORE-575015.

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…APPELLANTS

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(BY SRI Y K NARAYANA SHARMA, ADVOCATE)

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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AND:

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SRI U RAMADAS ACHAR AGED ABOUT 66 YEARS S/O LATE U.S. ACHAR R/AT NEAR KIOCL COLONY KAVOOR, KAVOOR-BONDEL CHURCH ROAD KAVOOR 575015.

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…RESPONDENT

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(BY SRI NATARAJA BALLAL, ADVOCATE)

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THIS RSA IS FILED UNDER SEC.100 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 08.11.2017 PASSED IN R.A NO.135/2013 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE AND CJM MANGALURU D.K, AND ETC.

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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondent.

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The factual matrix of the case of the plaintiff before the Trial Court that on 08.03.2008, the defendants demolished the portion of eastern compound wall as alleged in paragraph 2 of the plaint and it is the contention of the defendants in the written statement that they are in possession of Sy.No.83/P of the property and the defendants also contended that the plaintiff has illegally cut the compound wall lying between Sy.No.102/5B3 and Sy.No.83/P of Marakada village and the plaintiff sought for the relief of prohibitory injunction against the defendants

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and the defendants also filed counter claim for the relief of perpetual injunction as against the plaintiff and defendants also by way of counter claim sought for the relief of mandatory injunction against the plaintiff. The Trial Court having considered both oral and documentary evidence placed on record comes to the conclusion that the plaintiff is in possession of the plaint schedule property and also comes to the conclusion that the defendants demolished the portion of eastern compound wall and also answered that the defendants are in possession of Sy.No.83/P and the Trial Court also comes to the conclusion that the plaintiff is in possession of his property in Sy.No.102/5B3 and the defendants are in possession of their property in Sy.No.83/P. However while answering Issue No.4 the Trial Court comes to the conclusion that defendants failed to prove that the plaintiff has illegally cut the compound wall lying between Sy.No.102/5B3 and 83/P of Marakada village and also comes to the conclusion that the plaintiff is entitled for permanent prohibitory injunction and the defendants are entitled for perpetual injunction but

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declined to grant the relief of mandatory injunction in favour of the defendants and hence, answered the issues partly in the affirmative and partly in the negative by granting an order of injunction in favour of the plaintiff as well as the defendants in respect of their respective claims of their properties.

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Being aggrieved by the judgment and decree of the Trial Court, the defendants have filed an appeal and the First Appellate Court also on re-appreciation of both oral and documentary evidence placed on record formulated the point that whether the defendants are entitled for mandatory injunction as claimed in the counter claim since the Trial Court has rejected the same and also formulated the point that whether the judgment of the Trial Court is illegal, perverse and contrary to the provisions of law and the said points are answered as negative in coming to the conclusion that the judgment and decree of the Trial Court does not requires any interference.

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4. Being aggrieved by the finding of the First

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Appellate Court, the defendants have preferred this second appeal. The main contention of the counsel for the appellants that the plaintiff is claiming right over the northern side alleging that there is a road but no such road is in existence on the property belongs to Sy.No.83/P. The counsel also submits that the commissioner was appointed and commissioner has given the report in view of the memo of instructions given by both the parties and objections are not filed to the said report and same is accepted. The First Appellate Court committed an error in coming to the conclusion that no such property is in existence between the property of the plaintiff and the defendants and the said finding is erroneous and an erroneous observation is made in paragraph 19 of the judgment in coming to the conclusion that it is clear that Bondel-Kavoor road touches to the plaint schedule property in between the

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appellant/defendant have not owned any property and the

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said observation is erroneous which goes against the material on record. Also an observation is made that the Trial Court rightly observed this point that in between the appellant/defendant they have not owned any property and the said observation is erroneous. The counsel would vehemently contend that the Courts below have committed an error in ignoring the evidence available on record particularly the facts indicating that the compound wall on the northern side of the plaintiff’s property was in existence on the southern boundary of the land having triangular shape belonging to the defendants and the stones of the said compound wall have been removed and kept loosely on the eastern end of the said triangular shape strip of land belonging to the defendants by the plaintiff and as such the judgment and decree in not granting the mandatory injunction is opposed to law. The counsel for the appellants contends that both the Courts have committed an error in not considering the fact that plaintiff has access to his property from the road on the southern side of his property with a gate and compound

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wall on the southern side of the property and never has access to the road on the northern side and the land in Sy.No.83/P belonging to the defendants is in between the road on the northern side and the plaintiff’s property. Hence, it requires interference and this Court has to admit and frame substantial question of law.

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Per contra, the learned counsel appearing for

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the respondent would vehemently contend that it is not in dispute that the properties belonged to the plaintiff and the defendants are in existing adjacent to each other. The plaintiff’s main case is that on the northern side of the property, now road has been formed and hence, he has got the access to the said road and the defendants are coming in the way of causing obstruction to access to the said road. The counsel also would vehemently contend that the plaintiff has purchased the property to the extent of 47 cents and in view of expanding of the road, he has lost half cent of his land and as a result, he has got an access from the northern side to the main road. Hence,

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the Trial Court as well as First Appellate Court having considered the material on record granted an order of perpetual injunction in respect of the property of the plaintiff is concerned.

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The counsel for the respondent relied upon the additional documents which are filed along with the counter affidavit and he would contend that sketch is very clear that portion of the property of the plaintiff was acquired for the formation of the road and when such being the case, on the northern side, the plaintiff has got an access to the main road and also relied upon the document of the year 1989 which shows that prior to the purchase of the property by the respondent, there was an encroachment by the defendants and now the encroachment area has become the road and hence, he has got an access to the northern side and also produced a rough sketch as Annexure-D. Hence, both the Courts have not committed any error in passing the said orders.

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7. Having heard the learned counsel appearing for

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the respective parties and also on perusal of the material on record it discloses that it is not in dispute that the plaintiff claims the relief of permanent injunction in respect of his property that is in Sy.No.102/5B3 and in a suit for the relief of permanent injunction, the Court has to look into the boundaries mentioned in the suit. The boundaries mentioned in the suit are east by survey line, south by Kavoor village boundary, west by survey line and north by survey line. Having considered the boundaries it is clear that the plaintiff has claimed as survey line on the eastern,

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western and northern boundaries and in the plaint schedule it is not stated that on the northern side there is a road as now contended by the plaintiff that the road is in existence and he has got an access to the road on the northern side. But the fact is that on the southern side he is having right and access to his property. But now, the plaintiff is claiming that in view of formation of the road on the northern side, there is a road, and he may be permitted to use the said road. Admittedly, the suit is filed

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in the year 2008 and by that time he has shown northern

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side as survey line and the commissioner has been appointed before the Trial Court and the commissioner also given the report along with sketch which clearly shows with regard to survey line is concerned and the same is marked in the sketch and also triangular shape

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sketch is also shown and the same is in respect of Sy.No.83 and also report is clear that while answering that there is a concrete road of Kavoor - Bondel runs on the northern side of the schedule property and also sketch of the surveyor to be considered and also pointed out that eastern boundary of the schedule property itself is the western boundary of the defendants and also surveyor had fixed the boundaries in the presence of both the parties along with their counsel and they have prepared the sketch and I have already referred the said sketch that a triangular shape shown in the sketch is in respect of Sy.No.83 and Sy.No.102/5B3 also clear that there is a survey line in between the property of the plaintiff and also the defendants. Admittedly, the defendants have

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purchased the property and no dispute in this regard and only dispute is with regard to the triangular portion of the property which depicted in the sketch along with the sale deed executed in favour of the defendants that is corner of property of Sy.No.83 in which the plaintiff is claiming that the same is acquired by the government for formation of

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the road and hence, he has got an access. When the boundary description is given in the plaint as a survey line and on the northern side not pleaded that there was an existence of road as contended now by the plaintiff. When such being the case, when the plaintiff himself has pleaded by showing the boundary as survey line on the northern side, now he cannot contend that there is a road and same is also disputed by the defendants by leading evidence before the Trial Court in respect of the claim of the plaintiff that defendants are interfering and also claimed the counter claim of perpetual injunction and both have been granted injunction by answering the issues by the Trial Court and declined to grant the relief of mandatory injunction as sought by both of them and though the

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appellants herein also claimed mandatory injunction in an appeal and the same was also declined to grant the same. However, granted the perpetual injunction in respect of their properties since the plaintiff claims the injunction in respect of Sy.No.103/5B3 and defendants are claiming perpetual injunction in respect of Sy.No.83/P which they have purchased from the Government.

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No doubt, the respondent mainly relies upon the additional documents which have produced along with the counter affidavit wherein he has relied upon the document with regard to encroachment prior to purchase of the property. But the fact is that he has purchased the property in the year 1987 but though he relies upon the document of the year 1989 there is an encroachment, he has not sought any relief of possession contending that there is an encroachment but the counsel submits that in view of the formation of the road, now the encroached portion has become road and when the defendants denied the very contention that the same became as road on the

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northern side, defendants’ claimed that said property belongs to them on the northern side of the property of the plaintiff Sy.No.83 is in existence. When such being the case, in view of the pleadings and description shown in the plaint are concerned, northern side boundary is survey line and now the plaintiff cannot contend that there is a road.

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However, the First Appellate Court while rejecting the appeal committed an error as contended by the appellants’ counsel that in paragraph 19 an observation is made that it is clear that Bondel-Kavoor road touches to the plaint schedule property and in between the appellant/defendant have not owned any property and the said observation is erroneous as contended by the appellants’ counsel. But the fact is that both the Courts considered the point with regard to cut and removal of the compound and comes to the conclusion that both the parties have proved their possession over their respective properties and granted an order of permanent injunction and perpetual injunction and declined to grant the relief of mandatory injunction in respect of the appellants as well as the

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respondent/plaintiff and hence, I do not find any error in the order except the observation made by the First Appellate Court in the appeal in paragraph 19. When such being the case, when the boundaries are mentioned by the plaintiff as in the northern boundary as survey line, now, he cannot contend that a road is in existence and he has

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to make access to the said road and he has not shown northern boundary as road. Hence, there is no force in the contention of the respondent counsel. Hence, except modifying the portion of observation made in the First Appellate Court in paragraph 19, both the Courts have considered the material on record and granted the relief of injunction in favour of the parties in respect of their respective properties and the suit is only for the relief of injunction and the Court has to grant the relief of injunction looking that as on the date of filing of the suit whether the parties who claimed the relief is in possession of the property and hence, both the Courts have applied their mind and given anxious consideration that the parties are in possession in respect of their properties. Hence, I

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do not find any error in the order of the Trial Court as well First Appellate Court as they are in exclusive possession in their respective properties and in order to grant the relief of mandatory injunction as sought by the plaintiff as well as the defendants, both the Courts declined to grant the same since, there are no material on record and hence, except modification of paragraph 19 of the order of the First Appellate Court as observed above, no other relief will be granted in favour of the appellants also. Accordingly, the appeal is disposed of.

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Sd/JUDGE

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M/S Kiocl Ltd. v. Sri. U Ramadas Achar

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M/S Kiocl Ltd. v. Sri. U Ramadas Achar

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