Sri Radhakrishna Vs Smt Jailakshmi

ALL ARE RESIDING AT: NO.71/2, CORPORATION LAYOUT, B C LAYOUT, ‘D’ MAIN ROAD, JAYANAGAR, BENGALURU-560 041. RESPONDENTS 4 AND 5 ARE MINOR BEING REPRESENTED BY MOTHER AND NATURAL GUARDIAN SMT. ANNAPURNA.

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…RESPONDENTS

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(NOTICE TO R-2 IS SERVED & UNREPRESENTED)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 12.01.2024 PASSED IN O.S.NO.1898/1993 ON THE FILE OF THE XIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, PARTLY DECREEING THE SUIT FOR DECLARATION AND INJUNCTION.

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THIS APPEAL COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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Though the matter is listed for orders, with the

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consent of learned counsel for the appellant, the matter is taken up for final disposal.

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The present appeal is preferred by the plaintiff assailing the judgment and decree dated 12.01.2024

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passed in O.S.No.1898/1993 on the file of the XIV Additional City Civil Judge, Bengaluru (hereinafter referred to as ‘the Trial Court’ for short), whereby the suit was partly decreed, declaring the plaintiff as the absolute owner of the suit property, while rejecting the relief of mandatory injunction for demolition of the compound wall and staircase alleged to have been put up by the defendant.

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Heard Sri. M.D.Raghunath, learned counsel for

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the appellant. Respondent No.2 served and unrepresented.

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Suit is one for declaration of title, possession and for mandatory injunction to demolition of structures and compound wall constructed illegally in property No.72/1, 'D' Main Road, Corporation Colony, 4^th 'T' Block, Jayanagar, Bengaluru measuring North to South ½ feet and East to West 40 feet ('suit property' for short).

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The case of the plaintiff is that he is the

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absolute owner of the property bearing No.72, New No.1,

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'D' Main Road, Corporation Colony, 4^th 'T' Block,

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Jayanagar, Bengaluru, having purchased the same under the registered sale deed dated 09.08.1990 from one Dr.R.Nagaraj. It is further contended that from the date of purchase, the plaintiff has been in absolute possession of the said property. The grievance of the plaintiff is that defendant No.1, who is the owner in possession of the adjacent property, has illegally encroached upon a portion of the plaintiff’s property and put up construction therein, to the extent described in the suit schedule property.

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The defendant contested the suit, contending that the property bearing No.71/2 is adjacent to the property of the plaintiff, and was allotted by Bengaluru Mahanagara Palike ('BMP' for short) in the year 1977 and in the year 1977-1978, the defendant constructed a house

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the said property as per the sanctioned plan. The compound wall and staircase in question were also constructed in the year 1977-78, much prior to the plaintiff’s purchase in 1990. The plaintiff himself raised

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unauthorized construction in 1991, contrary to the sanctioned plan, which obstructed free flow of natural air and light to his property. Instead of stopping such violations, the plaintiff, with the aid of certain BMP officials, proceeded with the construction and even filed O.S. No.1326/1993 securing an injunction against the defendant. In relation, the defendant was constrained to institute O.S. No.3097/1993 and O.S. No.660/1993 against the plaintiff and BMP seeking to restrain the plaintiff from continuing illegal construction and to demolish the same. Upon verification, the BMP itself found the plaintiff’s construction to be unauthorized and issued notices directing demolition, against which plaintiff filed WP No.15502/1994 and obtained an interim protection. Thus, according to the defendant, several rounds of litigation ensued between the parties, but it remained undisputed that the defendant’s construction was lawfully sanctioned in 1977-78, much prior to the plaintiff’s purchase of his property in 1990.

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In order to substantiate their claim, the plaintiff examined himself as PW.1, marked documents at Exs.P1 to P7. The Court Commissioner was examined as PW.2, marked documents at Exs.P8 and 9. On the other hand, the defendant examined himself as DW.1 and marked documents at Exs.D1 to D5.

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The Trial Court, upon considering the oral and documentary evidence, observed that the Court Commissioner’s report-Ex.P7 and sketches-Exs.P8 and P9, indicated that the defendant has encroached upon the plaintiff’s property to the extent of ½ feet North-South x 40 feet East-West by putting up a compound wall and staircase, and this was further supported by plaintiff’s sanctioned plan-Ex.P2 and photographs-Exs.P3 to P6. While holding that the plaintiff has duly established his ownership over site No.72/1 under Ex.P1, the Court also found that the defendant’s construction had been completed in 1977-78 as per Ex.D1, long prior to the

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plaintiff’s purchase in 1990. Therefore, concluded that though encroachment stood proved, the plaintiff having purchased the property with such pre-existing structures, could not in equity claim demolition on possession and accordingly partly decreed the suit by granting a declaration of ownership but refusing the relief of mandatory injunction.

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Learned counsel for the appellant vehemently contended that the Trial Court, once the title is established and having come to the conclusion that the Court Commissioner at Exs.P7 to 9 clearly indicated that the defendant has encroached ½ feet and 40 feet of the plaintiff’s property, has erred in denying the relief of mandatory injunction and possession. According to the appellant, the finding of encroachment by the Commissioner could not be nullified merely on the ground that defendant’s construction was old and the denial of equitable relief has resulted in grave injustice.

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The point that arise for consideration is:

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“Whether the judgment and decree passed by the Trial Court in partly decreeing the suit by granting declaration while refusing mandatory injunction warrants any interference in the facts and circumstances of the case?”

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In the case of The Golden Valley Educational Trust Oorgam, Kolar District Vs. The Vokkaligara

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Sangha, Bangalore¹ , has laid down parameters as to when mandatory injunction can be granted and in paragraph No.43 summarized as under:

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“ 43. From the aforesaid decisions, the law in respect of mandatory injunction could be summarized as under:—

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The grant of a mandatory injunction is, of course, entirely discretionary and unlike a negative injunction can never be ‘as of course’. A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future. It is a jurisdiction to be exercised sparingly and with

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1 ILR 2016 KAR 2899

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caution but in the proper case unhesitatingly. Where the defendant has acted without regard to his neighbour's rights or has tried to steal a march on him or has tried to evade the jurisdiction of the Court or, to sum it up, has acted wantonly and quite unreasonably in relation to his neighbour, he may be ordered to repair his wanton and unreasonable acts by doing positive work to restore the status quo even if the expense to him is out of all proportion to the advantage thereby accruing to the plaintiff. The principles governing the grant of Injunctions are the same, whether the acts sought to be restrained are a breach of contract or a tort. In both cases there must be no acquiescence and damages must not be a sufficient remedy, and the restoration of things to their former condition must be the only relief which will meet the requirements of the case. Prompt action is essential if a mandatory Injunction is the desired remedy. Where a plaintiff has not brought his suit or applied for an Injunction at the earliest opportunity, but has waited till the act complained of by him has been completed, and then asks for a mandatory Injunction, such an Injunction will not in general be granted. The Court will seldom interfere to pull down a building which has been erected without complaint. A landlord should not have a mandatory Injunction for demolition of a building unless he has not only objected to such building but

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has also taken legal steps to prevent it. But where the defendant has acted reasonably though in the event wrongly, the cost of remedying by positive action his earlier activities is most important for two reasons. Firstly, because no legal wrong has yet occurred (for which he has not been recompensed at law and in equity) and, in spite of gloomy expert opinion, may never occur or possibly only upon a much smaller scale than anticipated. Secondly, because if ultimately heavy damage does occur the plaintiff is in no way prejudiced for he has his action at law and all his consequential remedies in equity. The Court in the exercise of its discretion will be guided by consideration of justice, equity and good conscience and that it is not possible for the Court to lay down inflexible rule as to the circumstances in which the relief for demolition and injunction should be granted or refused. A mandatory injunction is a discretionary relief and delay is a factor which has to be taken into account while granting it, where a case for grant of this relief is otherwise made out and that such delay, however to be a disqualifying circumstance, must amount to waiver or abandonment of the rights sought to be enforced or acquiescence in the act complained of or laches, after the act is done. One of the tests to determine whether a mandatory injunction should or should not be granted is whether the plaintiffs, who

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objected to the constructions being made by a coowner on a joint land, did so at the earliest or waited till the constructions had been completed. In the first case injunction would normally be issued, whereas if the constructions had been allowed to be completed, an injunction would normally be refused, as the basis for refusing injunction would be that by their conduct in not objecting at the earliest stage, the joint co-owners had induced the maker of constructions to believe that he could make it, and in doing so spent money and effort. Before the plaintiff could claim such mandatory injunction, he should establish that he did not stand by and allow the injury to be caused to him. If the evidence discloses that the plaintiff did make it possible to the defendant to cause that injury such as unauthorized construction and never took any step such as the institution of a suit and an application for injunction restraining the defendant when such unauthorised construction was in progress and comes to the Court with his suit only after such unauthorised construction was completed, the case would not be one for a mandatory injunction but only for damages.”

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Thus, prompt action is essential if a mandatory

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injunction is the desired remedy. Where a plaintiff has not

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brought his suit at the earliest opportunity, but has waited till the act complained of by him has been completed, and then asks for a mandatory injunction, such an injunction will not be granted in general by the Courts. A purchaser cannot seek demolition or mandatory injunction over structure that existed prior to their purchase, equitable relief won’t disturb long settled possession.

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In the encroachment alleged was prior to the plaintiff’s purchase, mandatory injunction is a matter of judicial discretion and equity guided specifically by Section 39 of the Specific Relief Act, 1963 (‘Act’ for short) and can be granted only in a case which falls strictly within the four corners of Section 39 of the Act. Though the Trial Court was right in the conclusion that defendant raised construction in 1977-78, as per Ex.D1-sanctioned plan, long prior to the plaintiff’s purchase in 1990. In law, it is well settled that a purchaser acquires no better title than what his vendor possessed and that when an encroachment or possession of a portion of land existed

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prior to sale, the purchasers cannot seek recovery by way of mandatory injunction. It is equally well settled that the relief of mandatory injunction is discretionary and equitable and cannot be granted to disturb settled possession or to order demolition of long-standing structure, particularly where the plaintiff purchased the property with knowledge of or subject to such encroachment.

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In the present case, though the encroachment is proved, the plaintiff, having purchased the property subsequent to the defendant’s construction, cannot demand demolition or possession in equity of law. The Trial Court, therefore, rightly struck a balance by decreeing the suit only in part, granting declaration of ownership in favour of the plaintiff while refusing mandatory injunction. Accordingly, this Court finds no infirmity in the Trial Court’s judgment and the point framed for consideration is answered accordingly and this Court pass the following:

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ORDER

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i. The regular first appeal is hereby dismissed.

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ii. Judgment and decree dated 12.01.2024 passed in O.S.No.1898/1993 on the file of the XIV Additional City Civil Judge, Bengaluru stands confirmed.

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Sd/-

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JUSTICE K.S. HEMALEKHA

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VM, MBM List No.: 1 Sl No.: 19

Sri Radhakrishna v. Smt Jailakshmi

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Sri Radhakrishna v. Smt Jailakshmi

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