Smt P Prabhavathi Vs Sri G S Prasad

THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 22.11.2012 PASSED IN O.S.17061/2006 ON THE FILE OF THE XXVIII-ADDL. CITY CIVIL JUDGE, BANGALORE, DECREEING THE SUIT FOR MANDATORY AND PERMANENT INJUNCTION.

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NC: 2026:KHC:7279 RFA No. 251 of 2013

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HC-KAR

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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 MR. JUSTICE M.G.S. KAMAL

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ORAL JUDGMENT

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This appeal is by the defendant aggrieved by the judgment and decree dated 22.11.2012 passed in O.S.No.17061/2006 on the file of XXVIII Additional City Civil Judge at Mayohall Unit, Bangalore, by which the suit of the plaintiff for declaration, mandatory and permanent injunction, has been decreed.

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Subject matter of the suit is Site No.43 House List No.1250, situated at Thanisandra Village, K.R.Puram Hobli, Bangalore East Taluk, measuring East to West 30 feet and North to South 45 feet (hereinafter referred to as 'suit schedule property') and bounded on the:

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East by : Site No.42 West by : Site No.44 North by : Road South by : Jayaramappa's Property.

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NC: 2026:KHC:7279 RFA No. 251 of 2013

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HC-KAR

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Plaintiff filed above suit contending inter alia

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that he had purchased suit schedule property from its previous owner Smt.Kanthamma and her son B.Ramesh in terms of deed of sale deed dated 20.09.2006. His name was mutated in the revenue records of the concerned Panchayath office. He has paid the property tax and thus, has been in possession and enjoyment of the suit property as owner thereafter. Originally the entire land was belonging to Bachanna, who is the husband of said Kanthamma, who had formed sites on the said property. Site No.43 is one of the sites purchased by the plaintiff. Site No.44 situated on the western side of the property was purchased by the defendant from the very same vendor Kanthanma in terms of deed of sale on 25.02.2002. Just before filing of the suit, when the plaintiff visited the suit schedule property, he found that the defendant had trespassed over a portion of property belonging to the plaintiff and had unauthorisedly put up construction over 1½ square of the suit schedule property.

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NC: 2026:KHC:7279 RFA No. 251 of 2013

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HC-KAR

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The defendant having no right over the suit schedule property has encroached upon the same, constraining the plaintiff to file the suit.

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Defendant filed written statement denying the plaint averments and it is also denied that the plaintiff is the owner of the suit schedule property. Allegation of defendant encroaching upon 1½ square of the suit schedule property belonged to plaintiff is also specifically denied. However, defendant has admitted that she had purchased Site No.44 from the very same vendor Kanthamma. It is contended that defendant has put up construction of a residential building over the property and has also obtained electricity connection. That the BDA had issued notices proposing to acquire the lands including the site purchased by the defendant, defendant had filed a suit in O.S.No.7219/2006 before City Civil Judge, CCH No.21,

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Bangalore, which was decreed. Thus, she has been in possession of the property, without encroaching upon any

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NC: 2026:KHC:7279 RFA No. 251 of 2013

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HC-KAR

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portion of suit schedule property. Hence, prayed for

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dismissal of the suit.

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Trial Court framed the following issues:

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1) Whether the plaintiff proves that he is the absolute owner in possession of the suit properties on the date of the suit?

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2) Whether the plaintiff is entitle for permanent injunction?

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3) Whether the plaintiff proves that the defendant trespassed and put up unauthorised construction in respect of 1 ½ square?

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4) Whether the plaintiff is entitle for mandatory injunction?

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5) Whether the suit is valued properly and court fee paid is insufficient?

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6) What order or decree?

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Plaintiff examined himself as PW.1 and

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exhibited 12 documents as Ex.P1 to P12. The GPA holder of the defendant was examined as DW.1 and exhibited 12

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documents as Ex.D1 to D12. On appreciation of evidence, trial Court answered Issue No. 1 to 5 in affirmative and

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NC: 2026:KHC:7279 RFA No. 251 of 2013

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HC-KAR

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consequently, decreed the suit. Being aggrieved by the same, the defendant filed the present appeal.

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Learned counsel for the defendant submits that

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the trial Court has erred in decreeing the suit as sought for, though there is no material evidence justifying the same. He submits though plaintiff claims to be the owner of Site bearing No.44, plaintiff herself has admitted defendant being owner of property bearing site No.43. Therefore, he submits that there cannot be any dispute with regard to ownership of the respective properties. However, as regard to allegation of defendant encroaching upon 1½ square of the property belonging to plaintiff, he submits no material evidence is produced by the plaintiff and without appreciating this aspect of matter, the trial Court erred in decreeing the suit of the plaintiff. Hence, seeks for allowing the appeal.

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Despite sufficient opportunities, there is no representation on behalf of the plaintiff.

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HC-KAR

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Heard learned counsel appearing for the

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appellant and perused the records.

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The point that arises for consideration is:

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"Whether the plaintiff has proved, alleged encroachment by the defendant to the extent of 1½ square of the suit schedule property?

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Since there is no dispute of the fact that plaintiff is the owner of the suit schedule property having purchased the same in terms of deed of sale dated 20.09.2006 produced at Ex.P1, so also, there is no dispute with regard to defendant purchasing Site No.44 situated on the western side of the property belonging to the same vendor Kanthamma, this Court do not find it necessary to delve into the aspect of title of the plaintiff over the suit schedule property. The only point that requires consideration as noted above is, "Whether the plaintiff has proved the encroachment?" At paragraph No.6 and 7 of the plaint, plaintiff has pleaded as under:

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NC: 2026:KHC:7279 RFA No. 251 of 2013

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HC-KAR

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"06. The plaintiff further submits that while things stood thus, in the Second week of October 2006 when the plaintiff visited the suit schedule property, he observed that the defendant has trespassed the suit schedule property by a mistaken identity and has put up an unauthorised construction of about 1½ square over the suit schedule property. The plaintiff herewith produces the photographs of the suit schedule property with the said unauthorised construction along with the corresponding negatives, as Document No.6 series for the kind perusal of this Hon'ble Court. Even in the layout plan [Document No.9], it could be seen that the suit schedule property Site No.43 is entirely different to the defendant's Site No.44 and they have nothing to do with each other, except lying adjacent to each other.

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07. The plaintiff further submits that the defendant has managed to encroach and trespass the suit schedule property when the plaintiff was not in station. When the plaintiff demanded the defendant to vacate the suit schedule property, the defendant not only refused to do so, but also threatened the plaintiff with dire consequences, if the plaintiff approaches any authority to evict the defendant from the suit schedule property. The jurisdictional police have advised the plaintiff to approach Civil Court. The plaintiff herewith files the copy of the police complaint dated 18.10.2006 and the police acknowledgement are at Document Nos.7 & 8 respectively. The defendant and his men are taking the fullest advantage of the said situation. Hence, this suit."

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Affidavit filed by the plaintiff in view of the

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evidence is repetition of the said two paragraphs. There are no details with regard to the date, time and the

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HC-KAR

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specific details and extent of encroachment. Defendant

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has specifically denied the allegation of unauthorised construction over the said 1½ square of the suit property. Except the oral evidence which is incorporated in the affidavit, there is no other acceptable evidence produced by the plaintiff to demonstrate the alleged encroachment by the defendant. Though a specific issue in this regard has been framed by the trial Court, perusal of the impugned judgment would indicate that there is no discussion on this aspect of the matter except a passing remark as found at page No.8 of the judgment, where the trial Court has observed as under;

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"On the contrary, it is the specific case of the defendant that he is the owner of Site bearing No.44. Thereby the defendant had no right, title and interest over the suit schedule property, which is Site No.43. When the defendant has encroached upon 1½ square feet property of the plaintiff on which the defendant has no right, title and interest has liable to deliver the said portion to the plaintiff."

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HC-KAR

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The aforesaid finding and conclusion arrived by

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the trial Court is not supported or based on any legally acceptable material evidence. When there is no dispute of the plaintiff being the owner of the suit schedule property namely Site bearing No.43 and defendant being the owner of Site bearing No.44 situated on the western side of the property belonging to plaintiff, allegation of encroachment by the defendant over the portion of property of plaintiff ought to have been specifically pleaded and proved by leading cogent evidence. Except as stated above, nothing is brought on record to prove allegation of defendant having encroached upon any portion belonging to the plaintiff. The plaintiff has also not given specification of the 1½ square of the property even while alleging defendant being encroached. Order 7 Rule 3 CPC warrants specific details of the immovable to be furnished sufficient enough to identify the same.

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The photographs produced by the plaintiff at Ex.P7 to P12 hardly make out a case of alleged

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NC: 2026:KHC:7279 RFA No. 251 of 2013

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HC-KAR

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encroachment by the defendant. For want of proof in this regard, this Court is of the opinion that plaintiff has failed to prove the alleged encroachment of 1½ square of suit schedule property by the defendant.

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Accordingly, appeal is partly allowed .

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Judgment and decree passed by the XXVIII Addl. City Civil Judge, at Mayohall Unit, Bangalore, to the extent of direction issued to the defendant to hand over 1½ square of the suit schedule property within three months is set

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aside. The remaining portion of the order is confirmed.

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Sd/(M.G.S. KAMAL) JUDGE

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PSJ

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List No.: 1 Sl No.: 8

Smt P Prabhavathi v. Sri G S Prasad

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Smt P Prabhavathi v. Sri G S Prasad

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