Bangalore District Court
Mrs. Miriam Meera Kumar vs Mr. Allan Sunder Raj on 23 March, 2021
IN THE COURT OF XV ADDITONAL CITY CIVIL &
SESSIONS: JUDGE AT BENGALURU (CCH.NO.3)
Dated this 23 rd day of March 2021
O.S. No. 6160/2017
Present :- Sri. Jaishankar. B.Sc., LL.M.
XV Additional City Civil &
Sessions Judge, Bengaluru.
Plaintiff :- Mrs. Miriam Meera Kumar,
Aged about 55 years,
W/o Col. Sebastian Kumar (Rtd),
No. 8/302, Carleston Road,
Cooke Town,
Bangalore - 560005,
(Represented by husband/GPA
holder, Col.Sebastian
Kumar (Rtd).)
(Rep. By M.A.P.,Advocate)
V/s
Defendant :- Mr. Allan Sunder Raj,
Aged about 76 years,
S/o late Major T.A. Sunder Raj,
No.14, MEG Officers Colony, Jai
Bharath Nagar, Banaswadi Main
Road, Bangalore-560033.
(Rep. By D.O.K.,Advocate)
Date of Institution of the
suit: 07.09.2017
Nature of the Suit (suit
for pronote, Suit for
declaration and Injunction Suit
possession, Suit for
injunction, etc.):
2 O.S.No. 6160/2017
Date of the
commencement of
recording of the 12.03.2020
Evidence:
Date on which the
Judgment was
23.03.2021
pronounced:
Total duration: Year/s Month/s Day/s
03 06 06
JU D GM E N T
The plaintiff has filed this suit for mandatory
injunction praying to demolish by remove the
encroachment of the suit schedule property and for
permanent injunction praying to restrain the defendant
from interfering with her peaceful possession and
enjoyment of the suit schedule property.
2. The brief averments of the plaint are as
hereunder:-
That the property bearing No.14 situated at MEG
Officers Colony, Jai Bharath Nagar, Banaswadi Main
3 O.S.No. 6160/2017
Road, Bangalore measuring East 125 feet, West 90 feet,
North 140 feet and South 65 feet was belonged to her
father in law and father of the defendant and he had
purchased the same from Madras Sappers Officers House
Building Co-operative Society under a registered sale deed
dated 06.02.1967. The said Major Sunder Raj constructed
the ground floor portion in the year 1968-69 and after his
retirement in the year 1978 he started to reside there with
his family. In the year 1977, Major T.A. Sunder Raj
executed a Gift deed in favour of the defendant, gifting the
entire first floor area of the main building and the
adjoining room together with a staircase room of the
ground floor forming part of the property bearing No.14
under the registered Gift deed dated 25.07.1977. The
defendant was in possession of the same as the absolute
owner and khatha was also transferred to his name by
the BBMP and a new khatha No.14/1 was allotted to the
said portion. Subsequently, the defendant put up
construction of a residential building on the southern
side of the property vide sanction plan bearing LP
No.ENE/6475/77-78 dated 01.02.1978. Her father in law
4 O.S.No. 6160/2017
Major T.A. Sunder Raj later executed a deed of settlement
in favour of the defendant settling the entire ground floor
portion bearing No.14 together with the open space
surrounding the same, except towards the southern side
and the staircase under the registered deed of settlement
dated 04.11.1982. Thereafter, the defendant has been in
possession and enjoyment of the same as absolute owner
and the Revenue records were also transferred to his
name. The said property bears khatha No.14. In view of
the defendant acquiring the ground floor portion, at the
behest of his father in order to divide the family property
between the defendant and his brother Col. Sebastian
Kumar, the defendant executed a registered deed of
settlement dated 01.12.1982 settling all the immovable
property consisting of the first floor building, the open
terrace of the ground floor, garage and open ground on
the southern side of the ground floor in favour of his
brother Col. Sebastian Kumar who is her husband. He
became the absolute owner of the suit schedule property
and the khatha was also transferred to his name.
Thereafter, he put up construction of a residential block
5 O.S.No. 6160/2017
on the same, after obtaining necessary sanction from the
concerned authorities. Subsequently, the said Col.
Sebastian Kumar executed a Gift deed dated 14.01.2000
in her favour in respect of the entire schedule property
and subsequently she got changed the khatha and the
revenue records. She has been in possession and
enjoyment of the same as the absolute owner having paid
all taxes. She is also the absolute owner of the ground
floor open ground measuring on the East to West 62 + 14
feet and North to South approximately 12 feet, on the
southern side of property No.14 which is shown as
schedule property. The defendant is fully aware of the
same. However, despite having no manner of any right,
title or interest over the same, the defendant without her
consent or concurrence, trespassed over the same and
illegally constructed the wall measuring approximately 4
feet X 6 feet on the schedule property, thereby blocking
free access to first floor which belong to her. He is also
infringing upon her free movement on the southern side.
Though, she and her husband have personally requested
the defendant on a number of occasions to remove the
6 O.S.No. 6160/2017
illegal construction put upon the southern side of her
property, the defendant has completely ignored her
requests and refused to comply. Being left with no other
alternative, she got issued a legal notice dated 09.08.2017
calling upon the defendant to demolish the encroachment
and the illegal construction put up by him on the
schedule property. Though, defendant has received the
legal notice, he has not complied with the demand made
by her. Hence, the suit.
3. The defendant has appeared through his Counsel
and has filed his written statement and contended as
follows :-
That the suit has become infructuous in view of the
fact that during the pendency of the suit as per his
undertaking before the Court, he has removed the wall
situated in the southern set back area of the suit
schedule property. Hence, the suit has to be dismissed as
infructuous. Originally, his father T.A. Sunder Raj and
himself had purchased the vacant site bearing No.14 in
the layout formed by the Madras Sapper Officers House
7 O.S.No. 6160/2017
Building Co-operative Society Limited situated at
Jeevanahally Village, Bangalore and the said site was
alloted to his father T.A. Sunder Raj upon his making the
full payment of the allotment price. The Society had
executed the sale deed dated 02.02.1967 in favour of his
father. It was his self-acquired property and his father
was in possession and enjoyment of the same.
Subsequently, his father obtained sanctioned plan dated
29.05.1967 and put up a residential building comprising
of two units i.e., main building with RCC roofing and the
Garage with servant quarters with RCC building. The
entry to the main house is on the eastern side and the
Garage with the servant quarters is located on the North-
Western Corner. In the year 1977, under the registered
Gift deed dated 25.07.1977, his father transferred his
right, title and interest over all the first floor area together
with all the constructions standing there on and a room
forming part of the premises bearing No.14 along with an
independent staircase in the ground floor providing an
access from the ground floor to the first floor forming part
of the property gifted. He was also given the right to make
8 O.S.No. 6160/2017
use of the main gate as an approach to the stair case
leading to the first floor and further with a right to make
use of the open space on the southern side of the ground
floor for the purpose of parking any car or two wheelers
and also right to put any construction on the first floor.
Accordingly, he became the owner of the above said
property. Later, he constructed the first floor in the main
building by obtaining a sanctioned plan dated 01.02.1978
issued by the Corporation and the said property was got
assessed as property No.14/1. In the year 1982, his
father executed a deed of settlement dated 04.11.1982 in
his favour and transferred his absolute right, interest and
possession over the ground floor building with open space
surrounding the said property bearing No. 14.
Accordingly, he became the absolute owner of the ground
floor building with open space surrounding the said
property. In the year 2004, under a registered Gift Deed
dated 21.06.2004 his father gifted the first floor of the
main building along with two existing rooms and also the
terrace of the first floor of the garage forming portion of
property No. 14 in his favour and put him in possession
9 O.S.No. 6160/2017
of the same. Accordingly, he became the absolute owner
of the terrace of the first floor of the main building along
with two existing rooms and also the terrace of the first
floor of the garage forming portion of property No.14. On
01.12.1982, he executed a settlement deed in favour of
his brother Sri. Sebastian Kumar transferring the
absolute right, interest and possession of the partly
constructed first floor of the building bearing Corporation
No.14/1 with the half open terrace of the ground floor
along with the open terrace of the garage bearing No.14.
Accordingly, Sebastian Kumar became the absolute owner
of the first floor building i.e., property No.14/1 with open
terrace of the ground floor and garage of the property
bearing No.14. Subsequently, circumstance warranted
him to keep the said property in the name of plaintiff.
After construction of a Hall in the second floor i.e., first
floor of the main building and after construction of the
first floor on the garage and servant quarters building and
after the death of T.A Sunder Raj dated 17.09.2011, he
and his brother entered in to a mutual verbal
arrangement between themselves with regard to the
10 O.S.No. 6160/2017
usage, possession and enjoyment of the additional
constructions in a manner wherein Sebastian Kumar
permitted him to use and enjoy the first floor of the
garage and servant quarters building as against the
similar permission given to him to use the second floor
and open space thereof in the main building. Hence, as
long as the said verbal arrangement is not reversed by
mutual rearrangement or exchange, he is entitled to use
and enjoy the first floor of the garage and servant
quarters building and the said Sebastian Kumar is
entitled to use and enjoy the second floor with open
terrace area of the main building. In a nut shell the
Ground floor of the main building along with the open
area surrounding the building and with entry from road
side through a gate on the southern side to the ground
floor of the main building and to the garage building in
the same compound belongs to him and he is in
occupation and enjoyment of the same. The first floor of
main building along with entry from road side through a
gate on the southern side to the first floor of the main
building belongs to Sri. Sebastian Kumar and he is in
11 O.S.No. 6160/2017
occupation of the same. The ground floor of the garage
and servant quarters belongs to him and he is in
occupation of the same. The first floor of the garage and
servant quarters along with entry from road side through
a gate on the southern side also belongs to him and he is
in occupation of the same. The second floor of the main
building together with open area thereof along with entry
from road side through a gate on the southern side
belongs to him, but he has permitted his brother Sri.
Sebastian Kumar to use the same. It is false that the
plaintiff is the absolute owner of the suit schedule
property. The plaintiff is in occupation in part of the
schedule property. It is a tenanted one and hence there is
no question of any attempt to disturb or interfere with her
alleged enjoyment of the schedule property which is a
passage and a common area belonging to all the
occupants of the building as being a setback area as
shown in the sanctioned plan. There is no cause of action
to file the suit for injunction. The wall was erected by him
in the passage is for maintaining the privacy between the
entrances of ground floor and first floor staircase. In view
12 O.S.No. 6160/2017
of the fact that he has demolished the said wall, the suit
has become infructuous and hence the relief of
mandatory injunction as sought by the plaintiff does not
survive for consideration. The suit with respect to other
relief of injunction is not maintainable for want of cause
of action. On all these grounds, he has prayed for
dismissal of the suit.
4. Basing on the above pleadings of the parties, the
following issues have been framed in this case :-
1.Whether the plaintiff proves her ownership over the suit schedule property ?
2. Whether the plaintiff proves that the defendant has trespassed over the suit schedule property illegally and has constructed a wall measuring approximately 4 feet X 6 feet on the southern side of the suit schedule property, thereby blocking free access to her 1st floor property ?
3. Whether the plaintiff is entitled for the relief of mandatory injunction as sought ?
4. What order or decree ?
5. In order to prove the case of the plaintiff, the GPA 13 O.S.No. 6160/2017 holder of the plaintiff has examined P.W.1 and got marked 6 documents as Exs.P.1 to P.6. The defendant No.1 has examined himself as D.W.1. He has not marked any documents.
6. I have heard the arguments of both sides and perused the entire materials on record. Having regard to the arguments heard and the materials on record, I answer the above issues as here under :-
Issue No.1 :- In the affirmative Issue No.2 :- Partly in the affirmative Issue No.3 :- In the negative Issue No.4 :- As per final order R E A S O N S
7. Issue No. 1 :- It is not in dispute in this case that the residential property bearing No.14, MEG Officers Colony, Jai Bharath Nagar, Banaswadi Main Road, Bangalore Measuring East to West 125+90/2 feet and North to South 140+65/2 feet was purchased by the father in law of the plaintiff and the father of the 14 O.S.No. 6160/2017 defendant Major Sunder Raj from Madras Sappers Officers House Building Co-operative Society Limited under the registered sale deed dated 06.02.1967 and later he constructed the ground floor portion in the year 1968-
69. The Power of Attorney Holder of the plaintiff who is examined as P.W.1 has reiterated the above facts in his affidavit filed in lieu of his examination in chief. He has given evidence on the strength of the Power of Attorney executed by the plaintiff in his favour marked as Ex.P.1. P.W.1 is none other than the husband of the plaintiff and brother of the defendant. The defendant has admitted in his written statement at para No.2 that his father T.A. Sunder Raj purchased the site No.14 situated in the layout formed by the Madras Sapper Officers House Building Co-operative Society Limited. He has further admitted that his father was the member of the said Society and the said site was allotted to his father upon his making the full payment of the allotment price and the Society has executed the registered sale deed dated 02.02.1967. He has further stated that the said site No.14 was the self-acquired property of his father and his father 15 O.S.No. 6160/2017 had obtained duly sanctioned plan from the then City Improvement Trust Board (CITB) vide No.23/1967-68 dated 29.05.1967 and put up a residential building comprising of two units i.e., main building with RCC roofing and Garage with Servant quarters. As such, there is no dispute between the plaintiff and the defendant with regard to the fact that the property No.14 situated at MEG Officers Colony, Jai Bharath Nagar, Banaswadi Main Road, Bangalore was acquired by the father in law of the plaintiff and the father of the defendant under the registered sale deed dated 06.02.1967.
8. Further, it is not in dispute that during the year 1977, Major T.A Sunder Raj executed a Gift deed in favour of the defendant gifting the entire first floor area of the main building and adjoining room together with a staircase room of the ground floor forming part of the above said property bearing No.14, under the registered Gift deed dated 25.07.1997. Later, the khatha was transferred to the name of the defendant and the said property was allotted khatha No.14/1 by the BBMP. The 16 O.S.No. 6160/2017 plaintiff has alleged the same in para No.2 of the plaint and P.W.1 has also reiterated the same in his affidavit at para No.3. The defendant has also admitted in para No.4 of his written statement that his father had executed a registered Gift deed dated 25.07.1977 and transferred the absolute right, title, interest and possession over the all the first floor area together with all the constructions standing there on and a room forming part of the premises bearing No.14 along with the independent staircase in the ground floor, providing an access from the ground floor to the first floor. As such, there is no dispute that the father in law of the plaintiff and the father of the defendant Sri. T.A. Sunder Raj had executed a Gift deed dated 25.07.1977 with respect to the first floor portion of the said property bearing No.14 situated at MEG Officers Colony, Jai Bharath Nagar, Banaswadi Main Road, Bangalore in favour of the defendant.
9. Further, it is also not in dispute that Major T.A. Sunder Raj has executed a registered deed of settlement dated 04.11.1982 in favour of the defendant and 17 O.S.No. 6160/2017 transferred his absolute right, title and interest over the ground floor of the building with open space surrounding the same and the said property bears khatha No.14. The plaintiff has alleged the same in para No.5 of the plaint and P.W.1 has reiterated the same in para No.4 of his affidavit. P.W.1 has got marked the certified copy of the said settlement deed dated 04.11.1982 as Ex.P.6. The defendant has admitted the same in para No.4 of his written statement and he has also reiterated the same in para No.9 of his affidavit filed in lieu of his examination in chief. The said fact is also not in dispute.
10. Further, the plaintiff has alleged in para No.6 of the plaint that in view of the defendant acquiring the ground floor portion under the deed of settlement deed dated 04.11.1982, at the behest of his father in order to divide the family property between himself and Col. Sebastian Kumar, he executed a registered deed of settlement settling all the immovable property consisting of the first floor building, the open terrace of the ground floor, garage and the open ground on the southern side of 18 O.S.No. 6160/2017 the ground floor, under a registered settlement deed dated 01.12.1982. After that, Col. Sebastian Kumar became the absolute owner of the same and he got the khatha transferred to his name and thereafter he has put up construction of the residential block on the same, after obtaining necessary sanction from the concerned authorities. P.W.1 has also reiterated the same in his examination in chief at para No.5. Further, he has also got marked the certified copy of the said settlement deed dated 01.12.1982 along with the sketch as Exs.P.2 and P.2(a). The defendant has admitted in para no.6 of his written statement that he has executed the said registered deed of settlement dated 01.12.1982 in favour of his brother Col. Sebastian Kumar and transferred the absolute right, title, interest and possession of the property constructed in the first floor of the building bearing corporation No.14/1, with the half open terrace of the ground floor along with the open terrace of the garage bearing corporation No.14. Thereafter Col. Sebastian Kumar became the absolute owner of the first floor of the building i.e., No. 14/1. As such, there is no dispute with 19 O.S.No. 6160/2017 regard to the said fact also.
11. Further, the plaintiff has alleged that her husband Col. Sebastian Kumar has executed the Gift deed dated 14.01.2000 in respect of the first floor property bearing No.14/1 and thereafter she has become the absolute owner of the same and she is paying the taxes. The husband of the plaintiff who is examined as P.W.1 has reiterated the above facts in his affidavit and he has also got marked the certified copy of the said Gift deed dated 14.01.2000 as Ex.P.3. The said document reveal that the brother of the defendant Col. Sebastian Kumar has executed the said Gift deed with respect to the first floor of the property bearing No.14/1 situated at MEG Officers Colony, Jai Bharath Nagar, Banaswadi Main Road, Bangalore. P.W.1 has also got marked the khatha certificate, khatha extract and the tax paid receipt with respect to the said property No.14 Exs.P.4 to P.6. The defendant has not disputed the same in his written statement.
20 O.S.No. 6160/2017
12. Further, the plaintiff has alleged in para No.7 of the plaint that she is the absolute owner of the ground floor open ground measuring East to West 62+14 feet and North to South approximately 12 feet situated on the southern side of property No.14 which is shown as the suit schedule property. She has further alleged that the defendant has trespassed over the same and constructed a wall measuring approximately 4 X 6 feet. P.W.1 has also reiterated the same in para No.7 of his affidavit. The defendant has contended at para No.7 of his written statement that there was a mutual verbal arrangement between him and his brother Sebastian Kumar with regard to the usage, possession and enjoyment of the additional constructions made in property No.14 and 14/1 wherein his brother had permitted him to use and enjoy the first floor of the garage and servant quarters building as against the same similar permission was given by him to use and enjoy the second floor with open terrace area of the main building. He has also contended that the ground floor of the main building along with the open area surrounding the building with entry from road 21 O.S.No. 6160/2017 side through a gate on the southern side to the ground floor of the main building and to the garage building in the same compound belongs to him and he is in occupation and enjoyment of the same. The first floor of the main building along with entry from road side through a gate on the southern side to the first floor of the main building belongs to Sebastian Kumar and he is in occupation of the same. It is false that the plaintiff is the absolute owner of the suit schedule property. She is not in occupation of any part of the building of the schedule property. The schedule property is a passage and common area belonging to all the occupants of the building as being a setback area as shown in the sanctioned plan. As such, the plaintiff has no right over the same. The wall which was erected by him in the passage was constructed by him for maintaining the privacy between the entrances of ground floor and first floor staircase and during the pendency of the suit he has voluntarily removed the said wall.
13. As such, the plaintiff is claiming that she is the 22 O.S.No. 6160/2017 absolute owner of the plaint schedule property which is the open ground measuring East to West 62 + 14 feet and North to South approximately 12 feet situated on the southern side property No.14 and the defendant has no manner of right over the same. On the other hand, the defendant has denied the same and he has contended that the plaintiff is not in occupation of any part of the ground floor. The suit schedule property is a passage and common area belonging to all the occupants of the building and it is a setback area.
14. As observed above, there is no dispute with regard to the registered settlement deeds marked as Exs.P.2 and P.6. Ex.P.2 is the settlement deed executed by the father of the defendant Major T.A. Sunder Raj who was the owner of the suit schedule property. Under the said deed of settlement, he has given the ground floor of the property No.14 to the defendant on 01.12.1982. In the schedule of the said document, the property given to the defendant is shown as all the piece and parcel of ground floor building together with the open space surrounding 23 O.S.No. 6160/2017 the same, except towards the southern side and except the staircase bearing Corporation No.14, situated at MEG Officers Colony, Jai Bharath Nagar, Banaswadi Main Road, Bangalore bounded on the east by service road and vacant land belonging to Smt.Jasintha on the west by building belonging to Mrs. Ponamma John and the North by building on the site No.7 and south by open space left for the use of the same by the owner of the first floor marked in red colour in the sketch with letters A to K. As such, in the said settlement deed executed in favour of the defendant, it is clearly mentioned that the entire ground floor building together with the open space surrounding the same was given to defendant, except the space towards the southern side and the staircase. It is also mentioned that the said open space is left for the use of the same by the owner of the first floor. A sketch is also annexed to the said settlement deed in which the ground floor portion and also the vacant side on the southern side are clearly shown. Ex.P.2 is the certified copy of the settlement deed executed by the defendant in favour of the husband of the plaintiff on 01.12.1982. The same is 24 O.S.No. 6160/2017 executed with respect to the first floor portion of the property No.14 which was given new number as property No.14/1. In the schedule of the said settlement deed, it is mentioned that the property gifted is the immovable property consisting of first floor building, an open terrace of the ground floor garage and open ground on the southern side of the ground floor morefully marked as Block No.I with letters A, B, G, H, L, M, N, A (first floor building), Block No. II with letters K, L, H, I, J, K (open terrace), Block No.III with letters O, P, Q, R, C (open terrace) and Block No. IV with letters B, C, D, E, F, G, B (open ground) as per the sketch attached to the said settlement deed. P.W.1 has also got marked the sketch annexed to the said settlement deed as Ex.P.2(a) and the suit schedule portion as Ex.P.2(b).
15. As such, in the said document which is executed by the defendant in favour of his brother who is the husband of the plaintiff, it is clearly mentioned that the property gifted includes the open ground on the southern side on the ground floor which is marked with the letters 25 O.S.No. 6160/2017 B, C, D, G, E, F, G, B. Hence, the recitals of Ex.P.6 clearly show that the open space on the southern side of the ground is left for the use of the same by the owner of the first floor and in Ex.P.2 it is also mentioned that the said open space on the southern is also gifted in favour of the husband of the plaintiff. Later, the husband of the plaintiff has executed the gift deed in favour of the plaintiff as per Ex.P.3 and in the said document also it is mentioned that the property includes the open ground on the southern side of the ground floor.
16. Further, the defendant who is examined as D.W.1 has admitted in his cross examination at page No.12 para no.3 that it is true to suggest that his father executed a settlement deed in his favour settling the entire ground floor portion bearing property No.14 together with open space surrounding the same, except towards the southern side. Though, it is suggested that the southern side portion is left for the parking of the owners of the first floor and he has no right over the same, he has denied the same. He has also admitted at 26 O.S.No. 6160/2017 page No.13 of his cross examination that he has executed a settlement deed in favour of his brother in respect of the first floor building, open terrace of the ground floor, open terrace of the garage and the open ground on the southern side. He has further stated that he has executed the said deed with respect to the property shown in the said settlement deed. He has further admitted that he has executed Ex.P.2 and the sketch marked as Ex.P.2(b) is attached to the said settlement deed. As such, the defendant has admitted that the settlement deed was executed in his favour with respect to the ground floor property, except towards the southern side. This admission and the recitals of Ex.P.2 and Ex.P.6 show that the southern portion of the property No.14 which is shown as the suit schedule property was not given to the defendant under the settlement deed dated 04.11.1982 marked as Ex.P.6. On the other hand, Ex.P.2 and the answers given by D.W.1 in his cross examination and also the sketch marked as Ex.P.2(a) clearly show that the southern open space of the ground floor which is shown as the suit schedule property was given to the husband of 27 O.S.No. 6160/2017 the plaintiff. As such, the recital of Exs.P.2 and P.6 and sketch annexed to the same clearly show that the suit schedule property is not the setback area left for the usage of all the occupants of the building and the said portion has been given to the husband of the plaintiff to use the said space for access to the first floor building. In Ex.P.6, it is clearly mentioned that the said open space is left for the use of the owner of the first floor. Further, P.W.1 who is the brother of the plaintiff has also clearly stated in his evidence that the suit schedule property was given to him under Ex.P.2 and he was enjoying the same and later he executed the gift deed in favour of the plaintiff. Though, he is cross examined, nothing is elicited to disbelieve his evidence. Though, it is suggested in his cross examination that the defendant has not given him the suit schedule property as independent property, he has denied the same. D.W.1 has admitted the documents marked as Exs.P.2 and P.6 and the recital of the same. The recitals of the said documents clearly show that the open ground on the southern side of the property No.14 which is shown as schedule property has been given to 28 O.S.No. 6160/2017 the husband of the plaintiff. Later, he has transferred the same in favour of the plaintiff under the gift deed marked as Ex.P.3. As such, materials on record clearly show that the plaintiff is the owner of the suit schedule property. Hence, I answer issue No.1 in the affirmative.
17. Issue No.2 :- It is alleged by the plaintiff at para No.8 of the plaint that the defendant has trespassed over the suit schedule property and has illegally constructed a wall measuring approximately 4 X 6 feet on the southern side, thereby blocking free access to her first floor property. P.W.1 has also stated in his evidence that about 2 years back the defendant had constructed the said wall and later he has demolished the said wall on the direction of this Court. Even the defendant has stated in his written statement at para No.9 that he has demolished the said wall, during the pendency of this case voluntarily. As such, the materials on record show that before filing of the suit the defendant had constructed a wall in the suit schedule property and after his appearance in this suit, he has demolished the same. 29 O.S.No. 6160/2017 This fact is admitted by the D.W.1. As such, it has to be held that the said wall was illegally constructed by the defendant by trespassing over the suit schedule property, and now it has been removed. Hence, I answer issue No.2 partly in the affirmative.
18. Issue No.3 :- The plaintiff has sought for the relief of mandatory injunction praying to direct the defendant to demolish and remove the wall constructed in the suit schedule property. As observed above, the defendant after his appearance in this suit, has demolished the same. As such, the said relief has become infructuous now. As such, the plaintiff is not entitled for the relief of mandatory injunction. Hence, I answer issue No.3 in the negative.
19. Issue No.4 :- The plaintiff has filed this suit praying to direct the defendant to demolish and remove the encroachment of the suit schedule property and to direct him not to interfere with her peaceful possession and enjoyment of the suit schedule property permanently. 30 O.S.No. 6160/2017 As observed above, the relief of mandatory injunction has become infructuous. As for as the relief of permanent injunction is concerned, the materials on record clearly show that the plaintiff is the owner of the suit schedule property and the defendant has interfered with her possession and constructed a wall in the suit schedule property. Now the defendant has demolished the same. But, the construction of the said wall show the interference made by the defendant. As such, the plaintiff is entitled for the relief of permanent injunction which is sought as an additional relief. Hence, the following is made :-
ORD ER The suit of the plaintiff is decreed in part.
The suit filed with respect to the relief of mandatory injunction is dismissed.
The suit with respect to the relief of permanent injunction is decreed. The defendant is hereby restrained by way of 31 O.S.No. 6160/2017 permanent injunction from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff.
Both the parties shall bear their own costs.
Office is directed to draw decree
accordingly.
(Dictated to the Stenographer, transcribed and typed by her, corrected and then pronounced by me in the open court on this the 23 rd day of March 2021) (Jaishankar) XV Addl.City Civil & Sessions Judge, Bengaluru.
A N N EX U RE WITNESSES EXAMINED FOR THE PLAINTIFF :
P.W.1 :- Col. Sebastian Kumar 32 O.S.No. 6160/2017 DOCUMENTS MARKED ON BEHALF OF PLAINTIFF:
Ex.P.1 General Power of Attorney
Ex.P.2 Certified copy of Settlement deed
dated 01.12.1982
Ex.P.2(a) Sketch annexed to Ex.P.2
Ex.P.2(b) Suit schedule portion
Ex.P.3 Certified copy of the Gift Deed dated
14.01.2000
Exs.P.4 & 5 Copies of the Khatha Certificates Ex.P.6 Certified copy of the Settlement Deed dated 04.11.1982 WITNESSES EXAMINED FOR THE DEFENDANT:
D.W.1 :- Mr. Allan Sunder Raj DOCUMENTS MARKED ON BEHALF OF THE DEFENDANT:
NIL (Jaishankar) XV Addl.City Civil & Sessions Judge, Bengaluru.