Karnataka High Court
Lakshmamma vs Gangamma on 7 April, 2014
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
1 RSA 2428/10 a/w
Misc. Cvl.18149/10
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 07TH DAY OF APRIL 2014
BEFORE
THE HON'BLE MR. JUSTICE RAM MOHAN REDDY
REGULAR SECOND APPEAL No.2428/2010 (DEC/INJ)
A/W
MISC. CVL. No.18149/2010
BETWEEN:
1. Lakshmamma,
W/o Rajanna,
Aged 37 years.
2. Sri Rajanna,
S/o Gundappa,
Aged 42 years.
Both are r/o Nayakarahatty,
New Bus Stand road,
Sira Town-572 113,
Tumkur District.
... APPELLANTS (Common)
(By Sri Ravishankar, Adv.)
AND :
1. Gangamma,
W/o late Hanumanthappa,
Aged about 74 years.
2. Muddanagamma,
W/o late S.H.Nagaraju,
Aged about 49 years.
2 RSA 2428/10 a/w
Misc. Cvl.18149/10
3. Manjula, D/o
Lat S.H.Nagaraju,
Aged about 26 years.
4. S.N.Chandan,
S/o late S.H.Nagaraju,
Aged about 24 years.
5. Pavan,
S/o late S.H.Nagaraju,
Aged 19 years.
6. Gagan,
S/o late S.H.Nagaraju,
Aged 15 years.
Respondent No.6 being minor,
Represented by its N/g, the 2nd
Respondent his mother by name
Muddanagamma,
H. Shantharaju,
S/o late Hanumanthappa,
Since dead.
7. Sumithramma,
W/o late Shantharaju,
Aged about 44 years.
8. S. Kiran,
S/o Shantharaju,
Aged about 25 years.
9. S. Arun,
S/o late Shantharaju,
Aged about 23 years.
10. S. Dharshan,
S/o late Shantharaju,
Aged about 21 years.
3 RSA 2428/10 a/w
Misc. Cvl.18149/10
11. S.H.Nataraju,
S/o late T. Hanumantharappa,
Aged 46 years.
12. H.Lakshminarayana,
S/o late T. Hanumantharappa,
Aged 44 years.
13. S.H.Lokesha,
S/o late T. Hanumantharappa,
Aged 42 years.
Respondents No.1 to 6 and 11 to 13
Are r/o Nayakarahatty,
New Bus Stand Road,
Sira Town-572 113.
Respondent Nos.7 to 10
r/o Sapthagiri Extension,
Sira Town-572 113.
... RESPONDENTS (Common)
(By Sri K.R.Ramesh, Adv. for R-1 and R-12; Service of notice
held sufficient on R-2 to R-5 and R-13 v/O dated
29.01.2014; R-6 is minor represented by R-2; R-7 to R-11
are served and unrepresented)
This regular second appeal is filed under Section 100
of the Code Of Civil Procedure against the judgment and
decree dated 28.07.2010 passed in R.A.No.48/2008 on the
file of the Senior Civil Judge, Sira, allowing the appeal and
setting-aside the judgment and decree dated 13.10.2008
passed in O.S.No.210/1991 on the file of the Civil Judge
(Jr.Dn.) and JMFC, Sira.
Misc. Cvl. No.18149/2010 is filed under Order XLI
Rule 5 of the CPC praying to stay the operation and
execution of the judgment and decree of the Lower Appellate
Court.
This regular second appeal along with Misc. Cvl.
coming on for admission this day, the court delivered the
following:
4 RSA 2428/10 a/w
Misc. Cvl.18149/10
JUDGMENT
Defendants 1 and 2 in O.S.No.210/1991 suffered a judgment and decree dated 13.10.2008 of the Civil Judge (Jr.Dn.) and JMFC, Sira, directing monetary relief of damages, instead of mandatory injunction and recovery of possession of the encroached portion being an extent of 12 inches towards the foundation, on the south, by the northern side of the coconut tree and the encroached portion of RCC roof to an extent of 18 inches towards coconut tree's side. That judgment and decree when carried in R.A.No.48/2008, the Senior Civil Judge, Sira, by judgment and decree dated 28.07.2010 allowed the appeal, reversed the finding of the trial court and decreed the suit for mandatory injunction. In that appeal, defendant Nos.1 and 2 did not question the finding of the trial court over encroachment, either by filing a cross appeal or by invoking Order 41 Rule 33 of the CPC. Aggrieved by that judgment and decree of the Lower Appellate Court, defendant Nos.1 and 2 have preferred this second appeal.
5 RSA 2428/10 a/w Misc. Cvl.18149/10
2. Admittedly the finding of fact recorded by the Courts below over encroachment by the appellants/ defendant Nos.1 and 2 which is final and binding. The question before the Lower Appellate Court, at the instance of the plaintiff was, over whether the trial court was justified in rejecting the plaintiff's claim for mandatory injunction and in lieu thereof, directing payment of damages. The Lower Appellate Court on a re-appreciation of the material on record, observed that the defendants having purchased a definite property with measurement had illegally encroached upon the plaintiffs' property and put up construction in the form of a foundation to an extent of 12 inches and a roof projection of 18 inches.
3. The Lower Appellate Court observed that the defendants were not legally entitled to encroach upon the plaintiffs' portion of the immovable property. In addition, Lower Appellate Court noticed that plaintiffs though filed the suit for injunction to restrain the 6 RSA 2428/10 a/w Misc. Cvl.18149/10 defendant from encroaching upon the plaintiffs' property, nevertheless, unmindful of the consequences, put up construction during the pendency of the suit and therefore, not entitled to equity and it is in these circumstances, the Lower Appellate Court reversed the finding of the trial court directing payment of money as damages, in lieu of injunction.
4. In my considered opinion, the reasons, findings and conclusion arrived at by the Lower Appellate Court are not shown to be perverse, illegal or unjustified calling for interference. No substantial question of law arise for decision making. Appeal is accordingly dismissed.
In view of dismissal of the appeal, Misc. Cvl. No.18149/2010 does not survive for consideration.
Sd/-
JUDGE kcm