Vijayalakshmi vs P D Vittal Rao on 13 September, 2010

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Karnataka High Court

Vijayalakshmi vs P D Vittal Rao on 13 September, 2010

Bench: Ravi Malimath

IN THE HIGH COURT OF KARNATAKA AT BANG/5V.L,_QRE

DATED THIS THE 13?" DAY OF SEPTEMBfE_3,":,2'(5:'i*(jK-..V

BEFORE

THE HON'BLE MR. 3USTIC.;EMAlRf'\"v'Iv lVlA-LIjl\?l:/l3.'f!:él:":V"VVV 

REGULAR FIRST APPEAL Nlo.$4i/2004,(zN3)sl§ l'AT,l'T,

BETWEEN:

Vijayalakshmi .

W/o Bharathvyasan, '  

Aged about 32 years, ' 'M  
673/3, Pillanna Garden,  V
111 Stage, "  

Bangalore --      

'(By . Z A'  'T,,'N,.Rag.'E1upathy,
Sri.Jay;a,rama.\/.,-Adyogates}.

" 'T   Rao

"TS/"e._E>hondoji Rao

 Ag'ed"'.abo.u~t:~"46 years,

,"'No.140?..e:'B|ock B-36
'III Stage', Austin Town Layout,
Nee'lasandra,

 _  Bangalore ---- 560 047.

A'  -at/E.N.Bhagyarani

D/o M.L.Narayanaswamy,
Aged about 37 years,
No.71/49, 7"' Cross,
Wilson Garden,
Bangalore - 560 027.

...APPELLANT

Counsel for



3. M.Rzwanullah Sherief
S/o N.Dastagir Sherief
Aged about 45 years,
No.20, Meenakshi Koil Street,
Shivajinagar,
Bangalore ~ 560 001.

4. Srinivasan  

Father's name not known I

to plaintiff,

Major,

No.839, III Stage,

Rajajinagar,

Bangalore -- 560 010.

5. The Commissioner T «I  _
Bangalore Development _  '
Authority,  V    
Kumara Pa,ri<"N_"st E>._<te_nsVi'on',V  
Sankey R..ca»d, 5;; *  __    Q I
Bangalore -.:-550  

...RESPONDENTS

(By Sri Neeiakantapga i<«...i__>Vu.,1'.a.:---', Advocate for R1 -- absent
Sri Narayan Asso'Ciates,»,.Advocate for R3,
Sri_U.Abd"ul Khat'-.ar,'._Ad'vocate for R5,
R2; & R4--Notir;_e dispensed with)

>l<>l<>l<>l<

 .   under section 96 of CPC against the

judgrhent "anti decree dated 5.04.2004 passed in
O.S.'i-lo.3_303f'89 on the file of the I Addl. City Civil &

 [Sessions Qludge, Bangalore City CCH.No.2, decreeing the
'  Vyysuitagfor mandatory injunction.

  --.i"his RFA coming on for Hearing this day, the Court
 delivered the fol|owing:~

lair"



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JUDGMENT

Aggrieved by the judgment and decree4...Vda_:ted o5.o4.2oo4 passed by I Additional City Civil Judge, Bangalore in O.S.No.3303/19,89 decre'ev--in:g.:the 'suited of the plaintiff, the 15' defendant, ha_srfile'd_..'t-he'- appeaL

2. The parties .~mfvou|dé..*b'e--.refe"rr_ed toas per their rank in the trial Court.

No.673fl3 measlu"r§n.gV;:"25"feetby-40 feet situated at Pillanna Garden, 3*"-,4_'SitaVge', E3'a,nga'i=ore, was allotted to him by the 5"' defendant-Ba._ngValore Development Authority by the order da'ted.AG--2.11.1978. On paying the entire amount certificate was issued on 03.02.1981, V V' _ the p'rope:rty taxes have been paid upto date and the katha certilficatel. was also issued to him. He was thereafter _' -_g'r_an'te'd a licence and a sanction plan to construct a house if onthe said site. When the construction proceeded, the 4*"

A' defendant filed a suit in O.S.l\£o.10582/1988 before the <2f?Zr~ e4_ XIX Additional City Civil Judge, Mayo Hall, Bangalore against him and obtained an ex--parte order of injru.aj:ctilo»n restraining him from proceeding with the':--. construction. The exparte injunction_--'"g'ran'_ted"~ ,'_was._ subsequently vacated and the suit 'lid.iSm:i'ss;"eL§{"ii.,..phi.i 24.02.1989. Thereafter, thedefendants 1, filed O.S.No.10145/1989 before they_,c'i't*,f__civil 3ea«ee, mgeryo Hall, Bangalore seeking ident'i'cal.relihej§is,,l'. suit was also dismissed. In_=vi_.ew made by defendants Volalintiff was reduced and as a could not raise any constru'z;tio._n~ -The Plaintiff issued a legal notice to vlE§a'ng"a.l,oreiﬂiﬁevelopment Authority, calling upongthem to the encroached portion on his site. ,HoewVevevr,?,the"reV was no reply from the BOA. In view of the lfailure or tl_ie_ defendants to remove the illegal construction, the""'*pres:ent""" suit was filed seeking for a mandatory 4""""v.""*,:irijL,:nction against the defendants to remove the ,.'_'i'n_comi,i:ilete foundation, the half finished sajja and clear the

-iland measuring 4' by 20' on the south~eastern side of the plaintiff's site.

lei)-r The defendants entered appearance and d€ﬁ:l'e.d:'<.1%fl§ suit averments. They contended that the plaintiff is frivolous and requires to _be. rejecl;ed'.""

The trial Court on framing four»_iAssue'3_, suit of the plaintiff and ordered theé'"d_efendant'::i'3,V" to V' remove the foundation and thléaﬁsajja and ﬁclievarttihe land measuring 4' by 20' on souVthe'eiaigteir'n.side of the plaint '[3' Schedule property within which, the plaintiff was at liitjeirity get'th'e:sa.me._..demolished at the cost of7the._ 3 Hence the present appeal by the ff d-efenvdant." C if "

$ri«--iiT.N.Raghupathy, the learned Counsel ap_p'e_arin'g7'_f.o__rtithe appellant's Counsel contends that the _ impLi'gne--d 'jtid'gment and decree is bad in law and liable to set aside. He contends that the trial Court committed 'a'nVVei*ror in decreeing the suit of the plaintiff and ordering if the defendants 1 to 5 to remove the foundation and the " sajja and clear the land in question. He contends that it"

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notwithstanding the dispute with regard to the title of the plaintiff to the suit schedule property, no material evidence has been led in to substantiate the illegal and construction as alleged by the piaintiyffai"--._Th_a~tlhthle'at entire material and evidence of the pla:i'ntlfl'«_ggis'1 to his ownership of the suit scheduiieproperty'.;.':fi"iAie Court therefore misguided g in the conclusion that the encroached the plaintiff's property by construction. He therefore thatthere:i's~['nVo..__rt3alterial that could sustain the decree.

llll appearing for the respondent 'No.1 to respondents 2 and 4 was di--s.pens4e'd._witeh.v; Heard the learned Counsel appearing 'C V' "for a'ppel!_ant andthe respondents 3 and 5. trial Court while decreeing the suit of the pla.in'tii'ff,.vpié*'i'ijna'rily considered issue No.1 with regard to the entitilllerrasenthvof the plaintiff for mandatory injunction. The V' "..jiientire_eyidence led in by the plaintiff was appreciated by ii'/zr' ,7, the trial Court and it came to the conclusion that the plaintiff has established his right and interest over the plaint 'B' schedule property. The evidence of the plaintiff was taken into consideration as well as the docum'~en'tary evidence to support the possession of the plaintiff . suit schedule property. The a||otment__ord_e'rs',"

certificate issued by the BSA and the:'_kiat'ha'certificate-asf.i well as the licence issued bythe covncernedAa«ut~ho.ré-ties w L' were also marked in__ suppoyrt_VV'fof_ the 'pi'ain_tiff5s case. Therefore, the trial Cou'rt:ca,rri.e "to;th'efconclusion that the evidence would clearly :sho'wI'thVat.y.'t,he landvin question has been allotted :"BDAl._i:n~v-f_a'vour of the plaintiff. __§6.' Howevlevr, on coming to the conclusion regardin'o.Ayth:e'«tit|e and possession of the plaintiff over the su_it7'.__s.che'd_uv_l_eii"property, the trial Court straight away _ procé«ede'd' decree the suit for mandatory injunction. .e:T'i=:ere is'no material or evidence led in by the plaintiff in o"tder*r"to establish his plea with regard to encroachment. if -The only averment in the plaint is that the 15' and 2"

i' defendants have unauthorisedly put up a cons uction 'i@.»---~« ls' wz -3- without a valid plan. The further averment is that a_ haif finished construction is in progress by the 15* _anV_:ci-._l2.'.'_"

defendants which includes the sajja and the fo_undatio;'n _ the plaintiff's site.

7. PW~i is the son of theiliptaintiff.'*__H'e_*has.Vgt:atedﬁ' in his cross--examinatéon that__a su'm'"'9f Rs,.,2¢.,£§O0'/~ 'jhas been paid as intimated by the"'"il;'5i.§."£\ and he 'does not know the exact total amountitpaid to Hevlhas further stated that a notice wasVV_issued'__'tci thielVv"§'.'i;'_,'.,:s_._'.'7L'i:J remove the encroachment; 'ffﬂowe§!_er;g he "'nas':."fu.rthéer stated in the cross~e;§aniii~naVt'ic-hi,_»t'hat'ivh:e'~do*es not know the ownership of the propertyiitg ~,r'*he".so--u:t'ij.erh and eastern portion of the suitgyscheduie property: and as to who is residing therein. ','T'hisw 'wo'uAld.:4cl.aar|y indicate that the plaintiff is unaware ownership of the neighbours to the suit . scheduleiprolperty.

The entire evidence of the plaintiff wouid "'iV'th.erefore not throw any light in so far as the alleged encroachment made by the defendants. The case of the fZ«--~ -9- piaintiff that the encroachment made by the 15' defendant over the suit schedule property has therefore remainedas a mere averment. The same is neither support_e(:l_'44'by'any'3 evidence nor any material in order to establish-..thait~~tVhere--$..:

has been an encroachment by the;'J1mS»V'bldefendantlpd:/_;3VrV'then'. plaint schedule property. NoTyotherématerial,iylysglclz reﬂort 'bf the commissioner o'r»..l.ot-herviihlse._'_is--availlablwes on record in order to show*"that ttl'e're'Vt.:i's."actual ilencroachment made by the defendants'overitlileisx;:'i:t'v:~st;Vh'ie'dule property. Therefore, in decreeing the suit foil?" in the absence of evidence' to 'encroachment by the 15' defendant.*~».sf_l'he tr:al""Co»ti:rt..i,o'n the availabie material could not Vhayesl.decreed_VV:the 'suit of the plaintiff for mandatory inj'L:nctioi2n.A_ dealing with the suit averments, the trial .i:C':3ou.srt mvisduided itself in determining the title, possession 4'_r~__o'r.qVotherwise of the plaintiff over the suit schedule if p--roperty. The averment and the dispute at large as made " out in the plaint was with regard to the encroachment by game _ 10 _ the 15' defendant over the plaint schedule property. A decree for declaration or of a consequential possession°was not sought for by the piaintiff. It was his case defendant has encroached upon his property.VaVncl:.hie_rice he is entitled for a decree of mandatory':'i'n_ji,inctiIon.:_'to.V'direct the defendants to remove the, said 4coAn'structiyo.n, The 'trial if Court therefore misguided itself"in"so far'a_s_ and ownership of the 'ov'er'the suit schedule property. Even--if plaintiff is required to be~'acce'pted__, therie available on record to show-""th'at7----anil"-nauthoriisedl encroachment was made by thendefendan'ts',:"'vi--.Ev'e.ri otherwise the trial Court has noté'-.given'~ any with regard to the encroachment cl" defendant. The plaintiff would vnecelssanrily have to plead and lead evidence to establish lthe'-l'enlcro:a'_chment made by the 15' defendant. In view of the ""failu_'re~i5f the plaintiff to lead evidence and place C .y"mafierial'~*'on record to show that there was encroachment 15' defendant, the trial Court committed an error in if -decreeing the suit of the plaintiff solely on the ground that _ 1} _ the plaintiff has established his claim over the plaint 'B' schedule property.

10. Estabiishment of titie is neither sufficient' ground to seek for mandatory injunction. Irres--aectiy:'e:.r.'of "

valid title, the piaintiff would haverto.,sho_yy"lhyblyil-VIe\.riVde'nce', that the defendant has encroached Failure to establish encroaclizrnent evidyent ':f_:ro'm 'the " 0 records. For the ¢7f,0reSaj.d--~ litréasons, 'i'~'vam/E of the considered view that the and decree requires to be Se.t'aside:."VV' H V 11.0'-f-"or the".:'afo"re0said reasons, the appeal is al|owge'd'. The' and decree dated 05.04.2004 passedE«.._Additiona! City Civil & Sessions Judge, 0'aahgakaé9§,ia-* ClS.No.3303/1989 is set agde.

0. attests.

Cons-equ_ent.!y, the suit of the plaintiff is dismissed. No iaﬁae Prs/ ~

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