Karnataka High Court
A.V.N. Prasad S/O A.V. Sheshaiah vs Sita Bai Raj Purohit W/O Alte ... on 10 August, 2006
Equivalent citations: 2007(1)KARLJ216
Author: Ajit J. Gunjal
Bench: Ajit J. Gunjal
JUDGMENT Ajit J. Gunjal, J.
1. Even though the matter is listed for admission, with consent, it is taken up for final hearing.
2. During the course of this judgment, the parties would be referred to with reference to their rankings in the trial court.
3. The plaintiff has filed the suit against the defendant seeking relief of declaration to the effect that he is the owner of the suit property measuring 1'-6" north south and 67' east-west and for possession of the same from the defendant and also for the relief of mandatory injunction directing her to remove the construction which is put up on the suit property. It is the case of the plaintiff that he is the owner in possession of the house bearing Municipal No. 7/6/224 situate at Jawahar Nagar, K.H.B. Colony, Raichur. The said property was allotted by the Karnataka Housing Board (for short. 'KHB') in his favour on lease cum sale basis. He has put up a construction. The house has been constructed by the plaintiff on site bearing No. 5 allotted by the KHB. The defendant has been allotted a house constructed on site No. 4. The house of the defendant is situate on the southern side of the plaintiffs house. In the month of November 1984 the defendant constructed a compound wall and a garage encroaching an area to the extent of 1'-6" north south and 67' east-west. It is the case of the plaintiff that the said strip of plot would being to him and is a part of site No. 5 allotted by the KHB. Since the defendant refused to remove the construction made on the suit property belonging to the plaintiff, the present suit is tiled.
4. The. defendant, entered appearance and has filed the written statement denying the case of the plaintiff. She would contend that she has not encroached the suit schedule property, namely, the strip of plot. She would contend that the said compound wall with garage was constructed in the year 1981 itself. At that point of time the plaintiff did not raise any objection while constructing such garage and the compound wall. She would also contend that the suit is barred by res judicata.
5. On the basis of the pleadings, the trial court has framed as many as nine issues. On the material issue, the learned trial Judge has held that the plaintiff to the lawful owner of site No. 5 and it would measure east-west 67' and north-south 1'-6". The learned trial Judge has also recorded a finding that the plaintiff has established that the defendant has encroached an area of 1.6' north-south and 67' east-west. The learned trial Judge has decreed that the plaintiff is the owner of the said strip of the land and she is entitled for possession and granted a decree for mandatory injunction to demolish the said structure. The said judgment and decree was questioned by the defendant in RA 256/04 on the file of UK: Addl. District Judge at Raichur. The learned Appellate Judge on reassessing the evidence on record was of the opinion that the plaintiff has failed to prove that defendant has encroached the suit property belonging to him. Consequently allowed the appeal and judgment and decree of the learned trial Judge was set aside. Hence the second appeal by the plaintiff.
6. Mr. Padmanabha Kedilaya, learned Counsel appearing for the plaintiff-appellant submits that both the plaintiff and the defendant were granted their respective sites by the KHB. He submits the moment the plaintiff came to know the alleged encroachment, he contacted and approached the KHB and sought for survey and measurement to be done. In the process, according to him, the KHB has found that there is an encroachment to the extent of 1.6 ft. x 67 ft. He would further submit that the learned Appellate Judge on the basis of the evidence could not have reversed the finding recorded by the trial court.
7. Mr. Venkatesh, learned Counsel appearing for the defendant, would support the judgment and decree of the lower appellate court He would submit that the learned Appellate Judge has noticed that the plaintiff has failed to prove that there is an encroachment to the extent of the disputed strip. He would also submit that Ex.P. 16 which is a letter issued by the KHB shows that there is no encroachment by the defendant and the said fact has been admitted by the defendant in her evidence. In the circumstances, he submits that the question of granting mandatory injunction for removal of the said wall does not arise.
8. On the basis of the said submissions, the following substantial question of law would arise for consideration:
Whether the plaintiff has acquiesced his right by not acting promptly having come to know that there is encroachment to the extent of 1.6ft. x 67ft.?
9. In so far as the title to the said strip of the land, it is to be noticed during the course of the trial that the plaintiff was examined as PW. 1 and he has reiterated what has been stated in the pleadings. The plaintiff in order to prove the alleged encroachment made by the defendant has examined Asst. Executive Engineer, KHB as PW.2. He has stated in his evidence that in the year 1984 the plaintiff had filed an application to the KHB stating that the defendant has encroached to an extent of 1.6 ft. x 67 ft. A notice was issued on 24.11.1984 by the concerned officer working at KHB Raichur to the owners of sites bearing Nos. 3, 4, 5 and 6 stating that survey is to be done. He has stated that after the measurement of the sites, it transpired that the defendant has encroached the site of the plaintiff to an extent of 1.6 ft. x 67 ft. It. is to be noticed that the said part of the evidence cannot be looked into for the simple reason that he is not the same person who has conducted the survey of the sites of the plaintiff and the defendant. In fact it has come in the evidence on the basis of Ex.P. 10, a sketch prepared by the Asst. Executive Engineer. But however it is to be noticed that the Asst. Executive Engineer who has conducted the survey has not been examined. Be that as it may, the fact remains another document is produced at Ex.P.1(b), which has come into existence at an undisputed point of time i.e., on 26.11.1984, which has been produced by the plaintiff himself. After a detailed survey and measurement it was noticed that the gate pillars and wire fencing on the north-south and the garage were well within the plot of the defendant That apart, the plaintiff himself has admitted in the cross-examination that the Executive Engineer KHB has measured the plot and issued survey report that the defendant has not made any encroachment. In the circumstances, it cannot be said at this point of time that there is encroachment to the extent of 1.6 ft. x 67 ft.
10. The substantial question of law winch has been framed is in respect, of acquiescence, namely, whether the plaintiff has acquiesced his right and has not approached the court for a considerable period of time. Apparently it is to be noticed that the plaintiff has come to know that there is an encroachment of the said strip of the land some time in the year 1984. It is no doubt true that he has been knocking the doors of the KHB for some time. But however he was unsuccessful. This should have prompted the plaintiff to approach the court seeking the relief of mandatory injunction based on the title at an earliest point of time. That has not been done. It is to be noticed that the plaintiff has allowed the grass to grow under his feet for over a period of one decade and has tiled the present suit in the year 1995 seeking the relief of declaration, possession and mandatory injunction. It is to be noticed that in cases of mandatory injunction, promptness is essential if a mandatory injunction is a desired remedy. When the plaintiff does not file a suit for mandatory injunction at the earliest opportunity but has waited till the building is completed and then ask the court to have it removed the relief cannot be granted. If a person having a light to object has acquiesced in the construction of the structure that is encroached upon the plaintiff is not entitled to discretionary remedy of mandatory injunction. It is not in dispute that the plaintiff is an immediate neighbour of the defendant. It is not as if he has been staying away for any length of time. If really he had cared to find out he would have certainly come to know about the defendant putting up construction. Ex.P. 16 is a document which is produced by the plaintiff during the course of the trial would give a clear indication that there was no encroachment. The suit having been filed in the year 1995 the plaintiff was certainly guilty of acquiescence, even though the construction of wall and garage had come to the notice of the plaintiff in the year 1984 itself. At the earliest point of time he did not seek removal of the wall, but for the first time has approached the court and has filed the present suit in the year 1995. Consequently, I am of the view that he is not entitled to the relief of mandatory injunction.
11. Section 39 of the Specific Relief Act would relate to mandatory injunction. The right to obtain a mandatory injunction when refused is stated thus:
Delay in seeking relief - A person who has not shown due diligence in applying to the Court for relief, will in general, be debarred from obtaining a mandatory injunction. A mandatory injunction should only be granted to those whose conduct entitles them to the interference of a Court, of equity. If a plaintiff knowingly stands by and makes no objection, while the defendant in ignorance invades his rights (as by erecting a building which obstructs an easement of tight or a right, of way), 110 injunction will be granted to him. Conversely, if the defendant has himself acted with willful and high-handed disregard of the plaintiffs rights, an injunction will be granted even in cases which would otherwise have been deemed too trivial for this remedy.
In fact, an identical question fell for consideration in the case of Krothapalli Satyanarayana v. Koganti Ramaiah and Ors. , which would relate to Section 39 of the Specific Relief Act relating to declaration and mandatory injunction. The Apex Court has ruled that If there is an encroachment and if the suit is brought within the period of limitation, ordinarily the relief ought to be granted, save and except where the plaintiff had disentitled himself to a discretionary relief by his conduct. In this case both the appellate court and High Court have concurrently held that the plaintiff was guilty of acquiescence in that even though the wall was constructed to his knowledge in 1956, he approached the Court in 1965 and even in that year he did not seek the prayer for removal of wall which prayer was for the first time introduced in 1969. In this background, we are not inclined to entertain the submission on behalf of the plaintiff appellant that defendants 2 and 3 should be directed to remove the wall WW-1 and clear the passage of encroachment.
12. Having considered the evidence on record, I am of the view that the plaintiff is not entitled for extraordinary relief of mandatory injunction. The substantial question of law which is framed is liable to be answered against the plaintiff, in as much as, he has acquiesced his right to seek a decree for mandatory injunction. Appeal dismissed. Parties to bear their own costs.