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The plaintiff described the land for which defendant No.3 executed Sale Deed as schedule 'C' property. The defendant No.2 also aware of the fact that there is no marginal land in between schedule 'A' & 'B' properties and by suppressing the fact and by playing fraud on the authority, obtained the Sale Deed, which is nullity in the eye of law. The plaintiff further averred that subsequent to purchase of schedule 'B' property by defendant No.2 started unauthorized construction during third week of January, 2005 by laying pillars, contrary to Building Byelaws and without leaving setback and by encroaching portion of schedule 'A' property. At that time, plaintiff requested defendant No.2 to put up construction as per Building Byelaws by leaving proper setback. Inspite of it, the defendant No.2 continued construction by erecting pillars in the setback area. The plaintiff approached jurisdictional Engineer to take necessary action against defendant No.2, but the jurisdictional Engineer did not take any action. As the Engineer has not taken any action against defendant No.2, approached defendant No.1 and requested to remove the construction made in the setback area and to stop further construction undertaken by defendant No.2. The defendant No.1 also has not taken any action and allowed defendant No.2 to complete construction. The plaintiff alleged that defendant No.2 by making encroachment over schedule 'A' property erected wall and put windows, grills, doors in the setback area. The defendant No.2 has no authority to construct building in the setback area. As defendant No.1 also fails to take necessary action against defendant No.2, the plaintiff constrained to file the present suit. Cause of action accrues to the plaintiff to file the suit on the date on which plaintiff approached jurisdictional Engineer on 28.03.2005 and when she approached defendant No.1 on 18.07.2005. .3. In pursuance of summons, defendants put their appearance and submitted written statement. .4. The defendant No.1 in the written statement admits that schedule 'A' property belongs to plaintiff and schedule 'B' property belongs to defendant No.2. The defendant No.1 averred that plaintiff alleged unauthorized construction by defendant No.2 over schedule 'B' property contrary to Building Byelaws without leaving setback and encroaching a portion of schedule 'A' property. In this regard, jurisdiction Field Engineer conducted spot inspection of schedule 'A' & 'B' properties and measured the same. Schedule 'A' property as per actual measures 21+22/2 X 45 feet, as per records 22+20/2 X 45 feet. Schedule 'B' property as per actuals 23+24.4/2 X 45 feet, as per records 22.+29.4/2 X 45 feet. The defendant No.2 has extended front portion of building up to 23 feet as against 22 feet. The defendant No.1 averred that at the time of spot inspection of schedule 'A' & 'B' properties though defendant No.2 stated that BA has issued Possession Certificate with respect to additional land measuring 0.91+0.46/2 meters East to West and 9.1 meters North to South, however, defendant No.2 has not produced the same. In the absence of production of documents, the jurisdictional Engineer held that defendant No.2 has encroached the land belongs to plaintiff, accordingly, it has in possession under KMC Act. The defendant No.1 denied the averments made out in the plaint as to defendant No.1 has not taken any action against defendant No.2 and permitted defendant No.2 to do the construction work. The defendant No.1 averred that as per complaint received orally from the neighbors residing nearby schedule 'A' & 'B' properties. The Field Officers of defendant No.1 inspected the spot even during night time and found that defendant No.2 was not carrying on construction work. The defendant No.1 averred that during spot inspection, it is denied that defendant No.2 ha encroached the setback area by putting up MN.S. Grills. Therefore, the defendant No.1 will take suitable action after receiving the reply to the notice from defendant No.2 for violating Building Byelaws.

.6. The defendant No.2 in the written statement contended that suit of the plaintiff is false, frivolous, vexatious and not maintainable in law or on facts. The plaintiff filed the present suit with an intention to harass the defendants. The averments made out in Para-3 of the plaint is false. The defendant No.2 admits that she is owner of schedule 'B' property and purchased through registered Sale Deed on 27.06.2002. The property measures East to West 6.10+8.83/2 and North to South 13.71 meters. The defendant No.2 averred that she has purchased marginal land from BDA for consideration of Rs.25,078 through original Sale Deed in the year 2005. It is averred that the marginal land is abutting to her property, which measures East to West 0.91 + 0.47/2 and North to South 9.14 meters. The defendant No.2 contended that plaintiff has not averred about purchase of said marginal land, which is abutting to her property. The defendant admits that she has constructed the building subsequent to purchase as per sanctioned plan and licence issued by defendant No.1. The defendant No.2 denied the averments made out in Para-5 of the plaint as false. The defendant No.2 further denied the averments as to subsequent to purchase of schedule 'B' property started unauthorized construction during third week of January, 2005 and laid pillars contrary to Building Byelaws without leaving setback and by encroaching portion of schedule 'A' property. The defendant No.2 denied the plaint allegation as to defendant No.2 encroached portion of 'A' schedule property and erected wall and put windows, grills and doors in the setback area. The defendant No.2 pleaded that she is owner and possessor of schedule 'B' property and is having right, title and interest. The defendant No.2 contended that she has already constructed building as per sanctioned plan and is residing in it from prior to filing of the suit, therefore, the suit is infructuous. The defendant No.2 averred that if at all any deviation while putting construction on schedule 'B' property, it is the defendant No.1, who has to take action as per the provisions of KMC Act. The defendant No.2 pleaded that plaintiff has not stated anything in the plaint as to at the time of putting construction on schedule 'A' property, plaintiff left 2.6 feet vacant land. Further it is not the case of plaintiff that she is owning vacant land beyond her constructed building on vacant site i.e., eastern side of 'A' schedule property. Therefore, the question of encroachment by defendant No.2 does not arise at all. The defendant No.2 contended that she has not made any encroachment on the property belongs to plaintiff. The defendant No.2 denied the averments made out in Para-6, 7, 8 and 9 of the plaint as false and called upon the plaintiff to prove the same. No cause of action accrues to the plaintiff to file the suit. .7. After amendment of plaint, defendant No.2 filed additional written statement. The defendant No.2 denied the averments made out in Para-4 of the plaint as fully correct. The defendant No.2 averred that defendant No.3, who is absolute owner and possessor of marginal land has conveyed it in favour of defendant No.2 through registered Sale Deed. The marginal land belongs to BDA situated on the eastern side of schedule 'B' property and it is no way concerned or connected to schedule 'A' property belongs to plaintiff. After purchase of marginal land, she is in possession and enjoyment of the same, in order to knock off the marginal land, plaintiff filed the present suit. The marginal land cannot be conveyed to plaintiff as it is situated on the eastern side of schedule 'B' property. The property belongs to plaintiff i.e., schedule 'A' property is situated on the western side of schedule 'B' property. The defendant No.2 contended that relief in respect of schedule 'C' property is false and baseless. The plaintiff is not the owner of marginal land and has no right over it and she cannot seek cancellation of Sale Deed and possession of 'C' schedule property. The plaintiff is not entitled for the relief as prayed in Para 1a of the prayer. On these grounds and substance, prayed for dismissal of the suit with.

.27. The plaintiff though alleged of encroachment on her property by defendant No.2 has not placed any document, such as Sanctioned plan to show that she has constructed building as per the plan. Further while putting construction has left any setback area on the eastern side. The plaintiff has produced sanctioned plan (Ex.P.23) obtained by defendant No.2. On perusal of the approved plan, the defendant No.2 has to leave setback area towards western side. The Photographs produced by plaintiff and defendant No.2 goes to show that no setback area is seen in between the buildings of plaintiff and defendant No.2. Unless, plaintiff establishes that she has put up construction on schedule 'A' property as per approved plan by leaving setback area, it is very difficult to say that defendant No.2 has encroached upon the schedule 'A' property belongs to plaintiff. In the absence of production of approved plan by plaintiff, it can be inferred that defendant No.2 has put up construction without leaving any setback area. At the same time, it is very difficult to say that defendant No.2 has encroached on schedule 'A' property to the extent as alleged by plaintiff. Therefore, for these reasons, this Court answered Issue No.1, 4 and 5 in the negative.