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4. The plaintiff coming to know of the fact of encroachment by the defendant for which he is not the absolute owner or otherwise has demanded the defendant to refrain NC: 2024:KHC:28814 from such illegal activity of putting up an illegal construction encroaching the property of this plaintiff. But the defendant has not heeded to the plaintiff's request nor the demand. The Site bearing No.1893, was allotted to the defendant by then CITB, Mysuru dated 13.05.1984 and subsequently, a bit of land adjacent to the west Site No.1893 in favour of the defendant dated 12.05.1992. The plaintiff further submits that there is no bit of land as stated by the defendant belonging to the CITB on the eastern side of the schedule property and towards western side of the defendant's property. There are two windows fixed on the eastern side of the schedule property and now, the defendant is trying to further encroach 8x4 feet setback area of the schedule property. Hence, sought for the relief of declaration that the plaintiff is owner of the setback area 3x4 feet towards eastern side and for the relief of mandatory injunction to demolish the encroached portion of 3x4 feet and also for the relief of permanent injunction restraining the defendant from putting up any construction on the setback area on the eastern side of the schedule property.

12. The main contention before this Court in the second appeal by the appellant-plaintiff in O.S.No.540/1996 and the appellant-defendant in the O.S.No.779/2007 is that MUDA allotted site measuring 30x40 feet to the plaintiff and when he had left the setback area, in the said setback area, an attempt is made by the defendant to put up construction. Hence, he sought for the relief of declaration in respect of 3x30 feet in O.S.No.540/1996. On the other hand, it is the contention of the appellant-defendant in O.S.No.779/2007 that the plaintiff has not left any setback area and he had constructed building and not encroached upon any property of the plaintiff. The MUDA is party in both the suits and property is allotted in respect of respective plaintiffs in both the suits by MUDA is not in dispute. The plaintiff in O.S.No.779/2007 was originally allotted 30x20 feet and the plaintiff in O.S.No.540/1996 is allotted 30x40 feet.

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NC: 2024:KHC:28814 in respect of bit of land in favour of owner of Site No.1893 and hence, the said report cannot be accepted.

16. Learned counsel for the respondent would vehemently contend that the appellant herein has constructed the building in respect of his entire site measuring 30x40 feet and not left any setback area and the same is also pleaded before the Trial Court. Having considered the said contention, there is no specific material before the Court whether the appellant has constructed the building leaving any setback area or not and at the same time, the report of the Commissioner, Mysore Mahanagara Palike is that there is an encroachment by the owner of Site No.1893 to the extent of 3 feet 8 inches and the said report is questioned before this Court. When such being the case and the same is objected, the examination of Commissioner, Mysore Mahanagara Palike, who had visited and given the report dated 17.02.2024 along with the sketch also to be considered. When such being the case, when the learned counsel for the appellant also contend that the appellant does not want an inch of land and except the site allotted in his favour, even if any construction is made by him beyond the measurement to the extent of 30x40 feet, he is ready to

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NC: 2024:KHC:28814

18. When such materials are available before the Court, and when the report of the Commissioner, Mysore Mahanagara Palike is disputed and the respondent also disputes with regard to the encroachment, the Commissioner of Mysore Mahanagara Palike requires to be examined before the Trial Court. The prayer of the appellant is also very clear that in the setback area of 3x30 feet, encroachment is made by the respondent. When such being the case, even the appellant to adduce evidence regarding actual construction made by him and a definite finding has to be given with regard to the encroachment is concerned i.e., whether Site No.1893 is allotted to the respondent is encroached as per the reports of the Commissioner and whether the appellant has left the setback area or not while constructing the building. All these issue have to be considered by the Trial Court and in view of the dispute and objections filed by the respondent, Commissioner, Mysore Mahanagara Palike has to be examined before the Trial Court with regard to the extent of construction made by the appellant and whether he had left setback area or not and whether respondent encroached as stated in the report of the Mahanagara Palike also to be considered and if need be,