IN THE HIGH COURT OF KARNATAKA AT BANGALORE Dated the 8th day of November 2010 :BEF'ORE: HONBLE MRJUSTICE : V.JAGANi\TATI~L4&1\_:i'-..4E_EEi~.._ REGULAR SECOND APPEAL NO. 476 _,.f""2E()V(;)8_E: " BETWEEN : 'i'.Thipperudraswamy, A. " Aged about 67 years, 8/ 0 M.Marii_1asiddaiah, * . «. ' Church Extension, Chitradurga E E' 3 TOWn--577 501. E E ' * EAppe11ant [ By Sri C.N.Sat3}anai'ayasEii§i Advocate. ) AND: (M012?ika1m1i1E*._--i) _REetire.d"'Q_ffi.ci_'al. aged abdut 61 yea rs, s Q Channaveerappa, Near Kaliika Temple, »_C'h}irEch Extension, Chitradutga '--- 5'27 '3!01~.--." 1\?agaraj','~ . EE E E . . Respondent
.. Smt. Archana Murthy G. for
E’ Sr_i~~Basavaraj Kareddy, Advocate. )
Regdier Second Appeal filed under Section mo of
the against the judgment and decree dated
EEf6E.E1.2.20O7 passed in R.A.No. 82/2008 on the file of the
9:1′ EAdd1. Civil Judge [S1′.D1’1.), Chitradurga, dismissing the
” V-‘appeal filed against the judgment and decree dagted
19.7.2006 passed in O.S.No. 73/2005 on the file of the I
Addl. Civil Judge (Jr.Dn.} & JMFC, Chitradurga.
This appeal coming on for hearing this
court delivered the following :
J U D G M
This second appeal is
his suit for mandatory injtiVi’1etion
prohibitory injunot,iVon_.folloWing’the._riisniis’sa1″of t.he suit.
filed by him and concurring
with the his appeal. The
concurreint. form the backdrop for
filinéithis’ l ‘l
2. that. the plaintiff filed the suit
the nreliefof mandatory injunction directing the
‘ torespondentlidefendant, herein to remove the lavatory pipe
“af1’iXed’ lathe suit. property and also to remove the
unauthorised Construction put up towards the west of
A plaintiffs house and to prevent the respondent-
lgdefendant by an order of prohibitory injunction from
obstruction the plaintiff in any manner. The said relief
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of the plaintiff was based on the footing that the plaintiff
is the owner of the suit schedule property measuring
east–West 25 feet and north«–south 42 feet “$fa.sV’vthe
ease of the plaintiff that he had put up
measuring east–west 22 ft. anidfflnortth :fi;~_:} rfhe ff’
respondenbdefendant, being owner 2
which exists to the west suit
to construct a building -Lise the plaintiffs
suit schedule property set back of
at least fl/2;”ft;:”AfT:om tllexzlthe defendant tried
to put Following the defendant
the suit was filed for
the afoizesaeidl .” ” .. if ”
3 The stand of the’ defendant was that he had put
up-ithef’eopnstructionin the property that belonged to him
‘ stand? ;dejfendant’s property measures 25 ft. X 60 ft.
the’.’~V’s_uVi’tVVschedule property does not belong to the
plalililtlifff and, therefore, the suit of the plaintiff be
A dismissed. The defendant, therefore. took up the stand
‘that he had not encroached upon the plaintiffs
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property, but he contended that the property purchased
by the defendant aiso included 21/2 ft. on the western
side, which is oni.
4. The aforesaid pleadings of the parties
court to frame five issues and the burde1d__”was.. on ”
the plaintiff to establish that Had’
constructed the house on. the western theft-tuit..p
property without leaving set issue
was answered in l”..l:jIoweV\Vrer’,f the other
issues-2, 3 and 4 were the plaintiff and
finally’ =th”e.’.Vpi.aintiffw£as dismissed. The lower
appellatlel with the trial court and the
plaintiffs”~appeal._was ‘dismissed.
5;! cou’rt;~-wl*1i1e admitting this appeal, raised the
V =foi’lowingisulostantial question of law:
v’f’:VVi1et.her the courts below were justified in
H gfiéfuting to grant a decree for injunction and
mandatory injunction after holding that
plaintiff is the owner of the suit schedule
properties and the defendant has put up
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construction on his entire property and the
stair case and other constructions are now
being put up in the one and a half space left.»
by the plaintiff, which is evidenced
Cornrnissionefs report?”
6. I have heard learned counsel £¢,r”:h}:t;,appe11a;it>isrp ‘x
plaintiff Shri C.N.Satyanarayana
Counsel for the r€Sp0ndl@fltfd6fdI’1dant
Murthy and perused the of this case.
7. The submission ‘of. counsel is that
the courts below eI’i.’ed”in; n’ot.V:’notici:ig”the fact that the
fl1ad..V.:clearlv’Vestablished before the trial
that his property measured
25_ft,. X western side, the plaintiff had
-‘ v pléfiistiifficient spaceas set back and had not put up the
the western side and taking advantage of
this, V_the_defendant had encroached into the plaintiffs
is suit. ‘property. It is also submitted that towards the
if ‘gfeastern side, the plaintiff had encroached 13/2 ft. of the
—–land belonging to the Municipality but, that does not
give the defendant right to trespass into the plaintiffs
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land on the western side. Referring to the evidence of
P.W. 1 and D.W.1 and also to the sale deeds Exs._I?51 and
13-5, it is argued that both the courts were in
not appreciating the evidence from proper’* pp
and the findings recorded loy'””‘th..e f j
contrary to the evidence on record-.and also’~contr’ar._v”to
the Commissioner’s report,’ court,’ ‘in
has to interfere by s–ettingg..a’si’dte saidfindivngs of the
trial court as affirmed tl?1~eVulowe;r”appellate court.
8. On theother of the learned
coun.«3el=for:”the:’:resp’ondent “isvvti’iat, both the courts have
taken’-intéo of the parties and the
documents regard was also had to the
re§p’ort..tg:of..v_theCommissioner and, on going through the
V”Co’mn1.i’ssione1j’s report, it can very Well be inferred that
plainfttffiizhas put up the construction exceeding the
actual _°measurement of the plaintiffs site on east–west
Vdirfection. By submitting that the measurement of the
_3east–west side of the plaintiffs property is 25 ft., it is
argued that the Commissioner’s report revealed that the
plaintiff had put up the house on the east-west side and
the measurement is 26 ft. and ll inches and this itself
shows that the plaintiff had exceeded the aetuatarea
that belong to him even as per sale deed ‘_
such, no error can be found i~n””‘the v_–‘:_ew,.t’al<eni the f 5'
courts below and particular reference vvas._tmade"
learned counsel for the re's.pondent«.to of
the trial court's judgrnent." iiisufich, submission
made is that the no substantial
question of :law_ is also involvedv in appeal.
9. .»Hav.in”:V thus heard ‘the-v’learned counsel for the
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artie-s, the substantial. uestion of law raised, therefore,
P . . . V , .. F1,
requires to be Van_swere–d at this juncture.
is noti’i’n~’disp’ute that the plaintiffs property
5 rrieasures 25 ft. X 42 ft. even as per the sale
deed 1}. It is the specific case of the plaintiff that
his “property measures 25 ft. east–West and 831’/2 ft.
‘V:1ojrth–south. The said property was divided equally
it ibetween the plaintiff and his brother and, therefore,
what fell to the share of the plaintiff was 25 ft. east–west
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and 42 ft. north~south. On this, there is no
disagreement between the parties. Likewise, the
property of the defendant measures 25 ft. X 6Gjfti”a.lso
evidenced by document EX.D–5 sale l ‘_
defendant. The plaintiff has ap’p1″oach’_edd_.ths. Tcovurtd ‘ j n
for the relief of mandatory inj7u.n:c–tion
injunction by contendingijdpidthat the had
encroached upon the plaintiffsiatdea. on thewestern side.
It is, therefore, the plaintiff to
establish the houses of the
parties a5’:tu:al1_y” .. to if plaintiff.
ll. ‘admitted facts in view, if one
looks atithev eyideiicegfilaced before the trial court and
the CAommis’sioner’s report, the following picture
V .l:n’–the Commissioners report, 2 ft. 10 inches
dopendspace is indicated as being in existence between
the *pr(:perty of the plaintiff and that of the defendant.
specific case of the plaintiff is that, he is the owner
__5of the property measuring 25 ft. X 42 ft. Therefore, the
plaintiff has put up the house in the aforesaid area.
Then, including the set back area. the whole of the
property of the plaintiff cannot exceed 25 ft. X 42 _ft_._
12. The report of the Commissioner
considered by both the courts. It is
learned trial judge, referring:-¥to’—-the7_4
report, has opined that the;_’m-ealsurernent:
plaintiffs house including thehompoL1ndV..v\}’alll”ilslflbeltweenV
26 ft. 7 inches to 26*ft_. 11; the eastaavest side.
No doubt, the plaintiff by stating
that on the. ea.s:t.ern::__sidef has encroached
the pii’0p»-91l’:tlyT5 ‘1Vlu«nieip’aiit3} by about 11/2 ft. The
reveals that the defendants
house onthev eat:vs}est’~.slide measures 24.9 ft. i.e., within
Thuslllin–sef’ar as 2 ft. 10 inches space lying
houses of the plaintiff and the defendant is
lcohnlcernedg “the trial court took the View that the
Comi,nissioner’s report does not throw light on that
V’ ‘ — aspect.
‘E13. The lower appellate court also considered the
above material and has observed in the course of its
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reasoning at paragraphs–12 and 13 that, when the
measurement of the plaintiffs house on east-west
direction is found to be 22 ft. and includifngflhe
compound wall to be 26 ft. 7 inches, the lovverli
court, therefore, concluded th.at~ the
plaintiff that the defendant
plaintiffs land on the western side c__annot: !5~e”‘aec’epted’.’ V
The learned judge ofthe l.ow’e.r:’appel1atecourt has also
observed that even iflllthell that he had
encroached. foot» “Vjbdelonging to the
the»–compound wall on the
eastern_sidefhas.to«..l5e___ar:cepted, yet, even after giving
ailowance for ‘the~ psaiud—. encroachment, the measurement
of i.plaintiff_Vs lproperty on the east–west side will have
25 ft. But, the Commissioners report is to
it puts the measurement from east-
ft. 17 inches. It is on the aforesaid
” consideration of the evidence on record and the
2′-:Cornmissioner’s report that the learned judge of the
H lower appellate court found that the Commissioners
report has not done any good to help the case of the
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plaintiff but, on the other hand, the material on record
leads to the conclusion that the plaintiff has faiied to
establish that 11/2 ft. space on the western
plaintiffs property belongs to the plaintiff. , V’
14. In the light of the aforesaid. of the 91′
evidence on record. the View tai~:er1*_by the co»u.rts».be1Vowu
cannot be termed as perver’s:ep”nor canit that the
Commissioner’s theficalse of the
plaintiff but, on they’xfiif3e’_’..Commissioners
report itself”l:h,as the plaintiffs
contention reg’a,rds7.’:Vth’e–open’space on the western
side beiiig property.
” In the, of the aforesaid discussion, the
V’ ws_ubstantial,_ question of law is answered in favour of the
._VliefW the courts below and the Commissioners
re’porvt:has also led to the aforesaid View being taken by
V * the courts below and, as such, I see no perversity of
recorded by the trial court. The appeal,
H therefore, lacks meritfii is dismissed.
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The dismissal of this appeal, however, shall not
come in the way of the plaintiff establishing his V’–t”.e over
the open space and in such an event, the
observations shall not come in the way
being dealt with in accordance -1′ i’
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