Bettalinge Gowda vs T.K. Lokabhiram

Dr. K. Bhakthavatsala, J.—This plaintiff''s appeal is directed against the judgment and decree dated 22.7.2005 made in O.S. No. 3356/1993 on the file of the XXII Additional City Civil Judge, Bangalore City.

Brief facts of the case leading to filing of the appeal may be stated as under:

On 31.5.1993, the appellant/plaintiff filed a suit in O.S. No. 3356/1993, on the file of the City Civil Judge, Bangalore, against the defendant-T.K. Lokabhiram, seeking grant of permanent injunction from putting up any construction in the set back area measuring north to south 40 feet and east to west 5 feet in the defendant''s site No. 86 abutting the plaintiff''s site as shown in a sketch at Annexure-G as ''A B C D''. The plaintiff has pleaded that he is owner of the site bearing No. 87 measuring north to south 40 feet and east to west 30 feet situated in Aircraft Employees Co-operative Society Layout, I Stage, Gedlahalli (R.M.V. Extension II Stage), Bangalore. It is further stated that the defendant who is also an employee of H.A.L., Bangalore has purchased site No. 86 in a public auction in the year 1986 and the defendant tried to put up construction in the defendant''s site No. 86 without leaving any set back and attempting to put up construction abutting eastern wall of the compound of the plaintiff in violation of B.D.A. plan.

The contention of the defendant is that the defendant has not left the set back to the extent of 5 feet on the eastern side of the plaintiff''s boundary and trying to dig two days prior to filing of the suit and therefore he filed a suit in the month of April 1993 in O.S. No. 2345/1993 for permanent injunction. In that suit an ad-temporary order of injunction was also granted.

The defendant entered appearance and filed written statement denying the averments of plaint contending that the plaintiff is owner of site No. 87, measuring 31 1/2'' 32 1/2'' x 40/2. He has pleaded that he has purchased the site bearing No. 86 in the year 1986 as a member of the society and the correct dimension of his site is 45''+40''x30''/2 and he is in possession of the same.

In view of the pleadings on record, the Trial Court framed the following 4 issues and 2 additional issues:

1) Whether the plaintiff proves that the defendant is trying to put up construction in site No. 86 in violation of the Bangalore Development Authority plan as alleged?

2) Whether the plaintiff is entitled to the perpetual injunction as sought for?

3) Whether the suit is maintainable in law?

4) What decree or order?

Addl. Issues:

1) Whether the plaintiff proves that the defendant trespassed over the set back area left by him and put up construction illegally and unauthorisedly as averred in Para 10A of the plaint?.

2) Whether the plaintiff is entitled to the relief of mandatory injunction as sought for?

During pendency of the suit, as the defendant passed away and his legal heirs have been brought on record. In support of the case of the plaintiff, he has got himself examined as P.W. 1 and got marked Ex. P.1 to Ex. P.21. In rebuttal, one T.K. Nageshwara Rao and Durga Lokabhiram were examined as D.W. 1 and D.W. 2 and got marked Ex. D.1 to Ex. D.8. The trial Court after hearing the arguments and perusing the oral and documentary evidence on record came to a conclusion that there is no merit in the suit and dismissed the same. This is impugned in this appeal.

Learned counsel for the appellant submits that the Trial Court has not properly appreciated the evidence on record more particularly, the certified copy of the notification-Ex. P.7, Ex. D.3-sale deed and Ex. D.6 possession certificate. He submits that since the site purchased by the defendant was auctioned in public as per the measurement mentioned in the auction notification at Ex. P.7, but the measurement mentioned in the possession certificate-Ex. D.6 is contrary to Ex. P.7. Therefore, he submits that the Trial Court erred in dismissing the suit.

Learned counsel for the respondents/defendants submits that it is the plaintiff, who has encroached upon the site belonging to the defendants. He further submits that the Trial Court has rightly appreciated the evidence on record and answered the issues against the plaintiff and there is no merit in the appeal and the first suit filed by the plaintiff in O.S. No. 2345/1993 was dismissed as withdrawn.

In the light of the arguments addressed by the learned counsel for the parties, the only point that arises for my consideration is:

Whether the impugned judgment and decree call for interference of this Court?

My answer to the above point is in the negative for the following reasons:

Admittedly, the appellant and the defendant are neighbours. In other words, the appellant/plaintiff is the owner of site No. 87 measuring 40'' x30'', whereas defendant is the owner of adjoining site bearing No. 86, measuring east to west 30 '', north to south 45'' +40'' x 2. The defendant has produced his sale deed dated 29.3.1989 ''executed by the Aircraft Employees Co-operative Society Limited as well as the possession certificate in respect of the site bearing No. 86, to prove that he is owner of the site to the extent as mentioned in the same. Merely because the measurement mentioned in the public auction notification and the sale deed/possession certificate differs, there is no good ground for the appellant to contend that the defendant is not the owner of the site as per the measurement mentioned in the sale deed and possession certificate. There is no material placed on record to show that the defendant has violated the sanctioned plan or that he has encroached the property on the plaintiff. The Trial Court answered all the material issues against the plaintiff and dismissed the suit. It is pertinent to mention that subsequent to filing of the suit, the plaintiff got the alleged plaint amended and prayed for the relief of mandatory injunction to remove the encroached portion by the defendant in the set back area and put up the plaintiff in possession. Therefore, the Trial Court has framed two additional issues and answered the same against the plaintiff. I see no illegality or infirmity in the impugned judgment and decree.

In the result, the appeal fails and the same is hereby rejected.