Shankar Rao and Others vs M. Nagaraj and Others

Anand Byrareddy, J.

Heard the learned counsel for the appellants. The learned counsel for the respondents remain absent.

The appellants were the defendants before the court below. The suit was one filed for declaration that the suit schedule property was a common road measuring 15 feet in width was for the use of the plaintiffs, defendants and others as a public road. Therefore, it was alleged that the defendants had sought to encroach upon the public road by putting up certain construction and had changed the nature of the schedule property without due process of law and hence, the suit. The plaintiff No. 1 claimed that he was the owner of house bearing No. 368 and Plaintiff No. 2 claimed that he was the owner of house bearing No. 366 of I Cross, 2nd Main, Hebbal, Bangalore and that these properties were adjacent to each other and that they were living there for more than 40 years and the suit property was 15 feet wide road situated on the Eastern side of the house of the plaintiffs and it was a common road for the plaintiffs, the defendants and for others to reach the 2nd Main Road situated on the Southern side of the plaintiffs'' properties. The complaint of the plaintiffs was that the defendants though had no exclusive right over the suit schedule property, they were trying to block the road by putting up construction. They had dug up foundation in a portion of the suit property and had collected construction materials to do so, and had blocked the road. The defendants had erected stone slabs in the suit property causing obstruction to the plaintiffs and others to use the suit property for their ingress and egress. Plaintiffs had protested, to no avail and therefore the suit. The defendants on entering appearance, had contended that the suit was not maintainable and it was denied that the plaintiffs were owners of house bearing No. 368 and 366 respectively and it was false that the plaintiffs were using it as a common road and that it was 15 feet wide. The defendants contended that the road measured about 8.6 feet in width and it was the plaintiffs who had encroached the common road by reducing its size by 3 feet. It was denied that the defendants were constructing their building on the suit property. It was alleged that the plaintiffs themselves have encroached on the common road and in order to cover up their illegal acts, were throwing the blame on the defendants of encroaching the road. The private property belonging to one Rajashekar who was in possession and enjoyment in an area measuring 50 feet x 43 feet had put up stone slabd demarking his property and the common road and it is not the defendants who had erected such stone slabs. It is on these pleadings, that the trial court framed the following issues:

"1. Whether the plaintiffs prove that the suit road is the common road i.e., 15 ft. road for the use of themselves and defendants and others to have ingress and egress to their respective properties?

Whether the plaintiffs prove the alleged interference of the defendants?

Whether the defendants prove that the common road measures about 8.6 feet and the plaintiffs have encroached the common road reducing it by size to 3 feet?

Whether the Court fee paid is not sufficient?

Whether the plaintiffs are entitled to declaratory relief as prayed for?

Whether the plaintiffs are entitled to injunctive relief as prayed for?

What order or decree?"

On the evidence of the parties, the court below has come to the conclusion that the evidence on record showed that the probabilities are more in favour of the plaintiffs to believe that the disputed road was a common road of 15 feet width and the plaintiffs, defendants and yet others of that locality were using that road and Plaintiff No. 1 had encroached the said common road to an extent of 5 feet and the said road was not 3 feet width as on that date and answered Issue No. 1 in the affirmative and Issue No. 3 partly in the affirmative and insofar as Issue No. 2 is concerned, it was held that the plaintiffs had failed to prove that there was interference by the defendants. And issue No. 4 pertained to the court fee paid and it was answered in the negative. Issue Nos. 5 and 6 were answered in the affirmative holding that the road was 15 feet wide and the suit property was a common road measuring 15 feet in width. And it was also held on Issue No. 6 that the plaintiffs were entitled for a permanent injunction against defendants restraining them from interfering with the road and accordingly, had decreed the suit.

The learned counsel for the appellants would now point out that the court ultimately while decreeing the suit, has directed under Order VII Rule 7 of the Code of Civil Procedure, 1908, the Commissioner of the BBMP to take suitable action for removal of encroachments made on the public road by holding necessary enquiry. Therefore, on the allegations of the plaintiffs which were not true and correct and without a spot inspection or detailed enquiry as required, the court below has concluded that the defendants had encroached upon the property and were seeking to interfere with the road and that it was 15 feet road, whereas there was a finding that the plaintiffs themselves have encroached on the property. This indeed appears to be so. Hence, whether it is the plaintiffs or defendants who are encroaching on the suit property, it would be open for the competent authority to take appropriate action. Hence, the findings against the defendants were misplaced when there were findings to the effect that the plaintiffs themselves had encroached the suit property. Therefore, the findings of the court below are set-aside.

However, insofar as the direction issued to the Commissioner, BBMP to hold an enquiry and to remove any sort of encroachment on the road, holds good. It is open for the authorities to take such action. For otherwise, the findings against the defendants and the finding that the road was 15 feet wide, are set-aside. The appeal is disposed of with the above modification.