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Judgment
L. Narayana Swamy
The defendant is in appeal against the order passed in O.S. No. 2513/1984, the suit filed by the respondent herein seeking relief of mandatory injunction. It is contended by the plaintiff that he is the owner of the property bearing No. 1 measuring 40ft x 60 ft situated at Kaval Byrasandra. Munireddy Palya, Bangalore. He had put up construction in the site in question by obtaining the prior licence from the concerned authorities. The appellant herein had put up an electric pole in the backside of the house belonging to the plaintiff. Before erecting the poles, they have not properly identified whether the area belongs to the plaintiff or it is a public road. Since the pole was put In the property of the plaintiff, he made an application with the Chairman with a request to remove, the same was rejected and not considered. The defendant/appellant has contended that erecting poles and drawing electric lines is carried on in the public road and not in the land belonging to the plaintiff. There is a public tap and drainage near the electric pole put up by the defendant.
On the basis of the pleadings, the Trial Court has framed the following issues.
(1) Does the plaintiff prove that the defendants have put up the electric pole in the suit property illegally?
(2) Whether the said pole is liable to be removed? and
(3) Whether the plaintiff is entitled for injunction?
The suit was decreed with a direction to the defendants to remove the electric pole put up at Point B of the Sketch Ex.P. 21. Being aggrieved by the same, the defendants filed RFA No. 508/1999 which came to be allowed by this Court framing the following issues and case was remanded.
4(a) Whether the land on which the electric pole has been put up by the KEB belongs to the plaintiff as a owner or that any right or title is vested in him?
4(b) Whether the pole which has been put: up as the tenancy of ownership damaged as asserted by the Plaintiff in para No. 2 (a) of the pleadings, if so its effect?
Whether the damages caused are likely to be caused could be minimized in the matter of putting of pole on the property of the plaintiff/appellant?
Whether and to what extent damage has been caused to the Plaintiff?
Whether any compensation has ever been paid to the Plaintiff, if not its effect?
Issue Nos. 1 to 4(a) and 5 are answered in favour of the plaintiffs and issue No. 4(b) and issue No. 6 are answered in the negative. In paragraph 2(a) of the pleadings and the same has been answered in the negative. Issue No. 5 with regard to whether damages likely to cause could be minimized in the matter of putting up pole on the property of the plaintiff.
On behalf of the appellants. D.W. 1 Malingappa has been examined and marked the document as Ex.D. 1. The plaintiff got himself examined as P.W. 1 and got marked the documents as Ex.P1 to Ex.P. 20. In support of his claim, he has relied upon Ex.P.4 and Ex.P.5 sale deeds, Ex.P.6 is gift deed, Ex.P.7 and Ex.P.8 Kandayam receipt and Plan, Ex.P.9 to Ex.P.15 tax paid receipts, Ex.P. 16 is Katha Extract; Ex.P. 17 to Ex.P. 19 are the certified copy of the sale deed and Ex.P. 20 is the village map. By producing all these materials, the plaintiff has proved his case that the land in question in Sy. No. 1 measuring 40 x 60 feet: belongs to the plaintiff.
By producing Ex.D. I Sketch, discloses that the electrical pole has been put up in the site belongs to the plaintiff. The electric pole was fixed in the plaintiffs site with an intention to draw the electricity connection to one P. Ramachandraiah''s house.
The plaintiff in his examination-in-chief has deposed to the effect, that he has made construction over an area of 30 x 33 feet and set back has been provided as required. The Electricity Board has fixed the electrical pole in his property. He denied the suggestion made by the defendants that the electric pole is fixed in the public place.
On behalf of the KEB, one Malingappa was examined as D.W. 1 and he has deposed in his examination-in-chief that in the year 1982 itself, the pole which is the subject matter of the case has been fixed by the KEB, 15 feet in between this pole and another pole there is a public water tap by the side of the road. In his cross-examination he has deposed that he has not investigated as to on whose land the electric pole has been fixed. The estimation would be prepared by fixing the pole only in the public place not in any other private property. He has deposed that "We have not enquired and there is no record to this effect in our office to show as to whom the area belongs to". Objection has been filed by the plaintiff in 1983, but the pole was fixed in 1982, it seems, the party has not approached the KEB for servicing the electricity connection and no service connection has been given so far. The adjacent road passed by the side of the house of Nanjundachari. Further in the cross-examination he has deposed that I can not say as to whom the house shown in the sketch belongs to
On behalf of the defendants/appellants herein, the sketch has been produced and marked as Ex.D. 1, but it does not disclose as to whom the marked portion belongs to. D.W. 1 has further stated that the electric pole has been put up in the public road. However, the oral evidence goes contrary to the sketch produced as per Ex. D.1. In his cross-examination, the D.W. 1 has deposed that he has not examined whether the place is put in the public road. In the Sight of the evidence of both the parties and also the materials placed on record, the points formulated are answered against the appellant.
Accordingly, the appeal is dismissed.