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2004 DIGILAW 426 (KAR)

BASHU SAHEB v. VEERANAGOUDA

2004-07-05

V.GOPALA GOWDA

body2004
V. GOPALA GOWDA, J. ( 1 ) THE appellants were the plaintiffs 1 and 2 and first respondent was the defendant in the suit before the Trial Court. For the sake of convenience, the parties are referred to as per their rank in the Trial Court. ( 2 ) THE plaintiffs filed the suit for permanent injunction restraining the defendant from constructing his house within the area of 20' on the Northern side of their houses. According to the plaintiffs, there is a road of 20' width on the Northern, side of their properties and the plaintiffs were using the same since a long time. Since the defendant started construction on the said road by leaving only 4', the suit was filed against the defendant. The defendant resisted the suit. In the written statement filed, the defendant denied the plaint averments and questioned the locus standi of the plaintiffs to file the suit. Denying the encroachment alleged by the plaintiffs, the defendant prayed for dismissal of the suit. On the basis of the pleadings the Trial Court framed issues and went for trial. Parties adduced evidence and produced documents in support of their respective case. Upon consideration of the material brought on record, the Trial Court decreed the suit and the defendant was restrained by way of permanent injunction from constructing any structure upon the disputed area. In the appeal filed by the defendant against the judgment and decree of the Trial Court, the first Appellate Court set aside the judgment and decree of the Trial Court and dismissed the suit. Being aggrieved by the same the plaintiffs have filed this second appeal. ( 3 ) IN this case the ADLR Lasminarasimha, who was the Court Commissioner and examined as d. W. 4, submitted his report as per Ex. D. 4. While considering his evidence and the report, the trial Court has at page 8 of its judgment has held as under.- "although the evidence of D. W. 4 and his report at Ex. D. 4 shows that the plaintiffs have also constructed their houses by encroaching upon the goathana, the defendant cannot take the shelter of such illegal encroachment to legalise his encroachment over the goathana". At the same time, the Trial Court held that the defendant is expected to construct the structure within the limits of his area without encroaching the adjoining goathana or public road. At the same time, the Trial Court held that the defendant is expected to construct the structure within the limits of his area without encroaching the adjoining goathana or public road. Thus, the trial Court committed grave error by endorsing the encroachment of the plaintiffs and finding fault only with the defendant. ( 4 ) WHEN the report of the Court Commissioner and his evidence are clear that plaintiffs have encroached upon the goathana or road, they cannot complain against the defendant for the similar Act. The defendant has rightly questioned the locus standi of the plaintiffs in seeking injunction against him. The Trial Court lost sight of this aspect and decreed the suit without proper application of mind. ( 5 ) THE Trial Court also held that the documents Ex. D. 2-the Map and Ex. D. 3-the Blue Print does not disclose the location of the lands and goathana. That means the very existence of 20' road is not proved. But, Ex. D. 1, the permission granted to the defendant for construction shows 10' road, which is claimed to have been formed by the defendant for his personal use. But the trial Court construed it as a public road. There is no basis or document for such a conclusion of the Trial Court. ( 6 ) THE first Appellate Court re-appreciated the documentary and oral evidence on record. It has held that plaintiffs are not claiming to be in lawful possession of the suit property and that what right they have in the road. It has rightly held that the suit was not filed under Section 91 of the cpc on the ground that defendant is doing wrongful acts and causing public nuisance. It was held that the suit was filed by the plaintiffs in their individual capacity but not as a public interest litigation. ( 7 ) THE first Appellate Court found that the most important noting of the Court Commissioner is that there is no road on the Northern side of plaintiffs houses. If there is no such road, question of defendant making construction upon the same does not arise. Although the first Appellate court also found that there is some encroachment by the defendant, it was on the Southern side in Sy. No. 206, which has nothing to do with plaintiffs' properties. Sy. If there is no such road, question of defendant making construction upon the same does not arise. Although the first Appellate court also found that there is some encroachment by the defendant, it was on the Southern side in Sy. No. 206, which has nothing to do with plaintiffs' properties. Sy. No. 206 is goathana and encroachment upon the same has to be removed by the Government. Since the plaintiffs also have encroached upon this goathana, the first Appellate Court rightly held that they are also liable to be evicted. It was also held that the encroachment of the defendant is a small area whereas the encroachment of plaintiffs is upon huge area. Considering all these aspects, the first appellate Court held that the Trial Court committed an error by ignoring the report of the commissioner and decreeing the suit. ( 8 ) THE reasons and findings of the first Appellate Court are based on proper appreciation of the oral and documentary evidence on record. It was justified in reversing the judgment and decree of the Trial Court. No substantial question of law much less the questions which are framed in the appeal memorandum involve in this case. The appeal is devoid of merit and liable to be dismissed. ( 9 ) ACCORDINGLY, the appeal is dismissed.