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2022 DIGILAW 32 (KAR)

M. v. Raju VS N. G. Kotrabasappa

2022-01-04

N.S.SANJAY GOWDA

body2022
JUDGMENT 1. This is a second appeal filed by the LR's of the deceased defendant Sri.M.V.Raju. 2. The respondent - plaintiff ie., N.G.Kotrabasappa instituted a suit seeking for a decree of injunction to restrain the appellant - defendant Sri.M.V.Raju from putting up any sort of construction over the suit property. The said suit was filed on 6/4/1998. Subsequently, an amendment application was filed and the said application was allowed on 3/9/1998. By virtue of the said amendment, the plaintiff sought for a decree of mandatory injunction to direct the defendant to demolish the construction put up in the suit schedule property, failing which the plaintiff should be permitted to get the building constructed by the defendant demolished through a Commissioner. 3. By way of the abovementioned amendment, it was also pleaded that despite an order of temporary injunction granted by the trial Court, which was to the knowledge of the defendant, the defendant had proceeded with the construction and therefore, the said construction was illegal. 4. It was the case of the plaintiff that he owned site No.3 measuring 30 ft x 30 ft which was the suit property. It may be pertinent to state here that according to the suit schedule, to the North of site No.3, lay the defendant's property ie., site No.4. Thus, the plaintiff did not dispute that to the North of his property, the defendant's property ie., site No.4 was situated. 5. It was the plaintiff's case that the defendant was attempting to put up construction on his site No.3. This suit was contested by the defendant principally on the ground that the defendant was putting up construction on his site and not on the plaintiff's site. In fact, it was admitted by the defendant that his site was situated towards the South of the plaintiff's site ie., site No.3. 6. It was also contended that he had commenced the construction after obtaining permission from the authorities, he had also got fixed the boundaries of his site before obtaining the licence. The defendant pleaded that he had not at all encroached upon the plaintiff's site and was putting up the construction on his site ie., site No.4. 7. 6. It was also contended that he had commenced the construction after obtaining permission from the authorities, he had also got fixed the boundaries of his site before obtaining the licence. The defendant pleaded that he had not at all encroached upon the plaintiff's site and was putting up the construction on his site ie., site No.4. 7. The trial Court after considering the evidence adduced before it, came to the conclusion that the defendant had already dispossessed the plaintiff before filing of the suit and therefore, the suit could not be maintained and it proceeded to dismiss the suit. 8. The plaintiff, being aggrieved, preferred an appeal. 9. The Appellate Court on re-appreciation of the evidence, came to the conclusion that the endorsement dtd. 1/7/1998 at Ex.P19 indicated that even as on 1/7/1998, no permission had been granted by the Town Municipal Council for construction of the building and therefore, the contention that the building was put up even before the suit had been filed could not be accepted. The Appellate Court took note of the fact that the defendant had disobeyed the order of temporary injunction and had proceeded with the construction and in that view of the matter, the defendant could not avail of any protection for his illegal actions. The Appellate Court accordingly allowed the appeal and decreed the suit. 10. It is against this decree that the present appeal has been filed. 11. This Court while admitting the second appeal formulated the following substantial question of law. "(a) Whether the lower Appellate Court is justified in granting relief of permanent injunction in favour of respondent- plaintiff without recording a finding that the appellant-defendant has constructed building on the suit schedule property viz., Site No.3 and not in Site No.4 which is admittedly owned by the appellant- defendant?" 12. The Appellate Court while recording the finding regarding construction has noticed that the plaintiff had approached the police on 6/5/1998 with a complaint and the police had issued an endorsement at Ex.P18 calling upon the Commissioner, C.M.D., Davanagere to state as to which site number, the licence had been given. The Appellate Court also noticed that as per Ex.P19, the endorsement dtd. The Appellate Court also noticed that as per Ex.P19, the endorsement dtd. 1/7/1998, the Commissioner of Municipal Council, Davanagere had stated that the licence had not yet been granted to the defendant for construction of a building and it was therefore clear that no licence had been issued to the defendant for construction of a house on site No.4. 13. The Appellate Court also noticed that even in the licence given subsequently, the boundaries of site No.4 was not mentioned. The Appellate Court, ultimately stated as follows: "No documents to show that regarding the boundaries of the properties in which he has constructed the building. He has completed the construction of the property before issuing the Ex.D.12 and D.13. DW 2 and 3 have stated in their evidence that the defendant has put up construction in his site. But it is not possible to believe that the defendant has constructed the building in his Site No.4 in the absence of documentary evidence to show that he has constructed the building within which boundaries. The defendant has failed to prove that he has constructed the building in his Site No.4. On the other hand, the facts and circumstances shows that he has constructed the building in Site No.3. The trial court while discussing issue No.1, 2 and 3 come to the conclusion that the defendant has put up construction in the suit schedule property. But while discussing issue No.8 come to the conclusion on the basis of Ex.P.12 and P.13 that the defendant has constructed the building in Site No.4, Door No.1224, but not in suit schedule property. It is relevant to sate that the trial court has not discussed Ex.D.12 and D.13 in detail and not observed that when this document came into existence. The trial court has also not discussed anything on Ex.D.9 endorsement dt.29/11/1998 issued by the C.M.D., Davanagere. As I have already stated at one stretch, the trial court comes to the conclusion that the defendant has put up construction in the suit schedule property i.e., Site No.3. At another stretch come to the conclusion that he has put up construction in Site No.4. Considering all these facts, I do not agree with the view of the trial court that the defendant has put up construction in his Site No.4 only, and not put up construction in the Site No.3 i.e., suit schedule property. At another stretch come to the conclusion that he has put up construction in Site No.4. Considering all these facts, I do not agree with the view of the trial court that the defendant has put up construction in his Site No.4 only, and not put up construction in the Site No.3 i.e., suit schedule property. The plaintiff has put up the construction in the suit schedule property and not in Site No.4." 14. As could be noticed from the above, no specific finding is given as to whether the construction has been put up on site No.3 or on site No.4. It is also not clear as to whether the building constructed existed on site No.3 or on site No.4. If as a matter of fact, the construction has been put up on site No.3, obviously, site No.4 should be available. 15. It may also be possible that due to the encroachment by the other site owners ie., site Nos.1 and 2, either site No.3 or site No.4 would have been diminished in size or it may not even be in existence. 16. In the light of the above, it would be therefore necessary to remand the matter to the trial Court to record a clear and categorical finding as to whether site Nos.3 and 4 exists, and if so, on which site the construction has been put up. 17. If it is found that a building has been constructed on site No.3, obviously, the suit would have to be decreed. 18. If on the other hand, it is proved that the building was put up on site No.4, the suit of the plaintiff would have to be dismissed. 19. The trial Court shall also record a finding as to whether site Nos.3 and 4 actually exists on the spot and whether any of these sites have been encroached by the other site owners situated in the same line. 20. The matter shall stand remanded to the trial Court to record a finding as narrated above. 21. Consequently, the question of law framed by this Court is answered in favour of the appellant and the second appeal is allowed in the above terms.