1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF NOVEMBER 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.2601/2006 (INJ) BETWEEN:
KARUDI VENKATA SUBBAIAH SETTY S/O LATE VENKATARAMAIAH SETTY AGED 67 YEARS MERCHANT AND AGRICULTURIST PATHAPALYA VILLAGE AND HOBLI BAGEPALLI TALUK – 561 207 … APPELLANT (BY SRI G.BALAKRISHNA SHASTRY, ADVOCATE) AND:
1. SRI KRISHNANDA GUPTA SINCE DECEASED BY LRs:
1(a). SURESH, S/O KRISHNANDA GUPTA AGED 40 YEARS 1(b). NATESH S/O KRISHNANDA GUPTA AGED 38 YEARS BOTH ARE R/O PATHAPALYA VILLAGE & HOBLI BAGEPALLI TALUK 1(c). SMT.PADMAJA D/O KRISHNANDA W/O D.K.SRINIVAS C/O DEVAKI CLOTH EMPORIUM M.G.ROAD, KOLAR 2. SRI VENKATARAMAIAH SETTY K. S/O LATE K.GOVINDAIAH SETTY AGED 54 YEARS MARCHANT AND AGRICULTURIST R/O PATHAPALYA VILLAGE AND HOBLI 2 BAGEPALLI TALUK – 561 207 …RESPONDENTS (BY SRI S.RAJESH, ADV.FOR SRI S.B.MUKKANNAPPA, ADV.FOR R1(a & c); R1(b) AND R2 SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:4.2.2006 PASSED IN R.A.NO.236/2002 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE AND PRESIDING OFFICER FAST TRACK COURT-V, CHICKBALLAPUR, MODIFYING THE JUDGMENT AND DECREE DATED:27.08.2002 PASSED IN OS.NO.130/1998 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (JR.DN.), BAGEPALLI.
THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This second appeal of the first defendant arises out of the judgment and decree dated 04.02.2006 in Regular Appeal No.236/2002 passed by the Additional Sessions Judge, Presiding Officer, Fast Track Court-V, Chickballapur.
2. By the impugned judgment and decree, the First Appellate Court partly allowed the appeal of the present appellant and modified the judgment and decree dated 27.08.2002 in O.S.No.130/1998 passed by the Additional Civil Judge (Jr.Dn.), Bagepalli and partly allowed the counter claim of the appellant 3 holding that the first respondent herein put up construction encroaching upon his property i.e., North-South 6 inches x East-West 45 feet. However, the first appellate court rejected the claim for mandatory injunction for demolition of the building so constructed and awarded damages of `2,000/-.
3. The first respondent was the plaintiff, appellant was the first defendant and respondent No.2 was the second defendant in O.S.No.130/1998 on the file of the Additional Civil Judge (Jr.Dn.), Bagepalli. The parties will be referred to henceforth with their ranks before the trial court.
4. The subject matter of the suit was house bearing H.L.No.45/42 measuring 26 feet East-West and 45 feet North-South situated at Pathapalya, Bagepalli taluk.
5. Plaintiff filed the said suit against the defendants claiming that the defendants are the owners of H.L.No.43, which situates on the western 4 side of his site and they are attempting to construct building encroaching upon his property. Therefore, he claimed decree for permanent injunction.
6. The first defendant alone contested the suit filing the written statement. He denied any encroachment or construction by him. As against that, he contended that the plaintiff himself is putting up construction encroaching upon his property to the extent of one feet of his site which measures 45 feet East-West. The trial court had granted exparte temporary injunction against the defendants on 04.07.1998. On 27.08.1999, on hearing the parties, the trial court modified the temporary injunction order and directed both the parties to maintain status quo.
7. On the basis of the pleadings of the parties, the trial court framed the following issues:
1. Whether the plaintiff proves that, he is in possession and enjoyment of the suit schedule property, that is, East to West 5 measurement 26 feet as on the date of suit?
2. Whether the plaintiff proves that, the defendants’ interference by attempting to put up structures abutting to the wall of the suit schedule property on the Western side, without leaving any setback and also by encroaching 1½ feet setback left by the plaintiff?
3. Whether the first defendant proves that, the plaintiff has encroached one feet East to West in the defendants’ site?
4. Whether the defendants are entitled to Mandatory injunction for removal of wall, which was wrongly built by the plaintiff in the defendants’ site?
5. To what order or decree?
8. On recording the evidence and hearing the parties, the trial court dismissed the suit of the plaintiff holding that he has failed to prove any attempt of encroachment or construction on the part of the defendants. Further, the trial court held that the site of the plaintiff measured 25 feet x 45 feet.
6 Further, relying upon the Commissioner’s report and the other evidence on record, the trial court held that the plaintiff himself has constructed encroaching upon 6 inches area East-West on the eastern side of site of the defendants. However, the trial court rejected the counter claim on the ground that though defendant Nos.1 and 2 are the joint owners, defendant No.2 has not contested the suit alleging encroachment and defendant No.1 alone cannot maintain a counter claim for mandatory injunction for demolition.
9. Aggrieved first defendant carried the matter before Fast Track Court-V, Chikballapur in R.A.No.236/2002. The first appellate court by the impugned judgment and decree held that the plaintiff has constructed the building on the defendants’ site encroaching 6 inches East-West and 45 feet North- South. The first appellate court further held that since the encroachment is negligible and 7 construction is already over, the first defendant can be compensated by awarding damages of `2,000/-.
10. The plaintiff did not challenge the findings of the first appellate court which went against him. The first defendant challenged the rejection of his claim for mandatory injunction in the above appeal.
11. This Court admitted this appeal to consider the following substantial questions of law:
1. Whether the lower appellate Court has erred in law in denying relief of mandatory injunction to demolish the construction put up by the plaintiff by encroaching the property of the defendant and awarding `2000/- by way of damages in lieu of decree of mandatory injunction?
2. Having come to the conclusion that the plaintiff has encroached upon the property of the defendant, whether the lower appellate Court has erred in law in not giving the relief of mandatory injunction when the right to property of the defendant is interfered with?
8 12. Sri.G.Balakrishna Shastry, learned Counsel for the appellant – first defendant seeks to challenge the judgment and decree of the first appellate court on the following grounds:
(i) The plaintiff though claimed that he is entitled for set-back of 1½ feet, without leaving such set-back on his own site and further encroaching upon the defendants’ site, constructed the building. Therefore, the first appellate court was in error in rejecting the prayer for mandatory injunction for demolition of such construction;
(ii) Though there was a status quo order, the plaintiff proceeded with the construction. Therefore, the first appellate court was in error in showing indulgence to him only by awarding damages.
13. Per contra, Sri.S.Rajesh appearing on behalf of Sri.S.B.Mukkannappa, learned Counsel for respondent No.1/plaintiff seeks to support the impugned judgment and decree of the first appellate court on the following grounds:
9 (i) Unless the ownership of the parties is proved, no mandatory injunction can be granted under Section 39 of the Specific Relief Act;
(ii) Defendant No.2 – co-owner did not contest the suit or file any counter claim alleging encroachment by the plaintiff. Therefore, defendant No.1 alone could not have maintained the counter claim;
(iii) Defendant No.2 filed a suit against defendant No.1 seeking declaration, that suit was decreed, which is now pending in Regular Second Appeal before this Court in R.S.A.No.1826/2009. On that count also, the counter claim was not maintainable;
(iv) The first appellate court was in error in solely relying on the Commissioner’s report and holding that the plaintiff has encroached on the site of the defendants.
14. In the suit, the plaintiff while filing the written statement to the counter claim of the first 10 defendant, did not deny the ownership of the first defendant over H.L.No.43. In the cross-examination of DW-1 (defendant No.1), the plaintiff himself suggested that by receiving `10,000/-, the first defendant has given up his interest in the property in favour of second defendant, thereby he admitted the ownership of the first defendant. To crown this, the trial court and the first appellate court both held that plaintiff has constructed the building encroaching upon the site of the defendants. Those findings were not questioned by the plaintiff by filing cross- objections or cross appeal. Thus, the findings of the courts below regarding encroachment have attained finality and it is not open to the plaintiff’s Counsel to re-agitate on that issue.
15. The relief of mandatory injunction, no doubt, is a discretionary relief. But while considering that, the conduct of the parties plays a vital role. The plaintiff himself came to the court claiming that he is entitled to the set-back of 1½ feet. Thereby he 11 expected the defendants to leave 1½ feet set-back in their site. Whereas he did not leave any set-back in his site. In addition to that, he made an encroachment of 6 inches on the eastern side of the site of the defendants over an area of 45 feet East- West.
16. According to the plaintiff himself, he secured the building licence on 23.06.1998. Suit was filed on 21.07.1998. Temporary injunction was granted on 4.7.1998. There was nothing to show that plaintiff had constructed the building on the encroached area even before he filed the suit or before the status quo order was passed on 27.08.1999. Under the circumstances, there is much force in the defendants’ contention that construction was in violation of status-quo order.
17. The party, who seeks equity, has to do equity. When construction was contrary to the Court orders and in an unfair manner, the first appellate court was not right in rejecting the counter claim for 12 mandatory injunction for demolition of the encroached area and granting damages. Even the damages of `2,000/- was arrived at without any basis.
18. So far as the contention that the first defendant is not the sole owner and therefore, mandatory injunction under Section 39 of the Specific Relief Act cannot be granted, first of all the finding of the trial court in that regard was reversed by the first appellate court, which went unchallenged.
19. Secondly, it is the settled law that one of the co-owners can maintain the suit for possession. This is fortified by the ratio laid down by the Hon’ble Supreme Court in Sri Ram Pasricha –vs- Jagannath and Others1.
20. Learned counsel for the plaintiff brazenly insists this court to record his submission regarding the alleged suit of defendant No.2 against defendant 1 AIR 1976 SC 2335 13 No.1 for declaration, etc., and R.S.A.No.1826/2009. No evidence to that effect was adduced either before the trial court, before the first appellate court or before this court. Insistence to record his submission without any material on record in that regard, only demonstrates that the learned Counsel unfortunately is ignorant of the scope of second appeal under Section 100 CPC and provisions of Order XVI Rule 27 CPC and Section 43 of the Evidence Act. According to the counsel for plaintiff himself, those proceedings were not between the plaintiff and the first defendant. Therefore, such proceeding or judgment, if any, is irrelevant as per Section 43 of the Indian Evidence Act. Therefore, such submission in the thin air at the stage of this second appeal, is unworthy of consideration.
21. The judgment in Gaiv Dinshaw Irani and Others –vs- Tehmtan Irani and Others2 relied upon by the plaintiff/first respondent is to the effect that 2 AIR 2014 SC 2326 14 the appellate court also can mould the relief. But such moulding of the relief again depends on facts and circumstances of each case. As observed earlier, the plaintiff showed the audacity of constructing the building violating the order of status quo. He himself did not extend fairness when he expected fairness from the other side. Therefore, said judgment is not applicable.
22. Under the circumstances, the first appellate court erred in denying the relief of mandatory injunction to demolish the construction put up by the plaintiff encroaching upon the defendants’ property and awarding damages in lieu of decree for mandatory injunction, despite coming to the conclusion that plaintiff has encroached upon the property of the defendants. Therefore, substantial questions of law are answered accordingly.
The appeal is allowed with costs.
15 The impugned judgment and decree dated 04.02.2006 in Regular Appeal No.236/2002 passed by the Additional Sessions Judge, Presiding Officer, Fast Track Court-V, Chickballapur, is hereby modified as follows:
(i) The counter claim of the first defendant is partly allowed. The plaintiff is hereby directed to demolish the wall towards eastern side of the defendants’ site measuring North-South 45 feet in length, 7 feet in height and 6 inches thickness with the boundaries shown in the counter claim schedule, situated in Pathapalya village, Bagepalli Taluk, within two months from the date of receipt of copy of this order.
(ii) If the plaintiff fails to comply with the aforesaid decree of mandatory injunction, defendant No.1 is entitled to execute the decree at the cost of the plaintiff.
KNM/-
Sd/- JUDGE