Lakshmamma vs Gangamma

Ram Mohan Reddy, J.—Defendants 1 and 2 in O.S. No. 210/1991 suffered a judgment and decree dated 13.10.2008 of the Civil Judge (Jr. Dn.) and JMFC, Sira, directing monetary relief of damages, instead of mandatory injunction and recovery of possession of the encroached portion being an extent of 12 inches towards the foundation, on the south, by the northern side of the coconut tree and the encroached portion of RCC roof to an extent of 18 inches towards coconut tree''s side. That judgment and decree when carried in R.A. No. 48/2008, the Senior Civil Judge, Sira, by judgment and decree dated 28.07.2010 allowed the appeal, reversed the finding of the trial court and decreed the suit for mandatory injunction. In that appeal, defendant Nos. 1 and 2 did not question the finding of the trial court over encroachment, either by filing a cross appeal or by invoking Order 41 Rule 33 of the CPC. Aggrieved by that judgment and decree of the Lower Appellate Court, defendant Nos. 1 and 2 have preferred this second appeal.

Admittedly the finding of fact recorded by the Courts below over encroachment by the appellants/defendant Nos. 1 and 2 which is final and binding. The question before the Lower Appellate Court, at the instance of the plaintiff was, over whether the trial court was justified in rejecting the plaintiff''s claim for mandatory injunction and in lieu thereof, directing payment of damages. The Lower Appellate Court on a re-appreciation of the material on record, observed that the defendants having purchased a definite property with measurement had illegally encroached upon the plaintiffs'' property and put up construction in the form of a foundation to an extent of 12 inches and a roof projection of 18 inches.

The Lower Appellate Court observed that the defendants were not legally entitled to encroach upon the plaintiffs'' portion of the immovable property. In addition, Lower Appellate Court noticed that plaintiffs though filed the suit for injunction to restrain the defendant from encroaching upon the plaintiffs'' property, nevertheless, unmindful of the consequences, put up construction during the pendency of the suit and therefore, not entitled to equity and it is in these circumstances, the Lower Appellate Court reversed the finding of the trial court directing payment of money as damages, in lieu of injunction.

In my considered opinion, the reasons, findings and conclusion arrived at by the Lower Appellate Court are not shown to be perverse, illegal or unjustified calling for interference. No substantial question of law arise for decision making. Appeal is accordingly dismissed.

In view of dismissal of the appeal, Misc. Cvl. No. 18149/2010 does not survive for consideration.