N.L. Somashekaraiah and Others vs C. Laxmidevi

Ravi V. Malimath, J.—The case of the plaintiff is that she is the absolute owner of the shop bearing Old No. 101, 102, New No. 238 situated at Subedar Chatram Road, Bengaluru - 9. She purchased the property from one Smt. D.N. Punuyamba, alias Puniya Shivashankar and two others under a registered sale deed dated 28.09.1971. The vendor of the plaintiff had purchased the suit property from its original owner Sri. D.M. Veerappaji, under a registered Gift Deed dated 12.04.1973. He built the property at Site No. 159, measuring east to west 75 feet and north to south on the western side 47.6 feet and eastern side 45 feet.

The defendant is the owner of the property bearing No. 237, in the northern side of the suit property. The northern wall of the suit property bearing No. 238 belongs to the plaintiff. In 1958, the defendant along with his mother Smt. Parvathamma appears to have encroached the northern wall of the property, which then belonged to Sri. M. Veerappaji, to an extent of 3 feet X 18 feet. The defendant is said to have encroached upon the northern side of the property to an extent of 4 feet and certain portion of roof rested on the plaintiff''s property. Therefore, D.M. Veerappaji filed the suit in O.S. No. 627/1958, seeking for mandatory injunction for removal of such encroachment Chajja and removal of the roof resting on the plaintiff''s wall and for possession of 3 feet by 18 feet as shown in the B.C. line to the plaint sketch.

The suit was decreed on 06.08.1959 and the property was restored to D.M. Veerappaji. However, the defendant put up a construction over and above the ground floor of the property bearing No. 237, which was in occupation of Hotel Janata Restaurant. The defendant has extended the height of the pillars. The northern wall of the suit property extends to 9 inches and height about 3 feet was dismantled by the defendant. The defendant has therefore, encroached upon the northern wall of the plaintiff''s property. After the suit was filed, the defendant has put up one window and three ventilator holes, on the first and second floor portion. Therefore, the plaint was amended by adding the said facts. The instant suit seeking for declaration that the defendant has encroached upon the plaintiff''s property to an extent of 9 inch by 18 feet, for an injunction to restore the said portion to the plaintiff and to close the said ventilator and ventilator hole on the first and second floor, to remove the encroached portion of the northern side of the wall and permanent injunction restraining the defendant from interfering with the peaceful possession of the suit schedule property and consequential reliefs.

On service of suit summons, the defendant entered appearance and filed his written statement. He contended that the suit of the plaintiff is frivolous and not maintainable. That the property of the defendant is an ancestral property and there is no dispute with regard to site No. 159, measuring east to west 75 feet, and north to south on the western side 47.6 feet and on the eastern side 45 feet. That the northern wall of the plaint schedule property does not belong to the plaintiff. That there are independent walls to the property of the plaintiff and the defendant. That there is no common wall as alleged by the plaintiff. That the building of the defendant is a RCC building, with concrete and pillars. On the other hand, the property purchased by the plaintiff is a mud construction and that it has a mud roof.

That the construction by the defendant is on the first floor of his own existing building. That the dispute in the earlier suit was admittedly with reference to the ground floor. The decree had been specific. In the guise of the earlier decree obtained by the plaintiff, the plaintiff is now trying to misuse the said decree and has falsely filed the suit. The question of a common wall does not exist, as the dispute has since been resolved in the earlier suit.

That even the sajja of the defendant and the plaintiff are distinct and separate. That the wall being put up by the defendant is on the beam belonging exclusively to the defendant. That the roof of the plaintiff''s property is two feet lesser in height than that of the defendant. The ground floor consists of two portions; one is in occupation of the tenant, Hotel Janatha and the other portion is in occupation of the defendant, who is running a book stall and a Tourist Agency. The heights of the pillars have been extended with a view to put up the first floor and he has also put up walls in three directions. That he is entitled to put up these constructions. That there is no encroachment whatsoever on the property of the plaintiff. The beam and the pillars do not belong to the plaintiff. The parapet wall on the pillar does not belong to the plaintiff. The construction being made by the defendant is within the property owned by him. He has left necessary open space in terms of the Corporation Byelaws. It is specifically denied that he has made any encroachment upon the northern wall of the plaintiff''s property. That the allegation that the water collected on the terrace of the second floor falls on the plaintiff''s property was denied, on the ground that appropriate outlets and pipes have been provided for drainage of the said water.

Based on the pleadings, the trial court framed the following issues and additional issues for consideration:

"1. Does the plaintiff prove that the northern wall of the property bearing No. 238 belongs to her?

Does plaintiff prove that the defendant into her property on its northern side to an extent of 9" x 18" along the northern wall marked ''B C'' in suit sketch?

Does plaintiff prove the defendants encroachment upon northern eastern portion of her northern wall to an extent of 9'' x 1'' by raising a wall during July 1984?

Whether plaintiff is entitle to declaration, permanent and mandatory injunction as prayed for?

ADDL. ISSUES IN PURSUANCE OF ORDERS ON I.A. NO. 17 DATED 25.3.2000

Whether the plaintiff prove that the defendant has put up windows, ventilators encroaching upon the plaintiff''s property which is liable to be removed as stated in para 7(a) of the plaint?

Whether the plaintiff proves that the defendant has put up sajja at the roof level of the 2nd floor without making any provision for flow of rain and water directly to the drainage thereby causing nuisance to plaintiff as pleaded in para 7(b)?

Whether the plaintiff proves that the defendant has constructed sump tank encroaching upon the plaintiff''s northern wall of the property as pleaded in para 7(c) of the plaint?

Whether the plaintiff proves that the defendant has covered the top of the northern wall with cement concrete with a view to encroach upon the same and built the sewerage chambers on it?"

The plaintiff, in support of her case examined two witnesses as PW-1 and PW-2 and got marked Exhibits - P1 to P28. No evidence was personally led in by the plaintiff. The defendant was examined as DW-1. The defendant relied on Exhibit-D1, the plan. Issue Nos. 1, 2 and 3 were held in the affirmative. Additional Issue Nos. 1 to 4 were held in the negative.

The suit was decreed in part. The plaintiff was held entitled for the relief of mandatory injunction for the removal of encroached portion on the northern side of the wall to an extent of 18 feet x 9 inches, marked as BC in the annexed sketch, at the cost of the defendant. The defendant was permanently restrained from interfering with the plaintiff''s possession of the suit schedule property. The plaintiff was entitled for possession of the encroached portion measuring 18 feet x 9 inches, in terms of the BC, in the annexed sketch. Aggrieved by the same, the defendant has filed this appeal.

During the pendency of this appeal, the appellant-defendant died and his LRs were brought on record by virtue of the order dated 17.07.2015.

The parties will be referred to as per their ranking in the trial court.

The learned counsel for the defendant contends that the impugned judgment and decree are bad in law and liable to be set-aside. That the trial court committed an error in decreeing the suit of the plaintiff. That the plaintiff has failed to aver and plead his case of encroachment by the defendant. That the trial court did not determine the extent of encroachment by the defendant. Until and unless there is determination of the encroachment, the suit cannot be decreed. The suit can only be decreed if there is an encroachment by the defendant and such an encroachment has not been proved by the plaintiff. When the plaintiff has failed to prove the encroachment, no decree could be granted. The trial court mislead itself in placing reliance on the judgment and decree in O.S. No. 627/1958. That the decree in the earlier suit is only with reference to the ground floor of the suit schedule property. The instant suit is with reference to the first floor. Therefore, there is no nexus with the earlier decree and the present dispute.

Further, the trial court committed an error in placing reliance on the report of the Commissioner. That even the Commissioner''s report does not narrate the extent of encroachment. Relying on the Commissioner''s report and thereby decreeing the suit is erroneous. Hence, he pleads that the appeal be allowed by dismissing the suit of the plaintiff.

On 06.06.2013, the counsel for the appellant was heard. There was no representation by the respondents. Hence, the matter was adjourned. On 03.07.2013, the matter was adjourned since there was no appearance for the respondent. On 08.11.2013, since the respondent counsel was absent, the matter was released from part-heard. On 02.12.2013, even though the counsel for appellant was present respondent counsel was absent. On 19.02.2014, the respondent counsel was absent. He was absent on 20.2.2014, on 21.03.2014. On 16.06.2014, he appeared and requested the Court for an adjournment upto 02.07.2014. His submissions was noted and the matter was adjourned. On 10.10.2014, he was absent. So also on 12.12.2014. He was absent on 03.08.2015, 22.09.2015, 23.09.2015. Even today, when the matter is taken up for consideration, he is not present. The order sheet clearly shows that the respondent counsel was not present on the above dates of hearing. It is apparent that he is not interested in prosecuting this appeal. The appeal was filed in the year 2003 and the suit in the year 1983. It has been 32 years since the parties are before in court. Substantial time has been granted to the respondent counsel to appear. However, he has deliberately chosen not to appear. Hence, I have heard the appellant''s counsel and examined the records.

The points that arise for consideration in this appeal are as follows:

i. Whether the trial court was justified in holding that the plaintiff has proved that the defendant has encroached upon the plaintiff''s property to an extent of 18 feet x 9 inches on the northern wall marked as B.C. in the suit sketch?

ii. Whether the findings recorded by the trial court on the issues framed by it are based on the material and evidence on record?

iii. Whether any interference is called for?

PW-1 is the husband of the plaintiff, who is her Power of Attorney holder. He has narrated the manner in which the property was purchased. That the decree obtained by the plaintiff in the earlier suit in O.S. No. 627/1958 is in her favour. Notwithstanding the same, the encroachment has taken place. That the defendant has demolished the northern side of the plaint schedule property during the night and put up construction of 18 feet x 9 inches. PW-2 is the brother of PW-1, namely, the brother-in-law of the plaintiff. He has also by and large reiterated the evidence as recorded by PW-1.

During the pendency of the suit, a Commissioner was appointed who has submitted his report vide Exhibits-P19 to P20. Strong reliance has been placed by the trial court on the report of the Commissioner. On relying on the report of the Commissioner, the trial court has decreed the suit.

Primarily, the plaintiff would have to aver with regard to the encroachment made by the defendant. A reading of the plaint would show that what has been pleaded is that there is an encroachment of 18 feet x 9 inches as shown in B.C. in plan sketch. It is contended by the plaintiff that the earlier decree is sought to be negated by the present encroachment by the defendant. That even though the earlier decree has been executed, notwithstanding the same, the encroachment has been committed by the defendant. The defendants contends that the trial court failed to consider the fact that there is absolute lack of evidence with regard to the nature of the encroachment. The specific plea of the defendant is that there is no encroachment at all. That the subject matter in the earlier suit is the ground floor of the suit schedule property. The decree having been executing, nothing further requires to be done therein. The present dispute is with reference to the first floor of the suit schedule property.

The further contention of the defendant is that the property belonging to the defendant is a construction of pillars and concrete. That the pillars put up by the defendant are at a distance of 4 feet away from the northern wall of the building. The construction is specifically put up on the property belonging to the defendant. This is the specific case pleaded by the defendant. Therefore, the plaintiff would have to not only aver about the encroachment by the defendant, but lead evidence in support of his case.

The plaintiff has not entered the witness-box. The suit is one for mandatory injunction. It is only within the personal knowledge of the plaintiff with regard to the matters pertaining to injunction. Therefore, it was the plaintiff who had to lead evidence in order to show whether there was any encroachment or not. The plaintiff has not led-in any evidence. It is power of attorney holder of the plaintiff who has led-in evidence as PW-1 and his brother as PW-2. Therefore, the evidence has to be considered only from that angle. It is not the first hand evidence with regard to encroachment. Neither, PW-1 nor PW-2 can have any personal knowledge with regard to any encroachment made by the defendant. On a matter of injunction, it is plaintiff alone who can speak of any encroachment and no other person can speak about the same.

21 (a). The Hon''ble Supreme Court in the judgment in the case of Man Kaur (dead) by LRS. Vs. Hartar Singh Sangha, , held that where a party to the suit does not appear as a witness and states his case, a presumption would arise that the case set-up by him is not correct. The third party who has no personal knowledge cannot give evidence even if he is a power of attorney holder.

(b). In yet another judgment, of the Hon''ble Supreme Court in the case of Janki Vashdeo Bhojwani and Another Vs. Indusind Bank Ltd. and Others, , it was held that a general power of attorney holder can appear, plead and act on behalf of the party. But he cannot become a witness on behalf of the party. That he can appear only in his own capacity. That no one can delegate the power to appear in the witness-box on behalf of himself. The general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff. Therefore, since the plaintiff has not entered the witness-box, an adverse presumption can be drawn against him.

Further, so far as the evidence of PW-1 and PW-2 is concerned, there is no worth-while evidence which would establish the case of the plaintiff. The specific plea of the plaintiff that would have to be proved is that the defendant without authority encroached the property of the plaintiff to an extent of 18 feet x 9 inches. There is no worthwhile evidence supporting the same. It is under these circumstances, that a commissioner was appointed. The Commissioner was asked to submit his report with regard to the encroachment. The Commissioner has noted at point No. 5 of his report as follows:

"V. Instruction No. 5: There is a parapet wall over the ground floor roofing of the plaintiff''s property on the Northern side. The length of the parfait wall is 18 feet from the point ''A'' to ''B'' as shown in the sketch No. 1. Out of this length only 12 feet and 10 inches from point No. B of the parapet wall is in full height of 19" from the side of defendant''s property. After this the wall is unevenly decreased in height (removed), at Point ''A'' when I visited the spot there was only about four layers of bricks were there above the roofing level of the plaintiff''s property. The plastering made to this parapet wall is visible on the plaintiff''s side and upper portion of the parapet wall. To ascertain the length of the parapet wall I measured the length of the wall from the point ''B'' as shown in the sketch No. 1 and to ascertain the height of the parapet wall I measured from the upper level of the roofing of the ground floor above the height of the concrete layer of the defendant''s property. This parapet wall was carved on the side of the defendant''s property to the entire existing length with an even surface and now the thickness of this parapet wall is only about 6" and it is not possible to ascertain to what extent the wall is chipped and what was the previous thickness of this parapet wall whether it was 9" or more. But, as I had already observed on the Eastern portion of the Northern wall of the plaintiff''s property at Point ''A'', the parapet wall is only 4 1/2 in thickness plastered on either side of it. I was not able to measure how long this thickness continuous towards the Point ''B'' and from which point the thickness of this wall increased to more than 4 1/2 in thickness."

Relying on this portion of the Commissioner''s report, the trial court goes on to hold at para-17 of its judgment that, there is an alleged encroachment by the defendant on the northern wall. The conclusion arrived at by the trial court that there is an alleged encroachment based on the finding of the Commissioner, cannot be accepted. A reading of the Commissioner''s report as extracted herein above does not indicate that there is an encroachment. In fact, the Commissioner only holds that at point ''A'', the parapet wall is only 4 1/2 in thickness plastered on either side of it. That he was not able to measure how long this thickness continues towards the Point ''B'' and from which point the thickness of this wall increased to more than 4 1/2 inches in thickness. Under the glaring evidence recorded by the Commissioner, the trial court committed a blunder in holding that the report of the Commissioner discloses encroachment.

At Para-7 of the report of the Commissioner, he narrates as follows:

"VII. Instruction No. 3: There is wall between the plaintiff''s building and the defendant''s building on the ground floor which is intact. There is a parapet wall belongs to the plaintiff over the ground floor roofing of his building. I was not able to find out whether there is only one wall or there are two separate walls between the plaintiff''s and the defendant''s properties touching each other, that for the reasons I have given while answering to the Instructions 1 and 2 of the Plaintiff and the Instruction No. 1 of the defendant given by them in their respective Memo of Instructions which was given to me."

So also, in item No. 3 the report of the Commissioner reads as follows:

"Instruction No. 3: The distance of the pillars put up by the defendant from the wall was measured by me from the plaintiff''s wall side to the pillars. The pillar No. 1 is at a distance of 5 feet and 11 inches and pillar No. 2 is at distance of 4 feet and 9 inches from the Northern wall of the plaintiff, as shown in the sketch No. 1."

Exhibits - P16 to 19 are the photographs. They clearly indicate the parapet wall of the plaintiff is in existence. Therefore, even looking at the photographs, it cannot be said that there was any encroachment on the northern wall of the plaintiff''s property.

The entire reasoning of the trial court is based on the report of the Commissioner vide Exhibits-P19 and 20. Apparently, this is so because there is no worth-while evidence led-in by the plaintiff. It was for the plaintiff to led-in evidence in support of his case. Firstly, he has failed to do so. Secondly, reliance placed by the trial court on the report of the Commissioner is misplaced. The Commissioner''s report is quite contrary to the finding recorded by the trial court. It is under these circumstances, I have no hesitation to hold that the trial court committed a blunder in decreeing the suit of the plaintiff. Firstly, in the absence of adequate averments and evidence and on secondly on misreading the Commissioner''s report.

The specific plea of the defendant is that the length of the wall that has been claimed and decreed is to an extent of 18 feet. However, the material on record would show that the plaintiff is only in possession of 16 feet. There is no worth-while answer by the plaintiff in response to the said contention. Therefore, the suit could not be decreed to an extent larger than what is owned by the plaintiff. When admittedly, the plaintiff is the owner of 16 feet, the question of granting decree to an extent of 18 feet namely, the property beyond the ownership of the plaintiff would not arise for consideration.

Therefore, the finding recorded by the trial court on issue No. 1 that the plaintiff proves that the property belongs to her has been wrongly recorded by the trial court. The plaintiff is only the owner so far as the length of property of 16 feet is concerned and not 18 feet. The said issue has been wrongly held in the affirmative by the trial court. Accordingly, the second issue as framed by the trial court has since been answered as herein above.

The third issue with regard to the encroachment by the defendant stands answered by answering issue No. 2 as held hereinabove. Consequently, issue No. 4 on the plaintiff''s entitlement for declaration is also consequently answered.

Therefore, the issue Nos. 1 to 4 has been considered in detail vide the aforesaid reasonings. So far as the additional issues are concerned, the same would not arise for consideration since the putting up of windows, ventilators etc. are all within the property of the defendant and since it has been held that there is no encroachment by the defendant and the defendant has put up the first floor construction four feet away from the compound wall of the plaintiff, the question of he removing the windows or the ventilators on his property, therefore would not arise for consideration.

Hence, the first point is answered by holding that the Trial court was not justified in holding that the plaintiff has proved that the defendant has encroached upon his property to an extent of 18 feet x 9 inches. The finding recorded is liable to be reversed. The second issue is answered by holding that the findings recorded by the trial court on the issues framed by it are not based on material and evidence on record. The findings recorded by it are preserve and contrary to the evidence on record. The plaintiff has miserably failed to prove his case.

In view of answering the issues the appeal is allowed. The judgment and decree dated 31.07.2002, passed by the IX Additional City Civil Judge, Bengaluru in O.S. No. 1086/193 is set-aside. The suit of the plaintiff in O.S. No. 627/1958 is dismissed.

No Costs.