Shantamma vs Kotayya

B. Veerappa, J—The petitioner who is the plaintiff filed the above writ petition against the order dated 27.4.2015 passed in M.A. No. 3/2015 on the file of Senior Civil Judge, Yellapur, sitting at Haliyal, modifying the order passed by the Trial Court dated 20.03.2015 permitting the defendant to proceed with the construction work within his property as per the building licence and without making any encroachment in the property of the plaintiff

The petitioner-plaintiff has filed O.S. No. 16/2015 for bare injunction against the defendant in respect of the suit schedule property more fully described in paragraph 1 of the plaint contending that she is the owner and is in possession of the property in question and defendant by taking undue advantage of her position is trying to interfere with her property. On 20.1.2015 with an intention to encroach upon the vacant area when the plaintiff resisted the same and kept quite for some time, again the defendant interfered in the suit site and suddenly has started building construction work by making encroachment on the southern portion of the suit site, without obtaining the necessary permission from the CMC, Dandeli, etc.

The plaintiff also filed I.A.1 for temporary injunction along with the plaint contending that she is the owner of the suit schedule property in question and defendant is trying to encroach her property. The said application was resisted by the defendant by filing objections and contended that the suit schedule property is not properly described and suit is filed against the defendant on imaginary cause of action and the defendant is the owner in actual possession and enjoyment of property bearing No. 60 situated at Bailpur, Dandeli with CTS No. 8685 and 8684 and defendant is in actual possession, occupation and enjoyment of the above said property since 30 years and the house of the petitioner was in a dilapidated condition and was dangerous for living, hence the defendant with an intention to construct a new house demolished the said house and submitted that the house was right on the backside of the Anganawadi which is situated on the western side and that the plaintiff has vacant site on the southern side. He has obtained permission from CMC and is constructing the house legally on his land without encroachment of the land of the plaintiff, because there is no possibility of encroachment as there is a CMC gutter in between etc., therefore sought to dismiss the application.

After considering the application and objections and hearing both the parties, the learned Civil Judge and JMFC by his order dated 20.03.2015 granted temporary injunction in favour of the plaintiff restraining the defendant, his agent, workers etc., acting on his behalf by way of temporary injunction from making any encroachment over the suit property till the disposal of the suit. Aggrieved by the said order the defendant filed appeal No. M.A. No. 3/2015. The Appellate Court after hearing both the parties by its order dated 27.4.2015 has modified the order passed by the Trial Court and permitted the defendant to proceed with the construction as per the building license dated 21.02.2015 within his property without making any encroachment in the property of the plaintiff Against the said order the present writ petition is filed.

I have heard the learned counsel for the parties to the lis and perused the entire material on record.

Sri. S. Yaji, learned counsel for the petitioner has contended that the impugned order passed by the Lower Appellate Court modifying the order of the Trial Court is without any basis and the Appellate Court has not considered the material produced regarding the illegal construction commenced by the respondent and the order passed by the Appellate Court is subject to the result of the suit as the respondent will complete the construction work. Therefore, he sought to set aside the impugned order passed by the Appellate Court.

Per contra, Smt. Bharati.G. Bhat, learned counsel for the respondent sought to justify the impugned order and specifically contended that the defendant is constructing the building in terms of license granted by the CMC, Dandeli, in his own property and in categorical terms in the objections to I.A. specifically stated that the defendant is constructing his house legally on his land without encroachment of the site of the plaintiff, as there is no possibility of encroachment since there is CMC gutter in between the two properties. Therefore, he sought to dismiss the writ petition.

I have given my thoughtful consideration to the arguments advanced by the parties and perused the entire material on record.

It is not in dispute that the suit filed by the plaintiff is only for bare injunction alleging that the defendant is encroaching his property more fully described in paragraph 1 of the plaint. While filing objections the defendant in categorical terms has contended that defendant is constructing the building in terms of the license granted by the CMC, Dandeli, and as per the sanction plan and specifically contended the defendant is constructing the house legally on his land without encroachment of the land of the plaintiff as there is no possibility of encroachment because there is CMC gutter in between the property of the plaintiff and defendant and the question of encroachment does not arise and it is her case that she never encroached the property of the plaintiff

After considering the entire material on record, the Appellate Court has observed that the photograph of the spot and building construction licence dated 21.2.2015 issued by CMC, Dandeli, discloses the defendant has obtained plan sanction for construction of ground floor of the house for 28 sq.mtrs. out of 55.81 sq.mtrs. in the property bearing No. VI/60 situated at Bailpur, Plywood Colony, Dandeli, which property is admittedly not in the suit property in O.S. No. 16/2015.

It is the submission of the learned counsel for the appellant-defendant that building license was issued to the appellant to put up construction in the portion of the property only of defendant, and defendant has started to construct the building as per the terms and conditions of the building construction license issued to him and he has no interest to encroach the suit site of the plaintiff-respondent. The Appellate Court has observed that to protect interest of both the parties, it is just and proper to make clarification that temporary injunction granted by the Trial Court dated 20.03.2015 relates to the suit property of the said suit only and it does not relate to property of the respondent and this order does not come in the way of the defendant to put up construction of the building within his property as per the terms and conditions of the building licence issued by CMC Dandeli and therefore, in the guise of the impugned order granted by the Trial Court either the plaintiff of the said suit or any other people officials including the Police have no right to stop the construction work of the defendant of the said suit within his property as per the building licence dated 21.2.2015 and without making any encroachment in the property of the plaintiff. The said observation made by the Appellate Court is in accordance with the material on record and the material on record clearly discloses that the plaintiff is seeking injunction in respect of her own property more fully described in the schedule and defendant in categorical terms stated that he has no intention to encroach the property of the plaintiff at any time and also contended that there is a CMC gutter in between the plaintiff and defendant''s property and absolutely there is no possibility for encroachment and the photographs produced along with the statement of objections and the material on record produced at Annexure-R1, 2, 3 to 6 and R-7 to 10 clearly depicts that there is a CMC gutter in between the property of the plaintiff and the defendant and therefore, the impugned order passed by the Lower Appellate Court does not call for interference. Accordingly writ petition is dismissed.