Smt. Ratnamma vs N. Manoharan

A.S. Bopanna, J.—The appellant herein is the plaintiff in O.S.No. 1966/2006. The suit in question was filed seeking relief of permanent

injunction. The Court below after considering the rival contentions has dismissed the suit by its judgment and decree dated 03.02.2011. The

plaintiff claiming to be aggrieved by the said judgment and decree is before this Court in this appeal. The parties would be referred to in the same

rank as assigned to them before the Court below for the purpose of convenience and clarity.

The brief facts are that the plaintiff and the defendant are the owners of the properties which are situated next to each other. The plaintiff claims

that she is the owner of the property bearing No. 51/94 (Old No. 6) Division No. 21, 20th Main, 22nd Cross, Marenahalli, Bangalore-560 040.

She is stated to have purchased the property under a registered sale deed dated 07.09.1995 executed by the owner of the property Sri B.M.

Veeranna.

The defendant is stated to be the owner of the property bearing No. 51/94-1, 1st Main, Marenahalli, Bangalore, which was purchased under a

sale deed dated 23.03.2005. The ownership of the respective parties is not seriously disputed. The case of the plaintiff is that when the defendant

started putting up construction of the property on 07.03.2006, he has encroached the property belonging to the plaintiff on its eastern side and

despite the request by the plaintiff, the defendant has not heeded to the same. The case of the plaintiff further is that if the act of the defendant is

permitted, she is likely to loose an extent of 3 feet x 45 feet of her property. The plaintiff further reiterates that there is encroachment and the

construction being put up by the defendant is without any sanctioned plan. Hence, the plaintiff has sought for injunction.

The defendant on being served with the suit summons appeared and filed the written statement. Insofar as the ownership of the property, there

was no serious dispute except contending that the plaintiff has not clearly put forth that aspect of the matter by referring to the measurement which

had been indicated by the owner while selling the property. However, with regard to the allegation of encroachment as made by the plaintiff, the

defendant has disputed the same and further has contended that the construction being put up is as per the sanctioned plan and the defendant has

not encroached any portion of the property belonging to the plaintiff. The defendant has also referred to the common wall and has indicated that

neither of the parties has right over the same, but are entitled only to their respective properties within the walls. The defendant therefore contended

that the construction is being put up abutting to the common wall.

The Court below on taking note of the rival contentions has framed three issues for its consideration, which read as hereunder:

Whether plaintiff proves her lawful possession over the suit schedule property as on the date of suit?

Whether the plaintiff proves the alleged interference?

To what decree or order the parties are entitled to ?

The parties in order to discharge the burden cast on them by the said issues have tendered their evidence. The plaintiffs husband was examined

as P.W.1 and other two witnesses were examined as P.Ws. 2 and 3. The documents at Exhs. P1 to P10 were relied upon. The defendant

examined himself as D.W. 1 and documents at Exhs. D1 to D8 were relied upon. The Court below on analysing the evidence before it has arrived

at the conclusion that the encroachment has not been established and the relief for the plaintiff is elsewhere and not by filing a suit. It is in that

context, the plaintiff is before this Court.

The learned counsel for the plaintiff while assailing the judgment passed by the Court below would contend that the Court below was not

justified in holding that the suit was not maintainable. It is his further contention that the Court below on taking note of the fact that the construction

is being put up by the defendant, ought to have prevented the defendant from putting up the construction in the entire site without leaving any

setback on the eastern site. It is therefore his contention that the case actually meant by the plaintiff was that by putting up construction in a manner

abutting to the wall of the plaintiff, the plaintiff has been denied the opportunity of enjoying free air and light. Therefore, this aspect of the matter

should have been taken note of by the Court below. It is his further contention that the defendant himself had admitted in his cross-examination that

the construction is being put up without leaving any setback. Therefore, this aspect should have been considered by the Court below and ultimately

the suit should have been decreed in favour of the plaintiff.

The learned counsel for the defendant would however seek to sustain the judgment passed by the Court below. It is his contention that the

Court below keeping in view the nature of the pleadings put forth by the plaintiff and the manner in which it had been rebutted by the defendant had

framed the issues. The issues would clearly indicate that the plaintiff was required to satisfy the Court below that the defendant is encroaching the

property belonging to the plaintiff. In that regard, the Court below having taken note of the defence., put forth by the defendant that there is no

encroachment whatsoever has arrived at the conclusion on the issues which had been framed that the suit in the present form was not maintainable.

It is his further contention that when the plaintiff did not have any grievance with regard to the issues which had been framed by the Court below,

the Court below on the materials available before it has answered the issues appropriately. Therefore, the plaintiff cannot make out any grievance

at this stage in this appeal. Hence, the learned counsel for the defendant contends that the Court below was justified and the appeal is devoid of

merit, the same is liable to be dismissed.

In the light of the contention put forth by the learned counsel for the parties, the points that arise for consideration in this appeal are,

i) Whether the Court below was justified in the manner in which it has proceeded ?

ii) Whether the contention of the learned counsel for the plaintiff about the violation of the sanctioned plan while constructing the building can be

considered and accepted in the present proceedings, more particularly in this appeal?

The fact that the plaintiff and defendant are the owners of the adjacent sites is not in dispute. In that light, a perusal of the pleading put forth by

the plaintiff in the instant suit would indicate that the suit is based on the allegation that the defendant is encroaching a portion measuring 3 feet x 45

feet belonging to the plaintiff. In that regard, the attempt made by the defendant is stated and therefore, in that circumstance, the plaintiff has sought

for injunction. As against such pleading, the defendant had denied that he is encroaching any portion of the property and in fact, he is putting, up

construction in accordance with the sanctioned plan. If this aspect of the matter is taken into consideration, the issue framed by the Court below

based on the present pleadings was appropriate.

Therefore, in the instant suit, what was required to be proved by the plaintiff was with regard to the encroachment being made by the

defendant over any portion of the property belonging to the plaintiff. If this aspect of the matter is kept in view and the reasons indicated by the

Court below is perused, it is noticed that the Court below while answering Issue Nos. 1 and 2 in fact has referred to this aspect of the matter and

in that light has indicated that if at all the plaintiff was aggrieved with the illegal construction, the plaintiff will have the option to complain to the

Municipal authorities to bring the construction in accordance with law. If this aspect of the matter is also kept in view, the legal position is not in

dispute that in a civil suit, the pleading would form the basis and based on such pleading, the evidence would have to be tendered before the Court

below. Therefore, in that view, the reference made by the learned counsel for the plaintiff to the portion in the cross-examination of D.W. 1 would

not be of assistance in the instant case when the plaintiff herself had approached the Court on the allegation that the defendant was encroaching a

portion of the property.

In that regard, neither the plaintiff has placed any material nor the defendant has admitted the aspect of encroachment which is alleged.

Therefore, to the said extent, the Court below was justified in its observation and Point No. 1 raised herein in any case would have to be answered

against the plaintiff-appellant.

With regard to the contention put forth by the learned counsel for the plaintiff regarding violation of the sanctioned plan and in that

circumstance, the Court below should have entertained the suit, it is to be noticed that though subsequently in the evidence, the plaintiff has sought

to rely on certain complaint stated to have been made to the City Corporation as per Ex. P6, as already noticed, the allegation now contended was

not pleaded in that regard to contend that the defendant has been sanctioned a plan by the Corporation and to contend either that the sanctioned

plan is contrary to the Regulations or that the defendant is putting up construction contrary to the sanctioned plan approved in accordance with

law. Further, a perusal of the plaint would indicate that the Municipal Authority has not been made a party to the suit and in any case, the relief in

that regard could not have been sought without the Corporation being a party to the suit.

Hence, if this aspect of the matter is kept in view, considering the manner in which the plaintiff has proceeded with the plaint, the Court below

was justified. However, with regard to the observations made by the Court below that there is a cloud on the title of the plaintiff with reference to

the document at Ex. P1, the same would not have arisen for consideration in the instant case inasmuch as the defendant in any case has not denied

the title of the plaintiff. Therefore, a declaration. with regard to the title was unnecessary only if title was disputed. Though the defendant had

contended that the extent of the property as mentioned has not been clearly delineated inasmuch as the vendor has sold that portion of the

property, the said question in any case would have arisen for consideration only if the case for encroachment was to be considered by the Court

below and not with reference to the construction being contrary to the plan or with the construction being made without the plan when the extent of

the property owned by the defendant is admitted by the plaintiff. Therefore, the said aspect of the matter could not have been considered in the

instant suit notwithstanding the fact that the title of the plaintiff as well as to the defendant to the property was not in dispute. Hence, the said

observation will not bind the plaintiff.

Therefore, in such circumstance, the observation of the Court below with regard to the title in any event would not affect the plaintiff in any

other proceedings or with regard to the enjoyment of the property by the plaintiff herself to the extent she is in possession of the same. Hence, the

ultimate decision arrived at by the Court below is in accordance with law. Therefore, Point No. 2 raised above also would have to be answered

against the plaintiff. Needless to mention that when the Court below itself has made an observation that if the construction is not in accordance with

the Regulations or with the sanctioned plan, it is for the plaintiff to initiate appropriate proceedings in accordance with law, in any case, a relief

which would be available to the plaintiff should not be deprived to him, if appropriate proceedings are initiated and a case is made out before the

said authorities. Hence, in the instant appeal, I see no reason to interfere with the judgment passed by the Court below.

Accordingly, the appeal being devoid of merit stands dismissed. Parties to bear their own costs.