important point
Scope of ‘burden of proof’ and ‘permanent injunction in mandatory form’ discussed.

JUDGMENT

S.B. SINHA, J. —

1.Leave granted.

2.Defendants before the Trial Court are the appellants herein.

3.Plaintiffs Respondents filed a suit against the appellants praying inter alia for the following reliefs :

“(a)That the encroached portion of the suit property by erection of structure measuring 369 1/9 sq. yards be directed to be demolished at the cost and risk of Defendant No. 1 to 5 consequently defendants be further directed to maintain the rules of set-back in respect of his remaining construction enabling plaintiff to use and enjoy the free light and air to his property and similarly defendants No. 6 be directed to remove the sign board and the firm from the encroached area of the suit property. Further defendants be directed to give the respective vacant possession of the suit land to the plaintiffs.

(aa)A decree of permanent injunction against defendants, their agents, their relative or any body on their behalf to interfere with the plaintiffs peaceful possession and enjoyment of suit property–”

4.Respondents contended that they are owners of a portion of Survey No. 1008/1 bearing CTS Nos. 4823/A-17 and 4823/A-18 measuring 662 2/9 and 533 3/9 square yards respectively and the appellants who are the owners of the abutting land bearing CTS No. 4823/A-1 had encroached upon a portion of CTS Nos. 4823/A-17 and 4823/A-18 measuring 249 1/9 and 120 square yards respectively. Plaintiffs purchased the said plots by a deed of sale dated 7.11.1984, whereas the date of purchase made by the defendants dated 17.8.1992.

5.The learned Trial Judge having regard to the pleadings of the parties framed issues; issue No. 3 whereof reads as under:

“3.Whether the defendant Nos. 1 to 5 proves that the vendor of the plaintiff by way of fabrication of false documents had sold the suit schedule property to these plaintiffs, thus, the plaintiffs are not the owners of the suit schedule property?”

It was answered stating:

“My answers to the above issues are as follows :

xxx xxx xxx

Issue No. 3 — Does not arise.”

6.During the pendency of the said suit, an application for injunction was filed. Allegedly, the appellants raised constructions upon the suit land in violation of the said order of injunction. The learned Trial Judge in regard to the title of the plaintiffs over the suit land held:

“–According to the learned counsel for the plaintiff since CTS No. 4823/A1 is completely acquired by the Municipal Corporation Belgaum for Malmaruti Extension scheme then the property of the defendant no. 1 to 6 is not in existence in the name of defendants. But according to me since the defendant no. 1 to 5 also have purchased the property through a registered sale deed and also their vendors have also purchased the said property through a registered sale deed and as such it cannot be said that the property of defendants are not in existence. But at the same time the say of the defendant cannot be taken into believed (sic) that the CTS No. 4823/A17 and 4823/A18 are not in existence. When in the survey map as well as in other documents these properties are clearly demarcated and identified then according to me, these properties have been clearly demarcated in relevant records–”

7.The High Court affirmed the said findings stating:

“It is also clear from the perusal of the judgment and decree passed by the courts below that both the courts below have rightly decided on the basis that it is unnecessary to give any decision on the title of the property as the suit is for permanent and mandatory injunction and the trial court has rightly observed that it is always open to the defendants to work out their remedy in accordance with law, regarding their title to the property CTS No. 4823/A1 and no finding could be given on title in the present case and when there is no finding on the title of the property in the present case, it is clear that it is always open to the defendants to work out their remedy, in accordance with law. It is clear from the perusal of the material on record t