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2006 Supreme(Kar) 613
Karnataka High Court
A.V.N.PRASAD - Appellant
Versus
SITA BAI RAJ PUROHIT - Respondent
Decided On : 08-10-06
Regular Second Appeal No. 1022 of 2005
Sri V. Padmanabha Kedilaya,Sri Venkatesh for Sri R.B. Deshpande
Headnote:Injunctions- Mandatory injunction - Mandatory injunction -Delay in approaching court -Disentitles relief. See Specific Relief Act, 1963 -Section 39.
Case Referred: AIR 1983 SC 452.
Specific Relief Act, 1963 - Mandatory injunction - Section 39 - Mandatory injunction - Delay in seeking of -A person who has not shown due diligence in applying to court for relief, will in general, be debarred from obtaining a mandatory injunction. [Ajit J. Gunjal, J]: The Substantial question of law which has been framed is in respect of acquiescence, namely, whether the plaintiff has acquiesced his right and has not approached the court for a considerable period of time. Apparently it is to be noticed that the plaintiff has come to know that there is an encroachement of the said strip of the land some time in the year 1984. It is no doubt true that he has been knocking the doors of the KHB for some time. But however he was unsuccessful. This should have prompted the plaintiff to approach the court seeking the relief of mandatory injunction based on the title at an earliest point of time. That has not been done. It is to be noticed that the plaintiff has allowed the grass to grow under his feet for over a period of one decade and has filed the present suit in the year 1995 seeking the relief of declaration, possession and mandatory injunction, it is to be noticed that is cases of mendatory injunction.Promptness is essential if a mandatory injunction is a desired remedy. When the plaintiff does not file a suit for mandatory injuction at the earliest opportunity but has waited till the building is completed and then ask the court to have it removed the relief cannot be granted. If a person having a right to object has acquiesced in the construction of the structure that is encroached upon, the plaintiff is not entitled to discretionary remedy of mandatory injuction. It is not in dispute that the plaintiff is an immediate neighbour of the defendant. It is not as if he has been staying away for any length of time. If really he had cared to find out he would have certainly come to know about the defendant putting up construction. Ex.P.16 is a document which is produced by the plaintiff during the course of the trial would give a clear indication that there was no encroachemnt. The suit having been filed in the year 1995 the plaintiff was certainly guilty of acquiescence, even though the construction of wall and garage had come to the notice of the plaintiff in the year 1984 itself. At the earliest point of time he did not seek removal of the wall, but for the first itme has approached the court and has jfiled the present suit in the year 1995. Consequently, he is not entitled to the relief of mandatory injunction.
Case Referred: AIR 1983 SC 452.
Even though the matter is listed for admission, with consent, it is taken up for final hearing.
2. During the course of this judgment, the parties would be referred to with reference to their rankings in the Trial Court.
3. The plaintiff has filed the suit against the defendant seeking relief of declaration to the effect that he is the owner of the suit property measuring 1'6" North-South and 67' East-West and for possession of the same from the defendant and also for the relief of mandatory injunction directing her to remove the construction which is put up on the suit property. It is the case of the plaintiff that he is the owner in possession of the house bearing Municipal No. 7/6/224 situate at Tawahar Nagar, KH.B. Colony, Raichur. The said property was allotted by the Karnataka Housing Board (for short, 'KHB') in his favour on lease-cum-sale basis. He has put up a construction. The house has been constructed by the plaintiff on site bearing No.5 allotted by the KHB. The defendant has been allotted a house constructed on site No.4. The house of the defendant is situate on the Southern side of the plaintiffs house. In the month of November 1984 the defendant constructed a compound wall and a garage encroaching an area to the extent of 1'6" North-South and 67' East-West. It is the case of the plaintiff that the said strip of plot would belong to him and is a part of Site No. 5 allotted by the KHB. Since the defendant refused to remove the construction made on the suit property belonging to the plaintiff, the present suit is filed.
4. The defendant entered appearance and has filed the written statement denying the case of the plaintiff. She would contend that she has not encroached the suit schedule property, namely, the strip of plot. She would contend that the said compound wall with garage was constructed in the year 1981 itself. At that point of time the plaintiff did not raise any objection while constructing such garage and the compound wall. She would also contend that the suit is barred by res judicata.
5. On the basis of the pleadings, the Trial Court has framed as many as nine issues. On the material issue, the learned Trial Judge has held that the plaintiff is the lawful owner of the site No.5 and it would measure East-West 67' and North-South 1'6". The learned Trial Judge has also recorded a finding that the plaintiff has established that the defendant has encroached an area of 1'6" North-South and 67' East-West. The learned Trial Judge has decreed that the plaintiff is the owner of the said strip of the land and she is entitled for possession and granted a decree for mandatory injunction to demolish the said structure. The said judgment and decree was questioned by the defendant in R.A. No. 256 of 2004 on the file of the Additional District Judge at Raichur. The learned Appellate Judge on reassessing the evidence on record was of the opinion that the plaintiff has failed to prove that defendant has encroached the suit property belonging to him. Consequently allowed the appeal and judgment and decree of the learned Trial Judge was set aside. Hence, the second appeal by the plaintiff.
6. Mr. Padmanabha Kedilaya, learned Counsel appearing for the plaintiff-appellant submits that both the plaintiff and the defendant were granted their respective sites by the KHB. He submits the moment the plaintiff came to know the alleged encroachment, he contacted and approached the KHB and sought for survey and measurement to be done. In the process, according to him, the KHB has found that there is an encroachment to the extent of 1'6" x 67' He would further submit that the learned Appellate Judge on the basis of the evidence could not have reversed the finding recorded by the Trial Court.
7. Mr. Venkatesh, learned Counsel appearing for the defendant would support the judgment and decree of the lower Appellate Court. He would submit that the learned Appellate Judge has noticed that the plaintiff has failed to prove that
