Point of Law: Compound wall - Defendants 2 and 3 have illegally invoked the provisions of Section 321 of the KMC Act when admittedly the compound wall constructed by the plaintiffs was well within their property - Entitled for relief of mandatory injunction against defendants 2 and 3 who have illegally demolished the compound wall.

JUDGMENT :

SACHIN SHANKAR MAGADUM, J.

The captioned appeal is filed by the appellants-plaintiffs challenging the judgment and decree dated 25.02.2011 passed in O.S.No.448/2001 by the XXVII Additional City Civil Judge, Bengaluru.

2. For the sake of convenience, the parties are referred to as per their ranks before the Court below.

3. The facts leading to the case are as under:

The subject-matter of the suit is property bearing No.22/9 situated at Oorgaum road. In the said site, the dispute is in respect of portion measuring 10 ft. North-South, 98 ft. East-West, which is described under the Schedule 'B' and is shown as BCDE portion in the plaint sketch. One Mrs.Rose Mary D'Souza was the absolute owner of the property bearing Old No. 31 corresponding New No.22 which is situated at Grant Road, Bengaluru. After purchase, the original owner Mrs. Rose Mary D'souza, who is none other than the mother of the original defendant No.1 secured a layout plan from the competent authority which was approved by the Bengaluru City Corporation by order dated 31.01.1962 for formation of building sites which included the residential site No. 22/9, which is the subject matter of the suit. Later, she conveyed the above said residential site to her son and her daughter-in-law namely Anthony Alexis D'souza and Dorothy Sabina D'Souza, under a registered sale deed dated 15.10.1964. Subsequently, the above said vendees sold the site bearing No.22/9 to the plaintiffs who were minors at that time under registered sale deed dated 27.05.1975 and possession was also delivered.

The plaintiffs' contention is that the vendors had sold site No.22/9 measuring 87 ft. North to South and 98 ft. East to West and Survey No.22/9 is bounded on the North by 20 ft road, on the South by site No.22/8 on the East by Road and on the West by Site No.22/10. It is contended that both the roads mentioned above as boundaries for the site No.22/9 are private roads provided for benefit and convenience of all occupants of the sites. At Para 10 of the plaint, it is specifically stated that 20 ft. width road is an internal approach road leading into site No.22/10 and at the same time, it also forms the Northern boundary for the suit schedule site bearing No.22/9. The plaintiffs have specifically contended that while purchasing the property from Anthony Alexis and his wife, however a mistake had crept in, wherein the Northern boundary for site No.22/9 purchased by the plaintiffs is described as "neighbouring plot" instead of describing it as 20 ft road. However, in their vendor's sale deed executed by the erstwhile owner namely Mrs. Rose Mary D'souza, the northern boundary is correctly described as a 20 feet road.

The plaintiffs' contention is that the North-South measurement of the site is 87 ft. but however in the sale deed it is wrongly shown as 77 ft. towards Northern side. It is also contended that the City Survey Authorities who are competent authorities have carried out a survey and survey sketch is prepared by the Department of the Government. Pursuant to survey, site No.22/9 is mentioned as property No.327 in the City Survey records and the so 20 ft. road on the Northern side abutting site No.22/9 is mentioned as property No.328. As per the survey records, the North-South measurement of the said site is shown as 89.05 ft.(27.15 mtrs). In the survey sketch, it is also found that the width of the road abutting site No.22/9 measures 6.10 meters and if converted in terms of feet the same would measure 20 ft. Basing their claim on the survey records, the plaintiffs are asserting right and title over site bearing No.22/9 measuring North-South 87 ft and East-west 98 feet.

The plaintiffs contention is that since the date of purchase, the plaintiffs have been enjoying site No.22/9 as its absolute owners. It is also contended that plaintiffs are in uninterrupted possession and enjoyment over the disputed portion. Immediately after the purchase, the plaintiffs enclosed the Northern extremity of the