The central legal point established is the necessity of a clear and categorical finding on the construction site and the existence of the disputed sites before reaching a final decision.

JUDGMENT

1. This is a second appeal filed by the LR's of the deceased defendant Sri.M.V.Raju.

2. The respondent - plaintiff ie., N.G.Kotrabasappa instituted a suit seeking for a decree of injunction to restrain the appellant - defendant Sri.M.V.Raju from putting up any sort of construction over the suit property. The said suit was filed on 6/4/1998. Subsequently, an amendment application was filed and the said application was allowed on 3/9/1998. By virtue of the said amendment, the plaintiff sought for a decree of mandatory injunction to direct the defendant to demolish the construction put up in the suit schedule property, failing which the plaintiff should be permitted to get the building constructed by the defendant demolished through a Commissioner.

3. By way of the abovementioned amendment, it was also pleaded that despite an order of temporary injunction granted by the trial Court, which was to the knowledge of the defendant, the defendant had proceeded with the construction and therefore, the said construction was illegal.

4. It was the case of the plaintiff that he owned site No.3 measuring 30 ft x 30 ft which was the suit property. It may be pertinent to state here that according to the suit schedule, to the North of site No.3, lay the defendant's property ie., site No.4. Thus, the plaintiff did not dispute that to the North of his property, the defendant's property ie., site No.4 was situated.

5. It was the plaintiff's case that the defendant was attempting to put up construction on his site No.3. This suit was contested by the defendant principally on the ground that the defendant was putting up construction on his site and not on the plaintiff's site. In fact, it was admitted by the defendant that his site was situated towards the South of the plaintiff's site ie., site No.3.

6. It was also contended that he had commenced the construction after obtaining permission from the authorities, he had also got fixed the boundaries of his site before obtaining the licence. The defendant pleaded that he had not at all encroached upon the plaintiff's site and was putting up the construction on his site ie., site No.4.

7. The trial Court after considering the evidence adduced before it, came to the conclusion that the defendant had already dispossessed the plaintiff before filing of the suit and therefore, the suit could not be maintained and it proceeded to dismiss the suit.

8. The plaintiff, being aggrieved, preferred an appeal.

9. The Appellate Court on re-appreciation of the evidence, came to the conclusion that the endorsement dtd. 1/7/1998 at Ex.P19 indicated that even as on 1/7/1998, no permission had been granted by the Town Municipal Council for construction of the building and therefore, the contention that the building was put up even before the suit had been filed could not be accepted. The Appellate Court took note of the fact that the defendant had disobeyed the order of temporary injunction and had proceeded with the construction and in that view of the matter, the defendant could not avail of any protection for his illegal actions. The Appellate Court accordingly allowed the appeal and decreed the suit.

10. It is against this decree that the present appeal has been filed.

11. This Court while admitting the second appeal formulated the following substantial question of law.

"(a) Whether the lower Appellate Court is justified in granting relief of permanent injunction in favour of respondent- plaintiff without recording a finding that the appellant-defendant has constructed building on the suit schedule property viz., Site No.3 and not in Site No.4 which is admittedly owned by the appellant- defendant?"

12. The Appellate Court while recording the finding regarding construction has noticed that the plaintiff had approached the police on 6/5/1998 with a complaint and the police had issued an endorsement at Ex.P18 calling upon the Commissioner, C.M.D., Davanagere to state as to which site number, the licence had bee