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IN THE HIGH COURT OF KARNATAKA
Jyoti Mulimani, J.
Mohammad Hussain – Appellant
Versus
Noorjahan – Respondent
Regular Second Appeal No. 626 of 2008 (DEC/INJ)
Decided On : 01-12-2022
Encroachment - Property Dispute - [Sec. 100 of C.P.C] - The court discussed the principles of quia timet injunctions and mandatory injunctions, emphasizing the need for proof of imminent danger, irreparable injury, and impossibility of protection without relief. The court also highlighted the essential elements for granting a mandatory injunction and the 'Triple Test' for injunctions. The judgment focused on the lack of prima facie evidence of encroachment and the absence of obligation owed to the plaintiff by the defendant in a property dispute.
Fact of the Case:
The plaintiff filed a suit seeking a declaration and mandatory injunction against the defendants, alleging encroachment and violation of setback rules. The Trial Court dismissed the suit, but the Appellate Court reversed the decision, leading to the Regular Second Appeal.
Finding of the Court:
The Court found that there was no cause of action for the suit, as the circumstances did not form the infraction of the right or the immediate occasion for the action. It concluded that the action initiated by the plaintiff was a total abuse of the process of the Court.
Issues: The issues included the proof of encroachment, obstruction of peaceful possession, cause of action, proper court fee, entitlement to reliefs sought, and the appropriate order or decree.
Ratio Decidendi: The judgment emphasized the need for proof of imminent danger, irreparable injury, and impossibility of protection without relief for granting quia timet and mandatory injunctions. It also highlighted the essential elements for granting a mandatory injunction and the 'Triple Test' for injunctions.
Final Decision: The Regular Second Appeal was allowed, setting aside the Appellate Court's judgment and confirming the Trial Court's decision.
JUDGMENT/ORDER
1. Sri.Sangram S.Kulkarni., learned counsel for appellant and Sri.Shridhar Hiremath., learned counsel on behalf of Sri.G.I.Gachchinamath., for respondent No.7 have appeared in person.
2. This appeal is from the Court of the II Addl. Civil Judge (Sr.Dn), Hubli.
3. For the sake of convenience, the parties shall be referred to as per their status and ranking before the Trial Court.
4. The facts are quite simple and are stated as under:
It is stated that the plaintiff is the absolute owner of immovable property measuring East-West 44 feet and North-South 28 feet towards the Western side and 27 1/2 feet out of CTS No.682/1, Ward Extension situated in Walvekar Plot, Near Ramnagar, Keshwapur, Hubli. The second defendant is the owner of the adjacent property under CTS No.683 and one Sri.Timmappa Naik has purchased the remaining Eastern portion of CTS No.682. It is contended by the plaintiff that a week before the filing of the suit, defendants 1 and 2 started digging up foundation pits abutting her property towards the Northern side. The husband of the plaintiff requested the defendants to show the building permit obtained from HDMC and other details regarding necessary setbacks to be left and exact measurements of the property to be constructed. But the defendants refused to do so and continued with the construction work. Plaintiff suspecting the bonafide, lodged complaint to the Commissioner, HDMC, and jurisdictional police on 8/6/1999 and 10/6/1999.
In continuation, to settle the matter, the plaintiff requested some of the elderly persons in the locality to settle the matter and the elders advised both the defendants to get the property measured through the concerned Revenue Authorities and show the building permission to them. But the defendants did not bother to listen. Apprehending that defendants 1 and 2 will encroach upon the suit property shown as BCG in the hand sketch, the plaintiff filed a suit for a declaration and mandatory injunction directing defendants 1 and 2 to remove the encroached portion.
On issuance of suit summons, defendants 1 and 2 appeared through counsel and filed a written statement. They denied the plaint averments. The first defendant contended that he has received the property from the second defendant by way of a Gift and is enjoying the suit property peacefully without any interference or hindrance.
They contended that they have demolished the old structure and constructed the building legally by obtaining building permission from the competent authority i.e., HDMC.
They denied the alleged encroachment and violation of set-back Rules and Zonal Regulations. They specifically contended that if there is any violation or encroachment, the Competent Authority i.e., the Corporation would not have granted the approved plan and permission. Hence, the construction put up by them is in consonance with the permission of the Competent Authority. Among other grounds, they prayed for the dismissal of the suit. Based on the above pleadings, the Trial Court has framed the following issues:
ISSUES
1. Whether plaintiff proves that, the defendants No.1 and 2 have made construction by making encroachment as alleged in para 12 of the plaint, on suit property illegally, in violation of set back rules as shown in plaint hand sketch?
2. Whether plaintiff proves that, the defendants are trying to make further encroachment on suit property, thereby obstructing her peaceful possession and enjoyment of suit property?
3. Is there any cause of action?
4. Whether Court fee paid is proper?
5. Whether the plaintiff is entitled to the reliefs sought?
6. What order or decree?
To substantiate the claim, the husband of plaintiff one Mohammad Hanif Kolur was examined as PW1 and two more witnesses were examined as PW2 and 3 and produced twentytwo documents which were marked as Ex.P.1 to Ex.P.22. On the other hand, defendant No.1 was examined as DW1 and produced nine documents which were marked as Ex.D.1 to Ex.D.9. One Sri.Siddalingappa I
The judgment focused on the lack of prima facie evidence of encroachment and the absence of obligation owed to the plaintiff by the defendant in a property dispute.
The main legal point established in the judgment is the substantial compliance with procedural requirements, the breach of setback rules/bye-laws, the right of a neighbor to seek demolition, and the ....
The court ruled that a plaintiff's acquiescence to ongoing construction delays the right to seek mandatory injunction, favoring monetary compensation instead.
A party can seek a permanent injunction without needing to declare title if there is no cloud over title and possession can be proved, even when facing encroachment claims.
The limitation for seeking a mandatory injunction begins from the date of actual encroachment, not from the completion of construction.
The court confirmed that claims of property encroachment require substantial proof; failure to demonstrate ownership or obstruction by defendants led to dismissal of the plaintiffs' appeal.
In property disputes involving allegations of encroachment, the appointment of a Court Commissioner for local inspection is crucial to ascertain the facts and resolve the dispute effectively.
In second appeals, courts will not interfere with concurrent findings of fact by lower courts on encroachment claims, absent perversity or substantial question of law, particularly when Local Commiss....
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