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.

JUDGMENT

1. The present appeal by the defendant, assailing the judgment and decree dtd. 26/10/2016, in RA.No.147/2014 on the file of I Addl. Senior Civil Judge & CJM, Belagavi, dismissing the appeal and allowing the cross-objection filed by the plaintiff and modifying the judgment and decree dtd. 24/11/2014 in O.S.No.954/2010 on the file of the III Addl. Civil Judge & JMFC, Belagavi.

2. The parties herein are referred to as per their ranking before the trial Court for the sake of convenience.

3. This Court, while admitting the appeal on 12/12/2018, has framed the following substantial question of law:

"Whether the court below has justified in ordering for demolishing the building constructed by the appellant in his own area when a suit is only for injunction and mandatory injunction and whether the Court below has justified in passing such an order?"

4. Learned counsel for the appellant and the respondent are heard on the substantial question of law.

5. The relevant facts are that the plaintiff filed the suit for permanent injunction restraining the defendant, his agent, servants or anybody on his behalf from putting up any sort of construction on the suit property directing the defendant to remove the structure, which has already been erected on the suit schedule property immediately and keep the suit property as an open space restraining the defendant from encroaching the suit property. The suit property is piece and parcel of the open space (part of the western side) of House No.460 measuring 9.6 ft. x 20 ft. By way amendment, the plaintiff sought to amend the measurement of the suit property as 9.6 ft. and 16 ft.

6. The undisputed facts are that the plaintiff and the defendant are brothers and there was a partition effected on 16/06/2006 between the plaintiff and defendant and they are six brothers by way of a partition deed, the suit property i.e., the open space to the extent of 9.6 ft. x 16 ft. in House No.460 was allotted to the plaintiff and the built up area of 20 ft. x 20 ft. to the eastern side of the suit property has been allotted to the share of the defendant and the remaining portion of the said property to the extreme western side of the property has been kept common as the joint ownership between the eight brothers being a worship place.

7. The sum and substance of the plaintiff's case is that the defendant has encroached in the suit property i.e., the open space measuring 9.6 x 16 ft. in House No.460 and put up construction in the open space which belonged to the plaintiff without any permission and without the knowledge of the plaintiff. On the other hand, the defendant has asserted and admitted about the partition effected between the brothers and the open space measuring 9.6 x 16 ft. having allotted to the share of the plaintiff towards the western side and the built up area measuring 20ft. x 20 ft. to the eastern side has been allotted to the defendant in House No.460. However, the defendant has specifically denied about having encroached and put up construction in the open space measuring 9.6 x 16 ft.

8. The trial Court, on the basis of the pleadings, oral and documentary evidence, held that:

(i) the plaintiff has proved his lawful possession and enjoyment of the suit schedule property and the alleged interference by the defendant.

(ii) the defendant has put up an illegal construction in the plaintiff's open space and decreed the suit of the plaintiff for permanent injunction, however, the prayer sought by the plaintiff to remove the structure, which had already been erected on the suit property i.e., open space and prayer restraining the defendant to encroach over the suit property was not granted stating that the plaintiff had filed the suit only seeking for permanent injunction.

9. Aggrieved by which, the defendant preferred an appeal against the grant of injunction and by way of crossappeal, the plaintiff - respondent contended that the trial Court was wrong in answering issue No.6 rejecting the praye