Equitable relief of mandatory injunction is discretionary and cannot disturb long-standing possession; a purchaser cannot claim such relief for structures existing prior to their ownership.

JUDGMENT :

K.S. HEMALEKHA, J.

Though the matter is listed for orders, with the consent of learned counsel for the appellant, the matter is taken up for final disposal.

2. The present appeal is preferred by the plaintiff assailing the judgment and decree dated 12.01.2024 passed in O.S.No.1898/1993 on the file of the XIV Additional City Civil Judge, Bengaluru (hereinafter referred to as ‘the Trial Court’ for short), whereby the suit was partly decreed, declaring the plaintiff as the absolute owner of the suit property, while rejecting the relief of mandatory injunction for demolition of the compound wall and staircase alleged to have been put up by the defendant.

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3. Heard Sri. M.D.Raghunath, learned counsel for the appellant. Respondent No.2 served and unrepresented.

4. Suit is one for declaration of title, possession and for mandatory injunction to demolition of structures and compound wall constructed illegally in property No.72/1, 'D' Main Road, Corporation Colony, 4^th 'T' Block, Jayanagar, Bengaluru measuring North to South ½ feet and East to West 40 feet ('suit property' for short).

5. The case of the plaintiff is that he is the absolute owner of the property bearing No.72, New No.1, 'D' Main Road, Corporation Colony, 4^th 'T' Block, Jayanagar, Bengaluru, having purchased the same under the registered sale deed dated 09.08.1990 from one Dr.R.Nagaraj. It is further contended that from the date of purchase, the plaintiff has been in absolute possession of the said property. The grievance of the plaintiff is that defendant No.1, who is the owner in possession of the adjacent property, has illegally encroached upon a portion of the plaintiff’s property and put up construction therein, to the extent described in the suit schedule property.

6. The defendant contested the suit, contending that the property bearing No.71/2 is adjacent to the property of the plaintiff, and was allotted by Bengaluru Mahanagara Palike ('BMP' for short) in the year 1977 and in the year 1977-1978, the defendant constructed a house - the said property as per the sanctioned plan. The compound wall and staircase in question were also constructed in the year 1977-78, much prior to the plaintiff’s purchase in 1990. The plaintiff himself raised unauthorized construction in 1991, contrary to the sanctioned plan, which obstructed free flow of natural air and light to his property. Instead of stopping such violations, the plaintiff, with the aid of certain BMP officials, proceeded with the construction and even filed O.S. No.1326/1993 securing an injunction against the defendant. In relation, the defendant was constrained to institute O.S. No.3097/1993 and O.S. No.660/1993 against the plaintiff and BMP seeking to restrain the plaintiff from continuing illegal construction and to demolish the same. Upon verification, the BMP itself found the plaintiff’s construction to be unauthorized and issued notices directing demolition, against which plaintiff filed WP No.15502/1994 and obtained an interim protection. Thus, according to the defendant, several rounds of litigation ensued between the parties, but it remained undisputed that the defendant’s construction was lawfully sanctioned in 1977-78, much prior to the plaintiff’s purchase of his property in 1990.

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7. In order to substantiate their claim, the plaintiff examined himself as PW.1, marked documents at Exs.P1 to P7. The Court Commissioner was examined as PW.2, marked documents at Exs.P8 and 9. On the other hand, the defendant examined himself as DW.1 and marked documents at Exs.D1 to D5.

8. The Trial Court, upon considering the oral and documentary evidence, observed that the Court Commissioner’s repo