A suit for perpetual injunction is not maintainable when encroachment is established, particularly if the land has been acquired by the state, barring the plaintiff's cause of action.

JUDGMENT :

R. NATARAJ, J.

1. The legal representatives of the deceased plaintiff have filed this appeal challenging the judgment and decree dated 03.12.2009 passed by the XVIII Additional City Civil Judge, Bengaluru city in O.S.No.2741/2005 by which, the suit for perpetual injunction was dismissed.

2. The parties shall henceforth be referred to as they were arrayed before the Trial Court.

3. (i) The suit in O.S.No.2741/2005 was filed for perpetual injunction to restrain the defendants from interfering with the plaintiffs’ peaceful possession and enjoyment of the suit property and from demolishing the existing compound in any manner. The suit property is bearing No.35/6, Khata No.269, situated at Yelachenahalli Village, Uttarahalli Hobli, Bengaluru South Taluk, measuring East to West 63 feet and North to South 25 feet, comprising a sump, pump set and enclosed by a compound.

(ii) The plaintiff claimed that he was the owner of the aforesaid property, having purchased it in terms of a sale deed dated 11.03.2005. He claimed that the land bearing Sy.No.20/4 of Yelachenahalli village belonged to Sri. M. Muniyappa who had formed residential sites which were assessed to tax by the erstwhile City Municipal Council, Rajarajeshwari Nagar. The plaintiff claimed that he had earlier purchased the above said property from Sri. M. Muniyappa in terms of an agreement of sale dated 26.03.1999, whereunder he was placed in possession of the property. He claimed that from the date of the said agreement of sale, he was in peaceful possession and enjoyment of the property, and had enclosed it by a compound and had also laid a water sump and installed an electric motor. He claimed that due to some inconvenience, the sale was not completed and after a hiatus, a sale deed was executed on 11.03.2005. He alleged that the defendants were strangers who attempted to interfere with his possession of the property. He claimed that during the last week of March, 2005 the defendants assembled near the property and attempted to demolish the compound which was thwarted by him. He claimed that he approached the jurisdictional police who advised him to approach the Civil Court. The plaintiff therefore, filed the instant suit.

(iii) The defendant Nos.1 to 4, 6 and 8 contested the suit and filed a common written statement. They claimed that land bearing Sy.No.20/3 situated at Yelachenahalli Village measuring 02 acres 09 guntas belonged to Sri. Ramaiah Reddy, the father of defendant Nos.1, 3, 5 and 7 and the grandfather of defendant Nos.2, 4, 6 and 8. They claimed that land bearing Sy.No.20/4 lay on the southern side of Sy.No.20/3. They claimed that there was a dispute among the children of Sri. Ramaiah Reddy which was subsequently resolved and Sy.No.20/3 fell to the share of defendant Nos.1, 3, 5 and 7. As a result of compromise recorded in O.S.No.18/1988, they claimed that no agricultural operations were carried on in Sy.No.20/4 of Yelachenahalli village.

(iv) They claimed that the owner of land bearing Sy.No.20/4 had encroached into a portion of Sy.No.20/3. The defendants requested the said Sri. M. Muniyappa to hand over the encroached portion, which he refused. The defendants therefore, filed an application before the Assistant Director of Land Records seeking survey and demarcation of Sy.No.20/3 and Sy.No.20/4 to identify the encroached area. The Assistant Director of Land Records issued notice and conducted a chain survey on 04.04.2005. However, the survey could not be effectively conducted due to hindrance caused by several construction in Sy.No.20/4. The survey was therefore adjourned to 11