The present appeal by the defendant, assailing the

judgment

and

decree

dated

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

dated

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.

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 -

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

- 5 -

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

- 6 -

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 cross-

appeal, the plaintiff – respondent contended that the trial

- 7 -

Court was wrong in ans