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2023 Supreme(Online)(KAR) 1344
HIGH COURT OF KARNATAKA
M.G.S. KAMAL, J
DASHARATH S/O RAMSING RAJAPUT, GANAPATSINGH S/O RAMSING RAJAPUT – Appellant
Versus
RAMAGOUDA S/O RAYAGOUDA PATIL, NINGAYYA S/O SHIVAYYA PUJARI, HEERACHAND S/O MOTICHAND SHETH, NEELAKKA W/O MALLAPPA PUJARIA, SRI BHIMASEN S/O MALLAPPA PUJARI, MALLIKARJUNAYYA S/O BASAYYA ALLIMATTI, SATEESH KUMAR S/O HEERACHAND SHETH, BASAYYA S/O KALLAYYA HIREMATH, OMPRAKASH S/O CHATRABUJA BHUTADA, RAJESH S/O GULABCHAND JAIN, RAMAPPA S/O MALLAPPA MUTTUR, RAJAGOUDA S/O SIDAGOUDA PATIL, TOWN MUNICIPAL COUNCIL REPRESENTED BY IT'S CHIEF OFFICER – Respondent
REGULAR SECOND APPEAL NO.2540 OF 2007 (INJ)
For the Appellants/Petitioners: SRI GIRISH A YADWAD, SMT.DIVYA J.DESHPANDE, SRI ASHOK.C.ANGADI
For the Respondents: SRI MRUTYUNJAY TATA BANGI
A party must substantiate claims of encroachment with clear evidence; reliance solely on a commissioner’s report without corroborating evidence is insufficient.
Headnote:(A) Code of Civil Procedure, 1908 - Section 100 - Appeal against decree of injunction - The appellants are defendants aggrieved by the First Appellate Court’s decision partly allowing the plaintiffs’ suit for mandatory injunction to remove encroachment. The First Appellate Court based its ruling on a report by a Court Commissioner which was challenged by appellants as not reflective of actual evidence. The appellants argued the suit's maintainability without a relief declaration, and questioned the First Appellate Court's reliance on the Commissioner’s report. (Paras 1, 18, 29)
(B) Law of Evidence - Encroachment - The court emphasized the necessity for clear evidence to substantiate claims of encroachment, noting the conflicting testimonies regarding the property boundaries and the Commissioner’s report. The First Appellate Court was found to have erred in its judgment by relying solely on the Commissioner’s findings without adequate examination of the actual evidence presented during trials. (Paras 20-24)
Facts of the case:
The plaintiffs filed a suit for mandatory injunction against defendants alleging unlawful encroachment on a public road and their property. The Trial Court dismissed the plaintiffs' claims due to insufficient evidence. The First Appellate Court contrasted this by affirming claims based on a questionable Commissioner’s report.
Findings of Court:
The Court found the First Appellate Court erred in relying on the Commissioner’s report without reflecting on the overall evidence, leading to an erroneous decree being set aside.
Issues: The key issues addressed were whether the plaintiffs adequately proved encroachment and if the First Appellate Court's reliance on the Commissioner’s report was justified.
Ratio Decidendi: The court concluded that a thorough examination of material evidence is fundamental to just decisions regarding encroachment and injunction claims.
Result: The appeal is hereby allowed.
| Table of Content |
|---|
| 1. plaintiffs seek injunction against encroachment on property. (Para 1 , 2 , 3 , 5) |
| 2. appellants argue against reliance on commissioner report. (Para 16 , 17) |
| 3. controversy revolves around property boundaries and measurements. (Para 21 , 22 , 23 , 24) |
| 4. court emphasizes need for evidence in encroachment claims. (Para 30) |
JUDGMENT
1. The present appeal is filed by defendant Nos.1 & 2 aggrieved by the judgment and order dated 25.06.2007 passed in R.A.No.80/2006 on the file of Principle Civil Judge (Sr.Dn.), Jamkhandi (hereinafter referred to as the “First Appellate Court”) in and by which, the First Appellate Court while partly allowing the appeal partly decreed the suit of the plaintiffs in O.S.No.186/2001 on the file of the Principle Civil Judge & JMFC, Jamkhandi (hereinafter referred to as “the Trial Court” for short) granting relief of mandatory injunction against the defendants to remove the encroachment in the suit property.
2. The parties are referred to as per their ranks before the Trial Court for the sake of convenience.
3. The above suit in O.S.No.186/2001 is filed by the plaintiffs for the relief of permanent injunction and mandatory injunction contending inter alia that the plaintiffs are the owners in actual possession of certain plots situated at Jamkhandi whereas defendant Nos.1 & 2 are the owners of the property in CTS.No.5206/2 of Jamkhandi. The properties belonging to the plaintiffs and defendants earlier, formed part of agriculture land. The plaintiffs and defendants purchased the plots from their vendors and have been assigned with city survey numbers that defendant Nos.1 and 2 purchased the said plots in CTS.No.5206/2 measuring 152-17 Sq. meters. in the year 1999 from one Sri More who in turn had purchased the same from its owners Sri Madhukar and Prabhakar in the year 1980. That in the said deeds of sale, the area of plot of defendant Nos.1 & 2 is shown as 152-17 Sq.meters. The said More had purchased an area of 20 X 65 feet out of 152-17 Sq. meters. That there is a public road lying South to North to the extent of 100 feet in length and 20 feet in width and the said road is in use and wahiwat of the plaintiffs to reach their respective houses. That the said road is attached to plot No.5206/2 owned by defendant Nos.1 & 2 towards Western side. Towards South of the property of defendant Nos.1 & 2 there is a PWD Road i.e., Jamkhandi-Kudachi road. The main door of the said property in CTS.No.5206/2 belonging to defendant Nos.1 & 2 is facing towards Southern side as shown in the hand sketch map. Towards the Northern side of the property of defendant Nos.1 & 2, there is a property bearing CTS.No.5206/1A, belonging to the plaintiff No.2, wherein a small temple is located. That defendant Nos.1 & 2 have encroached towards the Northern side of their property and are intending to fix a door and windows, which is shown in the hand sketch map as D-1, W-1 and W-2.
4. That Defendant Nos.1 & 2 have encroached upon the portion of the public road shown as “ABCD” in the sketch marked by red doted lines and the roof of the structure belonging to defendant Nos.1 & 2 is stretching over the said public road causing obstruction and nuisance to the passersby. Defendants Nos.1 & 2 have made encroachment over “EFGH” portion towards the Northern side as shown in the hand sketch and are intending to fix the doors and windows illegally.
5. Despite, protest made by the plaintiffs before the Town Municipal Counsel, Jamkhandi (“TMC” for short) who is defendant No.3 in the suit to prevent illegal and high handed construction being carried on by defendant Nos.1 & 2 over the public road shown as “ABCD” and towards Northern side of their property shown as “EFGH” in the hand sketch, the same has yielded no result. Defendant Nos.1 & 2 have violated the terms and conditions of the permission issued by the TMC-defendant No.3 for the purpose of construction. The encroachment made by defendant Nos.1 & 2 is illegal and causing inconvenien
