COMMON JUDGMENT

Defendant Nos.1 and 2 in O.S.No.8288/2003 on the file of the learned IX Additional City Civil and Sessions Judge, Bengaluru, (CCH 5) (hereinafter referred to as ‘the trial Court’ for short) have preferred RFA No.1034/2015 challenging the common judgment and decree dated 13.02.2015 passed in the above suit along with O.S.No.6221/2002, decreeing the suit filed by the plaintiff and restraining the defendants from interfering with the plaintiff’s peaceful possession and enjoyment of ‘B’ Schedule Property and dismissing the suit filed by the defendants.

2. The plaintiff in O.S.No.8288/2003 has preferred RFA No.593/2015 impugning the judgment and decree refusing to grant the mandatory injunction directing the defendants to remove the lean to the roof and shed touching the northern wall to the extent of 3 feet, while granting permanent injunction as prayed for.

3. For the sake of convenience, parties are referred to as per their ranks before the trial Court.

4. Brief facts of the case are that, the plaintiff filed the suit O.S.No.8288/2003 against defendant Nos.1 and 2 before the trial Court seeking for permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of ‘B’ Schedule Property by restraining them from obstructing the repairs and construction of first floor as per the approved plan and licence by putting scaffold on the north of his house and to direct the defendants to remove the lean to the roof and the shed touching the northern wall to the extent of 3 feet away from the northern wall of his house.

5. The Schedule ‘A’ appended to the plaint describes the house No.146-A with terrace roofing, measuring East to West 40 feet and North to South 35 feet with the boundaries mentioned therein. Schedule ‘B’ describes the portion of the house property described in Schedule ‘A’, bearing No.146-A, new No.594, measuring East to West 10 feet and North to South 40 feet with the boundaries mentioned therein. The plaintiff contended that his father Dharma Naidu was a industrial labourer and he was allotted with house No.146-A by the Mysore Labour Housing Corporation under the Hire Purchase Agreement in the year 1965. Accordingly, the father of the plaintiff came in possession of Schedule ‘A’ and was residing in the house along with his wife and children. He paid the entire sale consideration. He improved the house by constructing a portion of the first floor. The said Dharma Naidu died on 06.12.1998 leaving behind him 5 sons and daughters. His wife had pre deceased him. Since the entire sale consideration amount was paid, the sale deed came to be executed in the name of D.Devaraj- the eldest son of Dharma Naidu on behalf of the joint family and the same was registered on 13.07.1990. The plaintiff and one of his brother have filed the suit O.S.No.6543/1997 for partition on the file of the City Civil Judge, Bengaluru. Even though the suit was decreed, proper share was not allotted. The judgment and decree was challenged before this Court by filing RFA No.168/2000. The dispute between the parties was compromised and the plaintiff was allotted with Schedule ‘B’ property. The plaintiff came in possession of the property under the final decree and he is residing there in with his wife and children. The khata changed in the municipal records and the plaintiff was paying the tax.

6. It is further contended that the grand father of defendant No.2 was in unauthorized occupation of the land belonging to the City Corporation at Okalipuram. Since he was evicted from the said land, he came and constructed a shed unauthorisedly inside the park and playground in property No. 591/A situated on the northern side of the Suit Schedule Property. Defendant No.2 and his grand daughter filed many suits against the Corporation against their eviction and also constructed some more sheds in the park by the side of the house of the plaintiff. Defendant Nos.1 and 2 started residing in the said shed construc