HE

Heard Sri.V.B.Shivakumar, learned counsel for the

appellant and Sri.N.M.Srinivasa Murthy, learned counsel

for respondent No.1.

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2.

The present appeal is directed against the

judgment and decree dated 03.08.2012 passed in O.S

No.1987/2006 on the file of XXVII Additional City Civil

Judge, Bengaluru.

3.

The parties are referred to as plaintiff and

defendants as per their original ranking.

4.

The facts in short for disposal of the present

appeal is as under:

The plaintiff filed a suit for mandatory injunction

directing the 1^st defendant to demolish the illegal /

unauthorized construction made on the schedule B

property consisting of ground, first and second floors on

the 1^st defendant building at her cost and under the

supervision of the officials of the BBMP (2^nd defendant).

According to the plaintiff, plaint schedule A, B and C

properties reads as under:

<S c h e d u l e 3 A

All that part and parcel of property bearing

Site No.154, measuring East to West 60 feet and

North to South 40 feet, situated at Health and Family

Welfare Society Layout Srigandada Kaval, Bangalore,

bounded on;

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East by

:

2nd Main Road ;

West by

:

Site No.161 ;

North by

:

Site No.155 ;

South by

:

Site No.153 ;

S c h e d u l e 3 B

All that part and parcel of southern set back

portion with building wall out of the site bearing

No.155, measuring East to West 60 feet and North to

South 5 ft. situated at Health and Family Welfare

Society

Layout,

Srigandada

Kaval

Bangalore,

bounded on the ;

East by

:

2nd Main Road ;

West by

:

Site No.160 ;

North by :

Remaining portion of building on

Site No. 155 ;

South by

:

Site No.154 ;

S c h e d u l e 3 C

All that part and parcel of property bearing site

No.155, measuring East to West 60 ft. and North to

South 40 ft. situated at Health and Family Welfare

Society

Layout,

Srigandada

Kaval

Bangalore,

bounded on the ;

East by

:

2nd Main Road ;

West by

:

Site No.160 ;

North by :

Site No.156 ;

South by

:

Site No.154 ;=

5.

The plaintiff being the member of Medical

Education Employees House Building Co-operative Society

purchased the schedule A property under the registered

sale deed dated 26.08.1988. The BDA issued khata on

16.11.1988 in the name of plaintiff. Earlier the property

was acquired by the BDA as an agricultural land and the

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BDA formed the layout and allotted the site in which

plaintiff is one of the allottees.

6.

The 1^st defendant is the neighbouring site

owner bearing No.155, towards the northern site of the

plaintiff.

7.

When the plaintiff purchased the schedule A

property, the property was a vacant site and he often used

to visit schedule A property to find out whether there is

any encroachment by the neighbour or not. He also

contended that the 1^st defendant started laying foundation

in the schedule C property by leaving the set back of 5

feet as per the building Bye-laws on the southern side of

the plaintiff site and she started laying foundation in the

year 2004. Thereafter sometime in the middle of the year

2005, she stopped further construction. As the plaintiff

noticed that the 1^st defendant had left the required set

back therefore he did not visit schedule A property till

October, 2005. In the second week of December 2005,

when the plaintiff visited the schedule A property, he was

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shocked and surprised, he noticed that the 1^st defendant

has raised column beyond the set back area in contra to

the earlier foundation laid and also raised the wall covering

the entire boundary on the southern side which is abutting

to the northern side of the plaintiff9s property.

8.

Therefore, the plaintiff filed the suit seeking

mandatory injunction in respect of schedule B property.

9.

On receipt of the suit summons, 1^st defendant

entered appearance and filed written statement denying

the entire plaint averments. Further, it is also contended

that the residential building construction was completed in