&

DECREE

DTD

17.7.2012

PASSED

IN

R.A.NO.36/2012 ON THE FILE OF ADDITIONAL SENIOR CIVIL

JUDGE, HASSAN, DISMISSING THE APPEAL AND CONFIRMING

THE JUDGEMENT AND DECREE DTD 20.3.2012 PASSED IN

OS.NO.695/2010 ON THE FILE OF III ADDITIONAL CIVIL

JUDGE AND JMFC, HASSAN.

Digitally

signed by R

DEEPA

Location:

High Court of

Karnataka

- 2 -

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,

THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

This second appeal is filed by the appellants

challenging the judgment and decree dated 17.07.2012,

passed in R.A.No.36/2012 by the Addl. Senior civil Judge,

Hassan, confirming the judgment and decree dated

20.03.2012, passed in O.S.No.695/2010 by the III Addl.

Civil Judge & JMFC, Hassan.

2. For the sake of convenience, parties are referred

to as per their ranking before the trial Court. The

appellant is the plaintiff and respondent is the defendant.

3. The brief facts leading rise to filing of this appeal

are as under:

Plaintiff

filed

a

suit

for

permanent

injunction

restraining the defendant from making construction over

the setback area in the eastern side of 'B' schedule

property and to direct the defendant to demolish the

construction made in the setback area. It is the case of

- 3 -

the plaintiff, that plaintiff is the owner of 'A' schedule

property

which

was

purchased

by

her

from

one

A.J.Nagappa Jois under registered sale deed dated

18.08.2003. The vendor of the plaintiff started to

construct a building after obtaining necessary permission

from the concerned authorities. The plaintiff is in

possession and enjoyment of 'A' schedule property.

Defendant is the owner of 'B' schedule property. The

property of the defendant is situated towards western side

of 'A' schedule property. When the plaintiff was out of

station, the defendant taking advantage of the absence of

the plaintiff, without leaving setback, constructed a

building and also put up windows and doors towards

eastern side by taking advantage of 3 feet space by the

plaintiff. Plaintiff requested the defendant to leave the

setback, but the defendant refused to leave the setback.

Hence cause of action arose for the plaintiff to file the suit

for permanent injunction.

- 4 -

4. Defendant filed written statement contending that

the plaintiff has constructed the house on an area of 15.10

x 60 feet without leaving any setback, by encroaching 10

inches in defendant's property. The plaintiff has

constructed the house illegally. It is contended that

plaintiff has not obtained the sanction plan from the

concerned authorities. Further, it is contended that the

plaintiff has not left any setback on the western side of her

property. On these grounds sought for dismissal of the

suit.

5. The Trial Court, on the basis of the above said

pleadings, framed the following issues and additional

issues:

ISSUES

1) Whether

the

plaintiff

proves

that

the

defendant is constructing a building in 'B'

schedule property without leaving any set

back on eastern side of 'B' schedule property?

2) Whether the plaintiff is entitled for the relief

of mandatory injunction as sought for?

3) Whether the plaintiff is entitled for the relief

of permanent injunction as sought for?

4) What order or decree ?

- 5 -

ADDITIONAL ISSUES

1) Whether the defendant proves that the

plaintiff has purchased 15*60 feet from

Nagappa jois but the plaintiff herself has

constructed

the

building

in

property

measuring 16*60 feet?

2) Whether the defendant further proves that

the plaintiff herself has encroached defendant

property about one feet and constructed

building therein?

3) Whether the defendant further proves that

the plaintiff while constructing the building

the plaintiff has not left any set back on

western side and also put up 3 feet sajja in

the 2^nd floor towards B schedule property by

violating terms of approved plan?

6. In order to prove the case of the plaintiff, the GPA

holder of the plaintiff was examined as PW-1 and got

marked 18 documents as Exs.P1 to P18. Defendant

ex