A suit for injunction cannot proceed without an accompanying claim for possession when the plaintiff is not in possession of the property.

ORAL JUDGMENT

Assailing the legality and correctness of the judgment and decree in O.S.No.4395/2016 dated 31.07.2023 on the file of LVIII Additional City Civil and Sessions Judge, Bangalore City (CCH.No.59) (hereinafter referred to as ‘trial Court’ for short), the plaintiff is before this Court in this Regular First Appeal. By the impugned order, the trial Court dismissed the suit filed for mandatory injunction.

2. Heard the learned counsel for the appellant and learned counsel for the respondents.

Brief facts

3. Suit was filed for mandatory and permanent injunction directing the defendants to demolish the structures erected in the portion of the property, which is approximately 312.50 sq. ft. belong to the plaintiff and also restraining the defendants from carrying out any construction work in the disputed portion.

4. The case of the plaintiff is that he has purchased two sites bearing Nos.35 and 36, which are ‘A’ and ‘B’ schedule properties from defendant No.3 under a registered sale deed dated 29.07.2009 and since from the date of purchase, the plaintiff has been in peaceful possession and enjoyment of the same. That in the year 2016, defendant Nos.1 and 2 who are the neighbors have started construction in their site bearing No.34 and defendant Nos.1 and 2 taking advantage of the absence of the plaintiff encroached an extent of 312.50 sq. ft. on North-West side suit property.

5. The defendants appeared and defendant Nos.1 and 2 have filed their written statement inter alia denying about any interference caused by them. According to the defendants, they have obtained sanction plan and licence for construction of a residential building in the site No.34 purchased by them measuring East to West 50 feet and North to South 30 feet. The defendants contended that without seeking a relief of declaration, the simple suit for bare injunction is not maintainable.

6. Before the trial Court, the plaintiff examined himself as PW.1, marked documents at Ex.P1 to Ex.P16. On the other hand, defendant No.1 examined himself as DW.1, marked documents at Ex.D1 to Ex.D15. At the instance of the plaintiff, the Court Commissioner was appointed and he submitted the report. Court Commissioner was examined as CW.1 and his report was marked as Ex.C1 and Ex.C2.

7. The trial Court, considering the oral and documentary evidence, observed that the plaintiff has failed to prove that the defendants have encroached the particular boundary in the plaint schedule property and that the plaintiff is not entitled for the relief of mandatory injunction to demolish the alleged construction made by the defendants. The trial Court observed that when PW.1 has admitted that the defendants have encroached and put up construction in the suit property, the suit seeking relief for mandatory injunction without seeking possession cannot be granted and relied upon the decision of this Court in the case of Aralappa Vs. Jagannath and Others , [AIR 2007 KAR page 91] (Aralappa) and by the impugned order, dismissed the suit seeking mandatory injunction.

8. Learned counsel appearing for the appellant would submits that the Court Commissioner in his report, has clearly indicated about the encroachment of 12.5 sq. ft. on one side. Although there is categorical finding by the Court Commissioner establishing the encroachment by the defendants, the trial Court has fell in error in dismissing the plaintiff’s suit for mandatory injunction. It is contended that the plaintiff, being the absolute owner of the suit property by virtue of a registered sale deed for valuable consideration is entitled for relief, especially when an encroachment by t