Occupancy rights enable a party to seek a mandatory injunction against unauthorized construction without needing to establish title, emphasizing compliance with municipal laws.

JUDGMENT :

C M JOSHI, J.

Heard the learned counsel appearing for the appellant and respondents.

2. This appeal is filed by the defendant in O.S.No.391/1996, who suffered a decree of mandatory injunction at the hands of the First Appellate Court in R.A.No.106/2007 dated 26.03.2009.

3. The factual matrix pertaining to the present appeal may be summarized as below :

4. The respondent, who was the plaintiff before the Trial Court, filed a suit for injunction contending that the suit property is the eastern half portion of the house property bearing No.18 situated at old Mochi Lane, Camp, Belgaum and the plaintiff is the owner and occupant in actual possession and enjoyment of the property. His property consisted of ground floor and the first floor. The father of the plaintiff had purchased it under the registered sale deed dated 11.06.1951 from one Gangamma. Since then, he is in possession and enjoyment of the same. The name of the father of the plaintiff was shown as occupant in the General Land Register (GLR) maintained by the Cantonment Authority and after death of the father of the plaintiff, the name of mother of the plaintiff and the plaintiff was entered in the records. It is contented that the family of the plaintiff’s cousin viz., Iralal was residing in a ground floor as permissive user and the plaintiff by filing O.S.No.133/1992 got ejected occupants of the ground floor.

5. The defendant put up a shed illegally on the area adjoining the house property of the plaintiff on the eastern side, which was belonging to Cantonment Board. After several efforts by the plaintiff, the Cantonment Authorities issued show-cause notice to the plaintiff as well as the defendant, but they could not stop the construction by the defendant. The plaintiff replied to the said notice and the defendant did not. In his reply notice, the plaintiff had brought to the notice of the Cantonment Authorities that the encroachment was made by the defendant but not the plaintiff. Despite an interim injunction, the defendant continued to proceed with the construction and instead of shed, he has constructed an RCC structure by demolishing the said shed.

While constructing the building, the defendant has closed a window which was on the eastern wall of the house of the plaintiff and thereby blocking light and air. Subsequently, during pendency of the suit, the plaintiff got the plaint amended incorporating the relief for mandatory injunction.

6. On service of summons, the defendant appeared and he contented that in the year 1985, he constructed a south wall with burnt bricks and a tiled roof was placed. It is contented that the construction was done in Survey No.251/6 and the Cantonment Board, treating the land on which the construction is carried out as an encroachment on the government land, had issued a notice on 25.07.1985. Since the construction was done by father of the defendant, there were some litigations which were commenced and are pending. It is contented that the GLR register extract cannot be a document of title and the plaintiff cannot claim any ownership on the basis of the GLR records. Therefore, the entire suit property of the plaintiff is based on imagination and hence, the suit deserves to be dismissed.

7. On the basis of the above contentions, the Trial Court framed the following issues and additional issue:

“ISSUES

1. Whether the plaintiff proves that the description of the suit property is correct?

2. Whether the plaintiff proves that he is in lawful and actual possession of the suit property?

3. Whether the plaintiff pr