Courts affirmed the principle that lack of exclusive rights over property precludes unauthorized construction, validating the injunction against encroachment.

ORAL JUDGMENT

This matter is listed for admission. Heard the learned counsel for the appellant and the learned counsel for respondent No.2.

2. This appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court.

3. The factual matrix of the case of the plaintiff while seeking the relief of declaration and injunction in respect of ‘ C ’ schedule property is that the plaintiff is the absolute owner in peaceful possession and enjoyment of ‘A’ schedule property bearing municipal assessment No.630/675 measuring 60 + 57 x 35, wherein there is a RCC dwelling house and boundary is also given. The dispute is in respect of the southern side of the plaint schedule property shown as ‘ ’ schedule property. It is the contention of the plaintiff that the property was purchased in the year 1994. The defendant No.1 is the owner in possession of ‘B’ schedule property and he had purchased the same from one S.K. Sujayakantha under the registered sale deed dated 20.05.1992 and constructed ground floor by obtaining license from TMC, Maddur and now he is residing therein. That the vendors of the plaintiff and defendant No.1 are siblings and they formed sites and sold the same to various persons. That while forming the layouts, the said S.K. handrasekhar and Sujayakantha have left 6 x 200 feet passage for ingress and egress of public to the layouts formed by them, but however the said passage was unequal. Accordingly, towards south of ‘A’ schedule property and towards north of ‘B’ schedule property, there is a 6 feet at north-south and east-west 50 feet, which is described as ‘ ’ schedule property. Since the ‘A’ and ‘B’ schedule properties are formed in different layouts, they are not in single alignment and there is a 12 feet difference in alignment of sites on the eastern side. As such, without the ‘ ’ schedule property, the roads running on the eastern side of suit ‘A’ and ‘B’ schedule properties do not connect with each other and thus the ‘ ’ schedule property further runs and continues towards the east and it further connects to eastern side roads as well as vacant space lying in between ‘A’ and ‘B’ schedule properties.

4. It is specifically pleaded that neither the plaintiff nor defendant No.1 have any exclusive right, title, interest over the ‘ C ’ schedule property. When such is the case, in the absence of the plaintiff, defendant No.1 has put up a toilet and compound by encroaching some portion of ‘ ’ schedule property and now he is extending the same by putting up three pillars in order to make a first floor of dwelling house. Therefore, the plaintiff has filed an appeal before the Deputy ommissioner, Mandya in M.A.No.8/2012 and in the meanwhile, TMC, Maddur also issued notice to defendant No.1 directing him to stop illegal construction, but defendant No.1 has not stopped its illegal construction and without the aid of this ourt, the plaintiff cannot resist the illegal acts of defendant No.1 and hence filed the suit.

5. In pursuance of the suit summons, defendant No.1 appeared and filed the written statement and defendant No.2 though represented through counsel, did not choose to file any written statement.

6. The main contention of defendant No.1 is that he had purchased the site property measuring east-west 38 feet and north-south 30 feet from its original owner and the same was registered on 20.05.1992 and he is in enjoyment of the same. It is also his contention that in the year 1998, he had constructed a residential house after obtaining building licence and put up compound wall towards east and north of his house property without any obstruction either by the plaintiff or by any public at large and now in order to put up first floor on the ground floor, he moved an application seeking license from TMC on 28.03.2012, but no license was issued by TMC, the defendant deemed to have license based on his application, he has constructed the first floor. It is his case that, while making construction, no obstruction