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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 18^TH DAY OF DECEMBER, 2019

BEFORE

THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO

REGULAR FIRST APPEAL NO.2077 OF 2005 (INJ)

BETWEEN:

SMT SUMAN R KIRAN,

AGED ABOUT 33 YEARS,

W/O SRI M.N RAVIKIRAN,

R/AT NO 48, CAUVERYNAGAR,

MAGADI ROAD,

CHECKPOST,

BANGALORE - 560 079. ...APPELLANT

(BY SRI B N JAYADEVA, ADVOCATE)

AND:

SRI ANNAYAPPA,

MAJOR,

S/O SRI GANGONDAYA,

NO.LH 3, I FLOOR,

ABOVE SRIVIGNESHWARA

ELECTRICALS,

A.V.M SCHOOL ROAD,

KAMAKSHIPALYA,

MAGADI MAIN ROAD,

BANGALORE - 560 079. ...RESPONDENT

(BY SRI V NARASIMHA HOLLA, ADVOCATE)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION

96 AND 0RDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT

AND DECREE DATED: 09.09.2005 PASSED IN O.S.NO.9241/98

ON THE FILE OF THE XXII ADDL. CITY CIVIL JUDGE,

BANGALORE,

DISMISSING

THE

SUIT

FOR

PERMANENT

INJUNCTION.

THIS APPEAL COMING FOR HEARING ON THIS DAY THE

COURT DELIVERED THE FOLLOWING:

JUDGMENT

This appeal is directed against the judgment and decree

dated 09.09.2005 passed in O.S.No.9241/1998 by the XXII

Addl. City Civil Judge, Bengaluru, wherein the suit of the

plaintiff for mandatory injunction came to be dismissed.

Being aggrieved by the said judgment and decree, the plaintiff

is in appeal.

2.

In order to avoid confusion and overlapping, the

parties herein are addressed with reference to their ranks and

status stood before the trial Court.

3.

The

plaintiff

has

filed

original

suit

in

O.S.No.9241/1998 against the defendant seeking mandatory

and permanent injunction. She claims that she is absolute

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owner in possession of the suit schedule property consisting

of vacant site bearing No.107 forming part and parcel of

residential layout in Sy.Nos.68/3, 69/1A 2 and 69/1C of

Saneguruvenahalli Village, Magadi Road, Bengaluru North

Taluk. The schedule property according to the plaintiff

measures east-west 80 feet and north-south 50 feet. The

plaintiff claims that the same was purchased from Ashtagram

House Building Co-operative Society Ltd., under registered

sale deed dated 26.08.1991.

The defendant is stated to be the owner of the site

bearing No.3/1 measuring east to west 40 feet and north to

south 25 feet. The plaintiff further claims that the defendant

without any approved plan and other enabling legal

documents, made illegal construction over his site without

leaving any set back and the defendant also demolished the

compound that was got constructed by the plaintiff on the

northern side of suit property to an extent of 3 ½ feet east to

west and 4 ½ feet north to south and has further put up a

compound wall over the said encroached portion without the

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knowledge of the plaintiff. The cause of action is claimed on

30.11.1998,

when

the

plaintiff

came

to

know

of

encroachment, demolition and reconstruction.

4.

The defendant has resisted the suit of the plaintiff

and denied the encroachment and illegal construction. He

claims that he is in peaceful possession and enjoyment of the

property since 1996 and is not aware about the site on the

western side of the suit property.

5.

The learned trial Judge considered the matter on

the aspects of encroachment of 3 ½ X 4 ½ feet, interference,

mandatory injunction. The learned trial Judge was

accommodated

with

the

oral evidence

of

P.W.1

and

documentary evidence of Ex.P1-General Power of Attorney,

Ex.P2-Registered sale deed, Ex.P3-Certificate issued by City

Corporation,

Bangalore,

Ex.P4-Letter,

Ex.P5-Possession

Certificate, Ex.P6-Police Complaint, Ex.P7 to P9-Photographs,

on behalf of the plaintiff and oral evidence of D.W.1 i.e.,

Annayappa, and documentary evidence of Ex.D1-Affidavit,

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Ex.D2-Notice, Ex.D3-Khatha, Ex.D4-Extract of the property

re