Nagappa S/O. Basappa Amboji vs Vinayak Shantaram Tergaonkar
2022 Latest Caselaw 1033 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 24TH DAY OF JANUARY 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

              R.S.A.NO.100374/2014 (INJ)

BETWEEN

NAGAPPA S/O BASAPPA AMBOJI,
AGED ABOUT 74 YEARS,
OCC: AGGIRCULTURE,
R/O HOSUR GALLI IN HALIYAL TOWN,
HALIYAL TALUK,
DIST: U.K.581301.
                                             ... APPELLANT
(BY SRI SANTOSH B.MANE, ADV.)

AND

SRI VINAYAK SHANTARAM TERGAONKAR,
AGED ABOUT 68 YEARS,
OCC: BUSINESS,
R/O TILAK ROAD, HALIYAL,
REPRESENTED BY GPA HOLDER,
SRI UMESH SHANTARAM TERGOANKAR,
R/O TILAK ROAD, HALIYAL TOWN,
TQ: HALIYAL, DIST: U.K581301
                                           ... RESPONDENT

      THIS APPEAL IS FILED UNDER SECTION 100 OF THE
CODE OF CIVIL PROCEDURE, 1908, PRAYING THIS COURT TO
SET ASIDE THE JUDGMENT AND DECREE DATED 07.01.2014
PASSED IN R.A.NO130/2007 BY THE LEARNED SENIOR CIVIL
JUDGE, YELLAPUR SITTING AT HALIYAL INSOFAR REVERSING
THE WELL CONSIDERED JUDGMENT AND DECREE DATED
09.10.2007 PASSED IN O.S.NO.64/2006 BY THE CIVIL JUDGE
(JR.DN.), HALIYAL, IN THE INTEREST OF JUSTICE AND EQUITY.

     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                                   2




                        : JUDGMENT :

The captioned second appeal is filed by the

defendant questioning the divergent findings of the

Courts below insofar as the relief of mandatory

injunction is concerned.

2. The respondent/plaintiff filed a suit for bare

injunction against the appellant/defendant herein by

specifically contending that the present appellant/

defendant who is the adjoining owner of the property

bearing CTS No.1281 is trying to trespass and is laying

a foundation. The respondent/plaintiff further

contended that though several requests was made to

the appellant/defendant not to trespass and put up

construction by encroaching over his property,

however, appellant/defendant was not in a position to

give heed to the said request. Therefore the

respondent/plaintiff filed a bare suit for injunction in

O.S.No.64/2006. It is the specific case of the

respondent/plaintiff that the appellant/defendant was

served with summons and he did not chose to appear

and contest the suit. On the contrary he avoided the

summons and completed the construction during

pendency of the suit. Therefore the respondent/

plaintiff was compelled to seek a relief of mandatory

injunction by specifically contending that the

appellant/defendant has put up a new construction by

encroaching to an extent of 26.25 Sq.Mtrs., on the

western side of respondent/plaintiff's property.

3. Since appellant/defendant was hurriedly

putting up construction, the Trial Court was pleased to

appoint a Court Commissioner pursuant to an

application filed by respondent/plaintiff, which was

strongly objected by the appellant/defendant. The

Court Commissioner visited the spot and tried to

carryout commissioner's work in terms of memo of

instruction. However, the appellant/defendant did not

allow the Commissioner to carryout commissioner's

work. The Trial Court having taken cognizance of this

conduct by order dated 10.11.2006 provided police

protection and the Court Commissioner carried out his

commissioner's work and submitted the report as per

Ex.C.3.

4. The Trial Court having appreciated the oral

and documentary evidence, though granted relief of

injunction, however denied the relief of mandatory

injunction on the ground that Exs.C.1 to C4 do not

establish the alleged encroachment by the

appellant/defendant as alleged in the plaint.

5. The Trial Court was of the view that the

respondent/plaintiff has placed reliance on the

Commissioner's report vide Ex.C.3. The Trial Court has

led more emphasis on the fact that the temple which

is situated on the eastern side of the plaintiff's

property in CTS.No.1279 has also made

encroachment. Therefore the Trial Court was of the

view that the respondent/plaintiff has not taken any

action against the owner of the property bearing

CTS.No.1279. The Trial Court also found fault with the

Commissioner's report on the premises that he has

not verified the documents while preparing the Ex.C.4.

The Trial Court has also relied on the cross-

examination of plaintiff and also cross-examination of

Court Commissioner while examining the allegations in

regard to encroachment. The Trial Court has come to

conclusion that the report of Commissioner as well as

the sketch prepared by the Commissioner is not in

conformity with the ocular evidence of PW.1 as well as

averments made in the plaint. Therefore, on these set

of reasonings, the Trial Court has proceeded to

dismiss the suit insofar as relief of mandatory

injunction is concerned.

6. The respondent/plaintiff feeling aggrieved

by the judgment and decree of the Trial Court

preferred an appeal before the First Appellate Court in

R.A.No.130/2007. The First Appellate Court on re-

appreciation of ocular and documentary evidence on

record has reversed the findings of the Trial Court in

regard to encroachment made by the appellant/

defendant on the western side of the suit property

owned by respondent/plaintiff. The Appellate Court

having independently assessed the oral and

documentary evidence has not only meticulously

examined the Commissioner's report and survey

sketch but also given due consideration to the conduct

of appellant/defendant. The Appellate Court having

meticulously examined Ex.C.4, which is the survey

sketch and Ex.C.3, which is the report prepared by

Court Commissioner, has come to the conclusion that

the construction made by the appellant/defendant is in

fact in the encroached area of schedule property which

is owned by respondent/plaintiff.

7. The Appellate Court at paragraph No.21

has also recorded its finding that the Court

Commissioner has clearly indicated that the

appellant/defendant is in possession of more extent

than what is reflected in the records. The Appellate

Court has also referred to the photographs and has

found that the photographs also indicate that the

appellant/defendant has put up construction by

encroaching over respondent/plaintiff's property.

Therefore on re-appreciation of oral and documentary

evidence, the Appellate Court has recorded a

categorical finding that the Trial Court erred in relying

on some admissions in the cross-examination, which

had no bearing on the dispute between the parties. On

these set of reasons the Appellate Court proceeded to

reverse the finding of the Trial Court. Consequently,

the suit was allowed in entirety by holding that the

respondent/plaintiff is entitled for relief of mandatory

injunction against appellant/defendant.

8. Learned counsel appearing for the appellant

would vehemently argue and contend before this

Court that the Court Commissioner's report does not

depict the allegations of encroachment attributed

against appellant/defendant. He would submit to this

Court that there is lot of inconsistencies and

contradictions in the Commissioner's report and the

ocular evidence of plaintiff as well as Court

Commissioner. The Appellate/defendant has

succeeded in eliciting these inconsistencies during trial

and therefore, the Trial Court having taken note of

these significant details was justified in denying the

relief of mandatory injunction. The Appellate Court

erred in reversing the findings and conclusions of the

Trial Court, which is contrary to the evidence on

record. Therefore he would submit to this Court that

the judgment of the Appellate Court suffers from

serious perversity and therefore substantial questions

of law arise in the present case on hand. He would

also submit to this Court that the Trial Court has

rightly taken judicial note of the fact that there is in-

fact encroachment on the eastern side by temple and

therefore the Trial Court rightly refused to grant relief

of mandatory injunction in favour of respondent/

plaintiff. He would submit to this Court that the

commissioner's report cannot itself establishes the

allegation of encroachment and therefore the

Appellate Court erred in solely banking on

commissioner's report. On these set of grounds, he

would submit to this Court that, several substantial

questions of law would arise in the present case on

hand. He would also bring to the notice of this Court

that there is concurrent finding of the Courts below

that the temple which is situated on the eastern side

of respondent/plaintiff's property has made

encroachment and therefore, he would submit to this

Court that the judgment and decree of the Appellate

Court warrants interference at the hands of this Court.

9. Heard learned counsel appearing for the

appellant/defendant. Perused the judgment rendered

by the Courts below and also grounds urged in the

appeal memo.

10. Respondent/plaintiff filed bare suit for

injunction in O.S.No.64/2006. The material on record

would clearly indicate that the appellant/defendant

commenced with the construction in his property

bearing CTS No.1281, which is situated on the western

side on 18.04.2006 as per Ex.D.1. Therefore it is

clearly evident that the suit was filed on 20.04.2006

and summons was served on the appellant/defendant

on 21.04.2006. The materials on record also indicates

that the Trial Court granted an interim exparte

injunction on 20.04.2006 restraining the present

appellant/defendant from putting up construction by

encroaching on respondent/plaintiff's property. What

further emanates from the records is that despite

service of suit summons and temporary injunction, the

appellant/defendant did not appear on the date of

hearing which was fixed on 05.06.2006. This

compelled the Trial Court to place him as exparte. On

05.06.2006, the respondent/ plaintiff filed I.A.No.3

reporting disobedience.

11. The records further reveal that after about

two months of placing appellant/defendant as exparte,

the appellant/defendant appeared and filed his written

statement and made a statement that the half portion

of the construction is completed. These significant

details would reflect the conduct of appellant/

defendant. The construction which was being

commenced by appellant/defendant was not bonafide.

The malafide intentions of the appellant/ defendant

are quite tangible and the same borne out from the

records.

12. Now coming to the merits of the case, the

ocular evidence of respondent/plaintiff and the Court

Commissioner and the report submitted by the Court

Commissioner as per Ex.C.3 would throw substantial

light over the allegations in regard to encroachment.

On perusal of Exs.P.11 and 12, it is found that as on

the date of filing of the suit, the property owned by

respondent/plaintiff bearing CTS No.1280 is the

middle portion, on the eastern side the temple owns

CTS No.1279 and on western side, the

appellant/defendant owns property bearing CTS

No.1281. As on the date of the filing of the suit, the

photographs which are placed on record clearly

demonstrate that the appellant/defendant has dumped

some stones and has made arrangement to commence

with the construction. Ex.D.1 which is the approved

plan also clearly revels that the appellant/defendant

was required to leave three feet set back on the

eastern side of his property (i.e., western side of

respondent/plaintiff's property).

13. The Appellate Court on independently

assessing the oral and documentary evidence on

record, more particularly Ex.C.4, which is the survey

sketch and the commissioner's report as per Ex.C.3,

found that both the sketch and commissioner's report

tally with each other and there is no inconsistencies in

the survey sketch as well as report submitted by the

Court Commissioner as per Ex.C.3. The report and

sketch of the Court Commissioner clearly reveals that

the appellant/defendant has encroached area

measuring 26.25 Sq.Mtrs. The Appellate Court having

meticulously examined the cross-examination of DW.1

and having perused the photographs as per Ex.D.4

and sketch of Court Commissioner as per Ex.C.4 found

that the foundation is laid by the appellant/defendant

by encroaching over respondent/plaintiff's property.

The Court Commissioner's report also indicates that on

account of encroachment, the appellant/defendant is

in possession of excess area then actually is entitled to

and the same is found to be contrary to the records

pertaining to CTS.No.1281, which is the property

owned by appellant/defendant. Therefore, the

Appellate Court having meticulously examined the

clinching evidence on record has found that the finding

of the Trial Court that the respondent/plaintiff has not

succeeded in establishing the encroachment and the

Commissioner's report vide Ex.C.3 does not prove the

encroachment as alleged by respondent/ plaintiff is

perverse and the same is contrary to clinching

evidence on record. On these set of grounds, the

Appellate Court reversed the finding of the Trial Court

and consequently granted relief of mandatory

injunction.

14. As discussed in the preceding paragraphs,

this Court would concur with the findings of the Trial

Court in regard to the conduct of the appellant/

defendant. Though Court Commissioner was

appointed, the appellant/defendant objected and did

not allow the Court Commissioner to carryout

commission work. The highhandedness of appellant/

defendant would lead to an inference that he has

adopted all possible tactics to put up construction by

encroaching over respondent/plaintiff's property,

which was only after Court intervened and provided

police protection, the Court Commissioner was able to

carry out local inspection and submit a report to the

Court.

15. The contention of the appellant/defendant

that there is a encroachment on the eastern side and

therefore respondent/plaintiff is not entitled for

mandatory injunction is misconceived. We are

concerned with the encroachment made by the

appellant/defendant. The Commissioner's report is

absolutely clear and extent of encroachment is also

reflected in the report. It clearly states that the

appellant/defendant has encroached to an extent of

26.25 Sq.Mtrs. This evidence indicating encroachment

is not at all repelled by appellant/defendant by

producing rebuttal evidence. Therefore, the judgment

and decree of the Appellate Court in granting the relief

of mandatory injunction is in accordance with law.

16. The materials on record clearly indicate

that the appellant/defendants has taken law in his

hands and has highhandedly put up construction by

encroaching over the respondent/plaintiff's property.

The said encroachment is proved by producing cogent

and clinching evidence. The Trial Court misread the

evidence on record and has unnecessarily gone into

some minute details of cross-examination, which did

not have bearing on the ultimate conclusion of

encroachment as reflected in the commissioner's

report as per Ex.C.3. Therefore, no substantial

question of law arises and accordingly the appeal is

hereby dismissed.

Sd/-

JUDGE EM