defendant No.1 therein are in appeals.
2. The subject matter of the dispute being a 20
though they were tried separately before the trial Court.
3. The parties would be referred to as per their
ranks before the trial Court for the sake of convenience.
4. Brief facts of the case in OS No.5455/1996 are
Corporation went in vain. Therefore, the plaintiff-
Murthy seeking permanent injunction.
c) In OS No. 5455/1996 the plaintiff has sought
Akbar during pendency of O.S.No.10181/1982. The said
the decree. Contending that such illegal construction is
defendant No.1-P.Keshavan. The said Mohamed Akbar is
arrayed as defendant No.2 in O.S.No.7557/1994.
e) In OS No. 7557/1994 the plaintiff has sought
II. against the first defendant, second defendant and
the third defendant (i) for contempt of court for
violating the judgment/decree and the directions
passed in O.S. 10181/82, of the Hon'ble City Civil
Judge, Mayo Hall, Bangalore and (ii) send them to civil
prison and take such further action necessary in the
circumstances;
III. Grant costs of this suit, and further grant such and
similar reliefs deem fit under the circumstances in the
interest of justice and equity."
5. In O.S.No.7557/1994, the said Keshavan did
not file any written statement for considerably long time.
leave of the Court. The trial Court rejected the same by
in W.P.No.1024/2008. The writ petition also came to be
file a written statement got extinguished.
6. In O.S.No.5455/1996, defendant No.1-
any obstruction or encroachment by him. He contended
encroached on it by about 14 feet. Therefore, he alleged
hands. He distanced himself away from any knowledge of
O.S.No.10181/1982 as he was not a party to it. However,
from Mohamed Akbar and that he was his neighbour.
him and as such, the suit is liable to be dismissed.
7. Defendant No.2-Municipal Corporation filed its
are not within its knowledge. It denied the allegations of
encroachment and sought for dismissal of the suit.
8. Based on the above contentions, following
4. What Order or Decree?
1. Whether the plaintiff proves the existence of 20'
cross road as alleged by her to the west of her
property?
2. Whether the plaintiff proves that defendant No.1
has encroached 8*28' in the said road and put up
construction?
3. Whether the suit for mere mandatory injunction is
not maintainable?
4. Whether plaintiff is entitled for the reliefs sought
for?
5. What decree or order?
9. In both suits, the power of attorney holder of
the plaintiff-Pankajakshi was examined as PW.1. One
witness was examined on her behalf in O.S.No.5455/1996
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as PW.2. Exs.P1 to P42 were marked in O.S.No.7557/1994
and Exs.P1 to P32 were marked in O.S.No.5455/1996.
Defendant No.1 in O.S.No.7557/1994 being a Power of
Attorney Holder of defendant No.1 in O.S.No.5455/1996,
deposed in both the suits as DW.1. One witness,
M.R.Johans was examined as DW.2 in both these suits.
Ex.D1 to D34 were marked in O.S.No.7557/1994 and
Ex.D1 was marked in O.S.No.5455/1996.
10. After hearing the arguments,
O.S.No.5455/1996 was decreed on 23.02.2008 and
O.S.No.7557/1994 was decreed on 13.08.2009. Being
aggrieved, defendant No.1-Murthy, in O.S.No.5455/1996
approached this Court in RFA.No.429/2008 and defendant
No.1-P.Keshavan, in O.S.No.7557/1994 approached this
Court in RFA.No.861/2009.
11. On the appeals being admitted, the
respondent/plaintiff has appeared through her counsel in
both these appeals. The trial Court records have been
secured.
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12. The arguments by learned counsel Sri S.Shaker
Shetty, appearing for appellant in both the appeals and
the arguments by learned counsel Sri K.Ramesh Rao,
appearing for the respondent/plaintiff in both the appeals
are heard.
13. In RFA.No.861/2009, the appellant has filed an
application in IA.No.1/2023 for appointment of Court
Commissioner. The same was resisted by the respondent
by filing objections. The arguments on main appeal as well
as the application are heard.
Arguments:
14. Learned counsel appearing for the appellant
Sri Shaker Shetty has argued the matter elaborately on
the following aspects:
a) The injunction claimed in both suits is in respect
of the alleged encroachment on a public road. Therefore,
the remedy for an injunction in rem had to be sought by
invoking the provisions of Section 91 of CPC. It is
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submitted that the suit should have been filed in
representative capacity and therefore, the present suit is
not maintainable.
b) The road, which is the subject matter of the suit
is belonging to the Municipal Corporation and therefore,
the provisions of the Municipal Corporations Act are
applicable. As such, the suit is not maintainable since an
efficacious remedy is available under the said Act.
c) The Court fee paid is only in respect of one
prayer but there being two prayers, there is insufficient
Court fee paid. Such contention was raised by the
defendant in O.S.No.5455/1996 in paragraph No.11 of the
written statement. The trial Court should have framed a
preliminary issue in that regard and as such, the decree is
liable to be set aside.
d) The plaintiff-Pankajakshi never entered the
witness box, and it was the only her GPA Holder who
deposed before the Court. The GPA being of the year
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2001, PW.1 had no personal knowledge and therefore,
such evidence deserves to be discarded. In this regard, he
placed reliance on the judgment in the case of Janki
Vaishdeo Bhojwani and Another v. IndusInd Bank Ltd.,
and Others1.
e) In O.S.No.5455/1996, the Corporation has
contended that there is no such road in existence.
Therefore, there could not be any construction on the
alleged road by the defendants.
f) The plaintiff contends that the defendant No.1-
Murthy has stored construction material and it is only the
apprehension that he may construct a building. Therefore,
the trial Court has not appreciated the evidence in a
proper way. In fact, there is no such construction made by
the said defendant. The cross-examination of PW.1 was
not considered by the trial Court in appropriate manner
but only the conduct of the defendant was elaborately
AIR 2005 SC 439
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discussed. The trial Court has adopted different yardstick
for the plaintiff and the defendant.
g) It is submitted that the Sale Deeds at Ex.P2,
P4, P5 and P10 show that there is a road adjoining the
site. But the width of the suit road is not mentioned
anywhere. The site of the defendant measures 30 feet X
40 feet and there is no encroachment made by him even
to the extent of 1 inch. It is submitted that the
O.S.No.10181/1982 being an injunction suit simpliciter, it
has no effect on the present suit.
h) Lastly, he submits that to render justice in the
case, the application filed by the appellant under Order
XXVI Rule 9 of CPC seeking to appoint a Court
Commissioner to identify the suit road be allowed.
i) In support of his contentions, he placed reliance
on following decisions:
1. Mathew Phillips v. P. O. Koshy2 to contend that
when it is violation of the conditions of the building
AIR 1966 MYS 74(V 53 C 20)
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permission granted by the Municipal Corporation, it
is for the Corporation to take action. The case on
hand being the obstruction of the way to the
plaintiff's property, it is not a case of violation of
the building bylaws. As such the applicability cannot
be accepted.
2. M/s. Vora Automotives Pvt. Ltd v. Gopalrao
Namdeorao Pohre and Others3 is also a case of
violation of the building bylaws and the building
permission itself being in contradiction to such
bylaws, can very well be distinguished from the
facts of the case on hand.
3. Jaipur Vidyut Vitran Nigam Ltd. and Others v. MB
Power (Madhya Pradesh) Limited and Others4 is a
case where the Apex Court held that when a right is
created by a statute, which itself prescribes the
remedy or procedure for enforcing the right or
liability, resort must be had to that statutory
remedy. In the case on hand, there is no such
statutory remedy available to the plaintiff. The
Corporation has taken a stand that there is no such
suit road. Therefore, the above decision has no
applicability to the facts of the case.
AIR 1993 BOM 151
AIR 2024 SC 721
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4. Srikant Kashinath Jituri and Others vs Corporation
of city of Belgaum5 deals with the challenge to the
tax revision by the Municipal Corporation,
obviously, the suit was held to be not maintainable.
Clearly, the facts can be distinguished.
5. Janki Vashdeo Bhojwani and Another v. Indusind
Bank Ltd., and Others (AIR 2005 SC 439)-
lays down that the power of attorney holder cannot
depose in place and instead of the principal. It is
relevant to note that the law is clarified in a
subsequent reference to a larger bench in A C
Narayanan Vs State of Maharashtra and another6
where it was held that if the PA holder has personal
knowledge of the facts, he is at liberty to depose in
the matter. In the cases on hand, the PW1 is the
son of the plaintiff. This judgment also clarifies the
position laid in the judgment of S Kesari Hanuman
Goud Vs Anjum Jehan7 which is relied by the
appellants.
6. Vidhyadhar v. Manikrao and another8 lays down
that when a party to the suit so not enter the
witness box, adverse inference to be drawn. The
facts reveal that the defendant had not examined
(1994) 6 SCC 572
(2014)11 SCC 790
2013 AIR SCW 3561
AIR 1999 SC 1441
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himself or his power of attorney, to establish his
case. In the cases on hand, the PW1 is none else
than the son of the plaintiff.
7. Union of India and Others vs Vasavi Cooperative
Housing Society Limited and Others9 deals with the
burden of proof and holds that the revenue records
do not confer title and a declaration of title cannot
be based on revenue records. As there is no claim
for declaration of title in the present cases, this
judgment is of no relevance to the cases on hand.
8. Devasahayam (dead) by LRs vs P. Savithramma
and Others10 deals with the principle that a decree
without jurisdiction is nullity. It was a case for
eviction and the Rent Control Act being applicable,
a decree by Civil court was held to be nullity. This
Court having concluded that the trial Court had
jurisdiction, the decision is inapplicable.
9. State of Punjab and Others v. Dr. R. N. Bhatnagar
and Another11 lays down that a pure question of
law can be raised for the first time in the appeal.
There can be no qualms for this proposition. The
question of law regarding the jurisdiction is
considered and answered by this Court.
(2014) 2 SCC 269
(2005) 7 SCC 653
AIR 1999 SC 647
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10. Veeragouda and Others vs Shantakumar @
Shantappagowda12 lays down that the question of
Court Fee raised in the written statement needs to
be heard as preliminary issue, in accordance with
Order 14 rule 2 of CPC. In the case on hand (OS
5455/1996), it was not urged by the defendant that
it should be heard as preliminary issue. However
the trial Court has considered it and ordered to
draw the decree only if the Court fee is made good
by the plaintiff.
11. Rajendra Shankar Shukla and Others vs State
of Chattisgarh and Others13 deals with the role of
the local bodies and Town Planning authority in
formation of the lay-outs. Obviously, the role of the
Town Planning Authority, which formed the layout is
not in question in the present case. The appellants
have not produced any material to show that the
layout formed did not have the suit road at all.
Hence this decision is of no relevance to the cases
on hand.
12. Satheedevi v. Prasanna and Another14 deals
with the way the Court fee has to be calculated
when a document of title is sought to be annulled.
ILR 2009 KAR 887
(2015) 10 SCC 400
AIR 2010 SC 2777
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It was held that the value mentioned in the
document is relevant but not the market value.
Obviously, this judgment is not no relevance.
13. In State of Bihar and others Vs Sri Radha
Krishna Singh15 the Apex Court, in para 143
summarised the position of the effect of a judgment
in personam and a judgment inter-partes. It is
relevant to note that an admission given by the
previous holder in title of the property of the
property of the defendant is a relevant fact, albeit
the judgment may not be in rem. Evidently, the
statement made by the vendor of the defendants
was ante-litem, so far as the defendants are
concerned.
14. Nagindas Ramadas Vs Dalpatram Ichharam
alisas Brijram16 is a case which dealt with the
admissions made in pleadings and evidence. It was
held that admissions made by parties at or before
hearing of a case are on higher footing than
evidentiary admissions. In the case on hand, the
admission by the vendor of defendant No.1 in an
earlier proceeding, that too in the pleadings is
obviously on the higher footing. Therefore, this
judgment is helpful to the case of the plaintiff.
AIR 1983 SC 684
(1974) 1 SCC 242
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15. Per contra, learned counsel appearing for the
respondent/Plaintiff has submitted his elaborate
arguments on following aspects:
a) The vendor of the appellants admits in the
written statement filed in O.S.No.10181/1982, which is at
Ex.P12, that there exists a 20-foot suit road. This aspect
has been considered by the trial Court in
O.S.No.5455/1996 elaborately. When the vendor of the
appellants has categorically admitted in his pleadings the
existence of 20 feet width suit road, there is no reason for
the appellants to dispute the same.
b) The requirement of the suit road is very much
essential for the plaintiff since she has no other alternative
road. On the other hand, the site of the defendants being
a corner site is accessible from the third main road and
therefore, the necessity is for the plaintiff.
c) The trial Court has precisely addressed the
question as to what the width of suit road is and has come
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to a conclusion that the width of such road is 20 feet. He
submits that the pivotal question that is required to be
addressed is width of the road and nothing else. If the
width of the road is held to be 20 feet, the illegal
construction of the defendants is liable to be removed.
d) He points out to the conduct of DW.1 and allege
that he being a purchaser during the pendency of the
earlier suit, is bound by finding in the said suit. Despite
that, he purchases the site from Mohamed Akbar and
therefore, the findings and the conclusions are binding
upon him.
e) It is submitted that in O.S.No.5455/1996,
Sri.Keshavan is the GPA Holder of Mr.Murthy. They are
relatives and therefore, his evidence is of collusive nature.
f) It is submitted that the Corporation was a party
before the trial Court but for the best reasons known to
the appellants, they have not arrayed the Municipal
Corporation as a necessary party in the appeal. Therefore,
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they cannot contend that the provisions of the Municipal
Corporation Act should have been invoked by the plaintiff.
g) So far as I.A.No.1/2023 is concerned, he
submits that a similar application was filed before the trial
Court and it came to be dismissed and later, such order
came to be confirmed by this Court also. It is submitted
that when the width of the suit road is reduced from 20
feet to 12 feet and the defendants admitting that there is
a passage of 6 feet, the alleged encroachment is
established and therefore, there is no need for
appointment of the Court Commissioner. He submits that
the alleged encroachment by the plaintiff and all such
other site holders on the eastern and western side of the
suit road having not been pleaded and such site holders
not being a party to the suit, the appointment of the Court
Commissioner would not be of any relevance. Therefore,
he seeks rejection of the application as well as dismissal of
the appeals.
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16. In the light of the above submissions, the
points that arise for consideration in both these appeals
are as below:
i) Whether there is need for appointment of the
Court Commissioner as prayed in
I.A.No.1/2023 in RFA No.861/2009?
ii) Whether the trial Court was right in holding
that the suit road is 20 feet vide?
iii) Whether the grant of mandatory injunction by
the trial Court is proper?
17. The fact that both the appellants are the
purchasers of site Nos.28 and 47 from one Mohamed
Akbar, who was the defendant in O.S.No.10181/1982 is
not in dispute. Obviously, the said Mohammed Akbar is
defendant No.2 in O.S.No.7557/1994. He has not filed any
written statement despite he had resisted the
O.S.No.10181/1982. Evidently, the said suit came to be
decreed and has attained finality.
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18. It is also an admitted fact that the said
Mohamed Akbar had filed a suit in O.S.No.1326/1982
against the plaintiff and another, and the said suit came to
be dismissed for non-prosecution. By virtue of these
proceedings, the fact that emerges is that there exists a
road in between the site of the plaintiff and the two sites
belonging to the defendants/appellants. The only question
would be what the width of the said road is and whether
there is encroachment as contended by plaintiff.
Reg. Point No.1:
19. It must be observed that in the written
statement of Sri.M.Murthy, the larger question that there
was encroachment by the plaintiff and that the
measurements of the sites on the western and eastern
side of the suit road is not raised. Now by filing an
application under Order XXVI Rule 9 of CPC, the appellant
wants to measure all the sites, which are situated on the
western side of the suit road to demonstrate that the site
purchased by Mohamed Akbar and later, by the appellants
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has the same dimension as mentioned in their sale deeds.
In other words, a contention which is not raised in the
written statement is sought to be brought before the
Court. As rightly pointed out by learned counsel for the
respondent, the owners of all the sites are not made
parties to the suit. Therefore, measuring the sites in the
layout and then to conclude whether there existed a 20
feet-width suit road would be futile exercise. It would not
help the Court in rendering effective judgment.
20. Moreover, such an application was filed before
the trial Court and the trial Court had dismissed the same.
It was challenged before this Court in WP No.7193/2009
and it also came to be dismissed.
21. It is pertinent to note that the Court
Commissioner for measurement of the property would be
a proper remedy if the evidence is insufficient or such
report is necessary to elucidate the matter which is
brought on record. When there is evidence to show that
there existed a 20 feet road, as concluded by the trial
- 27 -
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Court, and also in a previous suit, it is not necessary to
appoint a Court Commissioner to render an effective
judgment. The measurement of the sites purchased by the
appellants and their adjoining holders would only result in
enlarging the scope of the suit. It would result in
ineffective and unwarranted facts to be brought on record,
bereft of pleadings. If any such contention was to be
taken, it was open for the appellants to implead all the
holders of the sites in the layout and take a call to
measure the entire layout afresh. Therefore, such an
argument by learned counsel appearing for the appellant is
devoid of any merit. Hence, the application deserves to be
dismissed and hence, it is dismissed. The point No.1 is
answered accordingly.
Point Nos.2 and 3:
22. As noted above, the fundamental question that
needs to be addressed is about width of the suit road. The
trial Court in both the suits filed by the plaintiff (which was
disposed of by two different judges) has concluded that
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there exists the road of the width of 20 feet. The first
judgment rendered is the one in O.S.No.5455/1996. In
this judgment, the trial Courts scans over the documents
produced by the plaintiff and after rejecting several of the
documents on the ground that they do not pinpoint the
width of the road, in paragraph Nos.14 and 15, it observes
as below:
"14. Ext.P.17 is a certified copy of the plaint presented
in O.S 10181/82 filed by the plaintiff against Mohd
Akbar for permanent injunction in respect of her
property and the schedule property. Ofcourse, the
western boundary of it is shown as just cross road. As
its width is not pointed out, the plaintiff cannot obtain
any benefit out of it. However, Ext.P.18 which is a
certified copy of the written statement presented in
the said suit by Mohd Akbar is of crucial importance
for the plaintiff for simple reason that in Para-5 of it
the defendant had categorically admitted the width of
the road as 20' clinching the issue in question. As the
1st defendant has derived his title to his property from
Mohd Akbar, he cannot differ from the said stand and
contend to the contra. Thus, Ext.P.18 has emerged as
a source of tangible help to the plaintiff.
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15. Ext.P.19 & Ext.P.19 (a) are the certified copy of
the Judgment and Decree rendered in O.S 10181/82.
The first issue that had been raised in the suit is of
some importance for the plaintiff as it relates to her
possession and enjoyment of the schedule road. The
very fact that the first issue was answered in the
affirmative would go a long way in sustaining her
claim. But so far as the width of the schedule road is
concerned, the plaintiff cannot expect any assistance
out of it. Exts.P.20 to P.25 are copies of the
representation, notices issued and postal
acknowledgments pertaining to them. Exts. P.26 to
P.30 are five photographs and Ext.P.26 (a) to Ext.P.30
(a) are their negatives. But except the fact they point
out the availability of some space in between the two
houses that are seen in them, they cannot forcefully
point out that it is a cross road. But as it lies in
between two houses, an inference that it is a cross
road is possible. Ext.P.31 is a certified copy of the
order sheet maintained in O.S.1326/82 filed by the
Mohd Akbar against the plaintiff and another. Ext.P.32
is a certified copy of the plaint presented in it. The fact
that it came to be dismissed for default is not in
dispute. Nevertheless, the fact that Ext.P.32 has lent a
helping had to be plaintiff cannot be lost sight of as it
makes a categorically and clinching reference to the
width of the cross road as 20'.
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23. After observing as above, it analyses the ocular
evidence and holds that the DW.1-Keshavan has audacity
in denying the suggestion that the width of the road is 20
feet in the face of the documents of his vendor which
admit the width to be 20 feet. Ultimately, it concludes that
it is not left with any doubt to say that the plaintiff has
established existence of the suit road of the width of 20
feet subject to encroachment, if any.
24. The perusal of Exs.P18 and P32 would clearly
establish that the vendor of the appellants, Mohammed
Akbar had admitted in his written statement that the suit
road measures 20 feet in width. The conclusions of the
trial Court in this regard cannot be faulted with.
25. So far as the judgment in O.S.No.7557/1994 is
concerned, the trial Court, after scanning over all the
documents available in paragraph Nos.16 and 17, the trial
Court observes as below:
"16. Ext.P.12 is the copy of the plaint in O.S
No.10181/82 filed by present plaintiff against the
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present defendant No.2. Mohamed Akbar, the vendor
of defendant No.1. Ext.P.13 is the written statement
filed by present defendant No.2 in the said case and at
more than one place he has categorically admitted
about the existence of 20' road to the west of
plaintiff's property. I find from Para-5 of Ext.P.13 that
at least at two places there is such admission made by
defendant No.2 in the present case as defendant in
that case. Now, it cannot be in the mouth of defendant
No.1 P.Keshavan to contend that there is no 20' width
road to the west of plaintiff's property, which is to the
east of property purchased by him only to contend
that there is a passage. It is a different aspect that the
present defendant No.2 has intelligently manipulated
first sale deed at Ext.D.1 and another sale deed in
favour of present defendant No.1 at Ext.D.2 to show
that in the first deed there is only a road on the east
of site Nos. 28 & 47 belonging to him and
subsequently only 6' common passage to the site
Nos.28 & 47 sold to present defendant No.1 P
Keshavan. The said sale deeds have no relevance and
more particularly when Ext.D.2 has come into
existence during the pendency of O.S No.10181/82
filed by present plaintiff against defendant No.2, the
vendor of defendant No.1. It is relevant to note from
the Judgment at Ext.P.14 in the said Original Suit that
the said suit for injunction was filed on 24.31982 and
was decreed on 1.10.1988. The present defendant
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No.1 purchased under Ext.D.2 only on 15.11.1985 an
area measuring 40*30' and obviously purchased
during the pendency of previous suit. Therefore, the
eastern boundary shown as 6' common passage in
Ext.D.2 is nothing but an idea coined by defendant
Nos. 1 & 2 to overcome the contention of the plaintiff
about the 20' width cross road to the east of property
if defendant No.2, later sold to defendant No.1, which
is to the west of plaintiffs property.
17. With the candid admission of present defendant
No.2 in the written statement in O.S No. 10181/82 as
per Ext.P.13, it is unequivocally established that the
plaintiff has successfully proved the width of the suit
road as 20' and therefore, I hold this point in the
Affirmative.
26. So far as the encroachment by the defendant-
Keshavan to the extent of 8 feet X 28 feet is concerned,
based on the principle of preponderance of probability, it
concludes that, such encroachment is proved. In
paragraph Nos.24, 25 and 26, it observes as below:
"24. If we compare Ext.D.6 - plan of defendant No.2
with the lay out plan at Ext.D.16, there seems to be
no much change. However, if we peruse Ext.D.5-the
approved sketch under which the present defendant
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NC: 2025:KHC:18338
No.1 constructed his building, it is obvious that he has
shown his site in a square manner and not as shown
in Ext.D.6 or Ext.D.16. It is also relevant to note that
a portion of the area has been dis-allowed by the
sanctioning authority and this aspect of the matter has
been admitted by D.W.2 at Para-8 of his cross-
examination.
25. Let me now examine the evidence of DW 2, who is
also a person residing in the nearby locality. He has
stated in his chief-examination that there is no 20'
width road adjacent to the property of plaintiff and
defendant Nos 1 & 2. However, in the same
alignment, after the main road, his property situate, is
admitted. He has admitted at Page 4 of his evidence
that to the east of his site, there was 20' wide cross
road and his site is site No.48. A perusal there was
Ext.D. 16 clearly shows the existence of plaintiff's
property, property of defendant Nos. 1 & 2 as well
that of this witness. He admits that there was a 20'
wide cross road running north south between the
properties of this witness and defendant No. 1 as well
the property of the plaintiff on the other. With this, it
is clearly admitted that there is existence of 20' width
road. He has also deposed at Page No.7 stating that
defendant No.1.Keshavan is making use 20' road.
However, he has made candid admission that he
recently measured the property of the plaintiff and
- 34 -
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one Kumari and came to know that these two ladies
have encroached on the road and as such, the width
of the road is not now 20'. He admits that the plaintiff
has to reach her house by passing through the said
20' road as picturised at Ext.D.32 - photograph. More
importantly, he has admitted that defendant No.1 has
constructed in the dis-allowed area. He admits that in
the sale deeds there is mention of 20' proposed road.
26. From the above, it is evident that this witness
admits the existence of 20' road as contended by
plaintiff and also that there is shortage of the width of
the road. He alleges that it is plaintiff Pankajakshi and
one Kumari, who have encroached the road. In the
absence of any defence by the defendants in the case,
the said theory is nothing but an introduction only to
defeat the case of the plaintiff and cannot be
accepted. It is evident that now the width of the road
is not 20' in full and therefore there is a probability of
it being encroached by defendant No.2, though D.W.2
deposes that it is the plaintiff herself, who has
encroached the road."
27. It is pertinent to note that there was no defence
by defendant Keshavan by way of written statement.
Therefore, the trial Court held that that there is more
probability in the case of the plaintiff rather than the
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argument addressed for the defendants. The documents
which were relied on by the parties in O.S.No.5455/1996
are the same documents which were also relied in
O.S.No.7557/1994. It is pertinent to note that in
O.S.No.5455/1996, the trial Court refused to grant the
relief of injunction to direct defendant No.2, not to
sanction the plan since it fetters the statutory powers of
the defendant No.2. It is worth noting that the exact
measurement of the alleged encroachment, viz, 8 feet X
28 feet is not conclusively established. In other words, the
judgment in O.S.No.5455/1996, which concerns the
property of Murthy, which is situated on the southern side
of the property of Keshavan, do not mention about any
encroachment. The plaintiff is not seeking any mandatory
injunction against the said Murthy. However, he contends
encroachment and seek mandatory injunction in respect of
the site No.47 owned by Keshavan (O.S.No.7557/1994).
28. If we see the photographs which are produced
in both these suits, especially, Ex.P30 in
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O.S.No.7557/1994, it is evident that the compound wall of
the plaintiff-Pankajakshi is parallel to the compound walls
of defendants-Murthy and Keshavan in both the suits and
are in a straight line. When there is no allegation against
Murthy of encroaching in the suit road to the extent of 08
feet and when the compound wall of Keshavan is also at
the same line of the compound wall of Murthy, it must be
held that there is no such encroachment of 08 feet into the
road. There is no conclusive evidence which shows that
there is encroachment of 8 ft X 28 ft as alleged.
29. This aspect was not appreciated by the trial
Court, since the trial Court went on the premise that the
defendant-Keshavan had not filed any written statement
and it heavily relied on the oral testimony.
30. Under these circumstances, the contention of
the plaintiff that Keshavan had encroached 08 feet into the
road would not be justifiable. If we see the photographs, it
appears that certain preparation for construction was
made by the defendants and building materials were
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stored, over which vegetation has grown. Therefore,
apprehending that the defendants may encroach into the
road, the plaintiff filed the suit.
31. It is also pertinent to note that in the building
permission produced at Ex.D5 in O.S.No.7557/1992, the
entire site of the defendant-Keshavan is measuring 30 feet
in width and a portion which is protruding into the 06 feet
of the set back has been disallowed by the Corporation.
Thus, it can be seen that the Corporation had also acted in
preventing any deviation from the building bylaws.
Therefore, the conclusion of the trial Court that there is
encroachment of 08 feet by defendant Keshavan into the
suit road is not established. It is needless to say that when
mandatory injunction is to be granted, the Courts are to
be doubly cautious as it would result in economic
implications also.
32. Under these circumstances, the point No.2 is
answered in the 'Affirmative' and point No.3 is answered in
the 'Negative'.
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33. The learned counsel appearing for the
appellants has raised few other questions also:
i) Learned counsel for the appellants contended
that the plaintiff should have filed a suit under Section 91
of CPC. Since there is a bar, the trial Court had no
jurisdiction. The alleged encroachment by the defendants
into the suit road is affecting the rights of the plaintiff for
her ingress and egress. There are no other similarly placed
people who were aggrieved by the acts of the defendants.
Therefore, the plaintiff's personal rights are infringed and
as such, she filed the suit. There is no bar under Section
91 of CPC, which truncate the rights of an individual if
such individual rights are infringed. Therefore, this
argument of the learned counsel for the appellant cannot
be sustained. The sub-section 2 of Section 91 makes this
aspect clear.
ii) His second prong of the argument is that the
road is the property of the Corporation and therefore, the
provisions of the Municipal Corporations Act is applicable,
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whereby, a suit in the present form is impliedly barred. It
is worth noting that inaction on the part of the Municipal
Corporation to prevent the encroachment by the wrong
doers, if affects the rights of a citizen, he can very well
enforce his rights, so far as, his rights are concerned.
Therefore, simply because the allegedly encroachment is
in the road owned by Corporation, it cannot be said that
the suit is not maintainable. Nevertheless, the Municipal
Corporation was made a party in both suits.
iii) In OS.No.5455/1996, there were two prayers
and Court fee was paid for one prayer only and as such,
the suit was defective. This aspect was noticed by the trial
Court, and it has rejected the prayer for mandatory
injunction seeking direction to defendant No.2. A direction
was also issued that the decree be drawn only if fresh
valuation slip along with the necessary Court Fee is filed.
In pursuance to such direction, the deficit Court Fee was
also paid and as such, the trial Court has drawn the
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decree. In that view of the matter, this argument would
not survive.
iv) Since the plaintiff-Pankajakshi never entered
the witness box and only her GPA Holder had deposed, the
suit was liable to be dismissed. In this regard, he relied on
the judgment in the case of Vidyadhara Vs. Manik Rao
(referred supra). It is relevant to note that the power of
attorney holder, if has personal knowledge of the facts of
the case, can definitely depose in the matter but he cannot
depose the facts which were exclusively in the knowledge
of his principal. This position is clarified in the judgment of
the Apex Court in the case of A C Narayanan (referred
supra). In O.S.No.7557/1994, it is one Sri.Laveen who
deposed as PA holder of the plaintiff. It is also relevant to
note that he is none else than the son of the plaintiff.
Therefore, the son of the plaintiff deposing as PA holder of
the plaintiff cannot be found fault with. Even in
O.S.No.5455/1996, it is the said Laveen who has deposed
as PW.1. Hence, the judgment cited by the learned
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counsel appearing for the appellant can very well be
distinguished.
v) Nextly, he contended that the defendant No.2-
Corporation in its written statement contended that there
is no cross-road. Therefore, the case of the plaintiff is
unsustainable. It is pertinent to note that the defendant
No.2-Corporation nowhere stated that the layout plan is
incorrect. It only denied the plaint averments. However,
while granting the building permission, it noticed the
setback area and had disallowed the portion of the
building. This indicates that it had taken note of the suit
road on the eastern side of the property of the defendant.
Hence, this argument is not of any relevance.
vi) Learned counsel for the appellants points out
that in none of the sale deeds executed in favour of
Mohammed Akbar and in favour of Murthy or Keshavan,
the width of the road is not mentioned. Therefore, the trial
Court erred in holding that the width of the road is 20 feet.
The trial Court in both the suits categorically relied on the
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admission in the form of the written statement by the
erstwhile owner-Mohammed Akbar to hold that the width
of the suit road is 20 feet. The said Murthy and Keshavan
have derived the rights in respect of the sites owned by
Mohammed Akbar. The sale deed of Mohammed Akbar
though do not mention the width of the suit road, the fact
that the passage is 06 feet vide mentioned in the sale
deed of the defendant No.1-Murthy is nothing but an
afterthought to say that a portion of the road belongs to
the defendant No.1-Murthy. This aspect has been
considered by the trial Court in para-No.19 of the
judgment in O.S.No.5455/1996. Therefore, when
Mohammed Akbar had admitted the width of the suit road
to be 20 feet, it cannot be said that it was of the width of
only 06 feet.
vii) His last contention is that since
OS.No.10181/1982 was injunction suit simpliciter, it has
no effect on the present suit. In this regard, he relies on
the judgment in the State of Bihar Vs. Radha Krishna
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Singh17. In the said judgment it was held that a judgment
which is not inter-partes, is inadmissible in evidence
except for limited purpose of proving as to who the parties
were and what was the decree passed and the properties
which were subject matter of the suit. It is worth to note
that the factual background of the said case was in respect
of the genealogy of the family of the party in that case. In
the case on hand, the appellants are none else than the
descendents in title of Mohammed Akbar who had suffered
the decree in O.S.No.10181/1982. The decree in the said
suit injuncted the said Mohammed Akbar, his men and
supporters from interfering in the suit road. The appellants
having purchased the property from the said Mohammed
Akbar, the statements made by Mohammed Akbar in the
said suit become relevant. Therefore, the above judgment
cannot be made applicable to the facts and circumstances
of this case.
AIR 1983 SCC 684
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34. In view the aforesaid reasons, the
RFA.No.429/2008 deserves to be dismissed. However,
RFA.No.861/2009 deserves to be allowed in part and the
direction to pull down the compound wall cannot be
sustained. The injunction not to encroach into the suit
road alone is sustainable.
35. The defendants cannot obstruct the road
leading to the house of the plaintiff in any way. The
question whether they have constructed the compound
wall in accordance with the building permission accorded
by the Municipal Corporation and whether there is any
violation of the same is kept open, for which, efficacious
remedy is available under the provisions of the Municipal
Corporations Act. With these observations, the following
order is passed:
ORDER
IA.No.1/2023 filed in RFA No.861/2009 is
dismissed.
RFA.No.429/2008 is dismissed.
RFA.No.861/2009 is allowed-in-part.
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The mandatory injunction to pull down
the compound wall of defendant No.1 in
O.S.No.7557/1994 is rejected. However, the
defendants are restrained from interfering in
the use and enjoyment of the suit road by the
plaintiff or her family members to reach her
residential house. The impugned judgment and
award is modified accordingly.
In both the appeals, costs are made
easy.
Sd/-
(C.M.JOSHI)
JUDGE
NR/-
