1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN REGULAR FIRST APPEAL NO.2094 OF 2018 (INJ) BETWEEN SRI.P. VIJAYASHEKAR S/O PAUL RAJ AGED ABOUT 51 YEARS, R/A NO.19, WHEELER ROAD, FRAZER TOWN BENGALURU-560005. ...APPELLANT (BY SRI.SURESH S. LOKRE, SR. COUNSEL FOR SRI. SHRAVAN S. LOKRE, ADVOCATE) AND 1 . SMT. HELEN D FERNANDES W/O DONATH FERNANDES, AGED ABOUT 65 YEARS R/A NO.14, GOVER ROAD, COX TOWN BENGALURU-560005. 2 . SRI. DONATH FERNANDES S/O PASCAL FERNANDES AGED ABOUT 68 YEARS R/A NO.14, GOVER ROAD, COX TOWN BENGALURU-560005. …RESPONDENTS (BY SRI.N. P. AMRUTHESH, ADVOCATE FOR R1 AND R2) 2 THIS REGULAR FIRST APPEAL IS FILED UNDER SEC.96 OF CPC., PRAYING TO A) CALL FOR THE RECORDS IN O.S.NO.8032/2009 RESULTED IN PASSING OF JUDGMENT AND DECREE BY THE LEARNED VIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-15), BENGALURU, B) SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE VIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-15), BENGALURU; DATED 01.06.2018 IN O.S. NO.8032/2009 BY ALLOWING THIS APPEAL WITH COSTS THROUGHOUT. THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 24.02.2025, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE K.NATARAJAN CAV JUDGMENT This appeal is filed by the defendant under Section 96 of CPC for setting aside the judgment and decree passed by the VIII Addl. City Civil and Sessions Judge (CCH-15), Bangalore in OS No.8032/2009 dated 01.06.2018. RESERVED FOR ORDERS ON: 24.02.2025 PRONOUNCED ON 24.04.2025 3 2. Heard the arguments of learned senior counsel for the appellant and learned counsel for respondents. 3. The appellant was defendant and the respondents were plaintiffs before the Trial Court. The ranks of the parties are retained for convenience. 4. The plaintiffs filed the suit against the defendant for restraining the defendant from interfering with the plaintiffs’ peaceful possession and enjoyment of ‘A’ schedule property and for mandatory injunction directing defendant to remove encroachment all along eastern wall of the plaintiffs’ ‘A’ schedule property and to remove the construction projecting in the set back area on the northern side of ‘B’ schedule property and pay the damages of Rs.2,00,000/-. 5. The plaintiffs contended that they are the owners of the schedule property having purchased it under the sale deed dated 31.07.2004 and defendant is the owner of neighboring property bearing No.28/1, which he has purchased it from the pervious owner on 18.06.2007. The said property measures 13 ft. East-West and 80 ft. 4 North-South and lies to the East of the plaintiffs’ property, which is described as ‘B’ schedule property. The entire eastern wall of the plaintiffs’ touches the western wall of the defendant’s property. The two properties are portions of old building built of mud and mortar. 6. It is contended that in December 2007, the defendant demolished his property without informing the plaintiffs, which resulted in damage to the eastern side of plaintiff’s wall. The defendant put up the construction of a wall by encroaching a portion of the plaintiffs’ wall. The set back is also not left by the defendant. It is contended that approximately 12 inches X 80 ft. of the original wall was encroached out of 16 inches, due to which there was damage in the wall. The municipalities also have not taken any action and therefore, the suit came to be filed. 7. The defendant appeared and filed Written Statement contending that the suit of plaintiff is not tenable. He contended that he has purchased the vacant site and put up construction and he has not damaged the wall of the plaintiffs. He has constructed the building in 5 accordance with law. The old property is adjoining to each other and it was common wall. The defendant has put up the wall on east side of the property and hence, prayed for dismissing the suit. 8. Trial Court framed issues and additional issues as follows: Issues "1. Whether plaintiff proves he is lawful possession over suit schedule ‘A’ property as on the date of suit? 2. Whether plaintiff proves defendant has put up construction all along eastern wall of plaintiff schedule ‘A’ property? 3. Whether plaintiff proves defendant has put up construction projecting in the set back area on the northern side of ‘B’ schedule property? 4. Whether plaintiff is entitled for the relief sought for? 5. What order or decree? Additional Issues framed on 30.03.2018 1. Whether plaintiff proves that he had sustained damages to the suit schedule ‘A’ property as alleged? 2. Whether plaintiff is entitled for relief of damages as sought?” 6 9. To prove his case, the plaintiff No.2 examined himself as PW-1. He also examined PW-2 and got marked 28 documents. On the other hand, the defendant examined himself as DW-1 and got marked 2 documents. 10. After hearing the arguments, Trial Court decreed the suit in favour of the plaintiffs. The Trial Court directed the defendant to remove the encroachment all along the eastern wall of the plaintiffs’ 'A' schedule property and to remove the construction portion projected in the set back area on the northern side of his property i.e. ‘B’ schedule property and damage of Rs.1,00,000/- has also been ordered. Being aggrieved by the same, the defendant has filed this appeal before this Court. 11. Learned Senior Counsel for the defendant has contended that the Trial Court has committed error in decreeing the suit in favour of the plaintiffs, in spite of the evidence led by the defendant. The municipality has also verified the documents and defendant has put up the construction on his portion of the site purchase from his vendor. Therefore, question of granting decree does not 7 arise. Even some portion of the property was not constructed by the defendant. Hence, prayed for allowing the appeal. 12. Per contra, learned counsel for the plaintiffs supported the judgment of the Trial Court and contended that the plaintiffs are successful in proving their case by producing the documents, report of the engineer and photographs etc., Therefore, it is contended that defendant is required to remove the encroached portions of the property in the common wall and hence, prayed for dismissing the appeal. 13. Having heard the arguments and perused the records, the points that arise for my consideration are as under: i) Whether the plaintiffs prove that defendant encroached a portion of the wall belonging to the plaintiffs property in ‘A’ schedule, while constructing the ‘B’ schedule property? ii) Whether the judgment of Trial Court calls for any interference? 8 14. Upon hearing the arguments and perusal of the records, especially photographs, it is admitted fact that the plaintiffs are the owners of ‘A’ schedule property and defendant is the owner of ‘B’ schedule property. It is also admitted fact that previously ‘A’ and ‘B’ schedule properties were one old building belonging to common ancestor and there is a common wall measuring 16 inches x 80 ft. From the evidence on record and the documents especially sale deeds of the parties, it is seen that the common wall between two properties should be shared equally. That means, the plaintiffs are entitled to use 8 inches x 80 ft. and the defendant is entitle to use 8 inch x 80 ft. But, as per evidence of PW-2 and the documents produced by the plaintiffs, the defendant has put up a wall of 12 inches, instead of 8 inches. Thereby, the defendant has put up a wall encroaching 4 inches out of 8 inches entitled by the plaintiffs. The Trial Court in paragraph No.18 has considered the evidence of PW-2 and Ex.P-7 and has categorically held that the appellant-defendant has constructed a building and the wall to the extent of 12 inches out of 16 inches. Thereby, the 8 inch wall belonging 9 to the plaintiffs was reduced to 4 inches, due to which there was damage done to the plaintiffs’ wall and the building. Thereby, the Trail Court has rightly held the issue Nos.1 to 3 in favour of the plaintiffs. 15. The defendant has contended even during the course of argument that he is ready to pay the damages as well as value of 4 inch wall etc., but, the plaintiffs have not agreed for settlement. Considering the facts and circumstances of the case, the defendant has to demolish the wall constructed by encroaching 4 inches over and above, which belongs to plaintiffs’ portion. Therefore, the defendant is required to remove the encroachment made by him. Merely, because the plaintiffs have not put up any construction, the same cannot be a ground for allowing the appeal. Apart from that, there is no set back left by the defendant and the photographs reveal that he has put up the construction, whereas the plaintiffs have suffered the damage of eastern wall. Therefore, I am of the opinion that there is no illegality or error in the finding of the Trial Court in granting decree in favour of the plaintiffs. Hence, 10 the judgment and decree passed by the Trial Court do not call for interference. 16. Accordingly, the appeal filed by the defendant is hereby dismissed. Sd/- (K.NATARAJAN) JUDGE NJ CT:SI