(Prayer: Rsa Filed U/S. 100 Cpc., Against The Judgement' and Decree Dtd: 13-07-2009 Passed In R.A.No.66/2008 On The File Of The Addl. Civil Judge (Sr.Dn) Gadag; Sitting At Laxmeshwar, Dismissing The Appeal, Filed Against The Judgment Dtd:31-07-2008 And The Decree Passed In O.S.No. 19/2007 On The File Of The Civil Judge(Jr.Dn) and Jmfc., At Laxmeshwar, Dismissing The Suit Filed For Mandatory Injunction.)
1. The present appeal is filed under Section 100 of CPC challenging the concurrent findings of the trial Court bearing O.S. 19/2007 pending on the file of Civil Judge (Jr.Dn.) and JMFC at Laxmeshwar and confirmation of the same by the Civil Judge (Sr.Dn.) Gadag sitting at Laxmeshwar in R.A.66/2008.
2. The appellants herein were plaintiffs and respondents were defendants in the suit. Parties will be referred to as per their ranking before the trial Court.
3. Suit filed for relief of permanent injunction has been dismissed. The suit schedule property is described in the schedule appended to the suit. According to the plaintiffs, the open space existing in front of the house of the defendants bearing VPC No.500 measuring 16ft X 22^2ft bounded on the East by Government Road, West by property of the defendant in VPC 500, North by road existing in front of Hanumanthappa and South by road existing in front of house of Patel, in the suit property
4. According to the plaintiffs, suit schedule property measuring East to West- 16ft and North to South-22V2 feet is part and parcel of the Gram Thane and that defendants were attempting to put up construction thereon. Hence, they were forced to file a suit.
5. Defendants had appeared and filed detailed written statement denying the plaint averments. They had called upon the plaintiffs to prove the contents of the plaint.
6. On the basis of the above pleadings following issues had been framed:
a) Whether the plaintiffs proves that the defendants have attempted to illegally encroach the property
"ABCD" as indicted in the rough sketch to put up the construction
b) Whether the plaintiffs are entitled for the relief of permanent injunction ?
c) If so, what order or decree ?
Addl. Issue:
a) Whether the plaintiffs proves that the defendants have put up construction in the suit schedule property after filing of the suit ?
b) Whether the plaintiffs are entitled for the relief of mandatory injunction as sought for in the suit?
7. On behalf of the plaintiffs, in all 4 witnesses have been examined and 18 exhibits were marked. On behalf of the defendants, in all 3 witnesses were examined and 2 exhibits were marked.
8. Ultimately, all the issues have been answered in the negative and suit came to be dismissed. Against the said judgment and decree passed in O.S. 19/2007, regular appeal came to be filed under section 96 of CPC in R.A.66/2008 and the said appeal also came to be dismissed. Hence, these concurrent findings are called in question in this appeal.
9. The learned Counsel for the plaintiffs has submitted his arguments on the question of admission. After perusing the judgments of both the Courts, it is evident that PW-3 is unable to give the exact boundaries of the house of the defendants and he has admitted that the defendants have already put up new house as earlier house was in dilapidated condition. PW-2 has expressed his inability to give his details as to who has acquired property of defendant No.1. PW -1 has admitted that in front of the house of the defendants, there is an open space in which about 4 lorries can be parked
10. As rightly pointed out by the trial Court, the initial burden cast upon the plaintiffs has not been effectively discharged as contemplated under Section 101 of Evidence Act. Unless the initial burden cast upon the plaintiff is effectively discharged, the onus does not shift on the other side and this cannot be taken as advantage by the plaintiffs. If really the plaintiffs were sure that the open space absolutely belonged to them, nothing would have come in their way to get the open space clearly demarcated by getting a Commissioner appointed through the Court.
11. In a suit for injunction, the relief of mandatory injunction cannot be granted, unless it is specifically sought for. The plaintiffs themselves have mentioned that defendants have encroached the area measuring 16ft East to West and 22 V2 ft North to South to put up construction. Per contra PW-1 has admitted that there is open space existing in front of the house of the defendants in which 4 lorries can be parked. Therefore, a doubt arises as to whether the schedule space is part and parcel of the road as claimed by the plaintiffs. Though defendants have not been able to probabilise the case to the hilt, it is certain the plaintiffs have not been able to discharge the initial burden cast upon them to that effect.
12. The principles enunciated by the Hon'ble Supreme Court in Santosh Hazari, Vs. Purushottam Tiwari (dead) by Lrs reported in AIR 2001 SC 965 have been impliedly applied by the first appellate Court to confirm the factual finding given by the trial Court. PW-1 has admitted that there are no documents about the property owned by the defendants and neighbourers did not object when the defendants started construction. He has admitted that nobody objected when the defendants started to put up construction since the defendants started constructing in his own land.
13. What should be done in a case relating to the open space where the title of the open space, is seriously disputed has been well dealt by the Hon'ble Supreme Court in the case of Anathula Sudhakar vs P. Buciii Reddy (Dead) By Lrs and Ors reported in AIR 2008 SC 2033. If the title of the open space is specifically denied., the very suit for injunction will not be maintainable. Under such circumstances, filing of comprehensive suit for declaration of title with consequential relief of injunction or for mandatory injunction, if there is any illegal encroachment, alone is the remedy.
14. Taking into consideration the nature of suit and the evidence adduced by the parties, the trial Court as well as the First Appellate Court have adopted proper approach to the real state of affairs. There is no illegality in the assessment of material evidence placed on record. In this view of the matter, there is no merit in the appeal. Accordingly, the appeal is liable to be dismissed.
ORDER
The appeal filed under Section 100 of CPC challenging the concurrent findings of the trial Court bearing O.S. 19/2007 pending on the file of Civil Judge (Jr.Dn.j and JMFC at Laxmeshwar and confirmation of the same by the Civil Judge (Sr.Dn.) Gadag sitting at Laxmeshwar in R.A.66/2008 is dismissed as unfit for admission-, There is no order as to costs.