Full Judgment
1. This second appeal is by the plaintiff having lost his suit for mandatory injunction and for permanent prohibitory injunction following the dismissal of the suit filed by him and the lower appellate court concurring with the trial court by dismissing his appeal. The concurrent findings therefore form the backdrop for filing this second appeal.
2. The facts in brief are that the plaintiff filed the suit seeking the relief of mandatory injunction directing the respondent-defendant herein to remove the lavatory pipe affixed tot -the suit property and also to remove the unauthorized construction put up towards the west of the plaintiffs house and to prevent the respondent- defendant by an order of prohibitory injunction from obstruction the plaintiff in any manner. The said relief of the plaintiff was based on the footing that the plaintiff is the owner of the suit schedule property measuring east-west 25 feet and north-south 42 feet and it was the case of the plaintiff that he had put up a RCC house measuring east-west 22 ft. and north south 29 ft. The respondent-defendant, being the owner of the property which exists to the west of the suit property, attempted to construct a building by making use of the plaintiffs suit schedule property and without leaving set back of at least 1 lA ft. from the western side, the defendant tried to put up staircase and sajja. Following the defendant refusing to stop his interference, the suit was filed for the aforesaid relict.
3. The stand of the defendant was that he had put up the construction in the property that belonged to him and the defendant's property measures 25 ft. x 60 ft. and the suit schedule property does not belong to the plaintiff and, therefore, the suit of the plaintiff be dismissed. The defendant, therefore, took up the stand that he had not encroached upon the plaintiffs property, but he contended that the property purchased by the defendant also included IV1 ft. on the western side, which is ond.
4. The aforesaid pleadings of the parties led the trial court to frame five issues and the burden was put on the plaintiff to establish that the defendant had constructed the house on the western side of the suit property without leaving IV2 ft. set back and this issue was answered in the affirmative. However, the other issues-2, 3 and 4 were he'd against the plaintiff and finally the suit of the plaintiff was dismissed. The lower appellate court concurred with the trial court and the plaintiff s appeal was dismissed.
5. This court, while admitting this appeal, raised the following substantial question of law:
"Whether the courts below were justified in refuting to grant a decree for injunction and mandatory injunction after holding that plaintiff is the owner of the suit schedule properties and the defendant has put up construction on his entire property and the stair case and other constructions are now being put up in the one and a half space left by the plaintiff, which is evidenced by the Commissioner's report?"
6. I have heard learned counsel for the appellant-plaintiff Shri C.N.Satyanaiayana Shastiy and learned counsel for the respondent-defendant Smt. Archons Murthy and perused the records of this case.
7. The submission of the appellant's counsel is that the courts below erred in not noticing the fact that the appellant-plaintiff had clearly established before the trial court through his evidence that his property measured 25 ft. x 42 ft. and, on the western side, the plaintiff had left, sufficient space as set back and had not put up the compound on the western side and taking advantage of this, the defendant had encroached into the plaintiffs suit property. It is also submitted that towards the eastern side, the plaintiff had encroached 1 Vi ft. of the land belonging to the Municipality but, that does not give the defendant right to trespass into the plaintiffs land on the western side. Referring to the evidence of P.W.I and D.W.I and also to the sale deeds Exs.P-1 and D-5. it is argued that both the courts were in error in not appreciating the evidence from proper perspective and the findings recorded by the trial court being contrary to the evidence on record and also contrary to the Commissioner's report, this court, in second appeal, has to interfere by setting aside the said findings of the trial court as affirmed by the lower appellate court.
8. On the other hand, the submission of the learned counsel for the respondent is that, both the courts have taken into account the evidence of the parties and the documents produced and regard was also had to the report of the Commissioner and, on going through the Commissioner's report, it can very well be inferred that the plaintiff has put up the construction exceeding the actual measurement of the plaintiffs site on east-west direction. By submitting that the measurement, of the east-west side of the plaintiffs property is 25 ft., it is argued that the Commissioner's report revealed that the plaintiff had put up the house on the east-west side and the measurement is 26 ft. and 11 inches and this itself shows that the plaintiff had exceeded the actual area that belong to him even as per sale deed Ex.P-1. As such, no error can be found in the view taken by the courts below and particular reference was made by the learned counsel for the respondent to paragraph-11 of the trial court's judgment. As such, the submission made is that the appeal lacks merit and no substantial question of law is also involved in this appeal.
9. Having thus heard the learned counsel for the parties, the substantial question of law raised, therefore, requires to be answered at this juncture.
10. It is not in dispute that the plaintiffs property actually measures 25 ft. x 42 ft. even as per the sale deed Ex.P-1. It is the specific case of the plaintiff that his property measures 25 ft. east-west and 83 ft. north-south. The said property was divided equally between the plaintiff and his brother and, therefore, what fell to the share of the plaintiff was 25 ft. east-west and 42 ft. north-south. On this, there is no disagreement between the parties. Likewise, the property of the defendant measures 25 ft. x 60 ft. is also evidenced by document Ex.D-5 sale deed of the defendant. The plaintiff has ^approached the trial court for the relief of mandatory injunction and prohibitory injunction by contending that the defendant had encroached upon the plaintiffs area on the western side. It is, therefore, incumbent on the part of the plaintiff to establish that the open space between the houses of the parties actually belongs to the plaintiff.
11. With the aforesaid admitted facts in view, if one looks at the evidence placed before the trial court and also to the Commissioner's report, the following picture emerges. In the Commissioner's report, 2 ft. 10 inches of open space is indicated as being in existence between the property of the plaintiff and that of the defendant. The specific case of the plaintiff is that, he is the owner of the property measuring 25 ft. x 42 ft. Therefore, the plaintiff has put up the house in the aforesaid area.
Then, including the set back area, the whole of the property of the plaintiff cannot exceed 25 ft. x 42 ft.
12. The report of the Commissioner was also considered by both the courts. It s Ex.C-7 The learned trial judge, referring to the Commissioner's report, has opined that the measurement of the plaintiff s house including the compound wall is between 26 ft. 7 inches to 26 ft. 11 inches on the east-west side. No doubt, the plaintiff has given explanation by stating that on the eastern side, the plaintiff has encroached the property of the Municipality by about IV2 ft. The Commissioner's report also reveals that the defendant's house on the eat-west side measures 24.9 ft. i.e., within 25 ft. Thus, insofar as 2 ft. 10 inches space lying between the houses of the plaintiff and the defendant is concerned, the trial court took the view that the Commissioner's report does not throw light on that aspect.
13. The lower appellate court also considered the above material and has observed in the course of its reasoning at paragraphs-12 and 13 that, when the measurement of the plaintiffs house on east-west direction is found to be 22 ft. and including the compound wall to be 26 ft. 7 inches, the lower appellate court, therefore, concluded that the contention of the plaintiff that the defendant had encroached upon the plaintiffs land on the western side cannot be accepted. The learned judge of the lower appellate court has also observed that even if the plaintiffs stand that he had encroached one foot of space belonging to the Municipality and has put up the compound wall on the eastern side has to be accepted, yet, even after giving allowance for the said encroachment, the measurement of the plaintiffs property on the east-west side will have to be within 25 ft. But, the Commissioner's report is to the contrary and it puts the measurement from east-west to 26 ft. 17 inches. It is on the aforesaid consideration of the evidence on record and the Commissioner's report that the learned judge of the lower appellate court found that the Commissioner's report has not done any good to help the case of the plaintiff but, on the other hand, the material on record leads to the conclusion that the plaintiff has failed to establish that IV2 ft. space on the western side of the plaintiffs property belongs to the plaintiff.
14. In the light of the aforesaid discussion of the evidence on record, the view taken by the courts below cannot be termed as perverse nor can it be said that the Commissioner's report has helped the case of the plaintiff but, on the other hand, the Commissioner's report itself has given rise to doubt the plaintiffs contention as regards the open space on the western side being part of the plaintiffs property.
15. In the light of the aforesaid discussion, the substantial question of law is answered in favour of the view taken by the courts below and the Commissioner's report has also led to the aforesaid view being taken by the courts below and, as such, I see no perversity of finding recorded by the trial court. The appeal, therefore, lacks merit and is dismissed.
The dismissal of this appeal, however, shall not come in the way of the plaintiff establishing his title over the open space and in such an event, the aforesaid observations shall not come in the way of the matter being dealt with in accordance with law.