T.B. BYRE GOWDA SON OF LATE T. BACHAPPA REPRESENTED BY HIS GPA HOLDER, SRI MURALI SON OF T.B. BYRE GOWDA Vs. R. FELIX COSTA SON OF LATE RAYMOND COSTA AND THE COMMISSIONER, BANGALORE DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) PETITIONER /Plaintiff has filed suit against Respondents/Defendants for permanent injunction, to restrain the 1st Defendant from putting up a compound wall within the area belonging to the Plaintiff and for a direction to the 1st Defendant, not to put wall and windows to the first floor on the chejja portion. He has also sought for mandatory injunction to remove the stone slabs put up inside the Plaintiff's area of 1.5' x 60' and the unauthorised construction on the chejja of the first floor. According to the Plaintiff, there is an encroachment to an extent of 1.5' x 60' in his property bearing site No. 360. The 1st Defendant has filed written statement and has contested the suit, wherein, he has denied the encroachment and has contended that, he has put up the stone slabs in his site.

(2.) BASED on the material pleadings, issues have been framed and parties have adduced evidence. Trial of the suit is complete.

(3.) SRI N.S. Sanjay Gowda, learned advocate appearing for the Petitioner contends that, the main controversy in the suit was, whether the Defendant had encroached the Plaintiff's site to an extent of 1.5' x 60'. Learned Counsel submits that, the suggestion made to the 1st Defendant that he had encroached upon the property of the Plaintiff to the said extent has been denied, in view of which, it is imperative for the trial court to have appointed' a commissioner to elucidate the issue in controversy in the suit between the parties. Learned Counsel further contended that, the reasoning of the trial court that, there is no ambiguity in appreciation of evidence adduced by both the parties, requiring clarification by the commissioner, is whoily an erroneous view of the matter since the record of the suit discloses otherwise. Learned Counsel contends that, the trial court has not exercised the jurisdiction in the correct perspective and on account of the misdirection adopted to the matter, the impugned order has been passed, which in the facts and circumstances of the case, is irrational.