SAROJINI J. SHETTY Vs. HENRY SALVADORE D SOUZA

JUDGEMENT

(1.) Heard the appellant's counsel. This appeal is filed challenging the judgment and decree passed in O.S.No.118/2001, wherein declining to pass an order to remove the compound as claimed by the plaintiff. The Trial Court comes to the conclusion that Commissioner has pointed out that the said compound is not within the property of the plaintiff and the same is within the property of the defendant and granted the relief in respect of other aspects what the plaintiff has sought, but declined to grant the relief to remove the compound wall. Being aggrieved of the said order, an appeal is filed before the First Appellate Court and First Appellate Court also on re-appreciation of both oral and documentary evidence, particularly taking into note of the survey conducted by the advocate, Court Commissioner with the help of the surveyor, demarcated the property of the plaintiff and defendant and also taken note of certain trees are situated within the property of the plaintiff and so also defendant and defendant No.3 also in paragraph No.30 taken note of with regard to putting up of the compound wall is also not disputed by the first defendant, but the very survey report marked as Ex.C12 is very clear with regard to the surveyor sketch that the construction of the compound wall and the same is within the property of the defendant and the same is also taken note of by the First Appellate Court in paragraph No.32.

(2.) Though counsel appearing for the appellant would vehemently contend that both the Courts failed to consider the material on record and substantive question of law arises for the Court for declining mandatory injunction for removal of the compound wall and this Court has to frame the substantive question of law with regard to not granting of mandatory injunction.

(3.) Having heard the appellant's counsel and also on perusal of the material on record, both the Courts comes to the definite conclusion that the compound wall is within the property of defendant No.1 and taken note of the Commissioner's report with regard to the said fact, but not cross-examined the Commissioner to substantiate the contention and when the Commissioner was also not cross- examined with regard to the objected portion of the Commissioner's report and hence, I do not find any error committed by the Trial Court as well as the First Appellate Court in appreciating both oral and documentary evidence available on record with regard to the very existence of the compound wall as contended by the plaintiff and question of removing the compound wall does not arise and when the Commissioner report is very clear that compound wall is in existence within the property of defendant No.1 and hence, no merit to admit and frame any substantive question of law.