U.S. RAMANANDA SHET Vs. ANASUYA SHET

JUDGEMENT

(1.) AGGRIEVED by the concurrent findings recorded by both the courts below in decreeing the plaintiffs' suit for declaration and mandatory injunction, the defendant No. 1 has filed this second appeal.

(2.) THE case of the plaintiffs is that the plaint 'A' schedule property has been allotted to their share, as per registered deed of partition dated 3/2/1984 entered into between U. Hari Shet and others. The plaint 'A' schedule property constitutes a portion of Sy.No. 111/3 measuring 6 cents of Shivalli Village, Udupi Taluk, which absolutely belonged on Mooli right to late U. Devanna Shet, paternal grandfather of plaintiffs 2 and 3; that Sy.No. 111/3 adjoins the suit schedule property and it belongs to the paternal grandfather of the defendant, namely late U. Shivaraya Shet. There is also a tiled residential building in the eastern 6 cents of Sy.No.111/3. The eastern wall of the said house is on the eastern most side of the plaint 'A' schedule property which runs north to south. The said eastern wall continues further to the south and divides the southern portion of Sy.No. 111/3 (eastern portion) from the southern portion of Sy.No. 111/3 (western portion). It has been in existence for the last 70 years and exclusively belongs to U. Devanna Shet. That the defendant appears to have purchased the eastern 6 cents in Sy.No. 111/3 with the building standing thereon, on 25/1/1991, in a court auction. During second week of May 1991, the defendant illegally started erecting a new room to the south of the building, without obtaining a license. The same was touching the eastern wall of the suit house. The plaintiff objected to the same, but the defendant continued the construction. The plaintiff issued a notice to the defendant requiring to remove the room, along with the foundation, being illegally constructed. It is the case of the defendant that it is only a temporary roof supported by pillars and that it is much above the eastern compound wall of the suit house. Since the concerned authorities did not take any action in the matter, the defendant continued to put up the construction. The plaintiff had complained to the Chief Officer of Udupi Town Municipality, seeking to take action against the defendant. Ex.D5 is the notice issued by the Municipality to the defendant, seeking for an explanation with regard to the illegal construction put up by him, to which he has replied, seeking for regularization, on the admitted fact that he has put up an illegal construction. The unauthorized construction put up by the defendant has been legalized by imposing compounding fee, by the Town Municipality. Hence he filed the instant suit seeking for a decree of declaration that the eastern wall of the residential building and its continuation on the south, up to the south -eastern most point of 'A' schedule property, forms part and parcel of the schedule property and for a mandatory injunction directing the defendant to demolish the western most portion of the southern room.

(3.) LEARNED counsel for the appellant contends that the impugned orders passed by both the courts below are erroneous. That the Trial Court committed an error in misreading the report of the Commissioner. That the Commissioner himself has stated that he is not clear as to where the defendant's room or the plaintiffs' property ends and commences. Hence the courts below committed an error in decreeing the suit of the plaintiff. On the other hand, learned counsel for the respondents defends the impugned orders.