N.L. SOMASHEKARAIAH AND ORS. Vs. C. LAXMIDEVI

JUDGEMENT

(1.) THE case of the plaintiff is that she is the absolute owner of the shop bearing Old No. 101, 102, New No. 238 situated at Subedar Chatram Road, Bengaluru - 9. She purchased the property from one Smt. D.N. Punuyamba, alias Puniya Shivashankar and two others under a registered sale deed dated 28.09.1971. The vendor of the plaintiff had purchased the suit property from its original owner Sri. D.M. Veerappaji, under a registered Gift Deed dated 12.04.1973. He built the property at Site No. 159, measuring east to west 75 feet and north to south on the western side 47.6 feet and eastern side 45 feet.

(2.) THE defendant is the owner of the property bearing No. 237, in the northern side of the suit property. The northern wall of the suit property bearing No. 238 belongs to the plaintiff. In 1958, the defendant along with his mother Smt. Parvathamma appears to have encroached the northern wall of the property, which then belonged to Sri. M. Veerappaji, to an extent of 3 feet X 18 feet. The defendant is said to have encroached upon the northern side of the property to an extent of 4 feet and certain portion of roof rested on the plaintiff's property. Therefore, D.M. Veerappaji filed the suit in O.S. No. 627/1958, seeking for mandatory injunction for removal of such encroachment Chajja and removal of the roof resting on the plaintiff's wall and for possession of 3 feet by 18 feet as shown in the B.C. line to the plaint sketch.

(3.) ON service of suit summons, the defendant entered appearance and filed his written statement. He contended that the suit of the plaintiff is frivolous and not maintainable. That the property of the defendant is an ancestral property and there is no dispute with regard to site No. 159, measuring east to west 75 feet, and north to south on the western side 47.6 feet and on the eastern side 45 feet. That the northern wall of the plaint schedule property does not belong to the plaintiff. That there are independent walls to the property of the plaintiff and the defendant. That there is no common wall as alleged by the plaintiff. That the building of the defendant is a RCC building, with concrete and pillars. On the other hand, the property purchased by the plaintiff is a mud construction and that it has a mud roof.