CHENNARU NAGHBHUSAN RAO Vs. M RAMA RAO

JUDGEMENT

(1.) The appellant is the defendant who has filed the Second Appeal against the concurrent judgment and decree directing him by way of mandatory injunction to demolish the structure illegally constructed by the defendant encroaching the lane of the plaintiff to the extent of 4 1/4" in width and up to 4l' in length and to restore possession of the lane to the plaintiff within the stipulated period, failing which the plaintiff is to recover the vacant possession of the lane through the process of the court at the cost of the defendant and also directing the defendant by way of perpetual injunction not to make any construction or to interfere in the lane of the plaintiff in any manner.

(2.) The plaintiff preferred Title Suit No. 87/72 alleging that she along with one Shyamsundaramma, the widow of her husband's brother jointly purchased the house described in Schedule 'A' of the plaint by means of a registered sale deed dated 30-10-1943 from one P. Rajeswar Rao, the width of which was 45 cubits. There were open spaces on the east and west of this house as corridors for free passage to the backyard of the house. This document had been marked as Ext. 1 in the suit. That there was subsequently a partition between the present plaintiff and Shyamsundaramma as per Ext. 2 in which the eastern half portion fell to the share of the plaintiff and the Western half fell to the share of Shyamasundaramma and both the shares were demarcated by a dividing wall. The defendant after 27 years of the plaintiff's purchase, however, purchased his house in 1970 to the east of the eastern portion of the plaintiff and since encroached upon the vacant space of the plaintiff on the extreme east to an extent of 2'.9" x 40'6" x 7'09" in the space covered by EBCF indicated in the plan appended to the plaint schedule and constructed a brick wall of 26' in length and made a projection of its terraced building overhanding the vacant space of the plaintiff and constructed a stair case at the foot of the vacant space leading to the upstair opening ventilators in newly constructed walls and window. The plaintiff therefore had no other alternative but to file the suit with the prayer as indicated above. The further case of the plaintiff in the plaint was that since she was bed-ridden and being treated in the hospital as an indoor patient and there was nobody left in the house, the defendant took advantage of her absence in making such construction encroaching upon her land. She after coming to know of this illegal construction made protests and sent a telegraphic notice to the defendant on 8-7-1972 and another registered notice on the same day but both were returned as refused, after which she sent another letter by certificate of posting which she believes had been received by the defendant. The plaintiff had further averred in the plaint that she had given the approximate but nearly correct dimension while giving the details of the encroachment which of course is subject to corrections and verification by appointment of a commissioner for the purpose later. In para 6 of the plaint, the plaintiff had submitted that unless the encroachments are immediately removed and demolished and the vacant space is restored to its former position and the defendant is forbidden urgently by an injunction not to proceed with the construction and trespassing into plaintiff's property he would suffer irreparable injury and damage which cannot be compensated by money if awarded by way of damage and the plaintiff accordingly prayed in the suit : (i) forbidding the defendant by a perpetual injunction from trespassing into the plaintiff's property as described in the suit plaint Sch. 'A' and making constructions or otherwise interfering with her property; and (ii) issue mandatory injunction against the defendant compelling him to remove and demolish the encroachments made by constructions or otherwise made, on plaintiff's property, at his expense, and on his failing to do so, through this Court, and award such costs for such removal. (iii) Cost of the suit and any other relief in the circumstances of the case.

(3.) In the written statement filed by the defendant, the plaintiff's case was denied and the defendant urged that the constructions were made on his own land and not on the land of the plaintiff. The defendant denied the claim of the plaintiff that the width of the purchased land is 45 cubits. The defendant had asserted that he had received no notice from the plaintiff challenging the construction. The defendant in the written-statement has not asserted specifically that the plaintiff had purchased the property in the year 1943 whose width was 40' and not 45 cubits as claimed. He simply made an assertion that the plaintiff had purchased the property in 1943 whose width was not 45 cubits and that there was no loss of privacy of the plaintiff by such construction. The western portion of the old house on the first floor had windows with ventilators for over a century. In essence there was strong dispute between the parties both of whom claim the alleged encroached portion to be part of their own land. During the trial, a survey knowing Commissioner was deputed to the site of the disputed property who submitted his report (Ext. V) and the sketch map (Ext. IV) prepared by him. The learned Munsif, Berhampur had framed three issues which are as follows : 1. Whether the plaintiff had right, title and interest over the suit property ? 2. Whether the Plaintiff is entitled to the relief for permanent injunction as prayed for ? 3. To what relief?