TMI Blog2007 (12) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 4823/A-1 had encroached upon a portion - Plaintiffs purchased the said plots by a deed of sale dated 7.11.1984, whereas the date of purchase made by the defendants dated 17.8.1992 HELD THAT:- The High Court opined that the Trial Court could exercise discretion in this behalf. It is again one thing to say that the courts could pass an interlocutory order in the nature of mandatory injunction in exercise of its jurisdiction under Section 151 of the Code of Civil Procedure on the premise that a party against whom an order of injunction was passed, acted in breach thereof; so as to relegate the parties to the same position as if the order of injunction has not been violated, but, it is another thing to say that the courts shall exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in. 3. Plaintiffs Respondents filed a suit against the appellants praying inter alia for the following reliefs: (a) That the encroached portion of the suit property by erection of structure measuring 369 1/9 sq. yards be directed to be demolished at the cost and risk of Defendant No. 1 to 5 consequently defendants be further directed to maintain the rules of set-back in respect of his remaining construction enabling plaintiff to use and enjoy the free light and air to his property and similarly defendants No. 6 be directed to remove the sign board and the firm from the encroached area of the suit property. Further defendants be directed to give the respective vacant possession of the suit land to the plaintiffs. (aa) A decree of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding to the learned counsel for the plaintiff since CTS No. 4823/A1 is completely acquired by the Municipal Corporation Belgaum for Malmaruti Extension scheme then the property of the defendant no. 1 to 6 is not in existence in the name of defendants. But according to me since the defendant no. 1 to 5 also have purchased the property through a registered sale deed and also their vendors have also purchased the said property through a registered sale deed and as such it cannot be said that the property of defendants are not in existence. But at the same time the say of the defendant cannot be taken into believed (sic) that the CTS No. 4823/A17 and 4823/A18 are not in existence. When in the survey map as well as in other documents these prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... took into consideration the fact that the plaintiffs did not seek for any declaration of title, as noticed hereinbefore, opined that the question of title can be gone into in an appropriate suit. All the courts relied on Ex. P-35 which was allegedly produced by the appellants but were made use of by the respondents, wherein it had been shown that the chalta No. 63 was allotted in respect of CTS No. 4823/A-1, chalta No. 62-A was allotted in respect of CTS No. 4823/A-17 and chalta No. 62-B was allotted in respect of CTS No. 4823/A-18. 10. It is one thing to say that there does not exist any ambiguity as regards description of the suit land in the plaint with reference to the boundaries as mentioned therein, but it is another thing to say t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dian Evidence Act. The courts below, were, therefore, required to appreciate the evidence keeping in view the correct legal principles in mind. 13. The courts below appeared to have taken note of the entries made in the revenue records wherein the name of the Municipal Corporation, Belgaum appeared in respect of CTS No. 4823/A-1. We have, however, noticed that the learned Trial Judge proceeded on the basis that the said property may be belonging to the defendants appellants. The courts below not only passed a decree for prohibitory injunction but also passed a decree for mandatory injunction. The High Court opined that the Trial Court could exercise discretion in this behalf. It is again one thing to say that the courts could pass an i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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