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TMI Blog2007 (12) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 permanent injunction against defendants, their agents, their relative or any body on their behalf to interfere with the plaintiffs peaceful possession and enjoyment of suit property " 4. Respondents contended that they are owne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 properties are clearly demarcated and identified then according to me, these properties have been clearly demarcated in relevant records " 7. The High Court affirmed the said findings stating: "It is also clear from the perusal of the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dly 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 that the land in suit belongs to the respondents. It was for the plaintiffs to prove that the land in suit formed part of CTS Nos. 4823/A-17 and 4823/A-18. It was not for the defendants to do so. It was, therefore, not necessary for them to file an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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