MOHAMMED GHOUSE v. R B SIDDALINGAIAH

Judgment

1. SAMIULLAH SHERIFF S/O.MOHAMMED GHOUSE AGED ABOUT 48 YEARS WORKING AS RPF CONSTABLE, 158, WAP, YELHANKA, BANGALORE-560064.

2. FAHAMAEED UNISSA SINCE DEAD REP. BY HER LRS (a) M.K.MOHAMMED YONUS S/O M.M. KHALEEL AGED ABOUT 59 YEARS (b) MOHAMMED KHWAJA S/O M.K. MOHAMMED YONUS AGED ABOUT 27 YEARS (c) MOHAMMED FURQAN S/O M.K.MOHAMMED YONUS AGED ABOUT 27 YEARS RESIDNG AT GF MAZIL, 4TH MAIN 11TH ‘A’ CROSS, SADASHIVANAGAR, TUMKUR. 2 (AMENDED VIDE COURT ORDER DATED 03.03.2022) 3 . NAVEEDUNISSA W/O. ILLYAZ AHMED AGED ABOUT 42 YEARS 5TH CROSS, GANDHINAGAR, MANDYA-571401. 4 . MAHAMADUNNISA D/O.MOHAMMED GHOUSE AGED ABOUT 36 YEARS C/O.SAMIULLAH SHERIFF, RPF CONSTABLE158, WAP, YELHANKA, BANGALORE-560064. … APPELLANTS [BY SRI ABHINAY Y.T., ADVOCATE FOR SRI K.PATEL MUNNEGOWDA, ADVOCATE FOR APPELLANT NO.2(a-c)] AND: 1 . R B SIDDALINGAIAH S/O BETTASIDDAIAH, MAJOR, THASILDAR, SAKLESHPUR TALUK HASSAN DISTRICT-573201. … RESPONDENT (BY SRI PRADEEP KUMAR R.H., ADVOCATE FOR SRI SHANMUKAPPA, ADVOCATE) THIS R.S.A. IS FILED U/S 100 CPC AGAINST THE IN JUDGMENT AND DECREE DATED 6.12.2005 PASSED R.A.NO.505/2004 ON THE FILE OF THE PRL.DISTRICT JUDGE, TUMKUR, DISMISSING THE APPEAL AND CONFIRMING THE IN JUDGMENT AND DECREE DATED 16.9.1998 PASSED O.S.NO.235/1987 ON THE FILE OF THE II ADDL.CIVIL JUDGE (JR.DN.), TUMKUR. 3 THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR THE COURT THIS DAY, JUDGMENT ON 13.02.2024 PRONOUNCED THE FOLLOWING: J U D G M E N T

1. Heard the learned counsel appearing for the appellants and learned counsel appearing respondent.

2. The parties are referred to as per their original rankings before the Trial Court to avoid confusion and for the convenience of the Court.

3. This appeal is filed by the plaintiff challenging judgment and decree dated 06.12.2005 R.A.No.505/2004 on the file of Principal District Judge, Tumkur.

4. The appellant is the plaintiff who filed the suit before the Trial Court seeking the relief of declaration to declare that plaintiff is the absolute owner of the suit schedule property by virtue of sale deed dated 26.10.1962 4 and also sought for the relief of mandatory injunction

directing the defendant to pull down the superstructure on the suit schedule property and delivery of the vacant possession of the suit schedule property to the plaintiff and for mesne profits and cost the relief deem fit to circumstances of the case. While seeking such relieves it is contended in the plaint that the plaintiff had purchased the property from its lawful owner Sri.Riyazathulla Shah Khalifa Rafal under the sale deed dated 26.10.1962 and he was put in possession of the same and also in possession of the same till a year ago. The plaintiff is a permanent resident of Nagavalli villaege, Hebbur Hobli, Tumkur Taluk. Taking advantage of the absence of the plaintiff at the spot, the defendant has illegally constructed a house in the suit schedule property about a year ago though the defendant has no manner of right, title or interest or possession over the suit schedule property. The plaintiff has got issued a legal notice dated 07.15.1987 calling upon the defendant to 5 pull down the structure and give him vacant possession of the schedule property. For this the defendant gave an evasive reply. The defendant in pursuance of the suit summons appeared before the Court and filed written statement denying the allegations made in the plaint. It is his contention that he built a house in the site which he had purchased. The vendor had originally purchased the property by one Noorjahan under registered sale deed dated 29.09.1962. Since that date, she was in possession of the property. The said Noorjahan was sold the property to Mustafa @ Ameer and Rahamathunnisa under registered sale deed dated 11.07.1963 and delivered possession of it to the purchaser. They were in possession of the property. In turn they sold it to one B.Samperraiah under registered sale deed dated 04.03.1970 and delivered possession to purchaser. He was in possession of this property. He sold it to Chinna Kotaiah under registered sale deed dated

17.08.1970 and delivered possession to purchaser. He was 6 in possession of the property and also mortgaged it to one Chinna Mallappa under a registered Bhogya deed dated

25.11.1971. That Chinna Kotaiah got this property alienated for building purpose under an order of Deputy Commissioner dated 12.06.1971. Thereafter, he got the khata of the property made in his name in the Municipality, Tumkur. The Municipality has given khata number to the property and Chinna Kotaiah discharged the mortgage under discharge bhogya deed dated 17.04.1978. He had built a hut on it and he was living in it. He has paid the municipal taxes to it from 1971 every year. He has sold this property to the defendant under registered sale deed dated

17.04.1978 and delivered possession of the same to the defendant. This defendant has been in possession of the property as absolute owner. He had constructed the residential house on after obtaining the license. He has been residing in the said house as absolute owner. It is his 7 claim that he was never in possession of the suit schedule property. The suit is barred by time.

5. The Trial Court taking into note of the pleadings of the plaintiff and defendant, framed the following issues and additional issues: ISSUES 1) Whether the plaintiff proves he is the absolute owner of the suit schedule property? 2) Is the plaintiff prove that he is entitle for mandatory injunction as prayed in the plaint? 3) Do the plaintiff proves that he is entitled for possession that he entitled for possession of the suit schedule property? 4) What order or decree? 8 ADDITIONAL ISSUES 1) Whether the defendant proves that he is perfected his title to the suit property by adverse possession ? 2) Is this Court has no pecuniary jurisdiction this suit as contended in para-5 of the written statement ? 1(a) Whether the plaintiff proves that defendants constructed his house on suit schedule property ?

6. The Trial Court given an opportunity to both the parties. The plaintiff examined the original plaintiff as PW1 and he passed away and his legal representatives are brought on record and also examined other four witnesses as PW2 to PW5. The plaintiff has also relied upon the document Ex.P1 to Ex.P14(a). On the other hand, the 9 defendant himself has been examined as DW2 and examined his vendor as DW1 and got marked Ex.D1 to Ex.D27. The commissioner was also appointed before the Trial Court and commissioner also been examined and document of Ex.C1 to Ex.C9 are marked.

7. The Trial Court having considered both oral and documentary evidence available on record, answered the issue No.1 as affirmative in coming to the conclusion that the plaintiff is the absolute owner of the suit schedule property, additional issue No.1(a), issue Nos.2 and 3 in the negative and answered additional issue No.1 partly in the affirmative and additional issue No.2 in the negative and dismissed the suit.

8. Being aggrieved by the said judgment and decree of dismissal, an appeal is filed in R.A.No.505/2004. The First Appellate Court having considered the grounds urged in the appeal memo, formulated the point as whether the plaintiff has proved that the defendant had constructed 10 the house in site No.23 which belongs to the plaintiff and if so, whether the plaintiff is entitled to a decree for mandatory injunction. The First Appellate Court reversed the finding of the Trial Court by answering point No.1 as affirmative but negative the relief of mandatory injunction.

9. Being aggrieved by the judgment of the Trial Court and First Appellate Court, the present second appeal is filed before this Court. This Court having considered the grounds urged in the second appeal, at the time of admission, framed the following substantial question of law: 1) Whether Trial Court as well as Lower Appellate Court were justified in dismissing the suit on the ground that grant of mandatory injunction is declaratory relief for which the plaintiffs are not entitled to, though plaintiffs had filed a suit not declaration, mandatory injunction and possession and also when Courts below have given a concurrent finding that plaintiffs are absolute owners of the suit schedule property ? 11 2) Whether the Lower Appellate Court was justified in rejecting the prayer for delivery of possession having given a finding that defendant had constructed building on plaintiffs’ site ?

10. The counsel appearing for the appellants in support of his case, he contend that the suit is filed for the relief of declaration and mandatory injunction with a direction to demolish the building and hand over the possession in favour of the plaintiff. The counsel would vehemently contend that though the Trial Court answered issue No.1 as affirmative and comes to an erroneous conclusion that the defendant had constructed the building in his site No.24. The counsel would vehemently contend that the sites which have been sold are similar dimension of 30 x 40. The plaintiff had purchased the property in the year 1962 itself directly from the owner, when the sites were formed and sold the same. 12

11. The counsel also would vehemently contend that when the First Appellate Court having re-assessed the evidence available on record, rightly comes to the conclusion that the defendant had constructed the house in the site belongs to the plaintiff, but fail to pass an order of mandatory injunction. Hence, the very approach of the Trial Court is erroneous and dismissed the suit.

12. The counsel would vehemently contend that though the plaintiff had filed a suit for declaration, mandatory injunction and possession, both the Courts have given a concurrent finding that plaintiffs are the absolute owners of the suit schedule property and ought not to have dismissed the suit in not granting the mandatory injunction. The counsel also would vehemently contend that the appellate Court was not justified in rejecting the prayer for delivery of possession having given a finding that the defendant had constructed the building on plaintiff’s site. Hence, it requires interference. 13

13. Per Contra, the counsel appearing for the respondent in his argument he vehemently contend that he has not disputed the property purchased by the plaintiff and he had purchased the site No.23 and his site is on the western side of the site No.23 i.e., site No.24. He had constructed the house No.24 only. The counsel also would vehemently contend that site was purchased in the year 1978 and revenue records are transferred in his favour and also he has obtained the plan in terms of Ex.P13. He had constructed the building in the year 1980 and tax paid documents Ex.D15 to Ex.D27 clearly discloses defendant is in possession of the suit schedule property. It is also contended that he has obtained the construction in terms of the Ex.D11 and plan is also approved from concerned authority in terms of Ex.P14. The Trial Court rightly comes to the conclusion that building is constructed in site No.24 only. 14

14. The counsel would vehemently contend that the finding of the First Appellate Court is erroneous that he had constructed the building in site No.23. But, he constructed the building in site No.24 only. The counsel also would vehemently contend that commissioner report is very clear regarding construction of the house in site No.24 only.

15. Heard the learned counsel for respective parties and also the substantial question of law framed, this Court has to reanalyze the material in keeping the substantial question of law, since there is a divergent finding in respect of identification of the site is concerned. The Trial Court comes to the conclusion that the defendant had constructed the house in site No.24 only. The First Appellate Court reversed the said finding in coming to the conclusion that house is constructed in site No.23 and also it is not in dispute that both the Courts have given concurrent finding that the plaintiff is the absolute owner of the suit schedule property. Now, this Court has to examine whether the 15 appellate Court was justified in rejecting the prayer for delivery of possession having given a finding that the defendant had constructed the building on plaintiff’s site.

16. Having considered the material available on record and considering the concurrent finding and divergent finding, this Court would like to make it clear the pleadings and evidence of the parties. It is the claim of the plaintiff that he is the owner of site No.23 and defendant is also not claiming any right in respect of suit schedule property i.e., site No.23. The claim of the defendant is in respect of site No.24 that he had purchased the same and he had constructed the house in site No.24. It is the contention of the plaintiff that he had constructed the house in site No.23. It is also not in dispute that the plaintiff claiming title in respect of the suit schedule property based on the sale deed of the year 1962, both the Courts have given finding that the plaintiff is the owner of site No.23. No dispute with regard to the title. 16

17. Now the dispute with regard to the identity of the property in which the defendant had constructed the building. Having perused both oral and documentary evidence, no dispute with regard to the document of Ex.D1. Both the plaintiff and defendant admits the document of Ex.D1, the same is a rough sketch which was prepared at the time of formation of sites. Having perused the Ex.D1, sites are formed in the particular survey number. Both of them have not disputes that site was formed in particular survey number. No dispute with regard to the particular site number also.

18. It is important to note that the boundary given in the plaint on the East site No.22, on the West site No.24 i.e., defendant’s site, north there is a conservancy and South road. No dispute with regard to the boundaries is concerned in respect of the suit schedule property. The only dispute is whether construction was made in site No.23 or in site No.24. I have already pointed out that on the West 17 of the suit schedule property, site No.24 is given and on the East site No.22 is given. Now this Court has to look into the evidence available on record with regard to the identity of the property. The PW1 i.e., original plaintiff has re-iterated boundaries evidence. During cross-examination of PW1, the document of Ex.D1 was confronted and he admits the same. It is suggested that site Nos.17, 18 and 19 are vacant sites, the said suggestion was denied. But, he claims that already in site No.19, house is constructed and so also in site No.21. He admits that in site No.22 only foundation was put-up and not constructed any building. It is suggested that site No.23 is vacant, the same was denied by PW1. It is suggested that in site No.24, a house is constructed, the same was denied. The PW1 admits that on the West of the suit schedule property, a foundation was put-up. It is suggested that defendant constructed the house in site No.24, the same was denied and he claims that a house was constructed in his site 18 No.23. He admits that on the West of site No.24, there is a vacant property, and then there is a road. He also admits that after the conservancy, one more line of houses are in existence and he claims that on the north side i.e., opposite to his site, there is a site belongs to one R.N.Nadigera and he had constructed the house in his site i.e., in site No.26. He admits that while giving boundaries in respect of site No.24, on the East, it is mentioned as site No.25 instead of site No.23.

19. The plaintiff has also examined one witness PW2 and he speaks only with regard to signature of his father who is the scribe of Ex.P1. The other witness is PW3 who is the owner of site No.26 and he speaks in terms of Ex.D1 and his site also shown and after the conservancy, site No.26 is in existence. The site No.24 originally belongs to Chinna Kotaiah and foundation is made in the said site. He says that after the conservancy, opposite to his site, site No.23 is in existence and in which the defendant had 19 constructed the house. In the cross-examination, he claims in the said layout in his row, there are nine sites and measurement is 30 x 40 each and in the row of defendant there are nine sites, the same commences from 16 to 24. In terms of Ex.D1 and the building is constructed on the 8th site. It is suggested that building is constructed on the 9th site, the same was denied.

20. The other witness is PW4 who is the owner of site No.22 and he had purchased the site in the year 1983 and measurement is 30 x 40, he has put-up the foundation. On the West of his site, site No.23 situates. The defendant had constructed the building in site No.23. On the West of site No.24, someone has put-up the foundation. After the site No.24, on the West, there is a vacant site and the same extends upto to the drainage. He admits that there is a vacant site on the West of site No.24. He admits that he had purchased 7th site in the said row. In the site No.21, a person belongs to Muslim community had constructed the 20 building and his site is vacant and his evidence is that defendant had constructed the house in site No.23 and nothing is elicited in his cross-examination.

21. The other witness is PW5, who is the earlier owner of site No.24 and he had sold the same to one B.Samperraiah and in the said site, someone has put-up the foundation. He identifies the signature in Ex.P14 as Ex.P14(a). In the cross-examination, he admits that the site were there in 4-6 lines. When he had purchased the property at that time, all are vacant sites and now several houses are put up in those vacant sites. On the West of site No.24, the owners have retained their property and the same is unnumbered site.

22. The other witness is DW1 who had purchased the site and through him Ex.D1 is marked and also he categorically says that in the layout, on the West of site No.24, they kept vacant land. The original owners have sold the vacant site on the West to one Abdul Khaalath. He 21 speaks about the selling of that site to different persons, he is not aware of site number of defendant, but he has produced the document of sale deeds and the same are marked as Ex.D2 to Ex.D5. In the cross-examination he admits that he had seen the layout plan. He also admits that in the said layout only 30 x 40 dimension sites are formed. He admits that earlier owner is Syed Hussain, on the West of site No.24 there is a vacant land and one more house and also found that the foundation laid on the said site. But, he claims that he put-up the foundation. In the cross-examination, he admits that his site is on the West of site No.24.

23. The other witness is DW2 who is the defendant and in his evidence, he re-iterates that after the triangular space, he had purchased the site No.9 i.e., site No.24. He constructed the house in site No.24. On the West of his site DW1 has put up the foundation. In the cross-examination he admits the original owner of the suit schedule property is 22 Riyazathulla shah. He also admits that the sites are formed in Sy.No.41/2. It is suggested that the plaintiff had purchased the site No.23, he says that he is not aware of the same, but he admits that he had purchased the site No.24 in the same layout. He admits that he has received the notice in the year 1985, he also admits that Ex.D1 is zerox copy. He admits that there is triangular house and vacant site and thereafter one more triangular house and vacant site and measurement is 23 x 40 feet. It is suggested that the measurement of the site is 23 x 40 feet and the same is denied. He admits that before the formation of the layout on the East, there was a canal instead of drainage and municipality made the drainage and some space was left, as a result that triangular house and vacant site were retained and the same was denied. He admits that on the West of the layout there is a cross road. He also admits that he is not having any objections to the commissioner report. He admits that measurement of each 23 site is 30 x 40 feet in the said layout and also admits that there is a mis-description to his site on the East of site No.25, but he has not made any effort to rectify the same. He cannot tell that site No.23 and 26 belongs to whom. He admits that he started the construction work from 1980-82 and he gave an application in the year 1979. He also admits that in the year 1982 the loan was sanctioned. It is suggested that he did not construct the house in site No.24 and in terms of the commissioner report, it is clear that he had constructed the house in site No.23 and the same was denied.

24. Having re-assessed both oral and documentary evidence available on record, the Trial Court given the finding while answering additional issue No.1(a) that he had constructed the building in site No.24 only. The First Appellate Court reversed the said finding of the Trial Court when re-assessed both oral and documentary evidence while answering point No.1. The First Appellate Court taken 24 note of Ex.P1 and other documents of exhibit P - series and also taken note of the documents produced by the defendants. No dispute with regard to the document of Ex.D1. The aspect of each site measuring 30 x 40 feet in the layout is not in dispute. It is also not in dispute that one row site Nos.16 to 24 and in another row site No.25 to 33 are situated.

25. The First Appellate Court comes conclusion that on a very plimpsy ground the learned trial Judge has refused to accept the truth in testimony of PW3. During the cross-examination of PW3, categorically stated that building is constructed on only in the 8th site from the eastern side which is site No.23 in which the defendant has constructed the house. The Trial Court also not accepted the evidence of PW3 even though his evidence is credible. The evidence of PW1 is very clear that his site is bounded on the East site No.22 and on the West site No.24. The same is re-iterated during the evidence of plaintiff’s 25 witnesses. The fact that the site No.16 to 24 are in one row contiguously stretching from East to West and site No.24 is last among those is also not in dispute on the western end.

26. It is important to note that western last site in the row of sites on the North after conservancy site No.25 and to the East of the same site No.26 which belongs to PW3 is situated which was purchased by him from Shamiulla. He has also stated that he has constructed the house in that site which is also not disputed, his testimony is corroborated by PW1 that to the South of site No.25, after conservancy situated on next to the South of the same, site No.24.

27. Having taken note of the description of the property, particularly the PW3 categorically stated that he had constructed building in site No.26 and opposite to his site the site No.23 situates wherein the DW2 had constructed the building. The witnesses who have been examined on behalf of the plaintiff particularly PW3, PW4 26 and PW5 who are neighboring owners on the opposite direction and also on the East, the PW4 is the owner of site No.22, he categorically deposes the house constructed by the defendants in site No.23 and so also defendant No.5 who also purchased the site. It is not in dispute that in the said row, site No.24 is the last site in the said layout. The DW1 who is also the earlier owner of the site and other documents have been transferred in terms of Ex.D2 to Ex.D5. No dispute for having sold the very same site and also no dispute with regard to the document at Ex.D1.

28. Having taken note of the material available on record, it is very clear that from the eastern side building is constructed on 8th site and though defendant claims that he had constructed the building on 9th site, the same is not corroborated with evidence available on record, particularly Ex.D1 is not disputed. On perusal of Ex.D1, it is very clear that the site No.26 is just opposite to site No.23 in which 27 the defendant had constructed the house. The location of the site is also very clear and opposite to the conservancy in between site No.23 and site No.26 located, the same shows the description and also in respect of site No.24 opposite site after the conservancy is site No.25. When such topography is very clear, the First Appellate Court has rightly re-assessed the evidence available on record and Trial Court has committed an error in considering the document at Ex.D1 and also site numbers are specifically mentioned in Ex.D1 which reflects the claim made by the plaintiff. Hence, finding of the First Appellate Court is very clear that the defendant had constructed the house in the site No.23 which belongs to the plaintiff.

29. Now, the question before this Court with regard to when the First Appellate Court comes to the conclusion that building is constructed in site No.23 by the defendant, whether the appellate Court committed an error in not granting the relief of mandatory injunction. The First 28 Appellate Court having re-assessed both oral and documentary evidence available on record and answered point for consideration which was framed i.e., point No.1 reversed the finding of the Trial Court and comes to the conclusion that the defendant had constructed the building in site No.23 instead of his site No.24 and also observed that the Trial Court has given more importance to the documents of title produced by the defendant including of predecessor to hold that his site situated in the middle of the two other sites. The appellate Court made an observation that the Trial Court ought not to have believed the evidence of DW1. The Trial Court should have been given importance to the admission made by the defendant in the witness box and also the evidence of PW1 and PW3 to PW5 and also should have been appreciated properly and the same has not been appreciated. Now, coming to the aspect of consideration of point No.2 with regard to the prayer of the plaintiff for demolition of the construction 29 raised by the defendant in the site belongs to plaintiffs taken note of certain facts and question of law.

30. The First Appellate Court comes conclusion that the defendant has produced the license granted to him by the City Municipality, Tumkur marked at Ex.D13 which shows that license was issued on 13.12.1978 for construction. The Ex.D14 is the plan sanctioned in favour of the defendant for construction of house. He also availed the loan for the construction of the building by applying the same in the year 1979 itself and additional loan was also sanctioned and house warming ceremony was held. He also admits that at the time of foundation he was working at Sira. He continued to work at Sira till 1982. The appellate Court has also taken note of both oral and documentary evidence. The construction was completed in the year 1982 itself.

31. The First Appellate Court also taken note of the fact that notice was issued in the year 1987 in terms of 30 Ex.P5 and reply was also given in terms of Ex.P7 and taxes are also paid. The PW1 has also admitted that he might have obtained the license for construction in the year 1979 and also made an observation that the plaintiff kept quite not only while constructing the building and though claim that it is less than one year, he did not question the construction more than three years even after completion of construction. The appellate Court has also taken note of Section 39 of Specific Relief Act provides that to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts by way of mandatory injunction. The appellate Court has also comes to the conclusion that the mandatory injunction is a discretionary relief and delay in this regard has to be taken into account while granting or refusing the relief of mandatory 31 injunction. When delay amounts to waiver or abandonment of rights sought to be enforced or acquiescence in the act complained of or the latches after the act is done would definitely disqualify the plaintiff from a relief of mandatory injunction.

32. It is also important to note that appellate Court while considering the relief of demolition taken note of that defendant has spent considerable sums of money for construction. The mistake of notion must have continued and not raised any objection at the time of construction. During the time of construction as well as even after the completion of construction immediately not raised the objection, taken note of conduct of the plaintiff himself disentitles him to the assistance of the Court.

33. This Court would like to refer Section 51 of Transfer of property Act, which reads as follows: “ When the transferee of immoveable property makes any improvement on the property, believing in good faith that he is 32 absolutely entitled thereto, subsequently evicted there from by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market value thereof ,irrespective of the value of such improvement. The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction. When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted there from, he is entitled to such crops and to free ingress and egress to gather and carry them.”

34. Having perused Section 51 of Transfer of Property Act, it has to be noted that when there is no 33 dispute with regard to the title and for the mistake on the part of the defendant misidentifying his site and plaintiff also not disputing that he is the owner of the property of site No.24 and when the construction was already made, the First Appellate Court also taken note of the defendant by mis-identifying the site made the constructions and also the fact that the plaintiff was also not residing in the said area and when he comes to know about the construction, immediately, he issued the legal notice in the year 1987 itself and through out the defendant claimed that he had constructed the site in site No.24 only, but not in site No.23. When such contention is taken and also when the Trial Court comes to the conclusion that the plaintiff is the owner of site No.23 and appellate Court also comes to the conclusion that the plaintiff is the owner of the site No.23 and he had established the title and for having constructed the building in site No.23, the First Appellate Court ought to have granted the damages to defendant and ought to have 34 directed the plaintiff to pay the money which has been spent by defendant for the construction and nothing is done. For non identification of site by the defendant is also mistaken notion and if he has invested the money on the site of others, he cannot be made as to enjoy the property which is not belongs to him. Hence, it is appropriate to modify the judgment of First Appellate Court. Instead of demolishing and granting the relief of mandatory injunction and it is appropriate to direct the defendant to deliver the possession in favour of the plaintiff as sought by the plaintiff. It is appropriate to direct the plaintiff to pay the amount of the defendant which has been spent by passing an equitable relief in keeping the Section 51 of Transfer of Property Act i.e., improvement made by bonafide holders under defective title. When the defendant made the improvement believing in good faith that he is absolutely entitled since having better title than the defendant. The value of the improvement must be estimated and paid. The 35 amount to paid or secured in respect of such improvement shall be the estimated value thereof and the value of construction must be assessed through the recognized valuer. The First Appellate Court already comes to the conclusion that instead of constructing the house in site No.24, constructed the building in site No.23 and the defendant cannot enjoy squatting on the property of the plaintiff. In view of the judgment of this Court passed in R.F.A. No.715/1999 C/w R.F.A.No.714/1999 in case of A.Kannan (Since deceased by Lr.) V/s Smt.Khatun Bee and others reported in (2005) 2 KCCR 821 wherein this Court also taken note of Section 51 of Transfer of Property Act and also discussed in detail that instead of directing of demolition of construction and delivery of vacant possession would be a sadistic approach to the problem. It is held the relief of mandatory injunction is a discretionary relief. The Court has got jurisdiction to grant alternative relief of compensation under the provisions of 36 Section 51 of Transfer of Property Act. The demolition not only damages the interest of the defendants, but it affects the social interest also. In that view, this Court directed that respondents are entitled to purchase the structure by giving the market value as on the date of execution. It is needless to say that necessary depreciation has to be given taking into consideration the date of construction while fixing the market value of the house. If the plaintiff fails to exercise the option, the defendant should be given option to purchase the land at the market value as on the date of execution.

35. In case on hand also, the defendant constructed the building in the site belongs to the plaintiff and invested the hard earned money and also availed the loan and the same is emerged in the evidence. Instead of ordering for demolition, it is appropriate to direct the plaintiff to pay the construction value in favour of the defendant if necessary depreciation of construction and if plaintiff not opt for the 37 payment of construction in favour of the defendant, then the defendant can give an option to purchase the suit schedule property from the plaintiff, the land in which he had constructed at the market rate. Hence, I answered the substantial question of law accordingly.

36. In view of the discussions made above, I pass the following: ORDER i) ii) The Regular Second Appeal is allowed. The impugned judgment and decree dated

06.12.2005 in R.A.No.505/2004 passed by the First Appellate Court is modified granting the relief of possession in favour of the plaintiff within 3 months. iii) The plaintiff is directed to pay the construction value of the house which was constructed by the defendant within three months by getting the valuation done through the recognized valuer by giving depreciation or in alternative 38 defendant is given option to purchase the site No.23 at the market rate. RHS Sd/- JUDGE