Karnataka High Court
D.S. Madhava S/O Late D L Seshadri vs D.S. Dwarkanath S/O Late D L Seshadri on 31 August, 2012
Author: A.S.Bopanna
Bench: A.S.Bopanna
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IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS ON THE 31st DAY OF AUGUST 2012
BEFORE*
THE HON'BLE MR.JUSTICE A.S.BOPANNA
RFA.No.319/2011 (INJ)
BETWEEN :
D.S.MADHAVA
SON OF LATE D.L.SESHADRI
AGED ABOUT 69 YEARS
NO.7, FIRST FLOOR
2ND CROSS
NEHRU NAGAR,
BANGALORE - 560 020
... APPELLANT
(BY DR.V.C.JAGANNATH, Adv.)
AND :
D.S.DWARKANATH
SON OF LATE D.L.SESHADRI
AGED ABOUT 66 YEARS
NO.4285/7/1/1
GROUND FLOOR
21ST MAIN ROAD
2ND CROSS "A" BLOCK
SUBRAMANYANAGAR
RAJAJINAGAR 2ND STAGE
BANGALORE - 560 021.
... RESPONDENT
(BY SRI P.DHANANJAYA, ADV.)
THIS RFA IS FILED UNDER SECTION 96, R/W 0RDER
41, RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED: 25.11.2010 PASSED IN O.S.NO.5134/2005 ON THE
*Corrected vide Chamber
Order dt.04/01/2013
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FILE OF THE VII - ADDL. CITY CIVIL JUDGE, BANGALORE,
DISMISSING THE SUIT FOR PERMANENT INJUNCTION.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The appellant herein is the plaintiff in O.S.No.5134/2005. The suit was filed by the plaintiff seeking for the relief of mandatory injunction to direct the defendant to demolish the partially constructed structure in the portico car parking area in the ground floor of the suit schedule property. The court below after considering the rival contentions has dismissed the suit by its judgment and decree dated 25.11.2010. The unsuccessful plaintiff is therefore before this Court in this appeal.
2. The parties would be referred as per their ranking assigned to them before the court below for the purpose of convenience and clarity.
3. The undisputed facts are that the plaintiff and the defendant are brothers being the children of late D.L.Seshadri. The mother of the parties, late D.S.Padmamma, who was the owner of the suit schedule property has bequeathed the property in two portions to the 3 plaintiff and the defendant respectively. Subsequent to the death of the mother, the Will has come into effect and the same has been acted upon by the parties and the revenue entries have also been secured and their respective portion are being enjoyed by the plaintiff and the defendant respectively. When this was the position, the defendant is sought to have altered the construction, which was existing in the ground floor by putting up additional construction on the front side of the building. The plaintiff who has been allotted with the first floor portion is making out a grievance that the common area which was for the benefit of both the parties has now been reduced by the defendant by putting up the additional construction in the ground floor. Apart from affecting the free movement and encroachment of the car parking area, the construction put up is over the pipelines relating to the property. It is the further case that the outer wall of the hall was demolished for putting up the construction to increase the size of the room and the wall so removed was the load bearing wall and same would affect the first floor. It is in that context that the plaintiff had approached the court below when the defendant had put up the construction, more particularly, when it was without 4 taking consent from the plaintiff or the Corporation authorities. The nature of the prayer made seeking for demolition of partial construction is due to the fact that the plaintiff had approached the court immediately when the construction had begun. Subsequent to the suit, the construction has been completed despite there being injunction granted in the suit. Therefore at this stage, the plaintiff seeks for demolition of the entire constructed portion.
4. The defendant on being served with the suit summons had appeared, filed detailed written statement and had also filed a counter claim. The relationship between the parties and the Will being left behind by the mother and the manner in which the bequeath is made thereunder is not in dispute. However, the case of the defendant is that he is entitled to put up the said construction, since the same had been proposed when the original sanction of the plan had been obtained by the mother, who had however not constructed that part of the building. It is his case, since there was already a sanction plan in that regard, he is entitled to put up the construction. Insofar as the claim made by the plaintiff that it would 5 affect the first floor portion, it was denied by him and further contended that in any event the parking area is sufficient to park two vehicles and the construction does not in any way hamper the ingress and egress of the plaintiff to the first floor portion. In that context, the defendant contended that the suit is without merit and same is liable to be dismissed. By the counter claim, the defendant had also sought for declaration that the staircase on the southeast corner in the suit schedule property is illegal and that the open space existing as per the Will dated 28.09.1994 and the Corporation approved plan are in the common possession and the enjoyment of the plaintiff and the defendant. The defendant had also sought that the plaintiff be directed to demolish the unauthorised construction in the first floor, which is put in violation of the corporation approved plan.
5. The court below on taking note of the rival contentions had initially framed four issues for its consideration and thereafter, framed four other additional issues. The first four issues framed by the court below are as here under:-
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a. Whether the plaintiff proves that on the basis of Will dated 28.09.1994 executed by his mother Smt.B.S.Padmamma he has become the owner and in lawful possession of suit property?
b. Whether the plaintiff proves that the defendant in the last week of May 2005, having made all preparations to build unauthorized construction, put up construction in part, thereby disturbed the plaintiff's peaceful possession over the suit property? c. Whether the plaintiff is entitled for the relief claimed in the plaint?
d. What Decree or Order?
6. In order to discharge the burden cast on the parties, the plaintiff examined himself as PW.1 and relied upon the documents at Exs.P.1 to P.6. The defendant examined himself as DW.1 and relied upon the documents at Exs.D.1 to D.8. The court below on analysing the evidence available before it has held the material issues insofar as the construction and the grievance putforth in the 7 negative, though the issue relating to the execution of the Will by the mother and ownership was held in the affirmative. The additional issues which were framed by the court below for its consideration were all held in the negative against the defendant. However, since the issues, which had been originally framed were not answered in favour of the plaintiff, the suit was dismissed.
7. Dr.V.C.Jagannath, learned Counsel for the plaintiff while assailing the judgment of the court below, contended that the court below has in fact proceeded at a tangent by referring to the admissions of PW.1 which infact is ultimately not relevant for deciding the issue which was required to be answered by the court below. It is his contention that in the instance case, the fact that the parties namely plaintiff and the defendant had acquired the ownership of the property under the Will dated 28.09.1994 is not in dispute. In that context, what was required to be considered is the contents of the Will and the nature of the bequeath made by the mother and the construction which existed as on the day when the Will came into force. Thereafter, the parties could enjoy the property in the nature as it existed before the Will came into existence and 8 at best only the internal alterations if any could be made for the better enjoyment of the property by each party without affecting the right of the other. It is in this context, contended that irrespective of the removal of the wall, the fact which was required to be considered by the court below was as to whether the open space was available as on the date, when the Will came into force and whether the same is still open as on the date of the suit and when judgment was ultimately passed. If any open area is encroached upon by any party, denying the right of the other party, such construction is not sustainable. It is his contention, that the court below was not justified in relying upon the sanction plan, which has spent itself and also the report said to have issued by the structural engineer and contractor, who had completed work as there are several descrepancies in the said document. It is therefore, contended that when the mother had completed the entire construction both on the ground and the first floor and had left certain open space by putting up a canopy, which would cover the vehicle, the same should have been retained in the same manner. It is his contention that in any case, the defendant cannot putforth any grievance with regard to the staircase 9 since the same has been constructed during the lifetime of the mother and it was in existence, when the Will came into force. It is therefore, contended that the court below has not properly appreciated the material on record and passed the judgment, which is liable to be set aside.
8. Sri P.Dhananjaya, learned counsel appearing for the defendant however, seeks to sustain the judgment passed by the court below. It is contended by the learned counsel that the court below in fact has taken note of the evidence, which was available on record and thereafter has referred to certain admissions by plaintiff (PW.1) and in that context has taken note of the fact that the removal of the wall would not affect the first floor structure and has arrived at the conclusion that the construction put up by the defendant would not affect the first floor. It is his further case that even with regard to the open area, the court below has taken note of the fact that even at this stage, after construction is put up, two vehicles can be parked within the compound and the plaintiff could conveniently access the staircase without any difficulty and the construction has not affected the right of the plaintiff. Learned Counsel would also refer to the very plan, which 10 has been relied upon by the defendant to indicate that the plan had the approval of the Corporation and the construction was being put up as permitted by the Corporation. In that context, the learned counsel by referring to the completion report and the report given by the structural engineer as also the photograph produced and the marked in evidence would contend that the right of the plaintiff is not affected in any manner and court below was justified in its conclusion and the judgment and decree does not call for interference and therefore, contends that the appeal being devoid of merits be dismissed.
9. In the light of the contentions putforth by the learned counsel for the parties, the points that arise for consideration in this appeal are:-
a. Whether the court below has properly appreciated the material on record, keeping in view the contentions, which had been putforth by the parties before the trial Court?
b. Whether in the instant case when there is no dispute that the parties have become owners of the property under the Will executed by their 11 mother as per Ex.P.1, should the nature of enjoyment of the property have been in the same manner as permitted by the mother.
10. In order to answer the above questions, I am of the opinion that both the questions be considered together, since the facts would overlap each other. In that regard, the plaintiff in order to establish his case before the trial court has examined himself as PW.1 and has reiterated what has been stated in the plaint. In support of his case to contend that he is entitled to enjoy the open space, which existed in the compound as on the date of the death of the mother and to indicate the nature of the bequeath that had been made by the mother has relied on the Will dated 28.09.1994 marked as Ex.P.1. To point out the fact that the parties have acted upon the same the notice of the Corporation for the bifurcation of katha is produced and marked as Ex.P.2. The bifurcated katha certificate is at Ex.P.3 and tax paid receipt is at Ex.P.4. The notice issued on behalf of the plaintiff to the defendant when illegal construction was attempted is at Ex.P.5 and acknowledgement is at Ex.P.6, the photograph to indicate 12 that as on the date of the filing suit, the construction had just begun has been produced and marked at Exs.P.7 to 10.
The photograph to indicate the completion of the construction during the pendency of the suit is produced at Exs.P.11 to P.14. In the light of the said documents, which had been relied on by the plaintiff it would be evident, that as on the date of the Will, which was executed by the mother, only the ground floor portion was existing. The ground floor was bequeathed to the defendant. What is indicated in the Will is that the plaintiff herein was given the right to construct the first floor. However, it is not in dispute between the parties that subsequently, the mother herself has put up the first floor and as per the Will the defendant has got ground floor and the plaintiff has got the first floor. If the instant situation is kept in perspective, Ex.P.2 would be relevant to indicate the nature of the rights that the parties have understood to have acquired under the Will. While under the bifurcated katha, the extent of the property to the share of the plaintiff is 900 sq.mts in the first floor and the defendant is given 780 sq.mts. in the ground floor. The open space which was left is in the front portion. In that context, a perusal of the photograph 13 produced by the plaintiff would disclose that in the front portion the defendant has sought to add a room by encroaching on the open area which was available therein. This indicates that the construction was being put up on that date and defendant has completed the construction thereafter cannot be in dispute, in as much as defendant claims rights to put up construction and by contending that no violation has been committed. The construction which was sought to be put up by the defendant is in the open area in the ground floor portion and is in the open space bequeathed by the mother. Hence, the position has altered than what existed as on the date when the Will came into effect.
11. In that light, the contentions putforth by the defendant requires to be noticed. The defendant has not produced any material before the court below to indicate that the mother had permitted such construction, either by examining any other person who had knowledge about the family or the mother having spoken with regard to this to any other person nor is there any material either written by the mother in nature of the codicil or in any other manner. The only contention of the defendant is that as per the 14 approved plan obtained by the mother the said front portion which is now constructed by him is also shown while securing the approval of the plan. It is also contended that construction is as per the plan which is marked at Ex.D.1(a).
12. First and foremost what is to be noticed is that the said plan was approved on 13.11.1997. The Will has subsequently came into effect, though it was made by the mother at an earlier point of time. The fact that the mother had constructed the first floor is also not in dispute. If that be the position, what has to be noticed at the outset is that the staircase shown in the approved plan has been subsequently placed in a different position by the mother herself, keeping open the space available in the front portion for both the parties. It is not in dispute that the mother during her lifetime did not choose to construct the front portion, which is marked as Ex.D.1(a) and had left the area open till her death. In that context firstly, what has to be noticed is that the approved plan which had been obtained by the mother was for the ground floor as well as the first floor but the construction has been regulated by the mother, leaving the open space and no construction had 15 been made. Therefore, once the construction as proposed under the plan was completed and stopped, the original approved plan had spent itself. That apart in the instant case, when the parties had understood the position and got the katha bifurcated relating to the extent available, at this stage it is not open to rely upon Ex.D.1 once again to justify the construction. That apart if any additional construction was to be made it could only have been made with approved plan as well as the permission of the plaintiff. If this aspect of the matter is kept in view, the court below was not justified in merely referring to the admissions as has been extracted in the judgment since it was not the only relevant issue in the suit. The question was as to whether the defendant was permitted to put up the construction by shrinking the open space, which was available to both the parties as on the date of the death of the mother. In that context, with regard to the report of structural engineer, first and foremost, the same is not proved by in accordance with law by examining the author of the document. Merely marking the said certificate at Ex.D.7 was not sufficient. The reduction of the open space and construction made by the defendant over the pipeline 16 has not been addressed by the court below. Further more, the completion report which is marked at Ex.D.2 does not inspire any confidence in the Court. The author of the said document also has not been examined and further more, as pointed out by the learned Counsel for the plaintiff, the same states that civil works was completed on 31.06.2005, when the calendar does not contain the said date in the month of June of any year. This itself would indicate that the said certificate has been tailored but issued without application of mind. Hence, the said documents could not have been relied upon.
13. By the documents at Exs.D.4 to D.6, what has been pointed out is that there is space available to come to the first floor and that two cars could be parked therein simultaneously. That alone is not sufficient, more particularly in the circumstances when the two cars can only be parked one behind the other and each one would have to depend on the other for their ingress and egress, if the person who had parked it behind had to take out the car parked by him. The same cannot be forced upon the parties when the space was available earlier. Therefore, first and foremost, the construction put up by the defendant 17 is contrary to what has been permitted by the mother. That apart, the defendant has not taken the consent of the plaintiff nor has he taken the consent of the competent authority when the earlier plan spent itself. Therefore, the construction is contrary to the desire expressed by the mother. That apart, what is also to be noticed is that as on the date of the filing of the suit the construction had just begun. On the very first date when the suit was filed i.e., on 11.07.2005, the court below had granted as order of temporary injunction restraining the defendant from putting up the construction. In fact, that in itself would explain that the defendant had obtained a certificate from the contractor to suit his convenience, so as to indicate as if the construction was put up even prior to the injunction order had been granted.
14. In that view of the matter, the points are answered in favour of the plaintiff.
15. In the result the following order:-
(a) The appeal in RFA No.319/2011 is
allowed. The judgment and decree
dated 25.11.2010 passed in
O.S.No.5134/2005 is set aside.
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Consequently, the suit in
O.S.No.5134/2005 stands decreed.
(b) In that view, a decree of mandatory
injunction shall issue to the defendant to demolish the constructed portion in the suit schedule property, as indicated in the plaint and retain the said portion open henceforth.
(c) The defendant is granted five months time to demolish / remove the construction, failing which, the plaintiff would be entitled to seek removal of the same through process of the court at the cost of the defendant.
(d) The defendant is further directed by way of permanent injunction to restrain himself from putting up any construction in the said area, which has been marked as Ex.D.1(a) in the plan.
(e) Considering the relationship between the parties, they shall bear their own costs.
Sd/-
JUDGE nvj