Karnataka High Court
Smt Kavitha Somashekar vs Shri J Ramachandra Verma on 17 November, 2023
Author: V Srishananda
Bench: V Srishananda
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NC: 2023:KHC:42546
RFA No. 1775 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 1775 OF 2007 (INJ)
BETWEEN:
SMT.KAVITHA SOMASHEKAR,
W/O SHRI G.SOMASHEKAR,
NO.407, 9TH MAIN, IST BLOCK,
HRBR LAYOUT, KALYANNAGAR,
BANGALORE - 560 043,
REPRESENTED BY HER POWER OF
ATTORNEY HOLDER SHRI S.RANGASWAMY.
...APPELLANT
(BY SRI.N.R.NAIK AND ASSOCIATES, ADVOCATE)
AND:
1. SHRI J. RAMACHANDRA VERMA,
NO.503, SOUTH 3RD LANE,
B.AREA, DOORVANINAGAR,
Digitally
signed by R ITI COLONY, BANGALORE - 560 016.
MANJUNATHA
Location:
HIGH COURT 2.
OF THE COMMISSIONER,
KARNATAKA CITY MUNICIPAL CORPORATION,
KRISHNARAJAPURAM, BANGALORE - 560 036.
3. THE COMMISSIONER,
CITY MUNICIPAL CORPORATION,
BANGALORE - 560 001.
...RESPONDENTS
(BY SRI.B.S.SATYANAND, ADVOCAE FOR R2 AND R3;
V/O/D 08.11.2023 APPEAL AGAINST R1 STANDS DISMISSED)
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NC: 2023:KHC:42546
RFA No. 1775 of 2007
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED.07.04.2007 PASSED IN
O.S.NO.5694/2003 ON THE FILE OF THE XXVII ADDL. CITY
CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT FOR
PERMANENT INJUNCTION, MANDATORY INJUNCTION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri.N.R.Naik, learned counsel for appellant and Sri.B.S.Satyanand, learned counsel for respondents.
2. The present appeal is directed against the judgment and decree passed in O.S.No.5694/2003 dated 07.04.2007 by way of common judgment passed by the Trial Court in this case and in respect of O.S.No.525/2004.
3. Facts which are utmost necessary for disposal of the appeal are as under:
O.S.No.5694/2003 is filed by the appellant seeking relief of mandatory injunction directing defendant No.1 -
Sri.J.Ramachandra Varma to pull down the RCC roof and other illegal super structures constructed by deviating the -3- NC: 2023:KHC:42546 RFA No. 1775 of 2007 Building Bye-Laws morefully described in 'B' schedule to the suit property and also restrain the defendant No.1 from continuing with the further construction in the suit schedule 'A' property.
4. Plaintiff claim that she is the owner of suit bearing No.4M-310 formed by BDA in the east of NGEF, Banaswadi Village extension, Bengaluru, measuring East to West 12.30 meters and North to South 9.15 meters (hereinafter referred to as 'suit 'A' schedule property').
5. It is further contended that she has acquired the said property having purchased the same from Sri.G.Velam under the registered sale deed dated 28.11.2001. Thereafter, she has put up the construction consisting of two storied building on suit schedule 'A' property by obtaining necessary plan and license.
6. It is further contended that tenants are in occupation of suit schedule 'A' property under the plaintiff and she is residing with her husband in United States of -4- NC: 2023:KHC:42546 RFA No. 1775 of 2007 America and her uncle has been looking after suit schedule 'A' property.
7. It is further contended by plaintiff that in the first week of July, 2003, Sri.S.Rangaswamy, who is her uncle went near the suit property. He noticed that defendant No.1 has put up unauthorised construction by violating the sanctioned plan and building bye-laws. Therefore, plaintiff lodged a complaint against defendant No.1 before the Commissioner, Bengaluru City Municipal Corporation. But corporation did not take any action and therefore, plaintiff is constrained to file the suit seeking aforesaid relief.
8. In pursuance of the suit summons, defendants entered appearance and filed separate written statement denying the allegations made in the plaint averments.
9. It is further contended that the construction is carried out as per plan and license. Defendant No.1 -5- NC: 2023:KHC:42546 RFA No. 1775 of 2007 further contended that there is no deviation from the plan and license.
10. Based on the rival contentions of the parties, Trial Court framed the following issues:
1. Whether the plaintiff proves that the 1st defendant is proceeding with the construction on B schedule property without leaving set backs as per the sanctioned plan and that the construction is in violation of the building byelaws?
2. Whether the 1st defendant proves that the plaintiff has constructed the building on A schedule property without leaving set backs and therefore, she cannot seek equitable relief of injunction?
3. Whether the plaintiff proves that the construction made by the 1st defendant on B schedule property affects the privacy, safety and blocks free flow of air and light to A schedule property?
4. Whether the plaintiff is entitled for the relief of permanent injunction and mandatory injunction as prayed for?
5. What decree or order?
11. There was another suit filed by defendant No.1 in O.S.No.525/2004. Both the suits were clubbed and common trial was held. Plaintiff in O.S.No.525/2004 by -6- NC: 2023:KHC:42546 RFA No. 1775 of 2007 name Sri.J.Ramachandra Varma is examined as P.W.1 and he relied on 10 documents which are exhibited and marked as Ex.P.1 to Ex.P.10 comprising of plan, photos, negatives, two invoice, quotation and details of the stages of construction.
12. To counter the evidence placed on record by the plaintiff - Sri.J.Ramachandra Varma, in O.S.No.5694/2003, Sri.S.Rangaswamy, is examined as D.W.1 who is the power of attorney holder of defendant No.1 in O.S.No.525/2004 and he relied on 09 documents which are exhibited and marked as Ex.D.1 to Ex.D.9 comprising of general power of attorney, sale deed dated 28.11.2001, katha, receipt for road cutting charges, tax paid receipt, copy of the complaint to CMC, photographs, negatives and endorsement of Lokayukta.
13. On conclusion of recording of the evidence, learned Trial Judge heard the parties in detail and after considering the oral and documentary evidence on record, dismissed both the suits and has observed as under: -7-
NC: 2023:KHC:42546 RFA No. 1775 of 2007 "Both the suits in O.S.No.5694/2003 and 525/2004 are dismissed.
In the facts and circumstances of the case, there is no order as to costs.
However, a direction is given to the City Municipal Council, to take appropriate legal action against both the parties to set right the violations committed by them in putting up constructions on their respective properties, in accordance with law.
The original of this judgment shall be kept in the records of O.S.No.5694/2003 and the copy thereof shall be kept in the records of O.S.No.525/2004."
14. Being aggrieved by the same, plaintiff in O.S.No.5694/2003 has filed the present appeal on the following grounds:
The learned judge erred in dismissing both the suits filed by the appellant and the first Respondent herein.
The Court below should have taken into consideration that the suit of the first Respondent herein i.e. O.S.NO.525/2004 has no cause of action and it is after thought case.-8-
NC: 2023:KHC:42546 RFA No. 1775 of 2007 The Court below should have taken into consideration the pleadings s well as the documentary and oral evidence of the parties.
The Court below has not taken into consideration, the written of Defence filed statement in O.S.NO.5694/2003 by the First Respondent herein being the 1st defendant in the said suit.
The 1st Respondent herein clearly and categorically admitted in his written statement of Defence that the Appellant/plaintiff had already constructed the building and has let out the same and tenants are in occupation prior to filing of O.S.5694/2003.
The learned Judge of the Court below should have noticed that the Appellant/plaintiff had already constructed the building and the alleged question of deviation does not arise at all after the lapse of several years. Moreover the first Respondent herein being a neighboring owner had never questioned the alleged deviations during the construction of the said building.
The learned Judge of the Court below should have seriously taken into consideration that when the Appellant -9- NC: 2023:KHC:42546 RFA No. 1775 of 2007 herein had filed a suit for the relief sought for therein since the concerned authority has not bothered to take against steps any the first Respondent/Defendant for his illegal constructions by violating the building bye laws. The first Respondent/Defendant filed one another suit by contending that the Appellant herein had already constructed the building in her property without leaving any set backs and by violating the building bye laws in O.S.525/2004.
The learned Judge of the Court below ha wrongly come to the conclusion that both the parties are the violators of the sanctioned plan and the building bye laws and suit filed by them cannot be entertained.
The learned Judge has wrongly come to the conclusion that a reading of the Court Commissioner makes it clear that parties to both the suits are violators of the sanctioned plan and building bye laws with regard to the construction of their respective houses.
The Court below Wrongly come to the conclusion that less violation or more violation is a violation.
The Court below should have considered the clear evidence of the Appellant/plaintiff that there is some extent of violation on the construction of the building on the
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NC: 2023:KHC:42546 RFA No. 1775 of 2007 north east corner since it is the Devamule and with regard to vastu and the said deviation of the Appellant/plaintiff is compoundable. Hence, the Court below has wrongly come to the conclusion that the appellant/plaintiff has also violated the building bye law.
The Court below has wrongly given a finding that nothing is elicited from the mouth of the Court Commissioner to controvert his report. On the other hand both the sides have indirectly admitted the correctness of the report.
The learned Judge should have taken into consideration that the Respondent No.1 being th1e first defendant has categorically admitted in his evidenced that his property dimension is 30 feet x 40 feet and that the RCC roof of the ground floor measures 30 feet x 40 freet and that he does not know the measurement of the RCC roof of the first floor is 30 feet x 40 feet09 inches. This itself sufficient for the court below to decree the suit of the appellant and dismiss the suit filed by the 1 Respondent herein, since the first Respondent has put up the super structures by violating 200% of the building bye-laws. On the other hand the court below should have taken little pain to look into the evidence of the Court Commissioner where he has categorically admitted that first Respondent/defendant has violated the building bye laws in total and the same effect the easementary rights of the neighbouring owner.
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15. Sri.N.R.Naik, learned counsel for the appellant reiterating the grounds urged in the appeal memorandum contended that the suit filed by plaintiff in O.S.No.525/2004 came to be dismissed for non prosecution and direction issued by the Court below is now to be implemented by Bengaluru City Municipal Corporation, as the property has now come under the jurisdiction of the Bengaluru City Corporation and appropriate orders to be passed by decreeing the suit of the plaintiff and allowing the appeal.
16. Per contra, Sri.B.S.Satyananda, learned counsel representing Bengaluru City Corporation submits that when the suit came to be filed, property was under the jurisdiction of City Municipal Corporation, Krishnarajapuram and now it is under the jurisdiction of Bengaluru City Municipal Corporation.
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NC: 2023:KHC:42546 RFA No. 1775 of 2007
17. He further submits that if there is any violation from plan and license, Bengaluru City Municipal Corporation would issue necessary notice to the owner of suit schedule 'B' property and proceed to take action in accordance with law. Said submission is placed on record.
18. In the case on hand, there is no dispute that appellant is the owner of suit schedule 'A' property, who has put up the construction in accordance with law following necessary Building Bye-Laws.
19. Learned Trial Judge has come to the conclusion that if there is a violation committed by defendant No.1, then the authorities has to take necessary action in accordance with law. Plaintiff cannot maintain a suit for mandatory injunction directing the Court to pull down the structure and dismissed the suit of the plaintiff.
20. The owner of suit schedule 'B' property had also filed a suit in O.S.No.525/2004 and both the suits were clubbed and suit filed by the owner of suit schedule
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NC: 2023:KHC:42546 RFA No. 1775 of 2007 'B' property, who is defendant No.1 in O.S.No.5694/2003, did file an appeal challenging the dismissal of his suit. However, said appeal in RFA No.2390/2007 dated 08.09.2023 came to be dismissed for non prosecution.
21. Therefore, the only point that needs to be looked into by this Court is that -
Whether dismissal of the suit of the plaintiff in O.S.No.5694/2003 is just and proper and direction issued by Court in the impugned judgment needs to be implemented?
22. The learned Trial Judge while considering the case of the plaintiff in O.S.No.5694/2003, came to the conclusion that plaintiff is the adjacent land owner and he has put up construction as per the plan and license and it is the defendant No.1 who has violated the Building Bye- Laws.
23. Even assuming that defendant No.1 has committed the violation as alleged by the appellant,
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NC: 2023:KHC:42546 RFA No. 1775 of 2007 mandatory injunction could not have been granted in the finding recorded by the learned Trial Judge, instead the learned Trial Judge directed defendant No.2 - Bengaluru City Municipal Corporation to take action in accordance with law to pull down the illegal construction.
24. Admittedly, the property is now under the jurisdiction of BBMP. Since, the property now comes under the jurisdiction of BBMP and in the absence of appeal filed by defendant No.1 came to be dismissed in RFA No.525/2004, the direction issued by learned Trial Judge to Bengaluru City Municipal Corporation, Krishnarajapuram, which is now to be implemented by BBMP, is to be upheld.
25. Accordingly, point is answered in the affirmative and following:
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RFA No. 1775 of 2007
ORDER
i. Appeal stands dismissed.
ii. However, BBMP is directed to implement the direction issued in the impugned judgment by strictly following the required legal procedure.
iii. No order as to costs.
Sd/-
JUDGE KAV List No.: 1 Sl No.: 39