Bangalore District Court
Mr. P. Balasubramani vs Mrs. Padmavathi on 26 April, 2016
IN THE COURT OF THE XLIII ADDL.CITY CIVIL
& SESSIONS JUDGE, BENGALURU. (CCH 44)
Dated: This the 26th day of April 2016
PRESENT
Sri. R.K.TALIKOTI, B.Com., LL.B.(Spl.),
XLIII ADDL. CITY CIVIL & SESSIONS JUDGE,
BENGALURU, (CCH-44).
O.S. No.3323/2012
PLAINTIFF : Mr. P. Balasubramani
Aged about 64 years
S/o late Sri Perumal
R/o No.57, Kadiranapalya,
Indiranagar Post,
Bengaluru-560 038
(By Sri M.S.Dore Rao, Advocate)
VS.
DEFENDANT : Mrs. Padmavathi,
Aged about 28 years,
W/o Mr.K.Ramesh,
R/at No.46, 7th Cross,
Lakshmipuram, Ulsoor,
Bengaluru-560008
(By Sri NDJ, Advocate)
Date of Institution of the 14/05/2012
suit:
2 O.S.No.3323/2012
Nature of the Suit (Suit for
pronote, suit for declaration Suit for Injunction
and possession, Suit for
injunction, etc,) :
Date of the commencement 14/12/2012
of recording of the
Evidence:
Date on which the 26/04/2016
Judgment was pronounced:
Total Duration : Year/s Month/s Day/s
03 11 12
(R.K.TALIKOTI)
XLIII Addl. City Civil & Sessions Judge,
BENGALURU, (CCH-44).
JUDGMENT
Suit of the plaintiff is for permanent injunction to restrain the defendant from putting up any construction without leaving setback measuring 3x25 feet on the western side and thereby blocking free flow of air and light. The suit is also for direction to the defendant to remove unauthorized construction 3 O.S.No.3323/2012 constructed on the setback area measuring 3x25 feet on the western side including the pillars and chajjas which were constructed during pendency of the suit.
2. In brief the averments of the plaint are as under:-
i) Plaintiff is absolute owner and possessor of property bearing No.59/1, vacant site bearing khatha No.59/1, situated at Kadiranapalya, Indiranagar morefully described in the plaint schedule. He has acquired the property under registered sale deed dated 08/08/1988. It is a vacant land measuring east to west 23 feet and north to south 25 feet totally measuring 575 sq.ft.
ii) The defendant calls herself as owner of adjacent property bearing No.59/1 measuring east to west 23 feet and north to south 25 feet in all 575 sq.ft.
under the sale deed dated 14/12/2011.
4 O.S.No.3323/2012Defendant is putting up her residential building without leaving setback area on the western side in contravention of the byelaws of BBMP. She has not obtained sanctioned plan from BBMP and forcibly encroaching upon western side of the suit property belonging to the plaintiff to the extent of 5 sq.ft. in width and 25 sq.ft. in length in all 125 sq.ft. Plaintiff had demanded the defendant to remove the mud put up by defendant. But the defendant is trying to put up erection of pillars by setting up a false claim over the suit schedule property. Plaintiff had approached the police, but they stated that it is of civil nature. Defendant and her henchmen are committing illegal acts. Therefore suit is filed for injunction.
iii) During the course of pendency of the suit, plaintiff has made further prayer to direct the defendant to remove the unauthorized construction made without leaving setback area of 3x25 feet on the western side.
5 O.S.No.3323/2012
3. Defendant has appeared through advocate and filed written statement. In brief the contentions taken up by the defendant are as under:-
i) The suit of the plaintiff is not maintainable and same is liable to be dismissed. The averments of the plaint are denied. It is denied that defendant and her agents are putting up construction without leaving setback area measuring 3x25 feet on the western side of the property and that affects free flow of light and air to the property of plaintiff.
ii) It is contended that this Court has no jurisdiction to entertain the suit. Defendant is putting up construction by obtaining valid license and sanctioned plan by BBMP. The matter is covered U/Sec.321 and 444 of Karnataka Municipal Corporation Act. If there is any deviation, the matter should be taken before competent 6 O.S.No.3323/2012 authority and such suit cannot be filed. The suit is also bad for non-joinder of necessary parties.
iii) The schedule property is vacant site with small shed as per the plaint. Therefore question of obstruction of free flow of air and light does not arise. No injury will be caused to plaintiff. Hence no injunction can be granted.
iv) The defendant's vendor has filed suit in O.S.No.2614/2006 on the file of CCH-9. The said matter is suppressed in this case. The sanctioned plan is obtained on 30/04/2012 from BBMP. The suit is also barred by law of limitation.
v) It is contended that the suit is filed only to harass the defendant to see that the property is sold to plaintiff. The defendant has purchased the property from Mrs. Valliamma under registered sale deed and the khatha is transferred in the name of defendant. She is paying taxes and she 7 O.S.No.3323/2012 is constructing the building by following all procedures.
vi) It is contended that there exists a doubt regarding ownership of suit property. Plaintiff and his brother Mr. Tulasiram have approached Civil Court for partitioning the schedule property.
Plaintiff is not the sole owner and therefore he cannot file such suit. It appears that plaintiff's other brother Mr.Vijayakumar is the owner of the property to the west of the said property. The property of defendant is between the property of plaintiff as well as Vijayakumar's property. They want to knock off the property by paying a small price. Plaintiff and his brothers have illegally constructed chajja in the passage, which is the only access to the said property. Valliamma has filed suit against plaintiff and his brother in O.S.No.2614/2004. This suit is filed as a counter to the said suit. Plaintiff's brother Vijayakumar has filed suit against defendant's husband in 8 O.S.No.3323/2012 O.S.No.6589/2011 for injunction regarding the passage. Another suit is filed in O.S.No.3766/2012 alleging that the defendant has not provided for setback area on the western side of the property. Thus multiple suits have been filed to harass the defendant. Hence the suit of the plaintiff is sought to be dismissed.
4. From the above pleadings, this Court has framed the following issues:-
1. Does the plaintiff prove that he is in lawful possession of the suit property as on the date of suit?
2. Does the plaintiff prove that there is interference by the defendant to his lawful possession over the suit property?
3. Does the plaintiff prove that, he is entitled for the relief of permanent injunction against the defendant?
4. What order or decree?
Addl. Issues:
1. Does the plaintiff prove that the defendant carried unauthorized 9 O.S.No.3323/2012 construction of pillars and chajjas towards western side during pendency of the suit against the plan issued by BBMP?
2. Does the plaintiff prove that he is entitled for Mandatory Injunction against the defendant?
5. Plaintiff is examined as P.W.1 and as many as 12 documents are marked as Exs.P.1 to P.12. The husband of defendant as power of attorney holder of defendant is examined as D.W.1 and as many as 32 documents are marked as Exs.D.1 to D.32.
6. Heard the arguments of both sides.
Counsel for defendant has filed written arguments.
7. My findings on the above Issues are:-
Issue No.1: In the negative Issue No.2: In the negative Issue No.3: In the negative 10 O.S.No.3323/2012 Addl. Issue No.1: In the negative Addl. Issue No.2: In the negative Issue No.4: As per final order for the following :-
REASONS
8. Issue No.1 and Addl. Issue No.1:- The suit of the plaintiff is for permanent injunction to restrain the defendant from putting up any construction abutting to the plaintiff's property without leaving setback area measuring 3x25 feet on the western side by erecting pillars and thereby blocking free flow of air and light and also putting up projection of chajjas and laying of any sewerage pipes, etc., in the property. The suit is also amended and a direction is sought against defendant to remove the unauthorized construction constructed on the setback area of 3x25 feet on the western side including pillars and chajjas which were constructed during pendency of the suit. 11 O.S.No.3323/2012
9. According to the plaintiff, he is absolute owner and possessor of premises bearing No.59/1, khatha No.59/1 situated at Kadiranapalya, measuring east to west 23 feet and north to south 25 feet with boundaries shown therein. It is further case of the plaintiff that defendant claiming to be the owner of property bearing No.59/1 measuring east to west 23 feet and north to south 25 feet was trying to construct the property without leaving setback area on the western side of the suit property. Plaintiff has further contended that during pendency of the suit, defendant has encroached the property and put up construction.
10. Defendant has contended that plaintiff is not the owner of the schedule property. Defendant has not put up any illegal construction by encroaching the suit property. Defendant has put up construction in accordance with the sanctioned plan 12 O.S.No.3323/2012 dated 30/04/2012 and therefore question of removal of the construction do not arise.
11. Plaintiff in support of his case has stated in his evidence that he is absolute owner of the property and has produced sale deed executed by M. Nanjundappa in favour of plaintiff at Ex.P.1. The said document reflects that plaintiff is owner of property No.59/1 measuring east to west 23 feet and north to south 25 feet. The property of Valliamma is shown as situated towards west of said property. Ex.P.2 is sale deed of Valliamma executed in favour of defendant herein in respect of property bearing No.59/1 measuring 23x25 feet and towards east the property bearing No.59/1 is shown. Plaintiff has also produced the photographs to show that defendant is putting up construction without leaving any setback 13 O.S.No.3323/2012 area. Plaintiff has also produced the photographs after completion of the building.
12. Ex.P.10 is the complaint lodged by plaintiff to Assistant Executive Engineer, BBMP for taking action against defendant herein for illegal construction. Ex.P.11 is complaint lodged to Police Commissioner and Ex.P.12 is complaint lodged to Station House Officer, Indiranagar.
13. Defendant's husband as power of attorney holder of defendant is examined as D.W.1 and he has stated in his evidence that defendant has put up construction of her building by taking sanctioned plan dated 30/04/2012 and she has not encroached any portion of suit property. He has also stated that defendant has left setback area and there is no violation of byelaws. Defendant in support of her case has produced her absolute sale deed at 14 O.S.No.3323/2012 Ex.D.2, tax paid receipt, khatha certificate and khatha extract. Defendant has further produced the certified copy of sale deed dated 28/03/1958 and 16/08/1984 to show how the property is verified by defendant.
14. Learned Counsel for plaintiff has argued that BBMP has issued notice to the defendant and this itself will reveal that there is violation of byelaw in not leaving setback area. Learned Counsel has further pointed out at the document and argued that defendant has proceeded with illegal construction and therefore she is liable to demolish those illegal constructions.
15. Counsel for the defendant has argued that suit itself is not maintainable, because the dispute is in respect of violation of byelaw in not leaving setback area and that matter is covered under 15 O.S.No.3323/2012 Section 321 and 444 of the Karnataka Municipal Corporation Act. Learned Counsel further placed reliance upon the decisions reported in AIR 1990 Kant236 (Dr.K.Panduranga Nayak vs. Smt. Jayashree and others), AIR 1966 Kant74 (Mathew Philips vs. P.O. Koshy) and 2001 (1) Kar.L.J. 468 (S.Sundar Raj vs. Vijayendra Kumar and others) and submitted that this Court has no jurisdiction to grant any relief. Apart from that, counsel for defendant has pointed out at the evidence of P.W.1 where he has admitted that defendant has put up construction well within her own property and the chejjas and other construction are not protruding into plaintiff's property. It is also argued that plaintiff's site is open site and therefore there is no question of infringement of air and light.
16 O.S.No.3323/2012
16. Perusal of the cross-examination of P.W.1 will reveal that P.W.1 has verified with BBMP that defendant has not taken approved plan. Whereas defendant has produced the sanctioned plan at Ex.D.1. Though plaintiff says that he has got the copy, he has not produced the said document to disprove the document Ex.D.1. D.W.1 has clearly stated in his evidence that he has obtained sanctioned plan as per Ex.D.1. Even P.W.1 has further admitted that defendant has taken approved plan dated 30/04/2012 as per Ex.D.1. In my view, there is no reason to discard the evidence of D.W.1 and contents of Ex.D.1. Therefore it is held that defendant has obtained sanctioned plan for putting up construction on 30/04/2012 well before plaintiff has filed this suit.
17. Plaintiff further admits in his cross- examination that whatever construction made by the 17 O.S.No.3323/2012 defendant is very well within her property. He has also admitted that in Ex.P.13 photograph No.7 and 8 there is vacant space of 3 feet width as elevated construction. He has also admitted that defendant has not constructed any parapet wall protruding in his property and no construction is made in the suit property.
18. The cross-examination of P.W.1 clearly reveals that whatever construction is made by the defendant is within her own property and that she has left 3 feet elevated constructed portion, which is said to be setback area. This portion can be clearly seen in the photographs.
19. Plaintiff has cross-examined D.W.1 and in the cross-examination D.W.1 has stated that he has constructed ground, first and second floor. He admits that a notice was issued by BMP to him and 18 O.S.No.3323/2012 three others. He also states that he has left 3 feet setback area. He has denied the suggestion that he has illegally constructed by encroaching the property measuring 3 x 25 feet.
20. Admittedly, plaintiff's property is vacant property consisting of small shed. In that case question of construction by defendant obstructing free flow of air and light will not arise. Even if it is presumed that said construction will infringe the rights of plaintiff in future, then also the documents produced and admission made by P.W.1 will reveal that construction is made within defendant's property and there is also setback area. When plaintiff himself admits that there is no encroachment in his property, the only fact to be determined in this case will be whether defendant has left setback area or not. The 19 O.S.No.3323/2012 setback area is visible in the photograph-Ex.P.13 photograph No.7 and 8.
21. Learned Counsel for defendant has argued that suit is not maintainable and the remedy for the plaintiff is to go before the Standing Committee of Corporation. In the decision relied upon by the defendant in Dr.K.Panduranga Nayak vs. Smt.Jayashree's case, Hon'ble High Court has held that Court cannot grant injunction either prohibitory or mandatory as there is provision for approaching Commissioner complaining of such deviation.
In another decision of Mathew Philips vs. P.O.Koshy, it is held that Temporary Injunction cannot be granted to restrain the defendant from making any construction under plan. In this case also the allegation is that license granted by the Corporation was violated.
20 O.S.No.3323/2012
In another decision reported in 2001 (1) Kar.L.J. 468 (S. Sundar Raj vs. Vijayendra Kumar and others) Hon'ble High Court has held that no Temporary Injunction can be granted on the ground of violation of sanctioned plan or building byelaws.
22. In my view the above mentioned decisions are not applicable to the case. Plaintiff has pleaded that his right of air and light is affected by the proposed construction. Further he has sought for demolition of illegal construction made by encroaching the setback area. As far as relief of injunction to restrain the defendant from putting up construction affecting plaintiff's right to receive light and air is concerned, it can be entertained by this Court. As far as second prayer is concerned, the said construction is said to be made during pendency of the suit and 21 O.S.No.3323/2012 therefore plaintiff can maintain said prayer also in this suit.
23. The documents produced by the plaintiff and defendant will reveal that defendant has left setback area. On the other hand, plaintiff has failed to prove that defendant has put up construction including the setback area. Defendant has taken sanctioned plan as per Ex.D.1 on 30/04/2012 and therefore it cannot be held that defendant has started construction without any sanctioned plan. The encroachment if any could have been tried to prove by getting a report from an expert. The plaintiff has not resorted to such act. Even otherwise plaintiff's own admission reveals that defendant has constructed her building within her own property. Therefore looked from any angle, plaintiff has not made out a case of encroachment of suit property and illegal construction 22 O.S.No.3323/2012 by not leaving setback area. Therefore issue No.1 and additional issue No.1 are held in the 'negative'.
24. Issue No.2:- Plaintiff has contended that defendant is interfering in his lawful possession over schedule property. It is the case of the plaintiff that right to light and air is infringed by defendant by undertaking construction and even completed during pendency of the case. Plaintiff has failed to prove that defendant has not left setback area. Therefore question of interference does not arise. Hence issue No.2 is answered in the 'negative'.
25. Issue Nos.3 and 4 and Addl. Issue No.2:-
In view of findings given on the above issues, plaintiff is not entitled to the relief of permanent injunction or mandatory injunction as prayed for. Hence, I proceed to pass the following:23 O.S.No.3323/2012
ORDER The suit of the plaintiff for injunction is dismissed with costs.
(Dictated to the Stenographer, computerized by her, corrected and then pronounced by me in Open Court on this the 26th day of April, 2016.) (R.K.TALIKOTI) XLIII Addl. City Civil & Sessions Judge, BENGALURU, (CCH-44).
ANNEXURE List of witness examined for the plaintiff/s:-
P.W.1 : Balasubramani List of witness examined for the defendant/s:-
D.W.1 : K. Ramesh List of documents marked for the plaintiff/s:-
Ex.P.1 : Sale deed dated 08/08/1988
24 O.S.No.3323/2012
Ex.P.2 : Sale deed dated 14/12/2011
Ex.P.3 : 16 photos
Ex.P.4 & : 2 CD
P.5
Ex.P.6 to : 4 bills for photos
P.9
Ex.P.10 : Complaint copy to AEE, BBMP
Ex.P.11 : Complaint copy to Commissioner of Police
Ex.P.12 : Another complaint to SHO, Indiranagar PS
List of documents marked for the defendant/s:-
Ex.D.1 : Plan
Ex.D.2 : Certified copy sale deed dated
14/12/2011
Ex.D.3 : Tax paid receipt
Ex.D.4 : Khatha certificate
Ex.D.5 : Khatha extract
Ex.D.6 : Certified copy of General Power of Attorney
dated 01/03/2014
Ex.D.7 : Certified copy of sale deed dated
28/03/1958
Ex.D.8 : Certified copy of sale deed dated
15/04/1958
Ex.D.9 : Certified copy of release deed dated
16/08/1984
Ex.D.10 : Certified copy of partition deed dated
17/08/1984
Ex.D.11 : Certified copy of plaint in
O.S.No.6332/2011
Ex.D.12 : Certified copy of written statement in
O.S.No.6332/2011
Ex.D.13 : Certified copy of final order in
25 O.S.No.3323/2012
O.S.No.6589/2011
Ex.D.14 : Rough sketch
Ex.D.15 : Certified copy of plaint in O.S.No.3766/212 Ex.D.16 : Photographs to D.23 Ex.D.24 : CD Ex.D.25 : Photographer's bill Ex.D.26 : Another set of photographs to D.30 Ex.D.31 : CD Ex.D.32 : Photographer's bill (R.K.TALIKOTI) XLIII Addl. City Civil & Sessions Judge, BENGALURU, (CCH-44).