Bangalore District Court
Ms.Rebecca Shanu vs Mr.Lilly Pushpa on 3 January, 2020
Govt. of Karnataka
C.R.P 67
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGEMENTS IN SUITS.
IN THE COURT OF THE XXVI ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU
(CCH-20)
Present:
Sri.D.S.Vijaya Kumar, B.Sc., LL.B.,
XXVI Addl. City Civil & Sessions Judge, Bengaluru
Dated this the 3rd day of January, 2020
O.S.No.26652/2011
Plaintiffs: 1. Ms.Rebecca Shanu
D/o D.Prema Devi,
Aged about 31 years
R/a. 'Premalaya' Chinnappa
Layout, Near M.C.
Convention Hall, Dr. Raj
Kumar Park Road,
Kammanahalli, Bangalore-
560 084.
2. Sujjan Kumar
Son of Late Felix Joseph,
Aged about 46 years
R/a 1st floor of the
premises No.5 and 6,
Assessment No.38/4, First
Floor Katha No.384,
Kammanahalli village,
Kacharakanahalli Dakale,
Kasaba Hobli, Bangalore
North Taluk
[By Sri.T.G-Advocate]
2 OS No.26652/2011
Vs.
Defendants: 1. Mr.Lilly Pushpa,
W/o Sunder Raj,
Aged about 40 years,
2. C.Anthony,
S/o Chinnappa,
Aged about 45 years
Both are R/a. No.792, 6th
Mai, 2nd 'A' Cross,
Chowrappa Layout, Behind
Zeal Idustries, 2nd Block,
HRBR Layout, near Dr.
Rajkumar Musical Park
(East), Kalyan Nagar,
Bangalore-560 043.
[By Sri.GRP-Advocate]
Date of Institution of suit: 20.09.2011
Nature of the Suit (Suit for Pronote,
Suit for Declaration and Possession, Injunction
Suit for Injunction, etc.): Suit
Date of Commencement of 11.07.2017
recording of evidence:
Date on which the Judgment was
pronounced: 03.01.2020
Total Duration:
Years Months Days
08 03 13
(D.S.VIJAYA KUMAR)
XXVI Addl. City Civil Judge
Mayo Hall, Bengaluru.
3 OS No.26652/2011
JUDGMENT
Plaintiffs 1 and 2 have filed this suit against defendants 1 and 2 for the relief of Permanent injunction to restrain them from putting up construction on the southern side of the suit schedule property abutting plaintiffs wall and for mandatory injunction for a direction to the defendant to remove portion of defendants terrace construction which is projecting on the plaintiff's side to the extent of East west: 2 feet and North south 50 feet and for direction to put up construction in accordance with sanctioned plan and for such other reliefs and costs.
2. Originally plaintiff No.1 had alone filed the suit, but afterwards plaintiff No.2 has been impleaded as co-plaintiff.
3. Brief facts of the case of the Plaintiffs in plaint are as below:-
4 OS No.26652/2011
That the plaintiffs are the absolute owners of the suit property bearing Property No.5 and 6 Assessment No.38/4, Katha No.384, situated at Kammanahalli village, Kacharkanahalli Dhakale, Bangalore North Taluk, measuring East-West :52 feet and North-South :50 feet having building constructed thereon. That there are three houses constructed in the suit property and suit property was purchased under a Sale Deed dtd. 22.03.2001 from one Moses through his Power of Attorney Holder -mother Smt.D.Premadevi. At the time of purchase itself, there existed 30 years old building in the suit property and on the south west side of the plaintiff's house in the suit property they have their kitchen and in that space they have left vacant space 10 x 10 feet, so as to get air and light to the kitchen. Since past 30 years they are enjoying light and air to the kitchen from the said space. On the backside of the plaintiff's property i.e. on the south side of 5 OS No.26652/2011 the suit property, defendants started construction without obtaining sanctioned plan.
They have put up construction without leaving any set back in their property. More particularly on the south western side of the plaintiff's property where their kitchen is situated defendants have not left set back. Defendants are projecting their building over plaintiffs site to the extent of East-West : 2 feet and North- South : 50 feet. Their wall is abutting plaintiffs wall in the ground floor and first floor. Defendants are planning to put balcony on that side which is not sanctioned by the Corporation in the sanctioned plan. Defendant cannot take away plaintiffs right of enjoyment of their property and cause nuisance to them. Plaintiffs have given a complaint to BBMP against unauthorized construction being put up by defendants. But, BBMP authorities have colluded with defendant and have not taken any action. 6 OS No.26652/2011 At the time of filing the suit, defendant were still putting up the construction of their building. Subsequent to filing of the suit, they have completed construction in utter violation of the sanctioned plan, without leaving any set back on the side of the suit property, thereby they have affected flow of air and light to plaintiffs property. Hence defendants construction which is affecting plaintiffs right of enjoyment of air and light requires to be demolished. Hence plaintiffs have filed this suit, seeking the relief of Permanent and mandatory Injunctions against the Defendants in respect of the suit schedule property.
4. After service of suit summons, Defendants appeared through their counsel and filed written statement and also additional written-statement.
7 OS No.26652/2011
5. Brief facts of the written statement and also addl Written statement of Defendants is as under:-
That the suit filed by the plaintiffs is not maintainable and liable to be dismissed. That the plaintiffs have shown southern boundary of the suit property as property belonging to Chowry Reddy and hence plaintiffs grievance is in respect of the property situated to the south of the suit property. But, Chowry Reddy has not been made party in the suit. Boundaries of the suit property mentioned in the plaint are incorrect. Existing construction in the suit property from north to south exceeds measurement shown in the Sale Deed pertaining to the suit property. Plaintiffs are themselves guilty of encroachment over a portion of adjoining property to the extent of about one feet belonging to defendant No.1. Plaintiffs have 8 OS No.26652/2011 suppressed said fact and laid false claim. Suit filed for injunctory relief without seeking declaration is not maintainable. Defendants deny plaintiffs Sale Deed dated 22.03.2001. Plaintiffs absolute ownership in the suit property is also denied. Defendants further deny that the south western side of the suit property as kitchen and vacant space of 10 x 10 feet to get air and light to the kitchen. They deny that plaintiffs are enjoying air and light to their kitchen for the last 30 years. Defendant No.1 has completed his construction of her house in the property belonging to her. Plaintiffs are not entitled to any relief of injunction or mandatory injunction. Defendants have obtained sanctioned plan from BBMP and have put up the construction in accordance therewith and they have not projected their building over plaintiffs site by 2 x 50 feet as alleged by the plaintiffs. Defendant No.1 is the owner who has put up the 9 OS No.26652/2011 construction and defendant No.2 has nothing to do with the same and defendant No.3 has only brother of defendant No.1 who has been unnecessarily made party in the suit. Plaintiffs have falsely alleged that in view of the construction put up by the defendants, rain water will flow on the plaintiff's side and causing hardship to them. BBMP has not taken any action since there is no violation of sanctioned plan and there is no collusion with BBMP authorities.
Plaintiff has no legal right over the property of defendant No.1 and they cannot seek demolition of the construction put up by defendant No.1 in her property. After plaintiff no.1 was examined as PW.1 and was cross examined in part, second plaintiff was impleaded on the ground that Gift Deed dtd. 21.03.2014 is executed. But, said Gift Deed has been created during the pendency of the suit. Plaintiff no.2 has not acquired any legal right or possession over the suit property under 10 OS No.26652/2011 the said Gift Deed. On these grounds the Defendants have prayed for dismissal of the suit of the plaintiff.
6. In support of the plaintiff's case, plaintiff got examined as P.W.1 but no documents got marked on behalf of plaintiffs. Defendants have not lead any evidence, but got marked photographs Ex.D.1 to D.6 in the evidence of PW.1 by way of confrontation.
7. Heard arguments.
8. Following Issues and Additional issue have been framed in the case:-
ISSUES
1. Whether the plaintiff the defendants are putting up construction in violation of building bye-laws?
2. Whether the plaintiff proves that the 11 OS No.26652/2011 construction put up by the defendant is extending on the terrace portion of plaintiff's property?
3. Whether the plaintiff is entitled for Permanent Injunction claimed?
4. Whether the plaintiff is entitled for mandatory injunction claimed?
5. What order or decree?
ADDL ISSUE DATED 30.9.2015 Whether the defendant No.1 proves that the existing construction made by the defendant No.1 is in her own property and is not in violation of sanctioned plan?
9. For the reasons stated in the subsequent paragraphs, I answer above Issues and Addl. Issue, as follows:-
12 OS No.26652/2011
ISSUE NO.1 :- In the negative
ISSUE NO.2 :- In the negative
ISSUE NO.3 :- In the negative
ISSUE NO.4 :- In the negative
Additional
Issue :- In the affirmative
ISSUE No.5 :- As per final Order
for the following
REASONS
10. ISSUE Nos. 1 & 2 AND ADDL. ISSUE dated 30.09.2015:- It is plaintiffs case that they are the absolute owners of the suit property bearing Property No.5 and 6 Assessment No.38/4, Katha No.384, situated at Kammanahalli village, Kacharkanahalli Dhakale, Bangalore North Taluk, measuring East-West :52 feet and North-South :50 feet having building constructed thereon. Plaintiffs have described the boundaries of the suit property as below:-
13 OS No.26652/2011
East by : Private property West by: Property belongs to P.Ramankutty North by: 40 feet road South by: Property belonging to Chowry Reddy'.
Plaintiffs claim that there are three houses constructed in the suit property and suit property was purchased under a Sale Deed dtd. 22.03.2001 from one Moses through his Power of Attorney Holder -mother Smt.D.Premadevi. At the time of purchase itself, there existed 30 years old building in the suit property and on the south west side of the plaintiff's house in the suit property they have their kitchen and in that place they have left vacant space of 10 x 10 feet, so as to get air and light to the kitchen. Since past 30 years they are enjoying light and air to the kitchen from the said space. On the backside of the plaintiff's property i.e. on the south side of the suit property, defendants started construction without obtaining sanctioned plan. 14 OS No.26652/2011
They have put up construction without leaving any set back in their property. More particularly on the south western side of the plaintiff's property where their kitchen is situated defendants have not left set back. Defendants are projecting their building over plaintiffs site to the extent of East-West : 2 feet and North- South : 50 feet. Their wall is abutting plaintiffs wall in the ground floor and first floor. Defendants are planning to put up balcony on that side which is not sanctioned by the Corporation in the sanctioned plan. Defendant cannot take away plaintiffs right of enjoyment of their property and cause nuisance to them. Plaintiffs have given a complaint to BBMP against unauthorized construction being put up by defendants. But, BBMP authorities have colluded with defendant and have not taken any action. At the time of filing the suit, defendant's were still putting up the construction of their 15 OS No.26652/2011 building. Subsequent to filing of the suit, they have completed construction in utter violation of the sanctioned plan, without leaving any set back on the side of the suit property, thereby they have affected flow of air and light to plaintiffs property. Hence defendants construction which is affecting plaintiffs right of enjoyment of air and light requires to be demolished. Hence, they have filed this suit for the relief of Permanent Injunction and also mandatory injunction.
11. Defendants have filed written-statement and additional written-statement contesting the suit, on the grounds that the plaintiffs have shown southern boundary of the suit property as property belonging to Chowry Reddy and hence plaintiffs grievance is in respect of the property situated to the south of the suit property. But, Chowry Reddy has not been made party in the suit. Boundaries of the suit property 16 OS No.26652/2011 mentioned in the plaint are incorrect. Existing construction in the suit property from north to south exceeds measurement shown in the Sale Deed pertaining to the suit property. Plaintiffs are themselves guilty of encroachment over a portion of adjoining property to the extent of about one feet belonging to defendant No.1. Plaintiffs have suppressed said fact and laid false claim. Suit filed for injunctory relief without seeking declaration is not maintainable. Defendants deny plaintiffs Sale Deed dated 22.03.2001. Plaintiffs absolute ownership in the suit property is also denied. Defendants further deny that the south western side of the suit property as kitchen and vacant space of 10 x 10 feet to get air and light to the kitchen. They deny that plaintiffs are enjoying air and light to their kitchen for the last 30 years. Defendant No.1 has completed his construction of her house in the property belonging to her. Plaintiffs 17 OS No.26652/2011 are not entitled to any relief of injunction or mandatory injunction. Defendants have obtained sanctioned plan from BBMP and have put up the construction in accordance therewith and they have not projected their building over plaintiffs site by 2 x 50 feet as alleged by the plaintiffs. Defendant No.1 is the owner who has put up the construction and defendant No.2 has nothing to do with the same and defendant No.2 is only brother of defendant No.1 who has been unnecessarily made party in the suit. Plaintiffs have falsely alleged that in view of the construction put up by the defendants, rain water will flow on the plaintiff's side and causing hardship to them. BBMP has not taken any action since there is no violation of sanctioned plan and there is no collusion with BBMP authorities. Plaintiff has no legal right over the property of defendant No.1 and they cannot seek demolition of the construction put up by defendant No.1 in 18 OS No.26652/2011 her property. After plaintiff no.1 was examined as PW.1 and was cross examined in part, second plaintiff was impleaded on the ground that Gift Deed dtd. 21.03.2014 is executed. But, said Gift Deed has been created during the pendency of the suit. Plaintiff no.2 has not acquired any legal right or possession over the suit property under the said Gift Deed. On the above said grounds defendants have sought for dismissing the suit.
12. On behalf of the plaintiffs, in order to corroborate the suit claim, Plaintiff no.1 has testified as PW.1. Plaintiffs have not produced any documents in support of the suit claim. Defendants have confronted Ex.D.1 to 6- photographs and got marked same on their behalf. Defendants have not adduced any evidence in the case.
13. Plaintiffs counsel argued reiterating the plaint claim stating that defendants have not left 19 OS No.26652/2011 any set back and their construction is unauthorized and they have projected their terrace measuring East-West : 2 feet and North- South : 50 ft on the plaintiffs property and also in view of not leaving set back, kitchen of the plaintiffs in the south west portion of the suit schedule property is not getting air and light. Therefore, defendants should be directed to demolish projection of 2 x 50 feet and also construction which is blocking air and light of the plaintiffs kitchen in the southern side.
14. Defendants counsel submitted written arguments contending that plaintiffs ownership over the suit property has itself been seriously disputed by the defendants but plaintiffs have not produced any documents to prove their ownership and possession over the property. In the plaint, it is falsely contended that defendants are constructing their building without obtaining building licence and approved 20 OS No.26652/2011 plan, but in her deposition she has deposed that she has obtained building licence and approved plan. Plaintiffs have not produced a single photograph or any document to show that defendants have projected their building over the suit property to the extent of 2 feet EW and 50 feet NS. Southern boundary of the suit property is shown as Property of Chowry Reddy, but plaintiffs are seeking relief against defendants stating that they are projecting their building on the southern side of the suit property. As the plaintiffs have not produced any single document to show defendants property is situated on the southern side of the suit property and they are projecting their building on the property of the plaintiff, plaintiffs have not proved the suit claim. Defendants property is not subject matter of the suit and hence court cannot grant any relief in respect of their property, which is not subject 21 OS No.26652/2011 matter of the suit. Burden is on the plaintiff to prove all the issues, but they have failed to prove any of the issues by producing acceptable evidence. Plaintiffs have constructed the building on the suit property without leaving set back. PW.1/Plainitiff has admitted in her evidence that her building is existing in the entire suit property and she has not left set back towards adjacent building while constructing her building. During her evidence recorded on 10.08.2018 she has stated that she does not know the measurement of the suit property and also extent of projection defendants have made. Further she has admitted that defendants have not put up construction in her property/suit property. In the plan it is claimed that plaintiff No.1 purchased the suit property under a Registered Sale Deed, but in her written statement she has deposed that she got the suit property through her mother under a Gift Deed, 22 OS No.26652/2011 besides plaintiffs have not produced any documents before the court. Learned counsel placed reliance on the decision of Dr.K. Panduranga Nayak Vs. Smt. Jayashree and others, reported in AIR 1990 Kar. 236 and drew attention of the court to the ratio decidendi, which is reflected at Head Note 'A' which is as below:-
"A. Easements Act (5 of 1882), S.7, S-33- Right of light and air-Right to vertical light and air is recognized-However, as far as obstruction to light ad air coming to his property laterally a person cannot complain. Easementary rights-Right of light and air".
15. Learned counsel placed reliance on another decision in the case of State of Madhya Pradesh Vs. Nomi Singh and Another, reported in (2015) 14 Supreme Court Cases 450 and contended that as per Sec. 101, 102 and 110 of Indian Evidence Act burden of proof lies on the plaintiff and when so, plaintiffs have failed to 23 OS No.26652/2011 discharge their burden and hence, suit is liable to be dismissed with cost.
16. I have perused records and considered arguments.
17. It is a fact that plaintiffs have not chosen to produce any documents in support of their case. They have not produced any documents to show the title or measurements of the suit property. As contended by the plaintiff, in plaint para 3 plaintiffs have claimed that suit property was purchased from Moses and thus the plaintiff became absolute owners. Apart from not producing said sale deed before the court, in the cross examination she has deposed that she acquired the suit property under a gift deed. At page 6 of her cross examination when it was suggested to her that she has falsely stated at para-2 of her affidavit that she has purchased the suit property under Sale Deed dated 22.3.2001. 24 OS No.26652/2011 She has deposed that she acquired the suit property under the gift deed. Point is that the plaintiff have not produced a scrap of paper before the court to prove the measurement of the suit property. Having contended that defendants are putting up construction in their property unauthorizedly without obtaining sanctioned plan, plaintiff No.1/PW.1 has admitted in her cross examination at page 6 that the defendants have obtained sanctioned plan for construction. Relevant averments in the plaint is at para 3 is as below:-
"On the back side of the plaintiff's property (i.e., on the southern side), defendants are raising the construction without obtaining sanction plan from the BBMP"
18. Her contrary admission in the cross examination at page 6 is as below.
25 OS No.26652/2011
"It is true to suggestion that the defendants have obtained sanction plan for construction their building".
19. So it is quite clear that plaintiffs have made false averments in the plaint by alleging that defendants have put up construction with out obtaining sanctioned plan.
20. In the plaint it is particularly alleged that defendants are projecting their building over the plaintiffs site to the extent of East- West : 2 North-South : 50ft . Same can be found at para 3 of the plaint. But in the cross examination plaintiffs No.1 /PW1 has deposed that it is not known the extent to which defendants have violated the plan. Her relevant evidence is at page 6 of her cross examination which is as below.
"The defendants have violated the sanction plan towards the kitchen of my house. I do 26 OS No.26652/2011 not know the extent to which they have violated the plan".
21. At page-5 of her cross examination, she categorically admits that defendants have not put up construction in her property that is suit property. Said statement is follows:-
"It is true to suggest that the defendants have not put up construction in my property i.e., suit property"
22. So she states that defendants have not put up any construction over the suit property and then she denies knowledge about the extent to which the defendants have violated their sanctioned plan, then she admits that she has herself not left any set back towards the buildings adjoining the suit property. Her said statement is at page 7 of her cross examination which is as below.
27 OS No.26652/2011
"It is true to suggest that we have not left any set back towards the adjacent buildings while constructing our building as seen in photographs".
23. She admits that in the entire suit building she has put up construction and her statement is at page-7 of her cross examination which as below.
"It is true to suggest that in the entire suit property there is building".
24. Having deposed so and not produced any documents before the court she has claimed in the plaint that she has left 10x10 ft vacant space in the South West portion of the suit property near her kitchen. But, same has not been substantiated in any manner and on the contrary she has deposed that without leaving any set back she has constructed building in the entire suit schedule property. Regarding North 28 OS No.26652/2011 South and East West measurement as well, she has given contrary statement in her cross examination. So absolutely there is no acceptable evidence produced by the plaintiffs to show that defendants have constructed their building in their property in suit site of the suit property in violation of the sanctioned plan and by projecting their terrace by 2 x 50 ft over the suit schedule property. Although defendants have not adduced any evidence, what is elicited in the cross examination of PW1 would per-se categorically show that plaintiffs have not substantiated the suit claim. In this background, fact that defendants have not adduced evidence is of no consequence. They have exhibited EX.D.1 to D.6 Photographs which have been admitted by PW.1 which clearly show that plaintiffs have themselves not left any set back while putting up their construction in the suit property. Photographs do not show any 29 OS No.26652/2011 projection of the defendants building over the suit property. Burden being on the plaintiffs to establish that the defendants have projected their building over the suit property as per measurement claimed in the plaint, plaintiffs have utterly and miserably failed to produce any material in support of the same. Consequently, Issue Nos.1 and 2 are answered in the negative and Addl. Issue No.1 is answered in the affirmative.
25. Issue Nos.3 and 4:- As the plaintiffs have failed to prove the claim made in the suit that the defendants have put up construction without sanctioned plan and in violation of the building byelaws, by projecting the Terrace portion into plaintiffs suit property and also obstruction of air and light to plaintiffs kitchen, Plaintiffs are not entitled to any reliefs sought for in the suit. Plaintiffs have not proved that they have acquired prescription right for air and 30 OS No.26652/2011 light to their property. Viewed from any angle, I am of view that plaintiffs are not entitled to the relief sought for in the suit. Consequently, issue Nos.3 and 4 are answered in the negative.
26. ISSUE NO.5- For the reasons stated above, I proceed to pass the following :-
ORDER The suit of plaintiff is hereby dismissed with costs.
--
(Dictated to the Stenographer, transcript thereof, is corrected and then pronounced by me in the open court on this the 3rd day of January, 2010)
--
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge Mayo Hall, Bengaluru.31 OS No.26652/2011
ANNEXURE
1. List of witnesses examined for the plaintiff:
P.W.1 Ms.Rebecca Shanu
2. List of witnesses examined for Defendants:-
NIL
3. List of documents exhibited for plaintiffs:
NIL
4. List of documents exhibited for Defendants:
EX.D.1-6 Photographs (Marked
through PW.1-Confronted)
(D.S.VIJAYA KUMAR)
XXVI Addl. City Civil Judge
Mayo Hall, Bengaluru.