Bangalore District Court
Sarojini Prasad vs Neelambike on 27 February, 2025
OS 7104/2018-Judgment
KABC010269722018
IN THE COURT OF THE XVI ADDL.CITY CIVIL AND SESSIONS
JUDGE (CCH 12), BENGALURU
DATED: 27th DAY OF FEBRUARY 2025
PRESENT
SMT. JYOTHSNA D., LL.B., LL.M., D.F.A.,
XVI ADDL.CITY CIVIL AND SESSIONS JUDGE,(CCH12) BENGALURU
ORIGINAL SUIT No.7104/2018
PLAINTIFF SMT. SAROJINI PRASAD,
W/o. Sri J.G. Prasad,
Aged about 62 years,
Residing at No.312,
Sharadamma Illam (G.P.T.),
1st Main, Nagappa Block,
Abbigere, Chickkabanavara Post,
Bengaluru 560 090.
Represented by Smt/Sri S.S.V., Advocate
-- vs --
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OS 7104/2018-Judgment
DEFENDANT MRS. NEELAMBIKE,
Aged about 68 years,
W/o. Mr. Prasad,
No.72, Survey No.17,
(Building under Construction),
Next to G.P.T. Building,
K.G. Halli, Abbigere Main Road,
Jalahalli West Post,
Benglauru 560 015.
Defendant by A.M.P., Advocate
Date of Institution of suit 27.09.2018
Nature of suit INJUNCTION SUIT
Date of commencement of 26.03.2019
evidence
Date of Judgment 27.02.2025
Duration Year/s Month/s Day/s
06 05 00
(SMT. JYOTHSNA D.,)
XVI ADDL.CITY CIVIL AND SESSIONS JUDGE,
BENGALURU (CCH 12)
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OS 7104/2018-Judgment
JUDGMENT
The plaintiff has instituted this suit against the defendant seeking to issue a mandatory injunction to demolish the Southern wall of the Schedule A property and Northern Portion of Schedule B property and to issue a permanent injunction restraining the defendant from putting up any construction damaging the property belonging to the plaintiff in any manner and for such other and further reliefs as are just, in the circumstances of the case.
2. In brief, the case of the plaintiff is that:- The plaintiff is the owner of the property bearing Site No.73 & 74, measuring 60 feet X 40 feet, having purchased the same vide registered Sale Deed dated 20.03.1981 and after having purchased the same, she constructed a shed, in which she has been running a factory, manufacturing sheet metal pressed and fabricated components, tools, dies etc., under the name GRAND PRESSINGS & TOOLS in short GP&T, hereinafter referred as Schedule A.
3. On the Southern side of the plaintiff's property, property belonging to defendant bearing Site No.72, Survey No.17, 3 OS 7104/2018-Judgment measuring 30 feet X 40 feet is situated which is morefully described in the schedule B in the plaint and hereinafter referred to as schedule property. There was an old building, used for commercial purpose of the defendant. The old building was demolished. The defendant demolished the old building and intended to put up a new construction. Plaintiff was under the impression that the proposed construction by the defendant would in no way affect the property of the plaintiff and the plaintiff also contacted the defendant and told her that she must leave the setback on the Southern side of the schedule A property. The defendant specifically informed the plaintiff that she would leave the set back on the Southern side of the schedule A property as per BBMP Rules. The plaintiff was under the bonafide belief and impression that the proposed construction by the defendant would in no way affect the existing building.
4. Plaintiff had been to her daughter's place at Mumbai during the month of April 2018 and she was not aware as to how the constructions were/are going on the schedule B property. She came to Bengaluru on September 8th 2018 and visited the property 4 OS 7104/2018-Judgment and found that the defendant has put up a construction on the Southern portion without leaving any setback as per plan approved by the BBMP and it is virtually touching the Southern portion of the plaintiff's property and caused damage also. The plaintiff contacted the defendant and told her as to how she damaged plaintiff's property. The existence of present position of the property of the plaintiff vis-a-viz property of the defendant are shown in the photographs produced along with the plaint.
5. Since the defendant refused to correct the position as per the law and situation, the plaintiff addressed a complaint on 15.09.2018 to the Assistant Executive Engineer, BBMP Ward No.12, Shetty Halli, Bengaluru narrating the entire aspect of the matter and requested the authority to take action against the defendant for having violated the position of the setback and caused the damage to the plaintiff's property. Along with the said complaint, the plaintiff has also enclosed six photographs. In the said complaint, the plaintiff has mentioned the name of one Sri Manjunath as owner of the schedule property as he being the son of defendant. Later on, the plaintiff came to know that said Mr. 5 OS 7104/2018-Judgment Manjunath is settled in a foreign country. Actually, the defendant and her husband namely Prasad have been maintaining the construction work. The copy of the representation dated 14.09.2018 is produced along with the plaint.
6. Despite complaint being lodged by the plaintiff, BBMP has not taken any steps. On account of construction put up by the defendant particularly on the Southern side, it damaged the property namely GP&T of the plaintiff and continuously affected the business carried on by the plaintiff. The business carried on by the plaintiff in the premises exclusively belongs to her. The defendant has no right or power in respect of the property belonging to the plaintiff ie., schedule A particularly on the Southern side of the property.
7. By virtue of the unlawful construction put up by the defendant, she has been affected by damaging her business and also the property belonging to her. The defendant has been continuing to put up further construction on Southern side and thereby such construction would completely damage the property belonging to the plaintiff. The entire construction put up by the 6 OS 7104/2018-Judgment defendant on the Schedule A property is in utter violation of the rules of putting construction. The plaintiff also under the impression that the defendant has also not obtained Sanctioned Plan from the authority and entire construction is against the rules pertaining to building construction. The main intention of the defendant is to widen the existing construction and put the plaintiff into jeopardy and damage the business run by the plaintiff. The plaintiff has been running the business since long prior to demolition of existent building by the defendant. There was no hindrance or problems to the plaintiff to run her business on the said situation on the Southern side of the schedule property. If the defendant is allowed to continue the construction, the plaintiff will be put to irreparable loss and injury which cannot be compensated in terms of money. Hence, the plaintiff has instituted this suit.
8. The cause of action for the suit arose during the month of August 2018 and subsequently within the jurisdiction of this Court and the plaintiff has paid proper court fee on the plaint. Hence, prayed to decree the suit.
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OS 7104/2018-Judgment
9. In response to the suit summons, the defendant entered appearance through her advocate and filed her written statement.
10. In her written statement, the defendant has contended that the plaintiff has not complied with Order XXXIX Rule 3(a) of CPC, in pursuance of interim exparte order of temporary injunction granted by this Court on IA No.1 on 28.09.2018, which is clear from the affidavit and covering letter of the counsel for the plaintiff dated 29.09.2018. It is borne that only a copy of the plaint and IA are dispatched to the defendant. Thus, the plaintiff having failed to comply Order 39 Rule 3A CPC, she cannot take advantage of the ad-interim order dated 28.09.2018 granted by this Court.
11. The averments that plaintiff is the owner of property bearing site No.73 & 74 measuring 60 X 40 feet having purchased the same vide sale deed dated 29.03.1981 may be true. However, it is false to contend that after purchase of the open space, she has constructed a shed and running a factory manufacturing sheet metal pressed and fabricated components, tools, dies etc., under the name and style Grand Pressing and Tools in the schedule A 8 OS 7104/2018-Judgment property. The plaintiff has not produced any documents in support of the same.
12. It is admitted that on the Southern side of the plaintiff's property, the property belonging to the defendant bearing Site No.72 in Survey No.17 measuring 30 feet X 40 feet as described in the schedule B of the plaint, is situated. It is further admitted that there was an old building on the property of the defendant and the said building was demolished and that the defendant is putting up a new construction on the same.
13. The averments that the plaintiff was under the impression that the proposed construction by the defendant in no way affect the property of the plaintiff is not within the knowledge of the defendant. The plaintiff has not raised the issue regarding setback on the left side of Schedule A property until completion of the building.
14. The averment that the plaintiff had been to Mumbai during the month of April 2018 and she was not aware as to how the construction was put up on the schedule B property and on 8.9.2018, she returned to Bengaluru and found that the defendant 9 OS 7104/2018-Judgment has put up construction on the Southern portion without leaving any setback as per the plan approved by BBMP and it is virtually touching the Southern portion of the plaintiff's property is denied as false.
15. It is contended that the alleged damage to the plaintiff's property as contended in para 5 of the plaint is caused due to the occupants of the schedule A property and the neighbors from the Northern portion of the plaintiff's property. The people are using the asbestos roof of the schedule A property to dry clothes. It is due to the access to the people to walk on the asbestos sheets of the schedule A property. The asbestos sheet was damaged and admittedly, also due to the dilapidated condition of the building of the plaintiff. As a matter of fact, the plaintiff contacted the defendant seeking construction material to repair the alleged damage caused to the asbestos sheet roof of the schedule A property. The defendant has furnished the photographs of the people walking on the sheets of the schedule A property (asbestos sheets) along with list of documents along with the written statement.
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OS 7104/2018-Judgment
16. The further averment that the plaintiff contacted the defendant and told her as to how she damaged plaintiff's property is false. The photographs produced by the plaintiff do not depict the correct position.
17. The plaintiff has given a false complaint to the BBMP by her representation dated 15.09.2018, in as much as, no asbestos sheets on the roof of the plaintiff's property are damaged due to the construction on the defendant's property. It is denied that the defendant has violated the position of setback and caused damage to the plaintiff's property. The said complaint lodged by plaintiff to BBMP is only with an intention to harass the defendant.
18. No damage, as alleged by the plaintiff, has been caused to the plaintiffs property by the construction made by the defendant. It is denied that the plaintiff is running pressing and tools business in her property. It is further denied that the construction made by the defendant is in violation of Rules. The defendant has obtained the building licence and sanctioned plan. The construction put up by the defendant is legal and it is nearing completion. It is denied 11 OS 7104/2018-Judgment that if the construction is continued, the plaintiff would be put to loss and injury.
19. The prayers sought in the plaint are misconceived. The plaintiff has filed the present suit with malafide intention after the building is almost complete, to harass the defendant and to extract money from the defendant.
20. The cause of action pleaded in the plaint is false and misconceived.
21. The plaintiff has mislead and persuaded this Court to grant an exparte ad interim order of temporary injunction, which the plaintiff is misusing. For all these reasons, the defendant has prayed that the suit is liable to be dismissed and accordingly, prayed to dismiss the suit with costs.
22. Based on the above pleadings, the following Issues have been framed for consideration:-
Issue No.1:- Whether the plaintiff proves that she constructed the shed in her property ie., schedule A property and running factory?12
OS 7104/2018-Judgment Issue No.2:- Whether the plaintiff proves that after demolishing of her old building, the defendant constructed building without leaving any set back as per approved plan of BBMP?
Issue No.3: Whether the plaintiff proves that the construction of the building by the defendant is touching the southern portion of her property (A schedule property) and caused damage?
Issue No.4:- Whether the plaintiff is entitled for the relief of mandatory injunction?
Issue No.5 :- Whether the plaintiff is entitled for the relief of permanent injunction?
Issue No.6 :- What order or decree?
23. To prove her case, the plaintiff herself entered into witness box and got examined by oath as PW 1 and filed sworn affidavit of examination in chief under which all the plaint averments are reiterated. To substantiate her case, she has produced certain documents which are marked as Ex.P 1 to Ex.P 18. The learned counsel for defendant cross examined her.
24. Further, in support of case of the plaintiff, Sri Dineshan Venandan is examined by oath as PW 2 and he filed his sworn 13 OS 7104/2018-Judgment affidavit of examination in chief. Ex.P 19 to 24 are got marked through him. But he is not cross examined by learned counsel for defendant and accordingly posted for defendant's evidence.
25. To disprove the case of the plaintiff and to defend her side, the defendant herself entered into witness box and got examined as DW 1 and filed her sworn affidavit of examination in chief under which all contentions in the written statement are reiterated. But she has not produced any documents and the learned counsel for plaintiff cross examined her.
26. On the other hand, the Assistant Executive Engineer of BBMP was appointed as Court Commissioner in this case, who has filed his report and got examined himself by oath as CW 1 and Ex.C 1 to Ex.C 7 are got marked through him. The learned Counsel for the defendant cross examined him. Ex.C 8 is got marked through confrontation to him.
27. Heard, perused materials placed on record and accordingly this Court answers above Issues as under;
Issue No 1 to 4 : In the Affirmative;
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OS 7104/2018-Judgment
Issue No 5 : Disposed off as infructuous;
Issue No 6 : As per the final Order;
For the following;
REASONS
28. Issue Nos.1 to 5 : These five Issues are inter connected to each other, hence, to avoid repeated discussions they are taken up together as here under;
Admittedly, this suit is filed for the relief of mandatory injunction directing the defendant, her supporters/representatives to demolish the Southern wall of the Schedule A property and Northern portion of Schedule B property and for the relief of permanent injunction restraining the defendant, her servants/relatives/representatives and anybody representing on her behalf from putting up any construction damaging the property belonging to the plaintiff in any manner and to grant any such other reliefs as this Court deems fit under the circumstances of this case including costs in the interest of justice. 15
OS 7104/2018-Judgment
29. On perusal of written statement of defendant, the following are undisputed facts in this case;
Firstly, as per paragraph 5 of the written statement, the ownership of plaintiff over the suit schedule A property measuring 60ft X 40ft vide Sale Deed dated 20-03-1981 is admitted and undisputed fact.
Secondly, as per paragraph 6 of the plaint, the ownership of defendant over property in the Southern side of plaintiff's property bearing site No.72 in Survey Number 17 measuring 30 feet X 40 feet which is described in plaint B schedule is undisputed fact.
Thirdly, as per paragraph 7 of the written statement, the defendant admitted the averments in paragraph 4 of the plaint as it is true that there was an old building on the property of defendant and it was demolished and defendant is putting new construction.
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OS 7104/2018-Judgment Surprising point in this written statement is in paragraph 3, wherein it is contended about non-compliance of order of exparte temporary injunction dated 28-09-2018 under Order XXXIX Rule 3(a) of CPC. It is submitted by defendant that non-compliance is clear from the affidavit and covering letter of the Counsel for the plaintiff both dated 29-09-2018 and further stated that from the compliance affidavit filed by the plaintiff counsel, it is borne out that only a copy of plaint and the Affidavit are dispatched to the defendant. Further in paragraph 17, it is contended that the plaintiff has mislead and persuaded this Court to grant an exparte ad-interim order of temporary injunction, which the plaintiff is misusing. Further stated that the plaintiff has deliberately not complied with the mandatory provisions of the Proviso to Rule 3 A of Order XXXIX CPC, hence prayed to dismiss the suit. But, it is well- known that non-compliance of such order is not a ground for either dismissal of suit or for rejection of plaint as per Order VII Rule 11 of CPC. Defendant ought to have contended this in the objections to IA filed by the plaintiff under Order XXXIX Rule 1 and 2 CPC. For proper appreciation of the situation, Order XXXIX Rule 3 A of CPC is reproduced here under;
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OS 7104/2018-Judgment "3A. Court to dispose of application for injunction within thirty days.--Where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability." Actually compliance of such order is coming under Order XXXIX Rule 3(a) of CPC which is reproduced here under;
"3. Before granting injunction, Court to direct notice to opposite party.--The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party:
Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its 18 OS 7104/2018-Judgment opinion that the object of granting the injunction would be defeated by delay, and require the applicant--
(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with--
(i) a copy of the affidavit filed in support of the application;
(ii) a copy of the plaint; and
(iii) copies of documents on which the applicant, relies, and
(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent."
Non-compliance of this provision is not treated as "barred by law" as given under Order VII Rule 11 as this Civil Procedure Code is "Procedural Law" and not a "Substantive Law." These are all the technical lapses which would be grounds for vacating of interim order of exparte temporary injunction and not a ground for dismissal of suit. For dismissal of suit, the criteria looked into are; 19
OS 7104/2018-Judgment Whether the plaintiff failed to prove his case by his own pleading and oral and documentary evidence;
Whether the defendant succeeded in disproving the case of plaintiff through his pleadings and in eliciting contra to plaintiff's case;
Whether the suit of the plaintiff involves the defects mentioned in Order VII Rule 11 as rejection of plaint somehow same as dismissal of suit;
Whether the suit suffers principle of res-judicata etc.
30. Further, as per plaint A, the schedule property is the property of plaintiff and B schedule property is property of defendant. It is undisputed fact that they are adjacent to each other. As per boundaries of property shown in schedules, to the South of property in A schedule belongs to defendant which is Plot No.72 and to the North of B schedule, the property belongs to plaintiff. Ex.P.12 is the certified copy of registered sale deed of plaintiff dated 20-03-1981 executed by C.V. Balarama Shetty in favour of plaintiff for the sale consideration amount of Rs.4,000/-. The schedule of that sale deed corresponds with the plaint A 20 OS 7104/2018-Judgment schedule. On the other hand defendant has not produced any document. But in page No 8 of her cross examination DW 1 admitted as, "ನಮ್ಮ ಆಸ್ತಿಯ ಎಡಭಾಗದಲ್ಲಿ ಈ ವಾದಿಯ ಆಸ್ತಿ ಇದೆ ಎಂದರೆ ಹೌದು." Then, it is clear that the property of plaintiff and defendant are adjacent to each other.
31. Next to that the prayer (i) in the plaint is;
"(i) Issue a mandatory injunction directing the defendant, her supporters/representatives to demolish the Southern wall of the Schedule - A Property and viz., Northern portion of B Schedule Property."
32. The facts of plaint in this regard are narrated above and the contention of defendant in her written statement are reiterated supra. Though defendant in paragraph 14 of her written statement denied the averments of plaintiff in paragraph 8 of the plaint about violation of construction rules by defendant and though she has stated that she has obtained the building license and sanction plan and submitted as construction put up by her is legal, but she has not produced the document of building license 21 OS 7104/2018-Judgment and sanction plan. PW 1 has produced certified copy of sanction plan in respect of site No.72 which is marked as Ex.P.2. In page Nos.8 and 9 in paragraph Nos.1 and 2 of cross examination of DW 1 stated as;
"ನಮ್ಮ ಆಸ್ತಿಯಲ್ಲಿ ಮೊದಲು ಹಳೇ ಕಟ್ಟಡ ಇತ್ತು ಅದನ್ನು ಒಡೆದು 3 ವರ್ಷದ ಹಿಂದೆ ಹೊಸ ಕಟ್ಟಡ ಕಟ್ಟಿದ್ದೇವೆ. ಆ ರೀತಿ ಕಟ್ಟಡ ಕಟ್ಟು ವಾಗ ಸಂಬಂದಪಟ್ಟಂತಹ ಇಲಾಖೆಯಿಂದ ಕಟ್ಟಡ ಪ್ಲಾ ನ್ನ್ನು ಅಪ್ರೂ ವಲ್ ತೆಗೆದುಕೊಂಡಿದ್ದೆವು. ಅದೇ ಈಗ ತೋರಿಸಿದ ನಿಪಿ 2 ದಾಖಲೆಯಾಗಿರುತ್ತದೆ. ನಿಪಿ2 ರ ಪ್ರಕಾರವೇ ನಾವು ಕಟ್ಟವನ್ನು ಕಟ್ಟಿದ್ದು ನಾವು ಯಾವುದೇ ಕಟ್ಟಡ ಪ್ಲಾ ನ್ ಉಲ್ಲಂಘನೆ ಮಾಡಿಲ್ಲ. ನಿಪಿ 3 ರಲ್ಲಿ ತೋರುವಂತಹ ದೊಡ್ಡ ಕಟ್ಟಡ ನಮ್ಮದು ಅದರ ಪಕ್ಕದಲ್ಲಿ ಅಂಗಡಿ ಮಳಿಗೆ ವಾದಿಗೆ ಸೇರಿದವು. ಸದರಿ ನಮ್ಮ ಕಟ್ಟಡ ಮತ್ತು ವಾದಿಯ ಕಟ್ಟಡದ ಮಧ್ಯೆ ಜಾಗ ಇದೆ. ಸದರಿ ಕಟ್ಟಡದ ಮಧ್ಯೆ 4 ಅಡಿ ಜಾಗ ಬಿಟ್ಟಿದ್ದೇವೆ.
ನಮ್ಮ ಮೊದಲನೇ ಅಂತಸ್ತಿನಿಂದ ಮೂರನೇ ಅಂತಸ್ತಿನ ವರೆಗೆ ನಾವು ಕಟ್ಟಿದಂತಹ ಕಟ್ಟಡವನ್ನು ವಾದಿಯ ಕಟ್ಟಡಕ್ಕೆ ತಾಗಿಸಿಃಹೊಂದಿಸಿ ಕಟ್ಟಿದ್ದೇವೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಸದರಿ ನಿಪಿ 15 ಮತ್ತು 16 ನ್ನು ಸಾಕ್ಷಿಗೆ ತೋರಿಸಿ ನಮ್ಮ ಕಟ್ಟಡಕ್ಕೂ ಮತ್ತು ವಾದಿಯ ಕಟ್ಟಡಕ್ಕೂ ಮಧ್ಯೆ ಜಾಗ ಬಿಟ್ಟಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಬಿಟ್ಟಿದ್ದೇವೆ ಅವರೇ ಜಾಗ ಬಿಡದೇ ಹಾಗೆ ಕಟ್ಟಿದ್ದಾ ರೆ ಎಂದು ಸಾಕ್ಷಿ ಹೇಳುತ್ತಾ ರೆ.
2. ವಾದಿಯ ಕಟ್ಟಡ ಬಹಳ ಹಳೆಯದು. ವಾದಿಯರು ಜಾಗ ಬಿಡದೇ ಕಟ್ಟಿದ್ದಾ ರೆ ಎಂದು ಸಾಕ್ಷಿ ಹೇಳುತ್ತಾ ರೆ. ನ್ಯಾ ಯಾಲಯದಿಂದ ನಿಯೋಗಿಯು ಬಂದು ಸ್ಧಳ ಪರಿಶೀಲನೆ 22 OS 7104/2018-Judgment ಮಾಡಲು ನಮ್ಮದೇನೂ ಅಭ್ಯಂತರವಿಲ್ಲ. ನಾವು ಮೊದಲನೇ ಅಂತಸ್ತಿನಿಂದ ಮೂರನೇ ಅಂತಸ್ತಿನ ವರೆಗೆ ಬಾಡಿಗೆ ಕೊಟ್ಟಿದ್ದೇವೆ. ಸದರಿ ನಮ್ಮ ಕಟ್ಟಡದಿಂದ ಹಾಕಿದಂತಹ ಕಸ ವಾದಿಯ ಕಟ್ಟಡದ ಮೇಲೆ ಬಿದ್ದು ಜಖಂ ಗೊಂಡಿದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ನಾವು ನಮ್ಮ ಕಟ್ಟಡಕ್ಕೆ ಜಾಲರಿ ಹಾಕಿದ್ದೇವೆ ಎಂದು ಸಾಕ್ಷಿ ಹೇಳುತ್ತಾ ರೆ. ಸದರಿ ನಮ್ಮ ಬಾಡಿಗೆದಾರರು ವಾದಿಯ ಮನೆಯ ಶೀಟ್ ನ ಮೇಲೆ ಕಸವನ್ನು ಹಾಕಿ ಜಖಂಗೊಳಿಸಿದ್ದಾ ರೆ ಎಂದರೆ ಸರಿಯಲ್ಲ. ಮತ್ತು ಅಲ್ಲಿ ಹಾಕಲು ಯಾವುದೇ ಜಾಗವಿಲ್ಲ ಎಂದು ಸಾಕ್ಷಿ ಹೇಳುತ್ತಾ ರೆ. ಸದರಿ ಸಾಕ್ಷಿಗೆ ನಿಪಿ 19 ರಿಂದ 22 ಛಾಯಾಚಿತ್ರಗಳನ್ನು ತೋರಿಸಿ ನಮ್ಮ ಬಾಡಿಗೆದಾರರು ಕಸ ಹಾಕಿದ್ದರಿಂದ ವಾದಿಯ ಸಿಮೆಂಟ್ ಶೀಟ್ ಜಖಂ ಗೊಂಡಿದೆ ಎಂದರೆ ಸರಿಯಲ್ಲ ಅವರೇ ಸೃಷ್ಟಿ ಮಾಡಿಕೊಂಡಿದ್ದಾ ರೆ ಎಂದು ನುಡಿಯುತ್ತಾ ರೆ."
33. In these statements, she has stated that from 1st floor to 3rd floor, they gave it for rent. Now, on perusal of Ex.P 1 it shows that there is permission given for construction of Stilt, Ground Floor, First Floor, Second Floor and Terrace. But, she has stated that they gave 3rd floor for rent which shows that defendant had violated sanction plan while constructing the alleged building. Further in page No.10 paragraph 3 of her cross examination DW 1 admitted as:-
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OS 7104/2018-Judgment "3. ವಾದಿ ನನಗೆ ಸುಮಾರು ವರುಷಗಳಿಂದ ಪರಿಚಯ. ನಾನು ಕಟ್ಟಡ ಪ್ರಾ ರಂಭ ಮಾಡುವ ಮೊದಲು ಹಳೆ ಕಟ್ಟಡ ತೆಗೆದು ಹೊಸ ಕಟ್ಟಡ ಕಟ್ಟು ತ್ತೇೆನೆ ಎಂದು ಹೇಳಿದ್ದೇನೆ ಎಂದರೆ ಹೌದು. ಅದೇ ರೀತಿ ಕಟ್ಟಡ ಕಟ್ಟಲು ಕಟ್ಟಡದ ಪ್ಲಾ ನನ್ನು ಬಿಬಿಎಂಪಿ ಯಿಂದ ಪಡೆದಿದ್ದೇನೆ ಎಂದರೆ ಅದನ್ನೆಲ್ಲಾ ಹೇಳಿಲ್ಲ ಎಂದು ಸಾಕ್ಷಿ ಹೇಳುತ್ತಾ ರೆ. ಈಗ ತೋರಿಸಿದ ನಿಪಿ2 ಬಿಲ್ಡಿಂಗ್ಪ್ಲಾ ನ್ಎಂದರೆ ಹೌದು. ನಾವು ಜಿ ಪ್ಲಸ್3 ಕಟ್ಟಡ ಕಟ್ಟಿದ್ದೇವೆ. ನಮಗೆ ಕಟ್ಟಡ ಕಟ್ಟಲು ಪ್ಲಾ ನ್ಮಾನ್ಯತೆ ಸಿಕ್ಕಿದ್ದು ಜಿ ಪ್ಲಸ್2 ಎಂದರೆ ಹೌದು. ಸೆಟ್ಬ್ಯಾ ಕ್ಬಗ್ಗೆ ಗೊತ್ತು . ನಿಪಿ 2 ರ ಪ್ರಕಾರ ನಾನು ಕಟ್ಟಡ ಕಟ್ಟು ವಾಗ ಯಾವುದೇ ಕಡೆಗೂ ಸಹ ಸೆಟ್ಬ್ಯಾ ಕ್ ನ್ನು ಬಿಟ್ಟಿಲ್ಲ ಎಂದರೆ ಸರಿಯಲ್ಲ. ನಮ್ಮ ಕಟ್ಟಡದ ಉತ್ತರಕ್ಕೆ 3 ಅಡಿ ಜಾಗ ಬಿಟ್ಟಿದ್ದೇನೆ.
ದಕ್ಷಿಣಕ್ಕೆ 5 ಅಡಿ ಬಿಟ್ಟಿದ್ದೇನೆ. ಪೂರ್ವಕ್ಕೆ ರಸ್ತೆ ಇದೆ. ಪಶ್ಚಿಮಕ್ಕೂ ಸಹ 3 ಅಡಿ ಸೆಟ್ ಬ್ಯಾ ಕ್ ಬಿಟ್ಟಿದ್ದೇನೆ."
34. In this portion, she admitted that permission granted her to construct "G Plus 2", but she has constructed "G plus 3" which establishes clear violation of building license and sanction plan by the defendant.
35. In the evidence of PW 1, Ex.P 3 to Ex.P 8 are the photographs which show progress of construction work and Ex.P 9 and 10 are its CD and studio bill. Ex.P 13 to Ex.P 16 are the further photographs which show the completed construction work of building and Ex.P 17 and Ex.P 18 are its CD and Studio Bill. Ex.P 19 24 OS 7104/2018-Judgment to Ex.P 22 are the next series of photographs which show the damage in the RCC roof and putting garbage in the floor and Ex.P 23 and Ex.P 24 are its CD and Studio bills. On the other hand, in the cross examination of PW 1, certain photographs are confronted to her which are marked as Ex.D 1 to Ex.D 3 which show the RCC roofed building and putting the clothes on that roof, but it is evident that the adjacent building is put-up without leaving space as the wall of that building touched the RCC roof.
36. The other documentary evidence of PW 1 are the complaint lodged by plaintiff to Gangammagudi Police Station against defendant about continuation of construction work by defendant by violating the injunction order issued by this Court. In this document, the Sub-Inspector of Police of that station affixed seal and signature for having received the same. The photographs produced along with the plaint which are marked as Ex.P 3 to Ex.P 8 are show the earlier process of construction. Ex.P 13 to 16 show the finished/completed building. Further Ex.D 1 to Ex.D 3 show the building in construction stage. That shows that construction of building by defendant is admitted fact and there is no denial of 25 OS 7104/2018-Judgment continuation of work by the defendant which establishes that during the pendency of proceedings, the defendant has continued construction work though there is enforcement of order of temporary injunction. The above discussion about defendant's contention about non-compliance of Order XXXIX Rule 3(a) shows that the defendant is aware about the order of exparte temporary injunction against her. As per order sheet, it shows the compliance of Order XXXIX Rule 3(a) of CPC by the plaintiff. Ex.P 1 is the complaint about violation of order of temporary injunction to the jurisdictional police lodged on 07-11-2018 and as per order sheet, till 22-04-2019, the said order was extended, but subsequent thereto, there is no mention about the same as later COVID SOP period is recorded in the order sheet. Though in between, the evidence of plaintiff is commenced, but the above dates show that during the pendency of suit, when temporary injunction order is in force, the defendant not only violated building bye-law, but also violated court order too.
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37. Ex.P 11 is the complaint to BBMP by the plaintiff which correspond with plaint pleadings about the construction in site No.73 by damaging the property of plaintiff.
38. Now, as per the above discussion, it is clear that the plaintiff and defendant are the owners of property located adjacent to each other which are A schedule and B schedule of the plaint respectively. The defendant constructed a building by violation of sanction plan and bye-laws of BBMP Act and Rules. Not only violated building rules and plans, but also violated court order as during the pendency of suit, she completed the building which was in the earlier stage while filing of the suit. In the cross examination of DW 1, she has admitted that the building of plaintiff in A schedule property is an old building. Though defendant has stated that plaintiff constructed her building without leaving set back area, but there is no pleading and counter claim in the written statement about construction of plaintiff in A schedule property and about such set back of the plaintiff. As the construction of defendant is subsequent one, then defendant ought to have left set-back area while construction as Section 249 of THE BRUHAT 27 OS 7104/2018-Judgment BENGALURU MAHANAGARA PALIKE ACT, 2020 gives provision regarding the same and Rules of BANGALORE MAHANAGARA PALIKE BUILDING BYE-LAWS 2003 gives measurements of set-back area while constructing a building which are reproduced here under.
"249. Regularization of certain unlawful buildings.- (1) Notwithstanding anything contained in this Act, when construction of any building is completed in contravention of Section 240, Section 245 and building by laws made under section 239, the Zonal Commissioner may regularise building constructed prior to the date of commencement of the Karnataka Town and Country Planning and certain other Laws (Amendment) Act, 2013 subject to the following restrictions and such rules as may be prescribed and on payment of the amount specified in sub-section (2), namely:-
(a) Where the building is built abutting the neighbouring property or where the set back provided is less than the limit prescribed in bye laws, violation upto twenty-five percent in case of non-residential buildings and fifty percent in case of residential buildings shall be regularized.
(b) No development made in the basement or usage in contravention of bye law shall be regularized.28
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(c) The construction of building shall not be regularised if it violates the building line specified on any given road unless the owners of such building furnish an undertaking that the space between the building line and the road or footpath or margin will be given up free of cost at any time when required for the purpose of widening the road in question.
(d) The provisions of sub-sections (2) to (14) of section 76 FF of the Karnataka Town and Country Planning Act, 1961, shall apply mutatis mutandis for regularization of building under this section and application for regularization being made to the Zonal Commissioner.
(2) Regularisation of any construction under this section shall be subject to payment of the prescribed amount which may be different for different types of contravention of building bye-laws: Provided that the amount so prescribed shall not be less than,-
(i) six percent of the market value, determined in accordance with the Karnataka Stamp Act, 1957 and rules made thereunder, of the portion of the building built in violation of the provisions referred to above, if such violation of set back norms and permissible floor area ratio does not exceed twenty five percent;
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(ii) eight percent of the market value, determined in accordance with the Karnataka Stamp Act, 1957 and the rules made thereunder, of the portion of the building built in violation of the provisions referred to above, if such violation of set back norms and permissible floor area ratio exceeds twenty five percent but does not exceed fifty percent: Provided further that where the portion of the building is built in violation of the provisions referred to above is being used or meant for non-residential purpose and amount payable for regularization of such portion shall be,-
(a) twenty percent of the market value, determined in accordance with the Karnataka Stamp Act, 1957 and the rules made thereunder, of the portion of the building built in violation of the provisions referred to above, if such violation of set back norms and permissible floor area ratio does not exceed twelve and a half percent;
(b) thirty five percent of the market value, determined in accordance with the Karnataka Stamp Act, 1957 and the rules made thereunder, of the portion of the building built in violation of the provisions referred to above, if such violation of set back norms and permissible floor area ratio exceeds twelve and a half percent but does not exceed twenty five percent.
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OS 7104/2018-Judgment (3) No person shall be liable to pay fine or fee for regularization under any other law if he has paid regularization fee under this Act for the same violations.
(4) All payments made under sub-section (1) shall be credited to a separate fund kept in the concerned Local/Planning Authority called the urban areas infrastructure Development fund which shall be utilized in such manner, for the development of infrastructure, civic 77 amenities, lighting, parks, drinking water, drainage system and for any other infrastructure, as may be prescribed." And as per BANGALORE MAHANAGARA PALIKE BUILDING BYE-LAWS 2003 "2.76 . 'set back line' means a line prescribed under these bye-laws beyond which nothing can be constructed towards the plot boundary except those not included under the definition of coverage."
AND "3.10 (1) (2) (3) (4) Exemptions for ground rent - Ground rent may be exempted in the following cases, namely individual residential bungalows with front set back of 6 meters and more with coverage of not more than 55 per cent. schools, colleges and other institutions with a front 31 OS 7104/2018-Judgment set back of 8 meters and more with coverage of not more than 33.33 per cent.
Religious and cultural buildings with a front set back of 8 meters and more with coverage of not more than 45 per cent.
Heavy industries and Government buildings with large extents of land capable of storing the building materials within the periphery of the property. Note: Exemption shall be granted only on production of undertaking from the applicant on a stamped paper of Rs. 30 that the Corporation land, footpath and road will not be used for stocking building materials as well as depositing debris and in case of violation of this condition, they shall be liable to pay the ground rent at the normal rates in addition to the penalty of 50 % of the amount specified which will be recovered as arrears of tax on land and buildings, etc."
AND "6.0 Deviations during Construction Wherever any construction is in violation/deviation of the sanctioned plan, the Commissioner may, if he considers that the violations / deviations are within 5% of (1) the set back to be provided around the building, 32 OS 7104/2018-Judgment (2) plot coverage (3) floor area ratio and (4) height of the building and that the demolition under chapter XV of the Act is not feasible without affecting structural stability, he may regularize such violations/deviations after recording detailed reasons for the same. Violation/deviation as at 6.0 (i) above may be regularised only after sanctioning the modified plan recording thereon the violations/deviations and after the levy of fee prescribed by the Corporation from time to time. Regularisation of violations / deviations under this provision are not applicable to the buildings which are constructed without obtaining any sanctioned plan whatsoever and also the violations / deviations which are made inspite of the same being specifically deleted or rejected in the sanctioned plan."
AND "9.3 9.3.1 9.3.2 High rise buildings. In the case of 'high-rise buildings' the minimum set-back all-round the building shall be as in Table 5. Minimum depth or width of a site for high rise buildings shall be 21 mtrs. 9.3.3. Minimum road width facing a high rise building shall be 12mts."
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OS 7104/2018-Judgment This building is coming under the meaning of high rise buildings given under THE KARNATAKA FIRE FORCE ACT, 1964.
39. In view of the above provision of law, the defendant is duty bound to leave set back area while constructing the building. If the plaintiff commits any breach of sanction plan while construction of her building, then this defendant is at liberty to question it at the time of progress of construction by the plaintiff. Therefore, as per the above discussions, it is evident that the plaintiff has established that the defendant constructed a building in violation of sanction plan and it is also established that she has constructed building without leaving set back area.
40. To make it clearer after evidence of both the sides as per application by the plaintiff, the court commissioner is appointed, who conducted spot inspection and filed his report. The learned counsel for the defendant called him for cross examination which shows that his report is against the defence of defendant. Therefore, the Assistant Executive Engineer BBMP who is the Court Commissioner entered into witness box and got examined by oath as CW 1 and Ex.C 1 to Ex.C 7 are got marked through him. The 34 OS 7104/2018-Judgment learned counsel for defendant cross examined him and Ex.C 8 is marked through confrontation in his cross examination by the learned counsel for defendant. There is cross examination of CW 1 by the plaintiff's side.
41. In his evidence, Ex.C 1 is the covering letter enclosed to the commissioner report while producing it to the Court in which he has stated that, said letter enclosed with copy of sketch, copy of sanction plan and his report. Ex.C 2 is the Commissioner Warrant, Ex.C 3 is the spot inspection report dated 23-01-2024. Ex.C 4 are 2 sketches and Ex.C 5 is the "details of deviation with respect to plan sanction." Ex.C 6 are 12 photographs in 3 page which are clicked while making spot inspection by the Court Commissioner. Ex.C 7 is the sanction plan which is nothing but replica of Ex.P 2.
42. In his cross examination, CW 1 has stated that he had furnished two reports as the earlier report was made from outside as the parties were absent on that date and he was not able to inspect the building from inside as the spot was locked. The said earlier report from the court file confronted to him by learned counsel for defendant and marked it as Ex.C 8. On perusal of his 35 OS 7104/2018-Judgment cross examination, the learned counsel for the defendant failed to elicit contra to his report. It shows the interaction only on technical grounds about serving of notice to the parties and about memo of instruction etc. There is no contra to each other in his two reports. In his report, in "stilt", there finds 100% deviation, since as per sanction plan, she was permitted to build 69.40%, but she built 95.13%. In every floors, there finds deviation and violation of sanction plan and building is built without leaving set back area. On perusal Ex.C 8, it is evident that there also same deviations and percentage of violation only differs as at the time of earlier spot investigation, the defendant was not present at the spot and it is reported by the Court Commissioner in Ex.C 8 that the defendant has refused to receive the notice of commissioner.
43. Therefore, the violation of sanction plan and construction of building without leaving set back area by the defendant in her property (B Schedule property) in the side where plaintiff's property is located (A schedule property) is established by the plaintiff in her examination, in cross examination of DW1 and through the evidence of Court Commissioner and his report. 36
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44. Now, without going through the cross examination of PW 1, the judgment will not be complete. In page No 8 of her cross examination she has stated as:-
"ದಾವಾ ಅ ಅನುಸೂಚಿ ಆಸ್ತಿಯಲ್ಲಿ 1981 ರಲ್ಲಿ ಶೆಡ್ಹಾಕಿದ್ದೇನೆ. ದಾವಾ ಆಸ್ತಿಯಲ್ಲಿ 4 ಅಂಗಡಿಗಳನ್ನು ಕೂಡ ಕಟ್ಟಿದ್ದೇನೆ. ಪ್ರತಿಯೊಂದು ಅಂಗಡಿಯ ಅಳತೆ 10X10 ಅಡಿ ಇರುತ್ತದೆ ಮತ್ತು ಫ್ಯಾ ಕ್ಟರಿಗೆ ಹೋಗಲು 20 ಅಡಿ ಅಳತೆ ರಸ್ತೆ ಇರುತ್ತದೆ. ಸದರಿ ರಸ್ತೆಯು ನಮ್ಮ ಆಸ್ತಿಯ ಉ್ತತರ ಭಾಗದಲ್ಲಿದೆ."
45. If we compare it with cross examination of DW1 in page No 9 paragraph 2, she has admitted as " ವಾದಿಯ ಕಟ್ಟಡ ಬಹಳ ಹಳೆಯದು." Then it is clear that the person who constructs subsequently shall follow rules of easementary right of the person who is there earlier. These circumstances of the facts of the case gives fragrance of right of easement under THE INDIAN EASEMENTS ACT, 1882.
46. As per Indian Easement Act, Section 4, an Easement is a right which the owner or occupier of certain land possesses for the beneficial enjoyment of that land, to do or to continue to do something, or to prevent or to continue to prevent something 37 OS 7104/2018-Judgment being done in or upon or in respect of certain other land not his own. Land includes those things that are permanently attached. Beneficial enjoyment includes any convenience or advantage or any amenity. The owner or occupier is the dominant owner and his land is the dominant heritage. The land on which the liability is imposed is called a servient heritage or tenament and the owner of that, is the servient owner. Eg.: 'A' the owner of the house has a right of way over B's land. This is for the beneficial enjoyment of As house. This is an Easement. A is the owner of a house. He has a right of way over B's land to bring water from a stream. This is an easement. Eg.: a) Right of way. b) Right to nail fruit trees on neighbour's land. c) Right to discharge rain water by an eave. d) Right to bury the dead in a particular place. Here in this case, as neighbor, the plaintiff has right of air and light from the side of defendant's property which is the idea behind the rule of leaving set back area which is infringed by the defendant as plaintiff is in occupation since 1981. Then, we have to look into terms of easementary right provided under Section 15 of the Act which is reproduced here under.
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OS 7104/2018-Judgment "15. Acquisition by prescription.--Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years, and where support from one person's land or things affixed thereto has been peaceably received by another person's land subjected to artificial pressure or by things affixed thereto as an easement, without interruption, and for twenty years, and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support or other easement shall be absolute. Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.
Explanation I.--Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfillment of which it is to cease.
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OS 7104/2018-Judgment Explanation II.--Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made. Explanation III.--Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section. Explanation IV.--In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage. When the property over which a right is claimed under this section belongs to 3[Government] this section shall be read as if, for the words "twenty years", the words "4[thirty years]" were substituted.
Illustrations
(a) A suit is brought in 1883 for obstructing a right of way. The defendant admits the obstruction, but denies the right of way. The plaintiff proves that the right was peaceably and openly enjoyed by him, claiming title thereto as an easement and as of right, without 40 OS 7104/2018-Judgment interruption, from 1st January, 1862, to 1st January, 1882. The plaintiff is entitled to judgment.
(b) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that for a year of that time the plaintiff was entitled to possession of the servient heritage as lessee thereof and enjoyed the right as such lessee. The suit shall be dismissed, for the right of way has not been enjoyed "as an easement" for twenty years.
(c) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that the plaintiff on one occasion during the twenty years had admitted that the user was not of right and asked his leave to enjoyed the right. The suit shall be dismissed, for the right of way has not been enjoyed "as of right" for twenty years."
47. Here in this case, it is established that plaintiff is in occupation of Schedule A property since 1981. Ex.P 12 the Sale Deed of Plaintiff dated 20-03-1981, which gives proof of the same. As per Ex.P.2, permission for construction in B schedule property by defendant is provided from 26-10-2017 to 25-10-2019. As per Ex.P 1 and Ex.P 11, the compliant by the plaintiff against the 41 OS 7104/2018-Judgment defendant about violation of sanction plan was given in the year 2018 where it establishes that plaintiff enjoying property with air and light since more than 20 years. Moreover, the occupation of plaintiff as adjacent owner of B schedule property (defendant's property) in A schedule property (plaintiff's property) earlier to defendant since 1981 is admitted in the cross examination of DW 1 as discussed supra. In the boundaries, to the South of the plaintiff's property and to the North of defendant's property, they are adjacent to each other. Hence, as per law, it is the bounden duty of the defendant to construct her building by leaving set back area in the side of the plaintiff as per above narrated laws. Further, though the learned counsel for defendant in the cross examination of PW 1 asked about construction of old building of plaintiff in A schedule property and about business of plaintiff in A schedule property, but there is no pleading in either plaint or in the written statement in connection to said cross examination and moreover there is no counter claim in the written statement.
48. Though the learned counsel for the defendant relied upon certain citations listed below, but it will not support him as 42 OS 7104/2018-Judgment defendant failed to disprove the case of the plaintiff and plaintiff is succeeded in proving her case as above:-
(2013) 3 Supreme Court Cases 66 (COMMISSIONER, BANGALORE DEVELOPMENT AUTHORITY AND ANOTHER vs BRIJESH REDDY AND ANOTHER) In which it is held as;
"Land Acquisition Act, 1894 - Ss. 4 and 6 r/w S. 9 CPC
- Maintainability of suit in civil court when scheduled lands acquired under land acquisition proceedings - Remand of proceedings to trial court without examining issue of maintainability - Propriety - Reiterated, Land Acquisition Act is a complete code in itself and is meant to serve public purpose - By necessary implication, power of civil court to take cognizance under S. 9 CPC stands excluded and civil court has no jurisdiction to go into question of validity or legality of notification under S. 4, declaration under S. 6 and subsequent proceedings -- Civil court is devoid of jurisdiction to give declaration or even bare injunction on invalidity of procedure contemplated under LA Act - Only right available to aggrieved person is to approach High Court under Art. 226 and Supreme Court under Art. 136 of extraordinary power -- On facts held, civil suit filed by plaintiffs for permanent injunction restraining Defendants 1 and 2 i.e. BDA, from interfering with peaceful possession 43 OS 7104/2018-Judgment and enjoyment of schedule property was not maintainable
- High Court erred in remitting matter to trial court when suit itself was not maintainable -- Constitution of India - Arts. 300-A, 226 and 136 -Civil Procedure Code, 1908-S.9 (Paras 18 to 21).
2017 (2) AKR 695 :: (2017) 3 ICC 866 (BANGALORE DEVELOPMENT AUTHORITY, BANGALORE V. BHAGAVANDAS PATEL.) it is held as;
" (A) Specific Relief Act (47 of 1963) declaration and permanent injunction - Claim based on registered sale deed of suit property - Incumbent upon plaintiff to demonstrate specific case regarding identity of property -
Neither plaint nor other documents demonstrating suit property being beyond boundaries of lands acquired by authority or that same was comprised acquisition - Failure by plaintiff to prove his claim - Suit liable to be dismissed.
(Para 31, 32) (B) Civil P. C. (5 of 1908), S.9, 0.39, R.1-- Land Acquisition Act (1 of 1894) , S.4, S.6 - Civil Court jurisdiction - Suit for injunction -Suit property forming part of layout formed out of lands acquired under acquisition notifications- Acquisition proceedings beyond jurisdiction of Civil Court - Grant of injunction against dispossession is also beyond Civil Court jurisdiction.
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49. These citations are totally irrelevant to this case as there is no claim under Land Acquisition Act from both the sides.
1983 SCC OnLine Kar 49 : (1983) 2 Kant LJ 377 (Subhadrabai Annaji Versus Susheelabai & Ors.) it is held as;
" 8. The learned Advocate appearing for the appellant strenuously urged before me that the Courts below conspicuosly ignored an important aspect in the case, namely, that the plaintiffs stood by and allowed defendant 1 to put up the structure and that it is only when she completed the structure that they rushed to the Court with a prayer for mandatory injunction to demolish it. He submitted that even assuming that the open space was still of joint ownership, the plaintiffs, who are the co-owners, having allowed her to put up the structure adjoining her block, could not now ask by mandatory injunction to demolish the same. He submitted that they waived their right, if at all, by standing by and allowing her to put up the construction. Since that aspect was never considered by the Courts below, he submitted that the appeal was entitled, to succeed.
9. As against that, the learned Advocate appearing for the respondents/plaintiffs argued supporting the judgment 45 OS 7104/2018-Judgment and decree of the trial Court, confirmed by the 1st Appellate Court.
10. The sole question, therefore, that arises for my consideration in the present appeal is: Whether the Courts below were justified in issuing mandatory injunction to demolish the building on the facts and circumstances of the present case?'"
50. But here in this case, as discussed above, the defendant continued the construction though an order of interim injunction is in force which is revealed in her written statement itself and she admitted in her cross examination and the photographs produced by both the sides show the continuous progress of construction work at the pendency of suit.
ILR 2016 KAR 2899 (The Golden Valley Educational Trust Oorgam, Kolar District vs. The Vokkaligara Sangha, Bangalore). In this citation, the following paragraph clearly establishes that the circumstances of that case is totally different from this case;
"54. The suit is one for declaration and for permanent injunction. The plaintiff has not sought the relief of possession. According to the plaintiff, he is in possession of 46 OS 7104/2018-Judgment 'A' and 'B' schedule properties from the date of grant till the date of the lease and subsequently. Therefore, he has sought for a decree of permanent injunction. Now, the defendants specific case is, though a joint grant was made, it was made as a grant to the defendant only and therefore, from the date of grant, the defendant is in exclusive possession of the schedule properties along with the properties granted to them. As the plaintiff has not sought the relief of possession, the plaintiff is not entitled to the relief of declaration or possession."
51. Therefore, as per the facts and circumstances of the case and as per above discussions, the plaintiff has established her case and she has proved that the defendant has constructed her building by violation of sanction plan and without leaving set back area which curtailed easementary right of the plaintiff as discussed above. Further, the said constructoin concluded during the pendency of the suit by violating the order of temporary injunction. Hence, this court is of the considered opinion that the defendant shall have to demolish the wall of the building which is in the Northern side of defendant's B schedule property and 47 OS 7104/2018-Judgment Southern side of plaintiff's A schedule property which is constructed in B schedule property by her.
52. Further, regarding prayer for permanent injunction is concerned, it is prayed for restraining the defendant, her servants/relatives/representatives and anybody representing on her behalf from putting up any construction by damaging the property belonging to plaintiff in any manner which has become infructuous as the defendant has completed the said construction at the pendency of the suit.
53. Therefore, this Court finds that the plaintiff has proved that she has constructed the shed in her property that is in schedule A property and running factory prior to the construction of the building by the defendant, which is an admitted fact by the defendant. It is also proved by the plaintiff that defendant has constructed the present new building after demolishing of her old building without leaving set back area as per approved sanction plan. As per Court Commissioner's report and as per evidence of PW 1 and in cross examination of DW1, it is proved by the plaintiff that the construction of the building by the defendant is touching the Southern portion of plaintiff's property by damaging her 48 OS 7104/2018-Judgment property. Hence, she is entitled to get relief of mandatory injunction. But, regarding the relief of permanent injunction is concerned, the said prayer becomes infructuous as the construction is already completed while pendency of proceedings and for future events anticipatory order of permanent injunction shall not be granted. Accordingly, this Court answers Issue Nos.1 to 4 in the Affirmative and Issue No 5 is disposed off as having become infructuous.
54. Issue No.6 :- For the foregoing reasons and as per above answers to Issue Nos.1 to 5, this Court is of the considered opinion that the suit deserves to be decreed in part without costs as Issue No.5 becomes infructuous and proceeds to pass the following;
ORDER The suit of the plaintiff is decreed in part. Accordingly, the defendant is hereby directed by way of mandatory injunction to demolish the wall of the building constructed in B schedule property which stands in the Southern side of Suit A schedule property and Northern side to plaint B schedule property. 49
OS 7104/2018-Judgment The prayer for the relief of permanent injunction is disposed off as infructous.
No order as to costs.
Draw decree accordingly.
(Dictated to the Senior Sheristedar on computer, typed and printout thereof taken by him, after corrections, signed and pronounced by me in Open Court on 27.02.2025) (SMT. JYOTHSNA D., ) XVI ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH12), BENGALURU SCHEDULE - A (Belonging to the plaintiff) Property bearing No.73 and 74 of Yelahanka Hobli, Jaraka Bande Kavalu, Survey No.73, measuring East to West and North to South and bounded on :
East by : Road
West by : Railway Track
North by : Plot No.75
South by : Plot no.72 (belonging to defendants)
Along with unauthorised construction as on today. The said Survey Number, plaintiff has put up construction and carrying out the business GP&T. SCHEDULE - B Property belonging to the defendant measuring 30 feet X 40 feet and bounded on:-
East by : Road
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West by : Railway line
North by : Property belonging to the plaintiff
South by : Private property.
ANNEXURE
List of witnesses examined for the plaintiff. PW 1 - Smt. Sarojini Prasad PW 2 - Dineshan Venandan List of witnesses examined for the defendant. DW 1 - Smt. Neelambike List of documents marked for the plaintiff. Ex.P.1 Copy of Complaint dated 07.11.2018 by the plaintiff to Gangamma Gudi Police Station Ex.P.2 Certified copy of Plan in respect of Site No.72 of defendant Ex.P.3 to 6 Photographs 8 Ex.P.9 1 CD Ex.P.10 Bill issued by Maruthi Studio Ex.P.11 Copy of complaint dated 15.09.2018 by plaintiff to BBMP Ex.P.12 Sale Deed dated 20.03.1981 executed by 51 OS 7104/2018-Judgment Muniswamappa in favour of plaintiff Ex.P.13 4 Photographs to 16 Ex.P.17 1 CD Ex.P.18 Receipt issued by Photo Studio Ex.P.19 4 Photographs and 1 CD produced by PW 2 and marked to 24 subject to objection by counsel for defendant N List of documents marked for the defendant. Nil.
List of Court Commissioner Examined CW 1 - Krishna Murthy, Asst.Executive Engineer List of documents marked through Court Commissioner.
Ex.C.1 Covering Letter enclosed to the Commissioner Report
Ex.C.2 Commissioner Warrant
Ex.C.3 Spot Inspection Report dated 23-01-2024
Ex.C.4 2 sketches
Ex.C.5 Details of deviation with respect to plan sanction.
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Ex.C.6 12 photographs
Ex.C.7 Sanction Plan
Ex.C.8 Earlier Court Commissioner Report, marked in the evidence of DW1 (SMT. JYOTHSNA D., ) XVI ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH12), BENGALURU 53 OS 7104/2018-Judgment (Judgment pronounced in Open Court vide separate Judgment. Order portion reads as under) ORDER The suit of the plaintiff is decreed in part. Accordingly, the defendant is hereby directed by way of mandatory injunction to demolish the wall of the building constructed in B schedule property which stands in the Southern side of Suit A schedule property and Northern side to plaint B schedule property.
The prayer for the relief of permanent injunction is disposed off as infructous.
No order as to costs.
Draw decree accordingly.
XVI ADDL.CITY CIVIL AND SESSIONS JUDGE (CCH12), BENGALURU 54