Bangalore District Court
O.S./7853/2013 on 13 July, 2017
IN THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE,
BANGALORE CITY.
Dated on this the 13th day of July 2017
-: Present :-
Smt. M.Komalatha, B.Sc., LL.B.
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO. 7853/2013
Plaintiff :-
M.G.Krishnappa Naik S/o.Somappa
Naik, 68 Years, R/o.No.67/E, 2nd
Main,m 2nd Cross, 3rd Block, 3rd Stage,
Basaveshwaranagar, Bengaluru-79.
[By M/s.N.G.Kotre and Prashanth.M.S.,
Advocates]
/ VERSUS /
Defendants :-
1. Smt.Pushpa
W/o.K.G.Sooryanarayanappa, Major,
R/o.No. 19-D, 1st Main, 3rd Block,
3rd Stage, Basaveshwaranagar,
Bengaluru-79.
2. The Commissioner, BBMP, Corporation
Circle, Bengaluru-1.
3. The Assistant Executive Engineer,
Basaveshwaranagar Sub Division,
BBMP Ward No.100, RTO Office
Complex, Rajajinagar, Bengaluru-10.
4. The Assistant Engineer, Basaveshwara
Nagar Sub-Division, BBMP Ward
No.100, RTO Office Complex,
Rajajinagar, Bengaluru-10.
(Sri.M.S.S., Advocate for D-1
Sri.P., Advocate for D-2 to 4)
: 26.10.2013
Date of Institution of the suit
Nature of suit : Suit for permanent
injunction
Date of commencement of : 20.02.2016
evidence
Date on which the judgment is : 13.07.2017
pronounced
Years Months Days
Duration taken for disposal :
03 08 18
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JUDGMENT
This suit is filed by the plaintiff against the defendants seeking the relief of permanent injunction and mandatory injunction restraining the first defendant from putting up construction over the 'B' schedule property without obtaining permission from defendants No.2 to 4 and also directing her to remove the unauthorized structure i.e., the steel fabricated stairs put up on the northern portion of 'B' schedule property or on the failure of first defendant to remove such unauthorised structure, to direct the defendants No.2 to 4 to remove the unauthorized steel fabricated staircase put upon on the northern portion of 'B' schedule property by the first defendant.
2. The case of the plaintiff in brief is as follows :-
That, the residential property bearing Site No.67/E, Block No.III in West of Chord Road, 3rd Stage Extension measuring East to West 40 Feet and North to South 59 Feet, bounded on East by Property No.67-F, West by Property No.67-D, North by Road and South by Property No.19-D was sold in favour of one A.N.Sheshachar son of Late A.Narasimha Iyengar under a registered Sale Deed dated 23.11.1987, who sold the same in favour G.N.Narasimhamurthy on 29.1.1988 under a registered sale deed dated 14.3.1988. In pursuance of the said sale deed, said G.N.Narasimhamurthy obtained plan sanctioned by the BDA and put up construction consisting of ground and first floor, which is the 'A' schedule property.
3. Said G.N.Narasimhamurthy gifted the entire 'A' schedule property in favour of the plaintiff vide registered Gift Deed dated 3.8.2007. Since then, the plaintiff became the absolute owner of the same and is in possession and enjoyment of the said property.
4. That, the first defendant who is the owner of the 'B' schedule property, during the beginning of third week of September 2013 has illegally put up the steel fabricated stairs on the northern portion of her property in the f first floor leading to the terrace of 'B' schedule property without obtaining permission from the defendants No.2 to 4. The first defendant has no right whatsoever to put up such stairs in the space earmarked as 'setbacks' meant for movement of air and light. The plaintiff apprehends that the first defendant intends and proposes to put up second floor on her property.
5. The first defendant has no right whatsoever to prevent the plaintiff or his family members from enjoying the easementary rights. The first defendant has not heeded to the requests of the plaintiff and has proceeded to put up the stairs using the property of the plaintiff on the southern portion of 'A' schedule property. The illegal act of the first defendant has disturbed the easementary right of the plaintiff and it is apprehended that first defendant is proposed to use the said stairs to put up 2nd floor construction thereby there is imminent danger of invading and entering the 'A' schedule property belonging to the plaintiff.
6. That the illegal act of the first defendant has been brought to the notice of the defendants No.2 to 4 on 16.9.2013 in writing which has yielded no result. Hence, this suit.
7. In response to summons, the defendants No.2 to 4 entered appearance before the Court through their counsels. Though the first defendant appeared through her counsel, she did not contest the matter. The defendants No.2 to 4 resisted the suit by filing written statement.
8. The written statement of the defendants No.2 to 4 in brief is as follows :
The defendants No.2 to 4 do not admit the averments made in para 2 of the plaint. They claim strict proof of the same. They pleaded ignorance of the averments made in paras 2 and 3 of the plaint and contended that the allegations made are all devoid of substance. The suit filed by the plaintiff against statutory authority without issuing 2 months prior notice is not maintainable. They have taken action without the frame work of K.M.C.Act. They have acted in time and the action taken is in accordance with the provisions of the Act and Law. The plaintiff has not approached the Court with clean hands.
9. The defendants No.2 to 4 admit that the first defendant is the owner of the 'B' schedule property and the illegal act of the defendant is obstructing the easementary right of the plaintiff. The first defendant has illegally put up steel fabricated stairs in the setback area. As such the third defendant passed provisional order under Section 321(1) of the K.M.C.Act on 19.4.2014. The said provisional order cum notice was served on the first defendant on 19.4.2014. The first defendant was called upon to remove the illegal steel fabricated stairs put up in the set-back area within 9 days from the date of receipt of the notice. The first defendant replied to the notice on 25.4.2014, which was not satisfactory. Hence, the confirmation order was passed and served on the first defendant by the defendant No.3 on 28.4.2014. On these grounds the defendants pray for dismissal of the suit.
10. On the basis of the pleadings of the parties, following issues are framed :
(1) Whether the plaintiff proves that he is having easementary right on the northern portion of the plaint 'B' schedule property?
(2) Whether the plaintiff proves that due to steel fabricated stairs put up by the first defendant on the northern portion of the plaint 'B' schedule property, movement of air and light to the property of plaintiff is obstructed ?
(3) Whether the plaintiff proves that defendants are illegally put up steel fabricated stairs on the northern portion of the plaint 'B' schedule property without obtaining permission from the defendants 2 to 4 ?
(4) Whether the plaintiff is entitled for the reliefs as prayed for ?
(5) What order or decree ?
11. In order to substantiate his claim, the plaintiff has examined himself as P.W.1 and got marked the documents as Exs.P.1 to P.14 and closed his side. The Assistant Engineer, BBMP has examined himself as D.W.1 and got marked the documents Exs.D.1 to D.3 and closed their side.
12. Heard the arguments of both sides.
13. My findings on the above issues are as follows:
Issue No.1 : In the affirmative.
Issue No.2 : In the affirmative.
Issue No.3 : In the affirmative.
Issue No.4 : Partly in the affirmative.
Issue No.5 : As per final order, for the
following:
REASONS
14. Issues No.1 to 3 :- These three issues are interlinked with each other. In order to avoid repetition of facts, these issues are taken up together for consideration.
15. Admittedly, the plaintiff is the owner in possession of the suit schedule property situated at 2nd Main, 2nd Cross, 3rd Block, 3rd Stage, Basaveshwara Nagar, Bengaluru, measuring to an extent of East - West 40 feet and North - South 59 feet, hereinafter referred to as 'A' schedule property. Further, it is not in dispute that towards the southern side of the plaint schedule property, the property belongs to the defendant is situated on the northern side. Though the first defendant appeared in this case, she has not chosen to file written statement. She has not denied the title and ownership of the plaintiff with respect to the suit schedule property and her property is situated on the northern side of the 'A' schedule property. It is an admitted fact that, towards the northern side of the suit schedule property, the property belongs to the defendant is situated. The plaintiff has come up with this suit claiming that the defendant proceeded to put up staircase using his property on the southern portion of his suit schedule property. The said act of the defendant disturbs his easementary right. Further, it is apprehended that the first defendant proposed to put up second floor on her property without leaving setback, on the steel fabricated stairs, thereby his easementary right is affected.
16. To establish the same, the plaintiff has given evidence by way of filing affidavit wherein he has reiterated the plaint averments. Inspite of the opportunity, the first defendant did not cross-examine the plaintiff nor adduced any evidence on her behalf to establish that the plaintiff has no easementary right on the northern portion of the plaint 'B' schedule property.
17. The defendants No.2 to 4 are the Commissioner, BBMP, Assistant Executive Engineer and the Assistant Engineer, BBMP who contested the matter by filing written statement. In the course of examination, the Assistant Engineer, BBMP has admitted that the owner of 'B' schedule property has illegally put up steel fabricated stairs on the setback area. They have inspected the 'B' schedule property to verify whether the construction made is in accordance with the sanctioned plan and noticed that there were set back deviations. Then it was reported to AEE, Rajajinagar Sub-Division, BBMP, that the owner of the 'B' schedule property has illegally put up steel fabricated stairs in the set- back area. On the basis of the said report, notice was issued to the first defendant calling upon her to show-cause or to bring the construction in accordance with the sanctioned plan. She gave reply to the said notice, but it was not satisfactory. Subsequently provisional order was confirmed. The admissions of defendants No. 2 to 4 clearly establish that the plaintiff has easementary right on the northern portion of the plaint 'B' schedule property. It means, the owners of the property must leave set-back while constructing the house. It appears from the evidence of D.W.1 that the first defendant violated the sanctioned plan and utilized the set-back on the northern portion of the 'B' schedule property. The set-back is for the purpose of free flow of air and light. The BBMP has admitted that the setback left on the northern side of the suit schedule property is illegally utilized by the defendant, which shows that the plaintiff is having easementary right on the northern portion of the plaint 'B' schedule property.
18. As discussed above, the setback is for the purpose of using air and light to the adjacent owners of the property. If it is obstructed by any of the parties, it would certainly affect movement of air and light to the property of the adjacent owners. The plaintiff has produced photographs to show that the defendant has put up steel fabricated stairs on the northern side of the plaint 'B' schedule property, which are at Exs.P.8 to P.13. Ex.P.14 is the C.D. of the photographs. These photographs have not been disputed by the first defendant. As discussed above, D.W.1 has admitted in his evidence that the first defendant was issued a provisional order/notice to show-cause or to bring the construction in accordance with the sanctioned plan as the steel fabricated stairs put up by the first defendant is illegally erected by her. Subsequently, confirmation order was passed. It shows that the first defendant has put up steel fabricated stairs on the northern portion of the 'B' schedule property. As discussed above, the setback is for the purpose of using air and light. If the steel fabricated stairs is not removed, the movement of light and air to the property of the plaintiff is certainly affected. If there is any construction or erection over the said staircase, it would certainly cause obstruction to the free flow of air and light to the property of the plaintiff.
19. It is the case of the plaintiff that the first defendant has illegally put up the steel fabricated stairs on the northern portion of 'B' schedule property without obtaining permission from the defendants No.2 to 4. As could be seen from the photographs - Exs.P.8 o P.11, the defendant has put up the steel fabricated stairs on the northern portion of 'B' schedule property. After putting staircase, the plaintiff herein has addressed a letter to the Assistant Executive Engineer to take action against the illegal construction put up on the setback area of the northern portion of the 'B' schedule property. On that application the BBMP Engineer visited the spot. After inspection, they came to know that the first defendant has put up steel fabricated stairs without sanction and the same was reported to Assistant Executive Engineer, Rajajinagar Sub-Division, BBMP. On that report, the notice was issued to the first defendant on 19.4.1994. Subsequently provisional order was passed to remove the stairs put up by the first defendant. Thereafter confirmation order was passed by the BBMP on 28.4.2014, which is evident from the documents - Exs.D.1 to D.3. Despite the notice, the first defendant did not appear before the Court and contest the matter by filing the written statement. She has not taken the contention that she has put up the steel fabricated stairs on the northern portion of the 'B' schedule property by obtaining permission from the BBMP. In the absence of evidence on behalf of first defendant and the action taken by the defendants No.2 to 4 for removal of staircase put up by the first defendant establishes that the first defendant has illegally put up steel fabricated stairs on the northern portion of the 'B' schedule property without obtaining permission from the defendants No.2 to 4.
20. The first defendant has put up steel fabricated stairs without obtaining permission from the defendants No.2 to 4. It is necessary to direct the first defendant to remove the unauthorized structure put up on the northern side of the 'B' schedule property. On perusal of the records it reveals that, before filing the present suit, the statutory notice has not been sent to the defendants No.2 to 4 by the plaintiff. In the absence of the statutory notice, the suit filed by the plaintiff against the defendants No.2 to 4 is not maintainable. Hence, it is not proper to direct the defendants No.2 to 4 to remove the unauthorized steel fabricated stairs put up on the northern portion of 'B' schedule property of the first defendant. Hence, I answer Issues No.1 to 3 in the affirmative and Issue No.4 partly in the affirmative.
21. Issue No.5 : - In view of the above discussions, I proceed to pass the following:
ORDER Suit filed by the plaintiff is partly decreed with costs.
Suit filed by the plaintiff against the defendants No.2 to 4 is hereby dismissed as not maintainable.
The first defendant is hereby directed to remove the unauthorized structure i.e., the steel fabricated stairs put up on the northern portion of the 'B' schedule property. If the first defendant fails to remove the unauthorized structure, the plaintiff is at liberty to remove the structure put up on the northern side of the 'B' schedule property at the cost of the first defendant.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcript corrected, signed and then pronounced by me in the open court, this the 13th day of July, 2017.) (M.KOMALATHA) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiff:
P.W.1 : M.G.Krishnappa Naik.
2. List of documents exhibited for plaintiff:
Ex.P.1 : Sale Deed dated 23.11.87. Ex.P.2 : Sale Deed dated 29.1.1988 Ex.P.3 : Gift Deed dated 3.8.2007 Ex.P.4 : khatha certificate. Ex.P.5 : Khatha extract Ex.P.6 : Copy of complaint to AEE BBMP Rajajinagar. Ex.P.7 : 2 postal receipts. Ex.P.8 to 13: 6 Photographs. Ex.P.14 : C.D
3. List of witnesses examined on behalf of the defendants No.2 to 4 :
D.W.1 : Ramesh M.
4. List of documents exhibited for defendants No.2 to 4:
Ex.D.1 : Copy of notice U/O.308 of K.M.C.Act. Ex.D.2 : Copy of provisional order U/s.321(1)(2) of K.M.C.Act.
Ex.D.3 : Copy of confirmation order U/s.321(3) of K.M.C.Act.
(M.KOMALATHA), XXXIX Additional City Civil & Sessions Judge, Bangalore City.
***