Bangalore District Court
Murigeppa L.Channur vs Saleem on 30 November, 2015
IN THE COURT OF THE LII ADDL.CITY CIVIL & SESSIONS
JUDGE: AT BANGALORE CITY (CCH-53)
Dated this the 30th day of November, 2015
PRESENT: Smt.Yadav Vanamala Anandrao, B.Com., LL.B (Spl.,)
LII Addl. City Civil & Sessions Judge,
Bengaluru City.
O.S.No.4002/2012
PLAINTIFFS :1. Murigeppa L.Channur,
S/o Sri Lalatappa Channur,
Aged about 39 years,
2. Smt.Savitha M.Channur,
S/o Sri Murigeppa L.Channur,
Aged about 35 years,
Both are R/at No.80,
New No.20, 1st Floor,
M.R.Layout, 14th Main,
39th 'B' Cross,
Jayanagar, 4th 'T' Block,
Bangalore - 560 041.
Represented by their GPA Holder
Sri K.M.Prabhat,
S/o H.S.Rathnamma.
(Represented by Sri Suresh Kumar H.M.,
Advocate)
-Vs-
DEFENDANTS : 1. Saleem,
Major,
R/at No.79, M.R.Layout,
14th Main, 39th 'B' Cross,
Jayanagar, 4th 'T' Block,
Bangalore - 560 041.
(Represented by Sri H.S.S.
Advocate)
2 O.S.No.4002/2012
2. The Joint Commissioner
Bruhath Bengaluru Mahanagara Palike
Bengaluru.
(Represented by Sri H.D.
Advocate)
Date of institution of the suit: 7.6.2012
Nature of the suit: Permanent & Mandatory
Injunction
Date of commencement of 6.11.2013
recording of evidence:
Date on which Judgment was 30.11.2015
pronounced:
Duration:
Days Months Years
23 05 03
JUDGMENT
This suit is filed through GPA holder of plaintiff against the defendants for permanent injunction against defendant No.1 or his agents, servants or any person, acting or claiming through or under him from keeping the windows without leaving set back on the western side of the schedule 'B' property and mandatory injunction against defendant No.2 to demolish the unauthorised construction put up by defendant No.1 thereupon and such other reliefs with costs. (Note:- This case has been transferred from the Court of IX Addl. City Civil & Sessions Judge, Bangalore City, to this court as per Notification dated:01.12.2014.) 3 O.S.No.4002/2012
2. Brief facts of the case are that The plaintiffs are the owners of property bearing Municipal No.20 (Old No.80) now coming under B.B.M.P. Ward No.58, with a building consisting of ground and first floors with a built up area of 1200 sq.ft., as he has purchased the property under a registered sale deed dated 25.11.2006 from Venkatachalam for valuable consideration and therefrom he is un lawful possession and enjoyment of property uninterruptly and he is paying taxes to B.B.M.P. regularly and his name has been entered in the khata. Defendant No.1 is the owner in respect of property bearing Municipal No.79, 2nd Cross Road, Muniswamyraju Layout, Jayanagar T Block, Bangalore and has constructed a building consisting of ground, first and second floors without obtaining sanctioned plan from the Corporation (B.B.M.P.)and without leaving any set back on the western side of his property. He fixed the window on the western portion of his property and it is causing nuisance and obstructing the free flow of air and light to schedule 'A' property. On 4.6.2012,at about 10.00 a.m. when the plaintiffs visited the suit schedule property, they seen the construction of building by defendant No.1, without leaving set aback of 3 feet and they resisted the same. But defendant 4 O.S.No.4002/2012 No.1 did not give heed to it. If the construction as per byelaws leaving set back of 3 feet is done by defendant No.1, the plaintiffs will not get it damaged and he will get the ventilation and there will not be any nuisance. But without doing so, defendant No.1 has encroached upon their right to enjoy free flow and air and light, that was causing nuisance. Defendant No.1 abused the plaintiff in filthy language and threatened him with dire consequences. Hence, the cause of action was arisen for the plaintiff to file this suit and prayed to decree the suit.
3. On issuance of notice of suit summons, the defendants have appeared through their counsel and defendant No.1 has filed Written Statement. Whereas, defendant No.2 ha snot effectively contested the suit by filing written statement. In the written statement defendant No.1 has denied the material contents of the plaint averments regarding ownership and enjoyment with possessory right over the schedule 'A' property and the alleged illegal construction upon schedule 'B' property that alleged to be causing nuisance and free flow of air and light and stated that suit is false and vexatious and not maintainable in law or on facts. The plaintiffs have not 5 O.S.No.4002/2012 approached the court with clean hands and the cause of action asserted is false and there was no cause of action to file the suit and with malafide intention. The plaintiff himself has left any set back as per rules and regulations. The plaintiff with an intention to camouflage his illegal and unlawful act has filed this suit. This defendant has put up constructions over his property after obtaining licence and sanctioned plan from B.B.M.P. and the construction is in accordance with the sanctioned plan and he has not violated any of the provisions of the KMC Act. This defendant is not thereby sole and absolute owner of the suit schedule 'B' property. The defendant is one of the co-owner of the suit schedule 'B' property and the plaintiff has intentionally has not made the other co-owner of the suit schedule 'B' property as parties in the present suit. Hence, the suit is bad for non- joinder of proper and necessary parties. The GPA holder has got no personal knowledge of the present dispute and proceed in the case. The construction of building over his property in the present suit from the past 1½ years. Hence, the suit is filed at the belated stage. The GPA holder at whose instigation the present suit is filed is not aware of the actual true facts. The plaintiff himself encroached the property of 6 O.S.No.4002/2012 the defendant and has not left any set back. Hence, the defendant without any other remedy is making counter claim. and that there is no cause of action to file the suit. Hence, prayed to dismiss it.
4. On the basis of the pleadings of the parties, the learned IX Addl. City Civil & Sessions Judge, Bangalore, has framed the following issues on 8.8.2013.
1) Whether the plaintiffs proves that defendant No.1 kept windows on the western side of his property without leaving set back blocking free air and ventilation?
2) Whether defendant No.1 proves that suit is bad for non-joinder of necessary parties?
3) Whether plaintiff is entitled for the relief sought for?
4) What Order or decree?
Addl.Issues:
1) Whether defendant No.1 proves that plaintiff
himself has encroached his property and he has not left any set back towards his property?
2) Does he prove that plaintiff has waited till he
completes the entire structural work in
order to cause unlawful loss to him?
3) Does he entitle for a decree of mandatory
injunction for removal and demolishing of the structures build by plaintiff as prayed in the counter claim?7 O.S.No.4002/2012
5. To prove the case, the first plaintiff himself deposed as PW.1 and relied upon the documents at Exs.P.1 to P.16. On the other hand, defendant No.1 deposed as D.W.1 and placed reliance on document Ex.D.1 to D.7.
6. Heard the arguments of the learned counsel for the plaintiff and defendant. Hence, the case is taken up for discussion and to pass the judgment.
7. Perused the pleadings of the parties, evidence and record on hand.
8. My findings on the above issues are as under:
(1) Issue No.1 .. In the negative;
(2) Issue No.2 .. In the affirmative;
(3) Issue No.3 .. In negative;
(4) Addl.Issue Nos.1 In negative;
To 3
(3) Issue No.4 .. As per final order for the
following:
R E A S O N S
9. Issue Nos.1, 3 and Addl.Issue Nos. 1 to 3 :-These issues are interlinked with each other. Hence, they are taken together for common consideration, as the plaintiffs have filed the suit through their General Power of Attorney, against 8 O.S.No.4002/2012 defendant No.1 restraining him permanently, from keeping the windows without leaving set aback on the western side of schedule 'B' property and mandatory injunction against defendant No.2 to demolish the unauthorized construction put up by the first defendant over the schedule 'B' property. On the other hand, defendant No.,1 disputed the allegation pertaining to construction "as built upon schedule 'B' property, in violation of building byelaws and sanctioned plan and to demolition of alleged unauthorized construction and specifically contended that the plaintiffs have encroached upon his property without leaving set back and waited till completion of construction work in order to cause loss to this defendant. Under counter claim, he prays for mandatory injunction to remove the structure built up by the plaintiff over the encroached area.
10. Thus, both these plaintiffs and defendant No.1 having rival claims, upon their respective properties and construction thereupon, that their reciprocal construction put up on the set back area and thereby caused obstruction to free flow of air and light and nuisance to their life to live in their respective houses, peaceably; Thus, claimed such wrong 9 O.S.No.4002/2012 coming within the purview of law of Torts and Easementary right.
11. There is no dispute regarding their respective properties described in schedule 'A' & 'B' properties and evidence on record. It is clear that the plaintiffs claimed title over the schedule 'A' property bearing No.20, (Old No.80), 2nd Cross Road, Muniswamyraju Layout, Jayanagar 'T' Block, Bangalore. P.W.1 the General Power of Attorney of plaintiffs referred the sale deed dated 25.11.2006, Ex.P.3. Ex.P.2 is the General Power of Attorney executed by plaintiffs to file the suit and conduct it on their behalf. The plaintiffs have referred the order passed by KAT in Appeal No.833/2012. which is certified copy of Ex.P.1. The said appeal was pending. To show about his possession and enjoyment of his schedule 'A' property, the plaintiffs have referred the tax paid receipts at Exs.P.4 to P.7& Khata extract at Ex.P.8 through P.W.1. These are substantiating the plaintiffs lawful possession over the schedule 'A' property.
12. With reference to cause of action the GPA of plaintiffs deposed as P.W.1 on their behalf stating that, defendant No.1 has undertaken the construction work and made 10 O.S.No.4002/2012 encroachment on the set back area in the western side of his property No.79, without leaving set back area and his property is described in the schedule 'B' to the plaintiff. It is without sanctioned plan and building byelaws and he fixed the window on the western portion of his property and it is causing nuisance and obstructing the free flow of air and light to schedule 'A' property. He has referred Ex.P.9 the information furnished by B.B.M.P. to one Suresh Kumar H.M. P.W.1 has referred the photographs showing the construction work of defendant No.1 over the schedule 'B' property. They are at Exs.P.10 to P.15 and P.15(a) is the C.D. He has deposed referring the plaint averments that on 4.6.2012, when the plaintiffs visited the suit schedule property, they seen the construction of building by defendant No.1, without leaving set aback of 3 feet and they resisted the same. But defendant No.1 did not give heed to it. Thus, P.W.1 has stated about cause of action that, if the construction as per byelaws leaving set back of 3 feet is done by defendant No.1, the plaintiffs will not get it damaged and he will get the ventilation and there will not be any nuisance. But without doing so, defendant No.1 has encroached upon their right to enjoy free flow and air and light, that was causing nuisance. 11 O.S.No.4002/2012 Thus he has deposed about the right and entitlement to enjoy property peaceably and it was main cause for the plaintiffs to file the suit.
13. On the other hand, defendant No.1 has deposed regarding the defense, denying the plaintiff's claim and relied upon the documents ie., the certified copy of sale deed pertaining to his property dated 10/3/2006 Ex.D1, the khata extract and khata certificate are at Ex.D2 and Ex.D3, Ex.D4 is the BWS application Sanctioned order. He has referred the photograph pertaining to the suit property referring to at Ex.D5 to Ex.D7. Ex.D7(a) is the CD in respect of said photos. It is pertinent to note that Ex.D2 refers to purchase of property on his behalf and on behalf of S. Salma Banu and he is unable to give the extent of area purchased under Ex.D1. But Ex.D1 reveals that he has purchased the schedule property measuring 666 Sft. However, he denied that he has constructed the structure in B-schedule more than that of the area measuring 666 Sft., and it is to the extent of area 1100 Sft. It is therefore pertinent to consider the cross examination of DW.1 that ¤±Á£É r_1 ¸Éïï rÃqï£À°è £À£Àß ªÀÄvÀÄÛ PÀĪÀiÁj J¸ï.¸À¯Áä ¨Á£ÀÄ gÀªÀgÀ ºÉ¸Àj£À°è ¸ÀévÀÄÛ Rjâ¸À¯ÁVzÉ ¤d. 12 O.S.No.4002/2012 F PÀæAiÀÄ¥ÀvÀæzÀr JµÀÄÖ ¸ÀévÀÄÛ PÀæAiÀÄPÉÌ ¥ÀqÉ¢zÉÝÃ£É JA§ÄzÀ£ÀÄß ¤RgÀªÁV ºÉüÀ¯ÁgÉ. F PÀæAiÀÄ¥ÀvÀæzÀ°è µÉqÀÆå¯ï ¸ÀévÀÄÛ 666 ZÀzÀgÀ Cr EzÉ JA§ÄzÀ£ÀÄß £ÉÆÃr ºÉüÀÄvÁÛgÉ. F ¸ÀéwÛ£À°è £ÁªÀÅ PÀnÖzÀ PÀlÖqÀ zÁªÁ © µÉqÀÆå¯ï£À°è 666 ZÀzÀgÀ CrVAvÀ ºÉaÑ£ÀzÁVzÉ JA§ÄzÀÄ ¸ÀjAiÀÄ®è. 11>00 ZÀzÀgÀ Cr KjAiÀiÁzÀ°è PÀlÖqÀªÀ£ÀÄß µÉqÀÆå¯ï © ¸ÀéwÛ£À°è PÀnÖzÉÝÃªÉ JA§ÄzÀÄ ¸ÀjAiÀÄ®è.
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14. He has admitted regarding the licence obtained for construction of the house ie., ground floor and first floor, but while putting the suggestion that he has constructed the unauthorized structure ie., 2nd and 3rd floor, but his answer 13 O.S.No.4002/2012 to this question is that he is paying the tax in respect of said 2nd and 3rd floor constructed structure. Thus, it is apparent on record that the unauthorized structure is 2nd and 3rd floor, though the licence is granted regarding ground and first floor. Payment of tax is subject to the action to be taken by the defendant No.2 The Commissioner, BBMP and in this connection the Court cannot comment upon the matter.
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16. Thus, it is admission on the part of the P.W.1 plaintiff that there is no any windows on the western wall of the house of defendant No.1. When such being the case, at present the claim of plaintiffs regarding right of privacy, and causing nuisance has become solved. He has no grievance in this regard referring it to as nuisance and it goes away. But it 15 O.S.No.4002/2012 was amounting to attempt of putting the windows by the defendant No.1 on the western wall of his house.
17. However, it is also relevant to refer the cross examination of P.W.1 for consideration, as to the bonafide claim and whether he comes to the court with clean hands or not. Because during the cross examination, the P.W.1 deposed regarding the suitable action taken by defendant No.2 against the defendant No.1 U/s.321 of KMC Act, and also the preferring of an appeal by the defendant No.1 before KAT in connection with his construction. It is also notable point that defendant No.1 has also contended, denying the plaintiff's construction over A-schedule property as it was in violation of building plan and licence and the constructed structure is covering more than that of the area purchased by him. P.W.1 states that the house purchased was constructed about 20 to 30 years back at the time of his purchase and he states that as per the document which refers to the title deed ie., sale deed, the site purchased by him was measuring 27x40 feet, but in fact it is measuring 27x44 feet and unable to give the measurement of ground floor and first floor of his property. Even he has not produced the sanctioned plan, 16 O.S.No.4002/2012 though he has stated about its custody with bank and he can produce the same in the present case. Thus, it is suppression of material documents by the plaintiff in connection with his property regarding sanctioned plan and purchase of property with reference to the extent of area purchased; But in reality his construction measuring 27x44 feet. It is more than that of the purchase of property under the title deed measuring 27x40 feet and hence his claim is more than that of what is purchased by him and it is therefore considered to be not genuine claim. Suppression of material document itself reveals the conduct of the plaintiff, that they do not come to the court with clean hands. Even during the cross examination it is revealed that the defendant No.1 has constructed building by leaving setback area of 3 feet. But the kitchen portion was touching to the boundary of 27 feet. P.W.1 has specifically stated that if there is any violation of building bylaws in construction of house in his A- schedule property, he is ready to remove the encroachment. He pleads ignorance that defendant No.1 has not objected the construction undertaken by the plaintiff's erstwhile owner in violation of KMC Act, and bylaws and that the ground floor is covering 1200 Sft., and to this suggestion he states that he 17 O.S.No.4002/2012 has not made any measurement in that regard. Thus, these facts and ignorance of P.W.1 for plaintiff that, without any copy of building plan in respect of his A-schedule property, his pleadings being vague and it is suppression of material facts. And that it is not supported by the material documents, are considered to be proving of the alleged violation of the defendant No.1 and that has caused the nuisance and curtailment of the alleged easementary right of the plaintiff.
18. Apart from this, the plaintiff has disputed the construction and sanctioned plan of the defendant No.1 before BBMP defendant No.2 and the defendant No.2 has taken appropriate steps under KMC Act, by issuing provisional notice and final order. It is admitted fact that the defendant No.1 has preferred Appeal before KAT (Appeal No.833/2012) but P.W.1 states that the appeal was dismissed. In fact the said appeal was still pending at the time of his cross examination dated 16/1/2014. It is pertinent to note that the said Appeal was disposed off on 30/12/2014 and it is therefore relevant that the proceedings initiated by defendant No.2 and order passed by the 18 O.S.No.4002/2012 competent authority ie., The Commissioner, BBMP, dated 7/8/2012. Therefore the appropriate relief regarding unauthorized construction that has been decided by the competent authority has been confirmed and accordingly the defendant No.2 has to proceed against defendant No.1.
19. From this order of learned Commissioner of B.B.M.P. (defendant No.2), the efficacious remedy made available to the plaintiff in connection with the violation of the building byelaws and sanctioned plan and it can be executed through the defendant No.2. This Civil Court cannot interfere with the discretionary power of defendant No.2. However, what is claimed by the plaintiff is the easementary right and the right of privacy that causes nuisance to the plaintiff with reference to the putting up of the structure on the setback area and attempt to fix the windows. P.W.1 himself admitted non existence of windows on the western side of defendant No.1's constructed structure. That means, that there is no window on the western wall of the house of defendant No.1 and thereby it may not be causing any nuisance and it is subject to the sanctioned plan and the order of defendant No.2 and its enforcement through the competent authority ie., 19 O.S.No.4002/2012 defendant No.2's machinery with due process of law, since the plaintiff himself has not come to the court with clean hands with reference to his construction of the structure over the property purchased by him.
20. Therefore, it is clear from the above discussion that the plaintiff has failed to prove that the defendant No.1 has put up the windows on the western side of his property without leaving setback, blocking the free flow of air and ventilation. Since the remedy is availed by him before the competent authority it has been up held by the KAT in Appeal No.933/12 upholding the order passed by defendant No.2. Hence the easementary right claimed by plaintiff is subject to the violation of building byelaws and its removal regarding construction of western wall on the setback area. But the efficacious remedy is made available to the plaintiff before the appropriate forum in Appeal No.833/12 that was disposed off on 30/12/2014 and thus he is not entitled for the relief of injunction as claimed for. Plaintiffs have failed to seek declaration of easementary right as alleged, which is fatal to their case.
20 O.S.No.4002/2012
21. On the other hand the defendant No.1 has also failed to prove the alleged encroachment of plaintiff over his property without leaving setback with cogent and clinching evidence and the plaintiff's inaction till construction that was completed and intention of plaintiff to cause unlawful loss to defendant No.1. Since he failed to prove the alleged encroachment and intention to cause loss etc., the defendant No.2 is not entitled for the counter claim as prayed for removal and demolition of construction of plaintiff's structure over the alleged setback area. However, both the plaintiffs now being availed the remedy available under the special Statute ie., KMC Act, regarding the encroachment portion to be removed by the defendant No.1. The defendant No.1 can claim the alleged encroachment of the plaintiff if any to be removed by approaching the appropriate Forum stating the alleged violation of plaintiff, and by getting the property measured in that regard by placing all the materials before defendant No.2 BBMP and get their boundaries duly fixed in accordance with their title deeds ie., acquisition of right, title over the respective property ie., A and B schedule property. But they cannot get their illegal construction regularize seeking intervention of this Civil Court. The regularization of 21 O.S.No.4002/2012 unauthorized construction is to be agitated before the competent authority i.e., BBMP, only under KMC Act and thereby get their respective construction legalized to the permissible extent, as per law, and the power and duty in this regard is conferred by law (KMC Act) upon the defendant No.2, the trustee of the property and local people. While implementing the said order which was confirmed in Appeal No.833/2012, he has to protect and secure balance and the coordination between plaintiff and defendant No.1 the neighbours, who should have to respect neighbourhood to lead peaceable life, with their family, having the regards to the human rights. Thus, both the plaintiffs and defendants have not come to the court with clean hands. Therefore, they are not entitled for the reliefs as prayed for in the plaint and that defendant No.1 in his written statement under Counter Claim. These issue Nos.1, 3 and additional issue Nos.1 to 3 are answered in the negative.
22. Issue No.2 :- The defendant No.1 has stated that the suit of the plaintiff is bad for non joinder of necessary party. He has not given any material particulars. However it is admitted fact that the sale deed in respect of B-schedule 22 O.S.No.4002/2012 property upon which the defendant No.1 is claiming right is also purchased and it reveals the name of one S.Salma Banu also. But she is not made as party to this suit. However, she is also necessary party to the suit. Her presence in the suit regarding the claim of plaintiff as discussed above can be adjudicated upon. But it cannot be effectively. But, in case if the claim of defendant No.1, it cannot be, as her presence is needed. Therefore, this issue No.2 is answered in the affirmative.
23. Issue No.4 :- In view of the above discussion and conclusion arrived at, it is proceeded to pass the following;
O R D E R The Suit of the plaintiff is hereby dismissed. Claim of the defendant No.1 is hereby rejected. The parties to the suit are directed to bear their own costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, corrected and then signed and pronounced by me in the open court on this the 30th day of November, 2015) (Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, Bengaluru.
23 O.S.No.4002/2012ANNEXURE List of the witnesses examined for the plaintiff:
P.W.1 Murigeppa L.Channur List of the documents marked for the plaintiff:
Ex.P.1 Order in KAT Appeal
No.833/2012
Ex.P.2 General Power of Attorney
Ex.P.3 Copy of the Sale deed dated
25.11.2006
Ex.P.4 to P.7 Tax paid receipts
Ex.P.8 Khata extract
Ex.P.10 to P.15 Photos
List of the witnesses examined for the defendants:
D.W.1 Saleem Pasha List of the documents marked for the defendants:
Ex.D.1 Certified copy of the sale deed dated 10.3.2006 Ex.D.2 Khata extract Ex.D.3 Confirmation of Khata Ex.D.4 Application to BWSSB Ex.D.5 to D.7 Photos Ex.D.7(a) C.D. LII Addl. City Civil & Sessions Judge, Bengaluru.