Bangalore District Court
Smt.Rina Chakraborthy vs ) P.Radhakrishna Nair on 26 April, 2019
IN THE COURT OF THE LII ADDL.CITY CIVIL & SESSIONS
JUDGE: AT BANGALORE CITY (CCH-53)
Dated this the 26th day of April, 2019
PRESENT: Smt.S.Shobha, B.A., LL.M.,
LII Addl. City Civil & Sessions Judge,
Bengaluru City.
O.S.No.1190/2013
PLAINTIFF : Smt.Rina Chakraborthy, W/o.
Sumy Chakraborthy, aged about 56
years, R/at No.66, Balaji layout,
Vidyaranyapura, Bangalore 97.
(By Sri.PKM, Advocate)
-V/S-
DEFENDANTS : 1) P.Radhakrishna Nair, S/o.
N.Parameshwaran Pillai, Residing
at No.67, Balaji Layout, Vidya-
ranyapura, Bangalore 560 097.
Since dead, his LRs were brought
on record :
1a) Smt.Bindhu, W/o. Late P.Radha-
krishna Nair, aged about 58 years
1b) Smt.Tushara, D/o. late P.Radha-
krishna Nair, aged about 38 years
1c) Nishanth, S/o. late P.Radha-
krishna Nir, aged about 36
years
All are Residing at No.67, Balaji
Layout, Vidyaranyapura,
Bangalore 560 097.
2 O.S.No.1190/2013
2) Assistant Executive Engineer,
Bruhat Bengaluru Mahanagara
Palike, Vidyaranyapura,
Bangalore-97.
(D1(a) to (c) : By Sri.SP, Advocate
D2 : By Sri.DNK, Advocate)
Date of institution of the suit: 11.02.2013
Nature of the suit: Permanent Injunction
Date of commencement of 24.2.2015
recording of evidence:
Date on which Judgment was 26.04.2019
pronounced:
Duration: Day Months Years
15 02 06
: JUDGMENT :
The plaintiff has filed this suit against the defendants seeking permanent injunction restraining the defendant No.1 or his henchmen etc., in putting up further construction in blocking air and light to the plaintiff's property and also direct the 2nd defendant to demolish the illegal portion of construction in the form of mandatory injunction against 1st defendant directing him to demolish the wall and pillar constructed by him on the ground and 1st floor of his property on the common compound wall situated on the western side of the suit 3 O.S.No.1190/2013 schedule property without leaving the necessary set back with cost of the suit.
2. The sum and substance of the plaintiff's case is that she is the absolute owner of the suit schedule property bearing No.66 totally in all measuring 1200 square feet along with ground and 1st floor falling under Nagarasabha Byatarayanapura, Bangalore and paid tax as on 2012-13. She constructed the above said ground and 1st floor in the year 1995. She has produced the sale deed, Khata extract, tax paid receipts before the court. The 1st defendant is her neighbour of the property bearing No.67 in all, measuring 1200 square feet on the western side of the suit schedule property consisting ground floor portion and now, he has constructed 1st floor portion without leaving set back of 3 feet from the compound wall of the plaintiff. He has erected 3 concrete pillar and making efforts to put roof concrete for the 1st floor which caused blocking of air, light to the house of the plaintiff. The plaintiff objected to the erection of the pillars and to connect the same to the 1st floor roof by the 1st defendant and even the contractor, he did not stop the work rather behaving in a rude manner and insulted 4 O.S.No.1190/2013 the plaintiff and her husband and did not conceded their request to leave 3 feet set back on the western side of the suit schedule property but without caring, the 1st defendant started erecting the pillars and construction work in progress. The workers have damaged certain portion of the plaintiff's property. On 30.1.2013, the plaintiff without any alternative, approached the Assistant Executive Engineer, BBMP, Vidyaranyapura, Bangalore, to initiate proper action, but inspite of acknowledging the same on 30.1.2013, they failed to take action against the 1st defendant. The 2nd defendant is hand in glove with the 1st defendant. Even after 4 days, the 2nd defendant has not taken any action.
3. Due to his further illegal construction of the 1st floor by the 1st defendant, the plaintiff is put to greater hardship blocking the air and light by the act of the 1st defendant and thus, interfering with the easementary right of the plaintiff and her family members. The 1st defendant is trying to put further construction over his property which may result in further blocking of air and light to the plaintiff's property which leads to multiplicity of proceedings and the Corporation authority may not 5 O.S.No.1190/2013 initiate any action to restrain the illegal activities of the 1st defendant. Thus, the plaintiff suspected the bonafide interest of the 1st and 2nd defendant. Hence, if the illegal act of 1st defendant is allowed to continue, the plaintiff will lose her right and interest to air and light to her property. The plaintiff has caused notice under the provision to the 2nd defendant on 4.2.2013 through RPAD. Inspite of it, the 2nd defendant has not initiated any action against the 1st defendant. Even after filing of the suit, the 1st defendant continued to put up construction of wall and windows on the eastern side of his property over the common compound wall situated on the western side of the schedule property without leaving the set back area and thereby, illegally blocked the free flow of air and light to plaintiff's property. The said construction is against the Building Bye-laws and against the sanctioned plan. The pillar and the wall on the western side of the schedule property which is put up by the 1st defendant illegally, is on the compound constructed between the schedule property and the property of the 1st defendant. The pillar as well as the entire eastern wall of the 1st floor of the said property is 6 O.S.No.1190/2013 on the aforesaid common compound wall on the western side of the schedule property. The said construction is illegal and it affects the easementary rights of the plaintiff over the suit schedule property. The construction put up by the 1st defendant towards the property of plaintiff at 1st floor is above the compound wall in the ground floor and the said wall is tilted and partly encroaches the schedule property. Also diagonally opposite to the windows in the 1st floor. The plaintiff and her family members put to irreparable loss, injury and mental agony.
4. Hence, the instant suit is filed seeking for judgement and decree against the defendants seeking permanent injunction restraining the defendant No.1 or his henchmen etc., in putting up further construction in blocking air and light to the plaintiff's property and also direct the 2nd defendant to demolish the illegal portion of construction in the form of mandatory injunction against 1st defendant directing him to demolish the wall and pillar constructed by him on the ground and 1st floor of his property on the common compound wall situated on 7 O.S.No.1190/2013 the western side of the suit schedule property without leaving the necessary set back and for cost of the suit.
5. In pursuance of summons, the defendants 1 and 2 appeared and filed their respective written statement. They have stated that the suit of the plaintiff is false, frivolous, vexatious and the relief sought by the plaintiff can not be granted since no valid ground has been made. Only with a malafide intention to harass these defendants, the present suit has been filed.
6. Defendant no.1 in his written statement has admitted that the plaintiff is the absolute owner of the suit schedule property, but the further averment that she constructed the ground and 1st floor over the suit schedule property in the year 1995 is false. In fact, the plaintiff constructed the ground floor in the year 1995-96 and 1st floor in the year 2004-05 that too, without any sanctioned plan by the concerned authority i.e. Ramachandrapura Village panchayath or Sanitary Board or the City Municipal Corporation, Byatarayanapura, Bangalore. He has also admitted that he is the absolute owner of the property mentioned in para-3 of the plaint. The averments that he started construction of 1st floor 8 O.S.No.1190/2013 and as a part of construction he put up pillars particularly 3 pillars on the western side is also admitted. Further averment that the said three concrete pillars are obstructing the free flow of air and light to the house property of the plaintiff is hereby denied as false. In fact, this defendant constructed ground floor in the year 1993 much earlier to the construction made by the plaintiff in the ground floor. The compound wall on the western side of the suit property had constructed by the 1st defendant and the plaintiff has not constructed any compound on the western side of the property.
7. It is further stated that there is no dispute with regard to the neighbourhood of the plaintiff and also the 1st defendant is the absolute owner of the property located to the western side of the suit schedule property. It is also admitted the 1st defendant is constructing the pillars to the 1st floor, but the allegations of the plaintiff that this defendant is constructing the pillars in violation of the sanctioned plan is denied and the plaintiff raised the objections with regard to the alleged construction to which this defendant behaving in a rude manner and insulted the plaintiff and inspite spoken to the contractor 9 O.S.No.1190/2013 of the defendant no.1 to stop the work, he did not stopped are all denied. The compound wall between the suit schedule property and the property of this defendant was constructed by this defendant only as he constructed the building much earlier to the plaintiff over the properties in dispute. It is denied that the plaintiff tried to stop the illegal construction of this defendant approaching the police station and also the 2nd defendant, but no action has been taken since the defendant has not violated the sanctioned plan. Later, the 2nd defendant issued notice to this defendant at the behest of the plaintiff. The ground floor building was constructed by this defendant long ago and the cracks developed in RCC roofing due to natural wear and tear, therefore, in view to give support to the old and tarnished roof, he has put up pillars on all sides of the property belonging to him which are not blocking free flow of air and light in any manner whatsoever to the plaintiff. This defendant has not kept any windows as alleged by the plaintiff between three disputed pillars. The wall constructed in the 1st floor by this defendant towards eastern side of his property constructed by him inside 10 O.S.No.1190/2013 the compound wall. Hence, the allegation of partial encroachment is false. There is no cause of action. Hence, it is sought for dismissal of the suit with exemplary cost.
8. The 2nd defendant has filed its written statement by stating that the plaintiff has not approached the police against this defendant is denied. He has also denied this defendant failed to initiate proper action against the 1st defendant and this defendant is hand in glove with 1st defendant and hesitated to initiate action are all false and denied. This defendant initiates action if the construction is found to be in violation of the sanctioned plan and licence. The other paragraphs are denied. The averments made in para-11 of the plaint that if the illegal acts of the 1st defendant are allowed to continue the illegal construction abutting to the suit schedule property, the plaintiff will loose her right and interest is not admitted to be true. It is stated BBMP has issued notice u/s.321 of the KMC Act to the 1st defendant directing him to demolish the deviated portions and the BBMP also will take necessary action against the 1st defendant in accordance with law and the same would be 11 O.S.No.1190/2013 executed if the 1st defendant fails to comply with the demands made by the said notice. This fact being fully aware by the plaintiff but deliberately concealed the same and filed this false and frivolous suit to harass this defendant. There is no cause of action. Hence, prayed to dismiss the suit against this defendant with exemplary cost.
9. The plaintiff has filed rejoinder to the written statement filed by the 1st defendant as follows:- The averments made in para 15(A) of the written statement that he had constructed the ground floor in his property in the year 1993 is not within her knowledge, but it is admitted in the year 1995, the plaintiff had constructed the building over the suit schedule property. Further averments made in para 15(B) of the written statement that the construction made of 1st floor in the year 2004 is incorrect. Also denied the entire construction made by the plaintiff over the suit schedule property is without any sanctioned plan. The pillars constructed by defendant no.1 on the western side of suit schedule property are standing within his property is also denied. There is an allegation that there is a gap between walls in 12 O.S.No.1190/2013 the ground floor is also denied. The averments in para 15(C) of the written statement that the defendant no.1 has not kept any windows between the three disputed pillars is denied. Further, defendant no.1 and his family members have never interfered with the peaceful life of plaintiff or her family members is denied. The wall in the 1st floor towards the eastern side of the 1st defendant's property inside the compound is constructed by him and as such, there is no encroachment are all denied. Hence, prayed to decree the suit of the plaintiff.
10. On behalf of the plaintiff, the plaintiff is examined herself as P.W.1 and got marked 31 documents. On behalf of defendant No.1, one of the LR of defendant no.1 is examined as D.W.1 and no documents are marked.
11. Heard the arguments. Perused the written arguments submitted by the learned counsel for the 1st defendant.
12. On the basis of the above pleadings, the following issues and additional issue were framed:-
1) Whether the plaintiff proves her lawful possession over the schedule property?13 O.S.No.1190/2013
2) Does she prove that the 1st defendant put up further construction in blocking air and light to her property and disturbing her peaceful possession and enjoyment of the suit property?
3) Does she prove that the construction of the pillars by 1st defendant in his property is blocking free flow of air and light to her property?
4) Whether 2nd defendant proves that suit is not maintainable for want of notice as contended?
5) Whether plaintiff is entitled for the relief sought for?
6) What order and decree?
Additional Issue:
1) Whether plaintiff proves that 1st defendant has put up his construction on the ground and 1st floor on the common compound wall situated on the western side of the schedule property without leaving necessary set back?
13. My findings on the above issues are as under:
Issue No.1: In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : In the Affirmative
Addl. Issue No.1: In the Affirmative
Issue No.4 : In the Negative
Issue No.5 : In the Affirmative
Issue No.6 : As per final order, for
the following :
14 O.S.No.1190/2013
14. The learned counsel for the defendant no.1 has relied on the following citations:
1) 2001 SCC Online Kar 39 Sundar Raj vs. Vijayendra Kumar.
2) ILR 1989 Kar. 3104 Dr.K.Panduranga Nayak vs. Jayashree.
3) Laws (Kar) 2015 (1) 619 K.A.Mathew vs. S.Ramesh and others.
4) (1992) 2 SCC 524 Ramesh Hirachand
Kundanmal vs. Municipal Corporation of Greater
Bombay and others.
R E A S O N S
15. Issue No.1: The plaintiff herself is examined as P.W.1. She has filed affidavit in lieu of her chief examination as P.W.1 reiterating the averments made in the plaint also relied upon 31 documents as Ex.P.1 to 31.
Ex.P.1 is the certified copy of the sale deed dated 5.2.2018 executed by T.V.Puttaiah in favour of plaintiff with respect to the suit schedule property bearing No.66 in Survey No.56/4, Jarakabande Kaval, Yelahanka Hobli, Bangalore North Taluk measuring east to west 30' and north to south 40' in all measuring 1200 square feet along with ground and 1st floor bounded on East by Site 15 O.S.No.1190/2013 No.65, West by Site No.67 (property of defendant no.1), North by private property and South by Road. Ex.P.2 is the khata certificate issued by BBMP, Vidyaranyapura Sub-division with respect to the property bearing katha No.212/229/66, M.S.Palya standing in the name of plaintiff Rina Chakraborthy. Ex.P.3 is tax paid receipt with respect to the above said katha No.212/389/66 owned by the plaintiff for the period of 2012-13. Ex.P.6 & 7 are the property tax receipts with respect to suit schedule property for the year 2013-14 and 2014-15. Ex.P.17 is the building construction licence dated 1.10.1994 issued by Yelahanka Corporation in favour of plaintiff permitting her to put up construction in property No.266/66/11. Ex.P.18 is the tax paid receipt.
16. On going through the oral and documentary evidence, absolutely, there is no dispute that the plaintiff is the absolute owner and in lawful possession over the suit schedule property having purchased the same under a registered sale deed dated 5.2.1988 for valuable consideration from its previous owner T.V.Puttaiah as per document marked as Ex.P.1 and other relevant revenue documents proves the ownership of plaintiff. 16 O.S.No.1190/2013 Since there is no dispute with regard to this aspect, hence issue No.1 is answered in the Affirmative.
17. Issue No.2, 3 and Addl. Issue No.1: The contention of the plaintiff is that the 1st defendant is her neighbourhood and he is the absolute owner in possession of his property bearing site No.67 and he is putting up illegal construction over his property without leaving any set back towards the plaintiff's house bearing No.66, since he did not heeded to her request, therefore, the plaintiff made a complaint to the BBMP against defendant no.1 as per Ex.P.4 stating the 1st defendant is making illegal construction. Due to the said act, free flow of air and light has been blocked to her property and he has not left the required set back and thus, making construction by violating Building Bye-laws and sanctioned plan and she has produced photographs to show the said encroachment as per Ex.P.8 to P.14 and CD as per Ex.P.15. Thereafter, the BBMP issued notices to the 1st defendant u/s.321(2) of KMC Act, directing him to remove the encroachment/illegal construction against the Building Bye-laws and Sanctioned plan causing obstruction to the free flow of 17 O.S.No.1190/2013 air and light to the plaintiff's house which could be evidenced by Ex.P.19, 21, 22, 23. Thereafter, as per Ex.P.24, the 1st defendant approached the BBMP Authority and given an undertaking letter dated 27.6.2015 requesting to grant him some time to demolish the eastern side of set back area, but thereafter, instead of sticking on to his undertaking, defendant no.1 approached K.A.T. by filing appeal against the order of BBMP and the said appeal came to be dismissed as per documents Ex.P.29 to 31.
18. P.W.1 has been subjected to lengthy cross- examination by the Learned counsel for the defendant. Absolutely there is no dispute that the plaintiff is the owner in possession of the suit schedule property. She admits she is aware of the fact as to how to maintain the property documents. When it was suggested to her that in the year 1988 of her purchase of the property, she is in possession of her property documents, to which she says she lost certain documents such as sanctioned plan along with some personal documents at Calcutta in the year 1993-94 and she has given complaint to Oura police, but she is not possessing the copy of the said 18 O.S.No.1190/2013 complaint. She admits the self assessment extract issued by CMC, Byatarayanapura was enclosed by her counsel, but she cannot remember whether in the said document, she has declared her property measuring 550 square feet. According to sanction plan, what was the area of structure. Ground floor approximately 6½ squares, but according to the above said document, approximately the extent is 650 square feet in the ground floor and 550 square feet in 1st floor. She says in the year 1995, she constructed both the floors, but she can not remember whether the document that was shown to her was submitted by her to BBMP for assessing the property tax. In the tax paid receipt issued by Byatarayanapura CMC, there is clear reference about existing of two floors, but denies the suggestion while submitting self assessment before BBMP, she had mentioned about existence of one floor that was constructed in the year 1996 and another floor was constructed in the year 2003 and she obtained electricity connection for both the floors in the year 1995 and 2012 respectively. She denies the suggestion that since she constructed 1st floor in the year 2012, therefore, he obtained electricity connection in the year 19 O.S.No.1190/2013 2012. She says when she started construction for ground floor by that time, the 1st defendant had already constructed his building and residing by putting up compound wall on the western side of her (plaintiff) property. She says she has left 3 feet set back towards the 1st defendant's compound wall. She admits defendant no.1 has put up compound wall inside his property and he has not made any encroachment in her (plaintiff) property, but he has encroached in the 1st floor of her (plaintiff) property amounting to less than 3 feet. She denies the suggestion the 1st defendant has not encroached any portion of her property and whatever pillars put up by him are well within his property though she had no valid building plan to construct the building in her property, but she has illegally constructed towards north and western side abutting to the 1st defendant's property by putting up toilet.
19. In further cross-examination, she admits before she started her construction, the 1st defendant had already constructed the ground floor. She had obtained sanctioned plan by Ramachandrapura Panchayath by submitting sketch but she does not possess the same as 20 O.S.No.1190/2013 it is lost. She denies the suggestion Ex.P.7 is the tax paid receipt.
20. One of the LR of 1st defendant is examined as D.W.1. He has deposed on behalf of other LRs also. He filed affidavit in lieu of his chief examination reiterating the averments made in the written statement. D.W.1 has been subjected to cross-examination wherein he has admitted that in the month of January 2013, they have started construction of their building and they also got prepared plan but denies that he has not produced the said plan before the court. He says the his property is situated towards northern side of plaintiff's property and at the time of they constructing the 1st floor in the year 2013, they put up 3 pillars towards the plaintiff's house. He admits they have not plastered the portion that faces the plaintiff's property. He voluntarily stated that plaintiff has not co-operated to plaster the same. He admits as per their plan, they have to leave 3 feet set back, but denies the suggestion since they have not left 3 feet, hence the plastering was not done.
21. He further admits in the year 2013, the plaintiff has complained against BBMP stating that the 1st 21 O.S.No.1190/2013 defendant is not putting up construction as per their plan. He denies the suggestion thereafter, the BBMP authorities visited both the houses and verified. But again he admits the BBMP authorities visited to his house but again denies the suggestion through JCB, the authorities demolished their windows but admits his father has challenged the orders passed by BBMP before K.A.T. in Appeal No.813/2015 and the said appeal was dismissed. The witness by looking to the documents of K.A.T. has admitted, hence the same are marked as Ex.P.29 to 31. He also again admits they preferred writ petition before the Hon'ble High Court in W.P.No. 34250/2018 which is still under consideration. He also admits his father filed original suit against the BBMP authorities before the City Civil Court in O.S.No.7747/2013 and he withdrew the suit by filing memo. It is very pertinent to note the admission made by this witness wherein a suggestion was put to him that the BBMP authorities after verification of defendant's building have passed an order stating they have violated 100% of building rules and regulations and as per Ex.P.8 and 9 the same could be evidenced. He also admits that 22 O.S.No.1190/2013 when this suit was filed by the plaintiff in the year 2013, they (defendant no.1) had put up only pillars and by the year 2015 and thereafter, they had completed their building. When it was suggested that the plaintiff and her husband told them that they have to stop the construction since they are putting up the construction against the sanctioned plan to which he says, they did not tell but BBMP authorities told about illegal construction. He further admits his contractor was told by the plaintiff and her husband that they are putting up construction against the building plan and inspite of that, they completed the building. He pleads ignorance that sketch, photos, sale deed has not been produced before the court but admits that they are possessing the said documents and has no objection to produce before the court. He denies the suggestion they have not obeyed the order of the BBMP authorities to rectify their building structure as the said construction was 100% violation to the sanctioned plan to which he says the said authorities themselves have demolished certain portion. He admits the signature found in a letter that was shown to him belongs to his father and the said letter was 23 O.S.No.1190/2013 written by his father requesting BBMP authorities on 27.6.2015 to grant him some time to modify the constructed building. He denies the suggestion even inspite of such request letter, his father did not carry out any modification, but admits no document has been produced before the court to establish they carried out such modification. He says the BBMP authorities often and often used to visit their building and have taken out photographs. He denies the suggestion due to their constructing the building by violating the sanctioned plan, the plaintiff is suffering from blockage of air and light to her property.
22. The contention of the plaintiff is that the 1st defendant who is her neighbourhood having property bearing No.67 carved out in Survey No.56/4, Jarakabande kaval measuring east to west 30' and north to south 40', has put up construction in such a way blocking free flow of air and light to her property and thereby disturbing her peaceful possession and enjoyment over the suit schedule property. Inspite of her request to the 1st defendant and the contractor of the 1st defendant, at the time of putting up construction about 24 O.S.No.1190/2013 the disturbance caused by their proposed construction and also having given so many complaints to BBMP authorities to stop the illegal construction which blocks the air and light to her property, all went in vain. In this regard, P.W.1 has also produced many documents before the court such as photographs and complaint given by her against the 1st defendant before the 2nd defendant BBMP stating the alleged illegal construction by the 1st defendant in his property thereby, blocking free flow of light and air to her property and thereby disturbing her peaceful possession and enjoyment of the suit schedule property which could be evidenced by Ex.P.8 to 14 and CD is P-15 and also complaints. Also a request letter given by defendant no.1 P.Radhakrishna Nair to the Assistant Executive Engineer, BBMP, Vidyaranyapura, Bangalore regarding notice issued by BBMP for demolition of eastern side set back area, he has sought some time to remove the encroachment made by him and stated in case if demolition work is carried out by the BBMP, all the electrical activities installed in his property will be damaged. Hence, in order to remove the encroachment and demolish set back area left out by 25 O.S.No.1190/2013 them, he requested some time and prayed to stop the demolition in view of avoiding further damages to the entire electrical system and to the entire building. Thereafter, in the same letter, defendant no.1 has sought three months time before the police inspector, Vidyaranyapura to leave the set back towards site no.66.
23. Thus, D.W.1 has also clearly admitted in his cross-examination that at the time of filing suit by the plaintiff, the construction work was taken up by the 1st defendant and only pillars were put and further construction was completed during pendency of the suit. Moreover, upon the complaint by the plaintiff to the BBMP authority as per Ex.P.19 has initiated action against defendant no.1 by issuing several notices as per S.321(2) of KMC Act 1976, dated 12.2.2013 stating defendant no.1 while putting up construction has encroached 80% in the front, 100% each in the back side and left side, 30% in the right side and in this regard, an order was passed directing the 1st defendant to remove the said violation within 7 days from the date of order. Thereafter, the 1st defendant offered explanation to the BBMP which appears that BBMP not accepted his 26 O.S.No.1190/2013 explanation. Hence, he was again directed to remove the illegal construction by its another notice dated 5.3.2013 made in his property bearing No.67 at 1st floor and confirmed the temporary order dated 12.2.2013. Thereafter, on 11.10.2013, another notice as per Ex.P.22 was issued to defendant no.1 by referring the previous notice and directed defendant no.1 to immediately remove the illegal construction and if not removed, the BBMP authorities will take necessary action for its removal. Another notice dated 26.3.2015 as per Ex.P.23 was again issued to the 1st defendant that BBMP authorities are going to remove the illegal construction made against the sanctioned plan at his above property. At that juncture, the 1st defendant has written undertaking letter dated 27.6.2015 to the BBMP authorities as per Ex.P.24 requesting them to grant some time to demolish the east side of the set back area, but thereafter, instead of complying to the undertaking, he approached to the K.A.T. by filing an appeal against the order of BBMP authorities and the said appeal was dismissed as per Ex.P.29 to 31.
27 O.S.No.1190/2013
24. Thus, after carefully scrutinising the oral and documentary materials placed before the court by both parties, it clearly goes to show that defendant no.1 thereafter, his LRs has no due respect either to the orders of the BBMP or to the orders of K.A.T. and even after filing the suit by the plaintiff, he completed the illegal construction during pendency of the suit which could be evidenced by the photos and CD and also admission of D.W.1 in his cross-examination and also undertaking letter by defendant no.1 to the BBMP authorities. Hence, viewed from any angle, the construction put up by the defendant no.1 in his property bearing No.67 at 1st floor appears to be in such a way that he has constructed without leaving required set back and thereby blocking the air and light to the property of the plaintiff and thus, disturbing her peaceful possession and enjoyment of her property. Thus, the construction of defendant no.1 is clear case in violation of the sanctioned plan. Hence, I hold the plaintiff has successfully proved issue No.2, 3 and Addl. Issue No.1 in the Affirmative.
28 O.S.No.1190/2013
25. Issue No.4: The 2nd defendant has contended that the suit of the plaintiff is not maintainable for want of notice, but on the technical point for not issuing notice is not fatal to the very institution of the suit. Accordingly, this issue is answered.
26. Issue No.5: In view of my findings on issue No.1 to 3 and Addl. Issue No.1, the plaintiff is entitled to the relief sought for.
27. Issue No.6 : In view of the findings given on issue No.1 to 5 and additional issue No.1, I proceed to pass the following:-
ORDER The suit of the plaintiff is hereby decreed with cost.
The LRs of the 1st defendant, their agents etc., are hereby restrained by an order of permanent injunction from putting up further construction in blocking air and light to the plaintiff's property.
A direction is given to the LRs of Defendant no.1 to remove the portion of illegal construction made by Defendant no.1 against the building bye-laws and sanctioned plan at his property bearing No.67 within three months from the date of this order.
On failure to comply the above said order, the 2nd defendant BBMP shall demolish the said illegal construction put up by Defendant no.1 within two months from the 29 O.S.No.1190/2013 date of failure on the part of LRs of Defendant no.1 at the cost of LRs of Defendant no.1.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in the open court on this the 26th day of April, 2019).
(S.Shobha) LII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of the witnesses examined for the plaintiff P.W.1 Smt.Rina Chakraborthy List of the documents marked for the plaintiff :
Ex.P.1 : Certified copy of the sale deed
Ex.P.2 : Certificate issued by BBMP
Ex.P.3 : Khatha Extract in respect of suit
property Site no.66
Ex.P.4 & 5 : Office Copies of complaints to BBMP
and concerned Police
Ex.P.6 & 7 : Property Tax paid Receipts
Ex.P.8 to 14 : Photographs
Ex.P.15 : C.D.
Ex.P.16 : Certificate issued by Photographer
Ex.P.17 : Licence issued by Gramapanchayath
Ramachandrapura
Ex.P.18 : Tax paid receipt
Ex.P.19 : Order issued by BBMP dated 12.02.2013
Ex.P.20 : Notice issued by BBMP dated 5.3.2013
Ex.P.21 : Order issued by BBMP dated 5.3.2013
Ex.P.22 : Order issued by BBMP dated 11.10.2013
30 O.S.No.1190/2013
Ex.P.23 : Notice issued by BBMP dated 26.3.2013
Ex.P.24 : Under taken letter dated 31.7.2015
Ex.P.25 : Self assessment
Ex.P.26 : Property tax receipt
Ex.P.27 : Letter dated 4.2.2013
Ex.P.27(a) &(b) : Postal receipts
Ex.P.28 : Letter dated 31.1.2013
Ex.P.29 : Memorandum of Appeal No.813/15
Ex.P.30 & 31 : Order sheet and Order in Appeal No.
813/2015
List of the witnesses examined for the defendants:
D.W.1 Nishand Radhakrishnan Nair List of the documents marked for the defendants:
Nil LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.
31 O.S.No.1190/2013
Judgment pronounced in the open Court
(vide separate order)
ORDER
The suit of the plaintiff is hereby
decreed with cost.
The LRs of the 1st defendant, their
agents etc., are hereby restrained by an order of permanent injunction from putting up further construction in blocking air and light to the plaintiff's property.
A direction is given to the LRs of Defendant no.1 to remove the portion of illegal construction made by Defendant no.1 against the building bye-laws and sanctioned plan at his property bearing No.67 within three months from the date of this order.
On failure to comply the above said order, the 2nd defendant BBMP shall demolish the said illegal construction put up by Defendant no.1 within two months from the date of failure on the part of LRs of Defendant no.1 at the cost of LRs of Defendant no.1.
Draw decree accordingly.
LII Addl. City Civil & Sessions Judge, Bengaluru.