Bangalore District Court
Sri G. Narayana vs Dr. C. M. Balakrishnan on 20 April, 2021
Form
No.9
(Civil)
Title
Sheet
for
Judgme
PRESENT: SMT. PRASHANTHI.G.
B.A (Law) LL.B.,
XXVII Additional City Civil Judge.
Dated this the 20 th day of April 2021
PLAINTIFF: Sri G. NARAYANA
S/o Late Gopalakrishnan
Aged about 62 years,
Residing at No.22, Gover Road,
Cox town, Bangalore-560 005.
[By Sri Amaresh A.Angadi, Advocate]
/v e r s u s/
DEFENDANTS: 1. Dr. C. M. BALAKRISHNAN
S/o Late C.R. Mohan Ram,
Aged about 65 years,
No.21/1, Gover Road,
Cox Town, Bangalore-560 005.
2. The Commissioner,
Bruhath Bangalore Mahanagara
Palike, Hudson Circle,
BANGALORE-560 002.
3. The Executive Engineer,
Bruhath Bangalore Mahangara
Palike, C.V.Raman Nagar
Division, 1st Cross, 2nd 'H' Main
Road, Kasturinagar,
BANGALORE-560 043.
2 CT0028_O.S._7883_2014_Judgment_.doc
.
4. The Chief Health Officer, B.B.M.P. Corporation Office, Hudson Circle, BANGALORE -560 002.
D1 - By Sri KRS, Advocate D2 to D4 - Exparte.
Date of institution of the : 17/10/2014 suit Nature of the suit : For declaration and injunction Date of commencement of : 15/09/2015 recording of the evidence Date on which the : 20/04/2021 Judgment was pronounced.
: Year/s Month/s Day/s
Total duration
7 6 3
(Prashanthi. G)
XXVII ACCJ: B'LORE.
Plaintiff has filed this suit against the defendants for the relief of declaration of the plaintiff's easementary rights of light and air of the eastern side of the plaintiff's Schedule -A property and in consequences mandatory injunction in directing the 1st defendant to remove the encroachment made 3 CT0028_O.S._7883_2014_Judgment_.doc .
towards eastern side as well as south eastern side of the plaintiff's Schedule -A property in removing Iron Grill and Fiber Sheet put up on the compound wall of the Schedule -A property and to remove the south eastern portion of the kitchen wall of the schedule B property of the 1st defendant in leaving the proper setback towards eastern side of plaintiff's Schedule -A property; and for permanent injunction restraining the 1st defendant and anybody claiming under him from interfering with plaintiff's Schedule -A property; and for decree of mandatory injunction directing the defendants 2 and 3 to initiate proceedings under Section 321 of Karnataka Municipal Corporation Act, 1976 in demolishing the 1st defendant's Schedule B property, who illegally and unauthorisedly constructed the building on Schedule B property without leaving any set back and without obtaining Approved Plan by the competent authority and also direct the defendant no.2 to 4 to stop the Hospital/ Clinic run by the 1st defendant in the residential 4 CT0028_O.S._7883_2014_Judgment_.doc .
locality in Schedule - B property bearing No.21/1, Gover road, Cox Town, Bangalore -560 005.
2. In brief, the plaintiff's case is as under:
The plaintiff is the owner in possession and enjoyment of the house property which is described in the suit 'A' schedule. The same came to his possession by virtue of the registered Will dated 30/7/2001 executed by the sister of plaintiff's father. The executant of the Will died on 18/3/2005 and thereafter the Will came into force. All the revenue records standing in the name of the plaintiff in the office of the second defendant including the katha.
The plaintiff is paying the property taxes regularly and the property is situated in no.22, Gover Road, Cox town, Bengaluru measuring east to west 25 feet, and north to south 80 feet. In order to renovate the old structure and to put up a residential structure on the vacant portion of the area, the plaintiff approached the competent authority for obtaining the approved plan for construction of the residential building. 5 CT0028_O.S._7883_2014_Judgment_.doc .
Accordingly, a permission was accorded to him from the BBMP on 13/6/2011. An approved plan is also issued in order to put up a structure in the property. As per the plan, the structure has to contain ground and first floor whereas in the middle portion of the house and staircase, was continued without alteration. After the construction, the officials of the defendant inspected the same. The house was also connected with the electricity and water supply. As per the sanctioned plan, the plaintiff left the required setback from all the sides. The eastern side of the plaintiff's house after the setback huge compound wall was constructed long back in the area of the suit 'A' schedule property which is running from the north to south 80 feet length and 6 feet height and width east to west 1 ½ feet and same was retained by the plaintiff without any disturbance. The compound wall of the eastern side bifurcates the house of the plaintiff and there exists the house of the first defendant. The first defendant who is running the hospital at 21/1, 6 CT0028_O.S._7883_2014_Judgment_.doc .
Gover Road, Cox town, Bengaluru and he is a Paediatrics and has been looking after mainly children in the hospital along with the other doctors. The building of the doctor is situated just to the eastern side of the plaintiff's house. The said hospital was situated in the residential area and number of vehicles parking not only before the said hospital, but also infront of the house of the plaintiff and those parking vehicles completely blocking the ingress and egress of the plaintiff's house. The said hospital is running from morning to late night. One of the relative of the plaintiff who came to the house of the plaintiff in the month of October 2012 and it made him very difficulty to enter into his house due to the blocking of the entrance by parking the patients vehicles in front of the gate. The relative of the plaintiff objected the first defendant for parking vehicles in such a manner and made the inmates of the house of the plaintiff very difficulty for their ingress and egress. Due to the objection, first 7 CT0028_O.S._7883_2014_Judgment_.doc .
defendant with one of his employee started to harass the plaintiff by giving the false complaint to defendant no.2 and 3 alleging that the plaintiff has taken unauthorised construction without leaving any setback which affected his easementary rights such as air and light in encroaching his ventilation area in his house property bearing no.21/1. The said house had no proper measurements. However, the plaintiff after verification from the office of the BBMP found the measurements of the property belonging to the first defendant which is the suit 'B' schedule property detailed in the plaint.
Even having no proper documents, the first defendant claiming to be suit 'B' schedule property belongs to him has made false complaint against the plaintiff on 7/11/2012 i.e., after the completion of the construction work by the plaintiff on the suit 'A' schedule property and started to influence the office of the third defendant to initiate proceedings under Section 321 of the KMC Act against the plaintiff. Only 8 CT0028_O.S._7883_2014_Judgment_.doc .
on the basis of the allegation made by the first defendant and without verification, a provisional order was issued under Section 321(1) of the KMC Act on 8/11/2012. Thereafter, third defendant at the instigation of first defendant started to threaten the defendant for demolishing the structure without verification. Without any alternative, the plaintiff approached Hon'ble High Court of Karnataka questioning the provisional order in writ petition no.47916/2012. The Hon'ble High Court of Karnataka pleased to grant the stay of operation and execution of the impugned provisional order dated 5/12/2012. After the issue of the notice by the Hon'ble High Court of Karnataka, the office of the third defendant issued the confirmation order under Section 321(3) of the Act putting anti-date as 20/11/2012. On the very date, the plaintiff submitted his objections to the provisional order issued under Section 321(1) of the KMC Act in colluding with the first defendant and same has been brought to the knowledge of the 9 CT0028_O.S._7883_2014_Judgment_.doc .
Hon'ble High Court of Karnataka in the above writ petition. The Hon'ble High Court of Karnataka allowed the writ petition and pleased to grant an interim order of the stay till the application for the interim relief is taken up by the Karnataka Appellate Tribunal.
Against the confirmation order issued by the defendant no.2 and 3, the plaintiff approached Karnataaka Appellate Tribunal. The Karnataka Appellate Tribunal was pleased to stay the operation of order dated 4/11/2013. The said order is still in force and appeal is pending before Karnataka Appellate Tribunal. In the meanwhile, the first defendant in order to harass the plaintiff filed the frivolous suit in O.S.No.8120/2012 seeking an exparte order restraining the plaintiff from putting up any unauthorised construction in the plaintiff's suit 'A' schedule property and obtained an order to status quo in the above case. After the appearance, the plaintiff filed the written statement contending that, he has constructed the building as per the approved 10 CT0028_O.S._7883_2014_Judgment_.doc .
plan. After hearing the matter, the court rejected the IA No.3 filed by the defendant in the said suit under Order 39 Rule 1 and 2 of the CPC and order of status quo was vacated. Against the said order, the first defendant filed an MFA before the Hon'ble High Court of Karnataka alleging that, the plaintiff has continued his work inspite of the completion of the construction work and the Hon'ble High Court of Karnataka appointed the Commissioner to inspect the spot to verify wherein the Court Commissioner reported in the appeal without measuring the property including the setback and reported that, there is no construction work is going on and same is completed. Accordingly, the Hon'ble High Court of Karnataka modified the order passed by the Lower Court that, the plaintiff shall seek disposal of the pending suit and appeal pending before the KAT at the earliest and shall pursue the proceedings before the BBMP to get deviated portion if any compounded. The plaintiff has approached the Hon'ble Supreme Court of India in 11 CT0028_O.S._7883_2014_Judgment_.doc .
SLP No.18523/2013 wherein the Hon'ble Supreme Court of India directed the Lower Court to dispose off the suit within 9 months. After recording the evidence, the City Civil Court dismissed the suit of the first defendant on 11/3/2014. In that suit, the court framed the issues with regard to the ownership of the defendant no.1, whether the plaintiff of this suit has started illegal construction without leaving setback and whether the plaintiff proves that the first defendant misused the residential house to run the hospital. In the above case, the first two issues are answered in the negative and the last issue is affirmed by the court.
Since the first defendant is an influential person in political and locality having men and materials physically taking advantage of the same, influence the officials of the BBMP inspite of the repeated objections raised by the owners, carrying on his hospital activities without the license. In this regard, the defendant no.4 has also issued the endorsement that, 12 CT0028_O.S._7883_2014_Judgment_.doc .
the first defendant has not obtained any license to run the hospital. Even after the repeated representations of the plaintiff as well as the residential owners, the defendant no.2 and 4 did not take any action against the defendant no.1. Ultimately, the plaintiff issued legal notice dated 12/6/2014 to the defendant no.2 to 4 in this regard. Even after the notice, they did not take any action against the defendant no.1. In the earlier suit, the first defendant failed to establish his ownership over the residential property over the suit 'B' schedule property. He who is not the owner has taken illegal construction without obtaining necessary sanctioned plan and encroached the suit 'A' schedule property of the plaintiff towards eastern side including the south east side and misused the compound wall of the plaintiff's property and further illegally cut the width of the compound wall to some extent and encroached the same during the year 1992. Believing the words of first defendant that, he will set right the compound wall, the plaintiff keep quiet. So far the 13 CT0028_O.S._7883_2014_Judgment_.doc .
first defendant failed to set right the measurement and width of the compound wall and failed to remove the encroachment towards eastern side of plaintiff's property. On the other hand, he has put up a iron grill and fiber sheets over the plaintiff's 'A' schedule compound wall on the entire eastern side of property and made use of plaintiff's wall for utility room and further encroached the schedule property towards the southern eastern side of the property and made use of the same as the kitchen. As a result, the plaintiff suffered without ventilation, natural light and air blocking the entire eastern portion of plaintiff's property.
Not only encroached the plaintiff's property towards the eastern side and south-east side, near about 1 ½ feet and 80 feet length but also made the plaintiff's property without light and air. The eastern portion is very much important to get the early sun rise and fresh air of easementary rights of the plaintiff are curtailed by the first defendant by encroaching the 14 CT0028_O.S._7883_2014_Judgment_.doc .
plaintiff's suit 'A' schedule property. The plaintiff requested the first defendant to remove the encroachment wherein first defendant failed to do so. On the other hand, constructed the property abutting to the plaintiff's suit 'A' schedule property and without leaving any setback as required under Building Byelaws. Even a notice was also issued to defendant no.2 and 3 in this regard wherein they did not take any action. Inspite of the number of representation and legal notice to take action against first defendant under the KMC Act become in vain since the defendant no.2 and 3 did not take any action against them. Since the defendant has encroached the portion of plaintiff's property and constructed the building without leaving any setback which cause serious health hazard to the aged mother and brother of the plaintiff and also affected the study of daughter of the plaintiff. Further, in view of the running of the hospital till midnight, the plaintiff and his family member are unable to take rest even after the 15 CT0028_O.S._7883_2014_Judgment_.doc .
midnight. Further, parking of the vehicle as well as children crying, throwing the waste materials of the hospital such as baby's napkin, injection tubes, waste clothes and cottons etc., in front of the plaintiff's house are causing serious nuisance to the plaintiff. Even after the several representations and the notices, since defendants 2 and 3 did not take any action against defendant no.1, the suit is filed.
The cause of action for the suit arose on 12/6/2014 and even prior to that date, which is within the jurisdiction of this court.
3. After the service of the summons, the defendant no.1 appeared through his counsel and filed the written statement. Defendant no.2 to 4 did not appear and contest the case of the plaintiff. Hence they are placed exparte.
4. The main contentions of the written statement filed by defendant no.1 are as under:
The above suit is a flagrant abuse of process of the court and a counter-blast to this defendant having 16 CT0028_O.S._7883_2014_Judgment_.doc .
petitioned against the plaintiff to the BBMP in respect of violation of the setbacks committed by the plaintiffs in the construction of his new premises. The notices issued by the plaintiff by the BBMP to demolish the structures in violation of the sanctioned plan has been upheld by the Karnataka Appellate Tribunal at Bengaluru. The plaintiff despite the order of the BBMP directing him to demolish the illegal structures has illegally continued to retain the same and has in gross abuse of the process of the court has chosen to file the above suit against the defendants. The defendant does not admits the contents stated in para no.3 to 7 of the plaint. With regard to para no.8, the defendant denies that, the measurement of the site bearing no.22 is east to west is 25 feet, however it does not actually measures 26.5 feet. The plaintiff's document itself shows that, the property is measuring 25 feet and not 26.5 feet. The Mangalore Tiled house in the southern end abutting to this defendants kitchen wall is self evident from the sketch produced 17 CT0028_O.S._7883_2014_Judgment_.doc .
by the plaintiff. The defendant does not admit the rest of the contents of the paragraph under reply. There was no threat or obstruction either to the light or air at any cost. The plan sanctioned by the BBMP has been breached and the BBMP has issued the notice to the plaintiff to demolish the structures constructed in violation of the sanctioned plan including the staircase in the setback area on the eastern side abutting this defendant's property. The defendant craves leave to refer to and rely upon the order of the KAT upholding the notices of the BBMP which has been suppressed by the plaintiff. The plaintiff is prevaricating his stand and averments regarding the manner of the construction and retention of the old portion are denied as false and malicious. Even after the orders in the earlier suit in O.S.No.8120/2012, the plaintiff continued with the construction. The said suit was dismissed in strange circumstances and despite the orders of the Hon'ble High Court of Karnataka in a connected miscellaneous first appeal 18 CT0028_O.S._7883_2014_Judgment_.doc .
to the contrary vide a Judgment dated 11/3/2014 in O.S.No.8120/2012. The same was challenged before the Hon'ble High Court of Karnataka in RFA No.484/2014 and the Hon'ble High Court of Karnataka admitted the appeal and obtained an undertaking from the plaintiff not to proceed further with the constructions. The plaintiff has therefore continued the constructions in breach of the orders of the court. With reference to the para no.10, the averments that the construction was completed on October 2012 and the setback have been left on all the sides as per the approved plan is denied as false. The plaintiff is taking undue advantage of his own wrong. The suit is frivolous, vexatious, and gross abuse of the process of the court. The defendant is not running a hospital as alleged. He is running a doctors consultancy room in his residence which he is entitled to. The defendant states that, the plaintiff prior to filing of the above suit targeted this defendant for having filed a complaint against his illegal 19 CT0028_O.S._7883_2014_Judgment_.doc .
construction by filing false and frivolous petitions to the health officers of the BBMP against this defendant making false allegation that this defendant is running a hospital causing public nuisance to the neighbourhood. However, the defendant is running a consultancy room in his residence since from the year 1980 for now 35 years, and the plaintiff appears to have a problem now only because this defendant had petitioned against his illegal constructions. The plaintiff in collusion with the some officers of the BBMP tried to harass the defendant in operating his consultancy room. In this regard, a writ petition has been filed by the defendant in W.P.No.26895/2014 before the Hon'ble High Court of Karnataka against the illegal interference by the certain BBMP officials at the instigation of the plaintiff. The said petition and its interim order has been produced along with the written statement. The allegation that, the number of the vehicles are parked are denied. The sole object of the plaintiff is causing harassment to the defendant. 20 CT0028_O.S._7883_2014_Judgment_.doc .
The access to the plaintiff's house was never obstructed by the defendant and his patients. The Gover Road on which both the premises belongs to the parties is situated of M.M.Road, on which there is parking restrictions. The suit itself is a counter blast to the complaint filed by the defendant against the plaintiff with respect to the illegal constructions which is now ordered to be demolished by the authorities. The description of the property of the defendant is false. The property of the defendant is measuring 25 feet x 80 feet. The plaintiff has suppressed the final order of the KAT where the KAT has founded the plaintiff has committed the violation of the building plan and has upheld the demolition notices issued by the BBMP.
The judgment dated 11/3/2014 is a perverse judgment and the defendant has challenged the same before the Hon'ble High Court of Karnataka. The perversity of the judgment is clear from the fact that KAT subsequently upheld the notices of the BBMP 21 CT0028_O.S._7883_2014_Judgment_.doc .
directing the demolition of the illegal structures constructed by the plaintiff which is suppressed by the plaintiff.
The defendant denies the contention of the plaintiff that he is an influential persons in politics having men and materials. The defendant is a pediatrician and retired as Head of Department of Pediatric at St. Marthas Hospital. After his retirement, he is running a doctor's consultancy at his residence. Only because of the defendant complained the BBMP against the illegal constructions of the plaintiff, the plaintiff choose to harass the defendant for running his consultancy room for more than 35 years by making false and frivolous complaints. The defendant is not required to take any license to run a doctor's consultancy room in a residential area. Even the Hon'ble High Court of Karnataka also restrained the BBMP officials from interfering with the defendant running the consultancy room.
22 CT0028_O.S._7883_2014_Judgment_.doc .
The above suit is filed only to cause harassment to the defendant which is a gross abuse of the process of the court. The defendant states that, the complaints are false and at the instigation of the plaintiff, motivated by malice against this defendant. The signatures in the representations are not that of the residents of the Gover Road. The plaintiff has falsified a document which is an offence punishable under the Indian Penal Code. The title of the defendant is not in issue. The trial court while dismissing the O.S.No.8120/2012 made observations regarding this defendant's title not warranted at all from the facts of the case. The said judgment has been appealed. The Hon'ble High Court of Karnataka has admitted the appeal and stayed the judgment and decree. The construction of the defendant's property is not illegal or was carried on without any necessary sanctioned plan. Further, the allegations of the encroachment or misuse of the compound wall are denied as false. The 23 CT0028_O.S._7883_2014_Judgment_.doc .
allegations that, this defendant made any request to the plaintiff or had agreed to setright the compound wall are denied. There is no encroachment whatsoever. In the year 1992, the plaintiff had to put up a mesh over his setback area of about 3 feet adjoining the compound wall separating both premises to prevent the menace of the monkeys entering his home through his setback area. The mesh is supported on the compound wall. A transparent and translucent fiber glass sheet to a height of 2 feet has been erected over the compound wall to ensure the privacy. None had any problem with regard to this since 1992. To take up an issue after 23 years, is only to harass this defendant. The defendant is using his setback for ingress and egress. The kitchen at the southern end always existed even when the defendant's father, his predecessor in title purchased the property in the year 1950. In 1992, the kitchen was renovated in accordance with the sanctioned plan by replacing the Mangalore tiled roof 24 CT0028_O.S._7883_2014_Judgment_.doc .
with RCC. The allegations of the encroachment are denied as false. The kitchen resulted in any of the obstruction of the ventilation or natural light and air towards the entire eastern side of the plaintiff's property is denied as false and baseless. The kitchen existed prior to 1950 and continues to be in the same place. On the contrary, from the plaintiff's own averments, it is clear that, the Mangalore tiled roof shed of the plaintiff and this defendant's kitchen were existing and abutting each other even in the year 1992. The sketch produced by the plaintiff clearly evidences this aspect. There is no obstruction of any light or air by the kitchen in the year 1992 or at any point of time. The allegations with respect to encroachment of 1.5 feet by 80 feet is denied. The right of the plaintiff on the basis of the easement to light and air is denied by the defendant. The defendant premises have a setback of about 3 feet. The corporation did not issued any such endorsement as alleged by the plaintiff. In fact, notice 25 CT0028_O.S._7883_2014_Judgment_.doc .
was issued by the corporation under Section 308 of the KMC Act at the instigation of the plaintiff. The defendant has already replied to the said notice and reply are produced along with the statement. There is no representations from the side of the neighbourers to the concerned authorities as alleged by the plaintiff. The plaintiff has no easementary right of air and light on the eastern side or otherwise. The defendant is not at all misusing the residential area and is causing the nuisance by running a consultancy room. The defendant vehemently denies any nuisance to the plaintiff or his family as alleged. The parking of the vehicle, the crying of the children or throwing of medical waste materials in front of the plaintiff's premises are denied. The allegations of the health hazard on account of running the consultancy room in a residential area are denied. The allegation that the plaintiff's mother and brother had suffered health on account of the consultancy room run by this defendant are completely false. There exists no cause 26 CT0028_O.S._7883_2014_Judgment_.doc .
of action for the suit. The alleged cause of action dated 12/6/2014 is false. The suit itself is to be dismissed since the same is barred by the Limitation under Section 15 of Easement Act. The court fee paid in the suit is not correct. The appeal filed by the plaintiff before the KAT is already dismissed. Therefore, the plaintiff is under the statutory obligation to remove the obstructions. The prayer itself is not maintainable. The plaint averments failed to make a case for an easement to light and air, the consequential injunctions, therefore do not arise. Even the prayer column (b) is vague and denied by the defendant, with regard to the prayer column (c), the defendant has already issued the reply, there is no violation of building byelaw. For the above said reason, prayed to dismiss the suit with exemplary costs.
5. On the basis of the pleadings of the parties, my predecessor in office has framed the following issues for consideration:
27 CT0028_O.S._7883_2014_Judgment_.doc .
(1) Whether the plaintiff proves that he is the owner of 'A' schedule property?
(2) Whether plaintiff proves that he has got easementary right of light and air of the eastern side of Schedule 'A' property?
(3) Whether plaintiff proves that defendant no.1 encroached plaintiff's schedule 'A' property towards eastern side measuring south each near about 1 ½ feet width and 80 feet length?
(4) Whether plaintiff proves that defendant no.1 blocking the entire portion towards 'A' schedule property by putting up illegal construction and made the plaintiff to suffer without ventilation, natural light and air?
(5) Whether plaintiff is entitled for the reliefs as sought for?
(6) What order or decree?
6. In order to prove the case, the plaintiff is examined himself as PW.1 and got marked 45 documents as per Ex.P1 to Ex.P45 and closed his side of evidence. On behalf of the defendants, defendant 28 CT0028_O.S._7883_2014_Judgment_.doc .
no.1 is examined as DW.1 and got marked Ex.D1 to Ex.D52 and closed their side of evidence.
7. Heard both sides and perused the entire records of the case.
8. My findings on the above issues are as under:
Issue No. 1) ............In the affirmative; Issue No. 2) ............In the negative; Issue No. 3) ............In the affirmative; Issue No. 4) ............In the affirmative; Issue No. 5) ............In the negative; Issue No. 6) ............As per final order for the following:
9. ISSUE NO.1 : It is the specific case of the plaintiff that, he is the owner of suit 'A' schedule property. The same came to his possession by virtue of the registered Will dated 30/7/2001 which has been executed by his father's sister. The said Will is registered one and after the expiry of said Saraswathi who is the executant of the Will, the plaintiff become 29 CT0028_O.S._7883_2014_Judgment_.doc .
the absolute owner of the suit 'A' schedule property. The plaintiff is also paying taxes to the BBMP with regard to the suit 'A' schedule property. Further, all the revenue records pertaining to the suit 'A' schedule property stands in the name of the plaintiff. In order to support the contention of the plaintiff, the plaintiff has produced Ex.P1 which is the certified copy of the Will dated 30/7/2001. I have carefully gone through the Ex.P1 wherein it is clear that the suit 'A' schedule property has been bequeathed in favour of the plaintiff by one Smt. V.Swaraswathi. Ex.P1(a) is the typed copy of Ex.P1. The schedule of Ex.P1 and Ex.P1(a) is very clear that, the immovable residential house property bearing site no.22 situated in Gover Road, Cox town, Bengaluru was bequeathed in favour of G.Narayan who is the plaintiff in this case. The schedule site is measuring east to west 25 feet and north to south 80 feet along with the house therein. Ex.P2 is the katha certificate issued by the BBMP in favour of the plaintiff. Ex.P3 is the katha extract which also clearly 30 CT0028_O.S._7883_2014_Judgment_.doc .
shows that suit 'A' schedule property stands in the name of the plaintiff. Ex.P4, Ex.P5 are the tax paid receipts. Ex.P7 is the uttarapatra issued by the BBMP in favour of the plaintiff. Ex.P8 is the tax paid receipt, Ex.P9 is the katha extract. From the above documents, it is very clear that suit 'A' schedule property stands in the name of the plaintiff and he is in the lawful possession of the same. The same contentions are also took by the plaintiff in his chief examination. In the cross-examination also, the defendant does not contradict the version of ownership of the plaintiff over the suit 'A' schedule property. Therefore, from the documents submitted by the plaintiff and also from the depositions, it is clear that, he is the lawful owner of the suit 'A' schedule property. Accordingly, I answer issue no.1 in the affirmative.
10. ISSUE NO.2 AND 4: It is the specific case of the plaintiff that, the first defendant who is a 31 CT0028_O.S._7883_2014_Judgment_.doc .
doctor residing near to the residential house of the plaintiff is carrying on the hospital activities without obtaining any license. Certificate issued by the BBMP is very clear that, the first defendant has not obtained any permission to run the clinic. Further, he who failed to established his right over the residential property bearing No.21/1, Goaver road, Bengaluru i.e., on the suit 'B' schedule property, has taken the illegal construction even without obtaining any necessary sanctioned plan by the competent authority and further he has encroached the suit 'A' schedule property of the plaintiff towards the eastern side including the south east side and misusing the compound wall of the plaintiff has cut the width of the compound wall of the plaintiff's suit 'A' schedule property to some extent and encroached the same during the year 1992 and requested the plaintiff that, he will set right the old compound wall. Believing the words of the first defendant the plaintiff kept quiet but the first defendant has not set right the measurement 32 CT0028_O.S._7883_2014_Judgment_.doc .
and width of the compound wall and failed to remove the encroachment towards the eastern side of the plaintiff's suit 'A' schedule property. On the other hand, the first defendant has put up a iron grill and fibre sheet over the plaintiff's suit 'A' schedule property on the entire eastern side of the plaintiff's suit 'A' schedule property and made use of the plaintiff's compound wall in encroaching the property of the plaintiff, has made use of the utility room and further encroaching the plaintiff's suit 'A' schedule property towards the southern eastern side of the property and made use of the same as the kitchen for the first defendant as well as the eastern side and made the plaintiff to suffer without ventilation, natural light and air and blocked the entire eastern portion of the plaintiff's suit 'A' schedule property.
11. Not only encroached the plaintiff's suit 'A' schedule property towards the eastern side and south east side near about 1 ½ feet width and 80 feet length 33 CT0028_O.S._7883_2014_Judgment_.doc .
but also made the plaintiff's property without light and air in blocking the entire eastern portion. The eastern portion is important for get early sun rise and fresh air of easementary rights of the plaintiff, but also blocked by the first defendant in encroaching the plaintiff's suit 'A' schedule property. The same contention has been taken by the PW.1 in his chief examination. In the cross-examination of the PW.1, he has clearly admitted that, "Before 10 years back, the first defendant has erected the grills on my compound wall and put up the kitchen wall in the south eastern side. It is not correct to suggest that kitchen wall is in existence from 1990. It is not correct to suggest that the grills on the compound wall existed from 1990." Further, in the further cross-examination he clearly admitted that, he has not left any setback from the side of the road as well as the property of the doctor. It is important to note here that there are series of the cases between the first defendant and the plaintiff with regard to the 34 CT0028_O.S._7883_2014_Judgment_.doc .
leaving of the setback area in the constructions of both. In MFA No. 523/2013 filed before the Hon'ble High Court of Karnataka the court appointed the Commissioner to inspect the property. On the basis of that report, the Hon'ble High Court of Karnataka found that, the plaintiff has not left any setback in his building.
12. Further, in the cross-examination of PW.1 itself, he has clearly admitted that, he has received the notice from the Corporation for violation of the sanctioned plan and even the Corporation has sent the final confirmatory orders against him. Even the Karnataka Appellate Tribunal also dismissed his appeal. Page No.23, para no.2 of the depositions of the PW.1 clearly shows that even plaintiff has violated the sanctioned plan while constructing the building.
13. One of the important thing in the above suit is that, the plaintiff has constructed to flights of the staircase covering that area. This matter was 35 CT0028_O.S._7883_2014_Judgment_.doc .
elucidated by the advocate for the defendant in the cross-examination of PW.1. In page no.29, para no.3 of the depositions of PW.1, it is clearly stated that, he has constructed the staircase without leaving the setback. Ex.D1 to Ex.D7 are the photographs which are confronted to the witness (PW.1) clearly shows that, the plaintiff has constructed the staircase covering the area of the setback. In further cross- examination of PW.1, it is clearly elucidated from the mouth of the PW.1 that 'It is correct to suggest that, in Ex.P6, the staircase is inside my building. It is correct to suggest that as per the sanctioned plan I have to leave 2.93 meters from the road. Further it is correct to suggest that to the side of the property of the doctor, I have to leave 3 feet setback. It is not correct to suggest that, I have constructed the building without giving setback from the side of the road as well as towards the property of the doctor.' In this context, I would like to quote the orders passed by the Hon'ble High Court 36 CT0028_O.S._7883_2014_Judgment_.doc .
of Karnataka in MFA No. 523/2013 which is marked as Ex.D8. This is the orders passed by the Hon'ble High Court of Karnataka when an appeal has been preferred by the defendant against this plaintiff and the Commissioner of the BBMP. On careful observations of orders passed by the Hon'ble High Court of Karnataka, it is very clear that, even the plaintiff has violated the setback and sanctioned plan by constructing the staircase by violating the building byelaws. Lordship Justice S.N.Satyanarayana has clearly narrated in para no.6 to 9 of the orders that, the plaintiff has clearly violated the setback itself. Further, from the photographs produced by the defendant which are marked as Ex.D1 to Ex.D7 clearly shows that, staircase has been constructed by the plaintiff over the setback area.
14. One of the contention taken by the plaintiff is that, the defendant no.1 by blocking the entire portion towards suit 'A' schedule property by putting 37 CT0028_O.S._7883_2014_Judgment_.doc .
up illegal construction and made the plaintiff to suffer without ventilation, natural light and air.
15. It is the case of the plaintiff that, the first defendant who is not at all being the owner of the suit 'B' schedule property has taken up illegal construction even without obtaining any sanctioned plan by the competent authority and encroached the suit 'A' schedule property of the plaintiff towards the eastern side including the south-east side and misusing the compound wall of the plaintiff and further illegally cut the width of the compound wall of the plaintiff's suit 'A' schedule property to some extent and encroached the same during the year 1992 and requested the plaintiff that, he will set right the old compound wall. Believing the words of the first defendant, the plaintiff kept quiet but first defendant has not set right the measurement and width of the old compound wall and failed to remove the encroachment towards eastern side of plaintiff's suit 'A' schedule property, whereas 38 CT0028_O.S._7883_2014_Judgment_.doc .
the first defendant a iron grill and fiber sheet over the plaintiff's suit 'A' schedule property on the eastern side of plaintiff's suit 'A' schedule property. According to the plaintiff, this encroachment by the first defendant has caused plaintiff to suffer without ventilation, natural light and air and blocking of the eastern portion of the plaintiff's suit 'A' schedule property.
16. Even in the chief examination, plaintiff has stated that in order to cause harm to the plaintiff to suffer without ventilation, natural light and air, the defendant no.1 has blocked the entire portion towars suit 'A' schedule property by putting up the illgal construction.
17. In the cross-examination of PW.1, in page no.25 para no.2, it has been stated by PW.1 that, before 10 years back, the first defendant has erected the grills on his compound wall and put up the kitchen wall in the south eastern side. PW.1 clearly 39 CT0028_O.S._7883_2014_Judgment_.doc .
denied the suggestion of the defendant contending that, the grills on the compound wall are in existence from 1990.
18. In the cross-examination of the DW.1, in page no.24, the last two lines clearly hold that, even the defendant also received the notice of the corporation for constructing the building witnout obtaining the sanctiond plan. The deposition 'It is correct to suggest that the Corporation has issued notice to me under Section 321(1) and (3) of the KMC Act. The said notice was issued to me stating that, I have not obtained the sanctioned plan. It is correct to suggest that, as per the notice, it is mentioned that, with regard to the ground floor, I have not obtained the sanctioned plan.'
19. Ex.P43 is the order passed by the BBMP under Section 321(1) of the KMC Act. This clearly shows that, the plaintiff has not obtained permission in order to construct the ground floor. In further 40 CT0028_O.S._7883_2014_Judgment_.doc .
cross-examination of DW.1, he has clearly deposed that, 'It is correct to suggest that the east to west to the northern side of 21/1 is 21 feet. It is correct to suggest that, to the southern side, it is exended to 27 feet. It is correct to suggest that the Kitchen is situated in the southern side of 21/1. Kitchen is situated to the southern western side. It is correct to suggest that, the Karnataka Appellate Tribunal has dismissed the appeal and permitted to me to get regularisation of the plan before BBMP.' This deposition of the DW.1 clearly shows that, the defendant has violated the sanctioned plan. This matter is further clear in Ex.D20 which is the order of Karnataka Appellate Tribunal. Ex.D20 is the appeal preferred by the defendant against the orders passed by the BBMP under Section 321(2) of the KMC Act dated 21/11/2016. In that order, the Karnataka Appellate Tribunal has opinioned that the impugned order passed by the BBMP under Section 321(2) of the KMC 41 CT0028_O.S._7883_2014_Judgment_.doc .
Act are in accordance with the provisions of the KMC Act and come to the conclusion that, the building constructed by the defendant of this case is without the sanctioned plan.
20. It is important to note here that, the plaintiff has produced an endorsement issued by the BBMP which is marked as Ex.P17. This clearly shows that, the BBMP has not issued any sanctioned plan with respect to the property no.21/1, Gover Road, Cocks town, Bengaluru -5 from 1990 to 2000. This clearly shows that, whatever the orders passed by the KAT is in consonance with the endorsement under Ex.P17. Therefore, the Court is of the opinion that, even the defendant has constructed his building without the sanctioned plan.
21. Now the issue in hand is, whether the defendant has encroached the eastern portion of the plaintiff's property and constructed iron and fiber sheets in the compound wall of plaintiff. In this 42 CT0028_O.S._7883_2014_Judgment_.doc .
regard, the plaintiff advocate has clearly pointed out that, in the cross-examination of DW.1, in page no. 25, para no.2, he has clearly deposed that, 'By making use of the compound wall of the plaintiff, I have put up grills and fiber sheets. I can identify the fiber sheet and grills in Ex.P38 and Ex.P39.' On perusal of Ex.P38 and Ex.P39 which are the photographs produced by the plaintiff clearly shows that, the defendant has constructed iron and fiber sheets upon the compound wall which is situated in the plaintiff's property. One of the contentions taken by the defendant is that, these iron and fiber sheets have been put by him in the year 1950 itself. However, Ex.P44 shows that, he has done some renovation works in his kitchen. On perusal of Ex.P44, it is clear that, the building materials are shown infront of the house. In the cross-examination of DW.1, he identified his house and admitted that, the building materials shown in Ex.P44 belongs to him. Therefore, it is clear that, eventhough the defendant is contending that, his 43 CT0028_O.S._7883_2014_Judgment_.doc .
kitchen is in existence from 1950, it has been renovated by him recently. Further, he has clearly deposed that, 'It is correct to suggest that, it is abutting to the property of the plaintiff.' The word it is referred in the above deposition is the kitchen. Further, from Ex.P38 and Ex.P39, it is clear that, the defendant used the compound wall of the plaintiff in order to put up the grills and fiber sheet. On perusal of entire documents, and also from the admissions of DW.1, it is clear that, if at all the compound wall of the plaintiff is blocked by the defendant by putting the grills and fiber sheets, it will definitely cause injury to his free light and air. Therefore, this Court is of the opinion that, the plaintiff has proved Issue No.4 in his favour.
22. While discussing with the Issue No.2, the learned counsel for the defendant vehemently argued that, the plaintiff cannot claim the easementary right of light and air of the eastern side of 'A' schedule 44 CT0028_O.S._7883_2014_Judgment_.doc .
property, because there is no pleadings in the plaint with respect to the enjoyment of the easementary right as claimed in the relief and further contended that, there is no averments in the plaint with respect to the enjoyment of easementary rights for 20 years is not claimed by the plaintiff.
23. On perusal of plaint relief column(a), it is clear that, the plaintiff has sought declaration of the plaintiff's easementary rights of light and air of the eastern side of the plaintiff's suit 'A' schedule property and in consequence mandatory injunction in directing the first defendant to remove the encroachment made towards eastern side as well as south eastern side of the plaintiff's suit 'A' schedule property in removing the iron grill and fiber sheet put up on the compound wall of suit 'A' schedule property and to remove the south eastern portion of the kitchen wall of the suit 'B' schedule property of the first defendant by leaving the proper set back towards the eastern side of the 45 CT0028_O.S._7883_2014_Judgment_.doc .
plaintiff's suit 'A' schedule property. However, on perusal of entire plaint averments, it is clear that, although the plaintiff is contended that, the act of the defendant caused harm to him free air and light, he has not specifically stated from which date he was enjoying the easementary right and when it was infringed and whether the suit has been filed within the 2 years of the infringement.
24. The learned counsel for the defendant vehemently contended that, Section 15 of the Indian Easement Act, 1882 come into picture here. 'Section 15 of the Act deals with acquisition by prescription. When the access and use of light and air to and for any building have been peaceably enjoyed therewith, as an easement without interruption, and for 20 years, and where support from one persons land, or things affixed thereto, has been peaceably received by another person's land, subject to 46 CT0028_O.S._7883_2014_Judgment_.doc .
artificial pressure or by things affixed thereto, as an easement, without interruption and for 20 years, and where 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 20 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 said 20 years shall be taken to be a period ending within two years next before institution of the suit wherein the claim to which such period relates is contested.'
25. The Section is very clear that the person who is claiming access and use of light or air upon the lands of the others as an easement should enjoy it peaceably as an easement without interruption for 20 years. In the instant case, there is no such pleadings 47 CT0028_O.S._7883_2014_Judgment_.doc .
with regard to the enjoyment of easementary rights from the side of the plaintiff. Unless and until there is a specific pleading with regard to the acquisition by the prescription as claimed under Section 15 of the Act, the other interruption is not an interruption within the meaning of the section unless where there is actual session of enjoyment by reason of obstruction by the act of some person other than claimant and unless such obstruction is submitted to or acquiescenced in one year after the claimant has noticed thereof and of the person making or authorising the same to be made.
26. Since there is no specific pleading with regard to the easementary rights, the plaintiff cannot claim the same in the relief of the suit. Further, the word 'easement' itself mean that, it is a right which the owner or occupier of certain land possessess, as such for the beneficial enjoyment of the land, to do, and continue to do something, or to prevent or 48 CT0028_O.S._7883_2014_Judgment_.doc .
continue to prevent something being done in or upon or in respect of the certain other land not his own. So, according to Section 4 of the Act, there should be two heritages and owners in order to constitute the easement. The land for the beneficial enjoyment of which the right exists is called the dominant heritage and the owner or occupier thereof is called as dominant owner and the land on which the liability is imposed is called as servient heritage, and the owner or occupier thereof is called the servient owner.
27. In the present case, the plaintiffs specifically denies the ownership of the defendant in his land. When there is no dominant and servient relationship between the plaintiff and the defendant, the right of easement cannot be claimed. Therefore, this Court is of the opinion that, the plaintiff cannot claim the easementary rights of light and air over the properties of the first defendant. Thereby, I answer Issue No.2 in the negative.
49 CT0028_O.S._7883_2014_Judgment_.doc .
28. ISSUE NO.3: It is the case of the plaintiff that, the defendant no.1 encroached the plaintiff's suit 'A' schedule property towards the eastern side measuring south-east near about 1 ½ feet width and 80 feet length. In para no. 23 of the plaint, the plaintiff has specifically stated that, the defendant has encroached 1 ½ feet width and 80 feet length from the eastern side and south eastern side of the plaintiff's suit 'A' schedule property. In order to support the contention of the plaintiff, the plaintiff has produced the photographs. In the cross-examination of DW.1, the DW.1 clearly admitted that, the measurement and boundaries stated in Ex.D10 and measurement and boundaries stated in Ex.D12 are similar. Ex.D10 is the original sale deed and Ex.D12 is the Gift Deed which has been executed by the father of the defendant in favour of his wife with regard to his half share. In further cross-examination, he admitted that the western half portion of suit schedule property mentioned in Ex.D11 is allotted to the mother of the 50 CT0028_O.S._7883_2014_Judgment_.doc .
defendant. As per Ex.D11 sketch, there is 6 feet width wide common passage, common to both eastern and western portion of the property. Further, he clearly admitted that, the common passage of 6 feet is inclusive of east to west 50 feet. Further, he admitted that, in the sketch, eastern portion is mentioned as 22 feet and western portion is also mentioned as 22 feet. However, the property is not in existence as shown in the sketch. This aspect is clearly admitted by DW.1 in page no.23, para no.2 of his cross-examination.
29. A clear-cut admission from the side of DW.1, in page no.24, para no.2 that, 'It is correct to suggest that a compound wall is in existence in between the property of the plaintiff in 22/1 and property no. 21/1. It is correct to suggest that, the compound wall is belongs to the plaintiff. It is not correct to suggest that compound wall is 1½ feet width. I have not measured the width of the compound wall. It is not correct to suggest that, 51 CT0028_O.S._7883_2014_Judgment_.doc .
the height of the compound wall is 6 feet. Witness volunteers that, it is measuring about 4 feet. I have not measured it. The length of the compound wall from north to south is measuring 80 feet.' One of the important thing here that has to be noted is that, this defendant clearly admitted in the cross- examination that, by making use of the compound wall of the plaintiff, he has put up the grills and fiber sheets. Ex.P38 and Ex.P39 are the documents admitted by the defendant in his cross-examination. Further, in support of this contention, he clearly admitted that, the corporation has also issued notice to him under Section 321(1) and (3) of KMC Act. Further, this order clearly shows that the defendant has not obtained the sanctioned plan before constructing the ground floor. This aspect is further clear by Ex.P43 which is an endorsement issued by the BBMP that, the defendant has not obtained the sanctioned plan pertaining to property no.21/1 from the year 1990 to 2000. Therefore, it is very clear that, 52 CT0028_O.S._7883_2014_Judgment_.doc .
the defendant has encroached the compound wall of the plaintiff which is measuring to an extent of 1 ½ feet width and 80 feet length.
30. In the further cross-examination of DW.1, it is clear that, 'The property bearing no.21/1 is extending on southern side. It is correct to suggest that east to west to the northern side of 21/1 is 21 feet. It is correct to suggest that, to the southern side, it is extended 27 feet. It is correct to suggest that, kitchen is situated in the southern side of 21/1. It is correct to suggest that Karnataka Appellate Tribunal has dismissed the appeal and permitted to me to regularise the plan before BBMP.'
31. From the above admissions, it is clear that, the defendant no.1 has clearly encroached the plaintiff's suit 'A' schedule property measuring to the extent of 1 ½ feet width and 80 feet length. Thereby, I answer Issue no.3 in the affirmative. 53 CT0028_O.S._7883_2014_Judgment_.doc .
32. ISSUE NO.5: The entire suit of the plaintiff is for declaration of the plaintiff's easementary right of light and air to the eastern side of the plaintiff's suit 'A' schedule property and consequently for the mandatory injunction. Further, also for the decree of permanent injunction restraining the first defendant or anybody claiming under them from interfering with the plaintiff's suit 'A' schedule property. To pass mandatory injunction directing the defendant no.2 and 3 to initiate proceedings under Section 321 of the KMC Act demolishing the first defendant's property which is constructed illegally.
33. No doubt, the plaintiff has successfully proved issue no.1 in his favour. But, with regard to issue no.2, he has failed to prove the same because although the facts and circumstances of the case shows that he has suffered light and air from the eastern side of the suit 'A' schedule property, he 54 CT0028_O.S._7883_2014_Judgment_.doc .
cannot claim it as a matter of easement, because he has not fulfilled the ingredients of Section 15 of the Easement Act. As this Court has clearly discussed in Issue no.2 and 4 above, the plaintiff has to prove his easementary right of air and light to the eastern side of the suit 'A' schedule property. Further, no doubt, from the discussions in Issue No.3, it is clear that, the defendant no.1 has encroached the plaintiff's suit 'A' schedule property measuring 1 ½ feet width and 80 feet length. Therefore, this Court is of the opinion that, though plaintiff has not proved his right of easement, he is entitled for the permanent injunction as claimed by him in relief (b) of his prayer column. Further, with regard to relief (c), already the proceedings were already initiated against the defendant for constructing the building in violation of the sanctioned plan and Karnataka Appellate Tribunal also ordered for the same, this Court is of the opinion that, it is not necessary to once again direct defendants 2 & 3 to initiate proceedings against 55 CT0028_O.S._7883_2014_Judgment_.doc .
defendant no.1 under Section 321 of the KMC Act. With regard to prayer (a), the plaintiff has failed to prove his main relief of easementary rights of light and air towards the eastern side of the plaintiff's suit 'A' schedule property, I deny the consequential prayer of mandatory injunction in directing the first defendant to remove the encroachment made towards the eastern side as well as the south eastern side of the plaintiff's suit 'A' schedule property in removing the iron grill and fiber sheet put up on the compound wall of the suit 'A' schedule property and to remove the south eastern portion of kitchen wall of the suit 'B' schedule property of the defendant in leaving the proper set back towards the eastern side of the plaintiff's suit 'A' schedule property. More than that, as rightly contended by the first defendant, there is no specific cause of action to file the suit. The cause of action stated in the suit on 12/6/2014 which is the date where the plaintiff has issued the legal notice to the defendant no.2 and 3 contending that, the first 56 CT0028_O.S._7883_2014_Judgment_.doc .
defendant has failed to remove the construction of encroachment of suit 'A' schedule property. However, the entire plaint averments does not show when specifically the first defendant has encroached the portion of plaintiff's suit 'A' schedule property and when the real cause for the suit arose. Thereby, I am of the opinion that, plaintiff is not entitled to the reliefs of prayer (a) as sought in the plaint. However, on looking to the facts and circumstances of the case and also from the discussions in Issue no.3, it is clear that, the defendant no.1 has already encroached the portion of the suit 'A' schedule property and he has also sought for mandatory injunction, it is not necessary to grant permanent injunction at this juncture. Even as rightly contended by the advocate for the defendant, since there is no cause of action to the suit, the Court cannot mould the relief under Order 7 Rule 7 of the CPC, it is clear that, he is entitled to the relief of permanent injunction. Accordingly, I answer Issue no.5 in the negative. 57 CT0028_O.S._7883_2014_Judgment_.doc .
34. ISSUE NO.6: From my above discussions and reasoning, the suit of the plaintiff is liable to dismissed. In the result, I pass the following:
The suit of the plaintiff is hereby dismissed.
Under the facts and circumstances of the case, there is no order as to costs. Draw decree accordingly.
*** [Dictated to the Judgment Writer directly on computer, Script corrected, signed and then pronounced by me, in the Open Court on this the 20 th day of April 2021.] [PRASHANTHI.G] XXVII Additional City Civil Judge. BANGALORE.
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 G. NARAYANA
2. List of witnesses examined on behalf of the Defendant/s:
DW.1 C.M.BALAKRISHNAN
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P1 Certified copy of the registered Will dated 30/7/2001 58 CT0028_O.S._7883_2014_Judgment_.doc .
Ex.P1(a) Typed copy of the Will Ex.P2 Certified copy of katha certificate of A schedule property Ex.P3 Certified copy of katha extract of suit A property Ex.P4 and Certified copy of tax paid receipts Ex.P5 Ex.P6 Certified copy of approved plan of Schedule A property Ex.P7 Certified copy of letter issued by for permission of road cutting of schedule A property Ex.P8 Certified copy of payment receipt for road cutting Ex.P9 Certified copy of katha extract of schedule B property Ex.P10 Certified copy of provisional order issued under Section 321(1) of KMC Act.
Ex.P11 Certified copy of interim order passed in W.P.No.47916/2012 dated 5/12/2012 Ex.P12 Certified copy of confirmation order under Section 321(3) of KMC Act.
Ex.P13 Certified copy of order passed in
W.P.No.47916/12 dated 3/1/2013
Ex.P14 Certified copy of interim order
passed by KAT in Appeal
No.1373/12 dated 4/1/2013
Ex.P15 Certified copy of endorsement
and issued by District Health and
Ex.P16 Family Welfare office
Ex.P17 Certified copy of endorsement issued by
BBMP in regard to running the hospital without permission.
Ex.P18 Certified copy of judgment and decree
and passed in O.S.8120/12 dated
Ex.P19 11/3/2014.
59 CT0028_O.S._7883_2014_Judgment_.doc
.
Ex.P20
to Office copies of legal notices
Ex.P23
Ex.P24
to Copy of representations
Ex.P29
Ex.P30 Certified copy of plan
Ex.P31 Certified copy of encumbrance
certificate
Ex.P32
to 6 photographs with CD
Ex.P40
Ex.P41 Certified copy of the order of
Karntaka Appellate Tribunal in
Appeal No.1090/16
Ex.P42 Certified copy of deposition of
PW.1 in O.S.No.8120/12
Ex.P43 Sanctioned plan
Ex.P44 Photograph
Ex.P45 Certified copy of the order passed
by the Hon'ble High Court of
Karnataka in RFA No.484/14
Ex.P45(a) Order sheet dated 12/6/2014
4. List of the documents marked for the defendants:
Ex.D1 Photograph
Ex.D2
and Photographs
Ex.D3
Ex.D4 Photograph
Ex.D5
to 3 photographs
Ex.D7
Ex.D8 Certified copy of the order passed
in MFA No.523/13
Ex.D9 Copy of the appeal before the
Hon'ble High Court of Karnataka
60 CT0028_O.S._7883_2014_Judgment_.doc
.
in W.P.No.47916/12
Ex.D9(a) Admission in para no.5 of the writ
petition that he has admitted that
he demolished the old existing
house.
Ex.D10 Original sale deed dated
08.03.1950
Ex.D11 Original partition deed dated
12.08.1964
Ex.D12 Certified copy of the gift deed
dated 28.05.1962 (marked Subject
to proof)
Ex.D13 Death certificate of C.M.T. Sundari
Ammal
Ex.D14 Certified copy of Uttara patra
issued by BBMP
Ex.D15 Khata certificate
Ex.D16 Tax paid receipt
Ex.D17 Certified copy of Appeal in
1090/16 before Karnataka
Appellate Tribunal filed under
Regulation No.13 Karantaka
Appellate Tribunal regulations.
Ex.D18 Certified copy of memorandum of
appeal filed under Section 443(A)
of KMC Act before KAT in Appeal
No.1090/16
Ex.D19 Certified copy of the order sheet in
Appeal No.1090/16
Ex.D20 Certified copy of the Order passed
in Appeal No.1090/16
Ex.D21 Representation given by the
defendant in favour of Assistant
Executive Engineer dated
27.06.2018 along with the
sanctioned plan
Ex.D22 Representation given by the defendant
in favour of Joint Commissioner of
BBNP dated 27.06.2018 along with
61 CT0028_O.S._7883_2014_Judgment_.doc
.
postal receipt
Ex.D23 Representation given by the
defendant in favour of
Commissioner dated 27.06.2018
along with postal receipt
Ex.D24 CDP plan of BDA
Ex.D25 CDP plan of BDA
Ex.D26 Memorandum of understanding
dated 01.06.2014
Ex.D27
to Invoices
Ex.D37
Ex.D38 Letter dated 20.09.2019 issued by
and neighbours
Ex.D39
Ex.D40 The letter issued by the resident of
Gover dated 20.01.2014
Ex.D41 Certified copy of written statement
in O.S.No.8120/12
Ex.D42 Certified copy of order sheet in
RFA No.484/14 before Hon'ble
High Court of Karnataka
Ex.D43 Certified copy of Interim order
passed by Hon'ble High Court of
Karnataka in W.P.No.26895/14
Ex.D44
to Photographs
Ex.D49
Ex.D50 Bill
Ex.D51 Pen-drive
Ex.D52 Certified copy of the affidavit filed
under Section 65 of Indian
Evidence Act.
[PRASHANTHI.G]
XXVII Additional City Civil Judge.
BANGALORE.
62 CT0028_O.S._7883_2014_Judgment_.doc .
............Judgement pronounced in the Open Court....
(Vide separate detailed judgment) The suit of the plaintiff is hereby dismissed.
Under the facts and circumstances of the case, there is no order as to costs.
Draw decree accordingly.
[PRASHANTHI.G] XXVII Additional City Civil Judge.
BANGALORE.
CT0028_O.S._7883_2014_Judgment_.doc .
6 CT0028_O.S._7883_2014_Judgment_.doc 5 .
6 CT0028_O.S._7883_2014_Judgment_.doc 6 .