Bangalore District Court
Chikkaiah C vs Paramashiva K on 30 November, 2024
KABC010054302018
IN THE COURT OF THE XXXVII ADDL. CITY CIVIL & SESSIONS
JUDGE (CCH-38), BENGALURU CITY.
:PRESENT:
Sri. Yashawanth Kumar, B.A.(Law), LL.B,
LI Addl. City Civil & Sessions Judge,
C/c XXXVII Addl. City Civil & Sessions Judge, (CCH-38)
Bengaluru City.
DATED This the 30th day of November 2024
O.S. No. 1453/2018
PLAINTIFF/S 1. CHIKKAIAH.C,
Since deceased by his LRs,
1(a) SMT. NINGAMMA,
W/O.LATE C. CHIKKAIAH,
AGED ABOUT 65 YEARS,
1(b) SRI. D.C. JAGADISH Gowda,
S/O. LATE C. CHIKKAIAH,
AGED ABOUT 50 YEARS,
D.C. SUDHEENDRA Gowda,
SINCE DEAD BY HIS LRS,
1(c) SMT. VIDYAMANI B.,
W/O.LATE D.C. SUDHEENDRA
Gowda,
AGED ABOUT 38 YEARS,
O.S.No.1453/2018
2
1.(d) S.G. POORVIKA,
D/O.LATE D.C. SUDHEENDRA
Gowda,
AGED ABOUT 8 YEARS,
1(e). S.G.HARSHAL,
D/O.LATE D.C. SUDHEENDRA
Gowda,
AGED ABOUT 3 YEARS,
1(d) & 1(e) ARE MINORS, REP. BY
THEIR NATURAL GUARDIAN
MOTHER SMT. VIDHYAMANI B.
PLAINTIFF NO. 1 (c)
PLAINTIFF NO. 1(a) & 1(e) ARE
R/AT. NO. 15, 6TH MAIN,
AGRAHARA DASARAHALLI.
BENGALURU-40
(Pl By Sri. SRM, Advocate)
Versus
DEFENDANT/S 1. PARAMASHIVA K
S/O. KRISHNAMACHARI,
AGED ABOOUT 60 YEARS,
OCC; CARPENTER,
R/A NO. 14, 6TH MAIN ROAD,
AGRAHARA, DASARAHALLI,
BANGALORE. 079.
2:THE COMMISSIONER
BBMP
N. R. SQUARE
BANGALORE. 002.
3:ASSISTANT EXECUTIVE
ENGINEER
GOVINDARAJANAGARA SUB
O.S.No.1453/2018
3
DIVISION, WARD NO. 105
fourth CROSS, MAGADI CORD
ROAD LAYOUT
BANGALORE. 040
(Df No.1 By Sri. ADR, Advocate)
(Df No. 2 & 3 By Sri. SLR, Advocate)
Date of Institution of the suit 22.2.2018
Nature of suit Injunction suit
Date of commencement 11.1.2023
of recording of evidence.
Date on which judgment 30.11.2024
was pronounced.
Total Duration. Years Months Days
06 09 08
C/c. XXXVII ACCJ, BENGALURU
O.S.No.1453/2018
4
JUDGMENT
This is a suit filed by the plaintiffs for the following reliefs:-
a) To grant permanent injunction against defendant no.1 restraining him from making illegal construction of third floor including roof and window portions in the set back area of the plaintiff.
b) To grant the mandatory injunction against, defendant no.1 to demolish and remove illegally constructed portion of third floor of his building and window and roof projections in the st back area of the plaintiff and to defendant no.2 and 3 to stop further illegal construction of third floor and window and roof projections in the set back area of plaintiff and to demolish illegally constructed portions of third floor etc., b1) To declare that the plaintiff has acquired easementary right to air and light by way of prescription for useful and effective enjoyment of suit schedule item no.1 property. b2) To grant permanent injunction against defendant no.1 restraining him from making illegal construction of fourth floor and any structure supporting over head tank including roof and window portions in the set back area of plaintiff that is suit O.S.No.1453/2018 5 schedule item no.1 property.
b3) To grant the mandatory injunction against, defendant no.1 directing him to demolish and remove illegally constructed fourth floor and structure supporting overhead water tank of his building and window and roof projections in the set back area of plaintiff that is suit schedule item no. 1 property.
c) To award costs of the suit in the interest of justice and equity.
d) Any other relief/s as this Hon'ble Court may be pleased to grant in the facts and circumstances of the case;
2. The defendant no.1 has filed counter claim and sought for the following reliefs:
A) To grant an order of permanent injunction restraining the plaintiff or his henchmen or administrators or his agents etc., from interfering in peaceful possession and enjoyment of 1 st defendant schedule property by installing the cameras or entering the premises of 1st defendant pending disposal of this suit.
B) To grant an order of permanent injunction restraining the plaintiff or his henchmen or administrators or his agents etc., from the construction Activities in the 1 st defendant schedule property pending disposal of this suit.
O.S.No.1453/2018 6 C) To grant an order of Mandatory Injunction against the Plaintiff to remove the illegal construction of building in the Third floor and fourth floor of item no.1 of the suit schedule property disclosed in the plaint by directing the defendant no.2 and 3 to demolish the illegal construction of the building in the set-back area and also in Third floor and Fourth floor of item no. 1 of the suit schedule property disclosed in the plaint. D) To award the cost and grant such other relief that this Hon'ble Court may think deem fit and proper in the facts and circumstances of the above case and in the interest of the justice and equity.
3. The case of the plaintiffs in brief is as under:-
The plaintiff is the absolute owner in possession and enjoyment of the house which is described in item no.1 of the plaint schedule. defendant no.1 is the owner in possession of the house property described in item no.2 of the plaint schedule. The defendant no.1 had obtained construction license and plan from defendant no.3 i.e., Assistant Executive Engineer of BBMP for construction of ground floor and first floor of his house on 19.9.1996. Thereafter, defendant no.1 started construction of second floor during the year 2010 without O.S.No.1453/2018 7 obtaining sanctioned plan from defendant no.3 i.e., BBMP. The plaintiff gave a complaint in respect of the same to defendants No.2 and 3 in the year 2010. The defendant no.3 issued notice U/sec.321(1) and (2) of Karnataka Municipal Corporation Act, 1976, on 4.3.2010 to defendant no.1 calling upon him to demolish the building constructed illegally. The defendant no.3 also issued notice on 8.9.2010 to defendant no.1 to remove the dilapidated supporting wall which may collapse at any time. The plaintiff gave representation dtd:6.10.2010 to defendant no.3 stating that defendant no.1 has constructed a building without leaving set back and he has constructed three storied building without laying foundation towards house of plaintiff. There is mess wall constructed without foundation roof measuring 8 ft. The mess wall cannot withstand the weight of roof as it is put up without foundation and pillars. Defendant no.1 stopped construction of third floor for time being and again started construction of the same. The plaintiff gave representation dtd:11.12.2013 to the Mayor, BBMP, Bengaluru and to defendants No.2 and 3 stating that defendant no.1 has commenced construction of third floor by encroaching on the eastern side. Defendant no.1 has again started construction of O.S.No.1453/2018 8 third floor without obtaining sanctioned plan. Therefore, the plaintiff gave representation dtd:11.12.2017 to the Mayor, BBMP, Bengaluru. The plaintiff's son D.C. Jagadish Gowda has given an application dt:11.12.2017 under the Right to Information Act, 2005 to the defendant no.3 requesting him to furnish sanctioned plan obtained by defendant no.1 for construction of third floor. The defendant no.3 has not furnished copy of the sanctioned plan obtained by defendant no.1 for the construction of third floor. Therefore, it is clear that defendant no.1 is making illegal construction of third floor without sanctioned plan. The defendants No.2 and 3 have not taken any action against the defendant no.1 to stop illegal construction of third floor by defendant no.1. The defendant no.1 has made construction of ground, first and second floors without leaving set back. Therefore, the construction of second floor by defendant no.1 is illegal and unauthorized. If the defendant no.1 succeeds in construction of third floor, the eastern wall of the house of defendant no.1 which is constructed without any set back may collapse at any time. Western wall of the plaintiff may also collapse thereby causing danger to the inmates of the house of plaintiff. Defendant no.1 O.S.No.1453/2018 9 has put up only five columns. The building measuring 1120 sq.ft. requires at least twelve columns. Therefore, the strength of the building is weak and it is not sustainable to withstand the weight of four floors. The plaintiff requested the defendant no.1 on 11.12.2017 to stop illegal construction of third floor as there is no violation of conditions of BBMP. The defendant no.1 taking advantage of hearing on IA No.2, has constructed supporting over head water tank over the suit property and also constructed window and roof projections in the set back area of plaintiff's property which is illegal. It is further contended that the plaintiff has purchased the suit property item no.1 on 12.12.1963 and constructed a tiled house in the year 1974.
The plaintiff has been enjoying the light and air of his property. The illegal construction made by defendant no.1 is infringed the rights of plaintiffs. Hence, this suit.
4. After service of summons, the defendant no.1 has appeared and filed written statement. He has denied the plaint averments. He has contended that the plaintiff has not come up with clean hands. He is not entitled for the reliefs claimed in the suit. The plaintiff himself has violated the bye laws of BBMP by constructing two additional floors in deviation of sanctioned O.S.No.1453/2018 10 plan. The BBMP has issued a notice to the plaintiff, which has attained finality. For removing the unauthorized construction of item no.1 of the plaint schedule. The plaintiff has planted coconut tree on the north east corner of item no.1, thereby forcing the defendant no.1 to construct compound wall of item no.2 on the western side without leaving proper set back. The actual measurement of site of plaintiff property is East to west 30 feet and North to south 39 feet. The plaintiff' had compelled the defendant no.1 to leave one feet and construct compound wall to item no.2 of the plaint schedule. The plaintiff has to leave 3 ft set back on the western side of item no.1 has left only one feet and compelled the defendant no.1 to construct wall on the eastern side of item no.2. The plaintiff is frequently threatening the family of defendant no.1 by entering the premises of defendant no.1 for plucking the coconuts thereby invading he privacy of defendant no.1 and his family. The plaintiff has illegally installed cameras along with western wide of item no.1 invading the privacy of defendant no.1. The plaintiff is threatening to throw the family of defendant no.1 and abusing them in filthy language. The plaintiff has caused several problems in respect of water and sewage for several years by O.S.No.1453/2018 11 holding threat against the family of defendant no.1 that they are the natives of Tamil Nadu. The plaintiff has misguided the BBMP that defendant no.1 has constructed 3 levels though sanctioned plan is for only 2 levels. In the entire street, all the buildings are constructed in deviation of sanctioned plan, which includes the building of plaintiff, defendant no.1 and also a councillor. The plaintiff has obtained sanctioned plan for ground, first and second floor. But, he has constructed ground +4 floors. The plaintiff is using the building for commercial purpose, though he has shown it as residential house. The Commissioner of BBMP has issued notice to the concerned officer to dismantle illegal construction of the plaintiffs. The notice has been issued to plaintiff also. The plaintiff in order to cover up his frauds, has frequently corresponding with BBMP using RTI Act in respect of property of defendant no.1. The defendant no.1 has communicated to Chief Minister regarding problems caused by the plaintiff. The office of Chief Minister has responded to the complaint of defendant no.1. The defendant no.1 being unable to bear the threat and personal attack of plaintiff and his family members, has lodged a police complaint. If a Court commissioner is appointed to inspect the building of the plaintiff O.S.No.1453/2018 12 it would reveal that the plaintiff has occupied more than 35 feet East to west though he is having measurement of 30 feet East to west. The plaintiff is entitled to seek the relief of permanent injunction and mandatory injunction. Hence, he has sought for counter claim for the above reliefs.
5. The defendants No.2 and 3 have filed written statement, contending that the suit is not maintainable. It is admitted that defendant no.1 has obtained sanctioned plan on 19.9.1996 from defendant no.3 for construction of ground and first floor in item no.2. It is denied that defendant no.3 has issued notice U/sec. 321(1) & 321(2) of Karnataka Municipal Corporations Act, 1976 to defendant no.1 to demolish the building. However, if there is deviation from sanctioned plan, defendant no.3 would initiate appropriate legal action against defendant no.1. It is denied that defendant no.3 has issued notice dtd:8.9.2010 to the defendant no.1 to remove the dilapidated support wall. In fact there is no such dilapidated support wall, which would fall as falsely claimed by the plaintiff. It is denied that defendant no.1 has constructed 3-4 storied building without laying proper foundation. In fact defendant no.1 has applied for sanctioned plan to construct second floor of existing ground and first floor O.S.No.1453/2018 13 of his property and defendant no.3 has sanctioned plan after inspecting the spot and having satisfied with the plan submitted by defendant no.1. On spot inspection, it was seen that defendant no.1 has put up construction in accordance with sanctioned plan and necessary instructions were given to defendant no.1 to maintain stability of building and also existing common wall and to plaster the existing common wall. Hence, prayed for dismissal of the suit.
6. The plaintiff has filed written statement to the counter claim of defendant no.1 contending that it is not maintainable. It is denied that defendant no.1 is not having good health and therefore, his son is representing him. It is contended that the counter claim of defendant no.1 is barred by limitation. The court fee paid by defendant no.1 is not sufficient. He has prayed for dismissal of the counter claim.
7. On the basis of the above pleadings of the parties, the following issues have been framed :
1. Whether the plaintiff proves that the defendant no.1 has illegally constructed his building in the third floor including roof and window portions in the set-back area of him (plaintiff)?
2. Whether the plaintiff is entitled for the reliefs as sought?
O.S.No.1453/2018 14
3. Whether the defendant no.1 proves that the plaintiff has illegally constructed his building in the third and fourth floor of itemno.1 of the suit schedule property?
4. Whether the defendant no.1 proves the alleged interference of the plaintiff in the written statement schedule property?
5. Whether the defendant no.1 is entitled for the reliefs as sought by way of counter claim?
6. What order or decree?
Addl. Issues framed on 6/8/2024:-
1. Whether the plaintiff proves that he has acquired easementary right of air and light by way of prescription for useful and effective enjoyment of suit schedule item no.1 property?
2. Whether the plaintiff proves that the defendant no.1 is making illegal construction of fourth floor in the suit sch item no.1.?
3. Whether the plaintiff proves that the defendant no.1`. During the hearing of IA No.2 has made illegal construction of third and fourth floor and over the fourth floor structure supporting the over head tank in the suit schedule item no.2 property and also window and roof projections in the set back area of the plaintiff property?
8. In order to prove his case, the plaintiff No.1(b) has been examined as PW 1 and got marked documents at Ex.P1 to P26.
The defendants have not led their evidence.
9. Heard the arguments of the learned counsel for the plaintiffs and The defendants have not addressed their arguments.
O.S.No.1453/2018 15
10. My answer to the above issues are as under:
Issue No.1 : Partly in the Affirmative.
Issue No.2 : In the Negative
Issue No.3 : In the Negative
Issue No.4 : In the Negative
Issue No.5 : In the Negative
Addl. Issue No.1 : In the Negative
Addl.Issue No.2 : In the Affirmative
Addl. Issue No.3 : Partly in the Affirmative
Issue No.6 : As per the final order,
for the following:-
REASONS
11. Issue No.1: The plaintiff has been examined as PW-1. He has reiterated the plaint averments in his evidence. He has got marked 26 documents as per Ex.P-1 to P-26. Though the defendants have filed written statement, they have not cross- examined PW-1. Therefore, the oral and documentary evidence of PW-1 remained uncontroverted.
12. The plaintiff has contended that defendant obtained license and sanctioned plan for the construction of ground and first floors of his house on 19.9.1996, but he started construction of the second floor in the year 2010 without obtaining sanctioned plan from BBMP. Therefore, the plaintiff O.S.No.1453/2018 16 gave complaint to defendants No.2 and 3 who were the officers of BBMP and defendant no. 3 has issued notice U/sec. 321(1) and (2) of Karnataka Municipal Corporations Act, 1976 dtd:4.3.2010 calling upon the defendant no.1 to demolish the building constructed illegally.
13. The plaintiff has not produced the complaint given by him to defendants No. 2 and 3 in the year 2010 and copy of the notice issued to defendant no.1 U/sec. 321(1) and (2) of the Act. Therefore, there is no evidence to show that defendant no.1 has put up illegal construction of second floor without obtaining sanctioned plan and in respect of the same the BBMP has issued notice U/sec. 321(1) & (2) of the Act.
14. The plaintiff has contended that defendant no.3 has issued notice dtd:8.9.2010 to defendant no.1 to remove the dilapidated support wall. Further he has stated that he has given representation dtd:6.12.2010 to defendant no.3 stating that defendant no.1 has constructed building without leaving set back, he has constructed 3 floor building without laying foundation, he has put up mess wall without foundation. The defendant no.2 stopped construction of third floor for time being and again he started construction of third floor. Therefore, the O.S.No.1453/2018 17 plaintiff gave representation dtd:11.12.2013 to the Mayor, BBMP Bengaluru and to defendants No.2 and 3 regarding construction of third floor by encroaching the eastern side without sanctioned plan. Further, he gave representation dtd:11.12.2017 to the Mayor.
15. The plaintiff has produced representation dtd:6.12.2010 given by the plaintiff to defendant no.3 and marked it as Ex.P-6. But, there is nothing to show what action has been taken on the said complaint of plaintiff. The plaintiff has not produced the copy of the notice issued by defendant no.3 to defendant no.1 dtd:8.9.2010 calling upon the defendant no.1 to remove the dilapidated support wall. The plaintiff has produced the representation given by the plaintiff dtd:11.12.2013 to Mayor, BBMP, Bengaluru and got it marked as Ex.P-7. In Ex.P-7, he has requested the Mayor to stop the defendant no.1 from putting up construction. Except for this complaint, there is no other evidence to show that defendant started construction of third floor without obtaining sanctioned plan. The plaintiff has not produced any evidence to show what action has been taken by the BBMP on the basis of Ex.P-7.
O.S.No.1453/2018 18
16. The plaintiff has stated that himself and D.C. Jagadish Gowda gave application dtd:7.12.2017 under RTI Act to defendant no.3 to issue sanctioned plan obtained by defendant no.1 for the construction of third floor, but defendant no.3 has not issued the copy of the sanctioned plan obtained by defendant no.1, hence, it is clear that defendant no.1 has not obtained sanctioned plan for the construction of third floor. The plaintiff has not produced the application submitted by his son to defendant no.3 requesting to furnish the copy of sanctioned plan obtained by defendant no.1 for the construction of third floor. However, the plaintiff has produced information given to him by defendant no.3 on the application filed by him under RTI Act. The said information has been given vide letter dtd:17.5.2018. The said letter is marked as Ex.P-25. It is stated that the defendant no.1 has not obtained sanctioned plan in respect of construction of third floor in his property i.e., item no.
2. In view of this information, it can be made out that defendant no.1 has not obtained sanctioned plan for the construction of third floor of his building. The plaintiff has produced photographs as per Ex.P-9 to P-22. It appears from these photographs that third floor is being put up to a building. But, O.S.No.1453/2018 19 there is no sufficient evidence to show that these are the photographs of the building of defendant no.1 and he is putting up construction of third floor. But, the defendant no.1 though appeared before the court through a counsel and filed his written statement, he has not come before the court to lead his evidence by producing the documents. In the absence of denial of putting up construction by defendant no.1, it is to be accepted that defendant no.1 has put up construction of third floor to his building. The plaintiff has produced the copy of sanctioned plan obtained by defendant no.1. It also shows that it has no plan for construction of third floor. Therefore, it can be made out that the defendant no.1 has put up construction of third floor without obtaining sanctioned plan.
17. The plaintiff has stated that the defendant no.1 has put up construction without leaving set back. To prove this contention the plaintiff has produced copy of preliminary order issued by defendant no.3 U/sec.321(1)and(2) of Karnataka Municipal Corporations Act, 1976, wherein it is stated that the defendant has not left proper set back on the backside, right side and left side of his building and in the said order defendant no.1 was called upon to give explanation as to why preliminary O.S.No.1453/2018 20 orders shall not be confirmed. This notice shows that defendant no.1 has not left proper set back to his building.
18. The plaintiff has contended that during the pendency of this suit, the defendant no.1 has made construction of third and fourth floors and a structure supporting the over head tank on the terrace of fourth floor. The plaintiff has not produced documents to prove the said contention. However, the photographs referred above shows the construction of fourth floor particularly in Ex.P-21 and P-22 photographs. As already stated though defendant no.1 has appeared and filed his written statement, he has not cross-examined PW-1 and led his evidence. Therefore, he has not disputed the above photographs. Hence, it is to be accepted that defendant no.4 has put up construction of fourth floor without obtaining sanctioned plan.
19. In view of the above, it is to be accepted that the defendant no.1 has constructed third and fourth floor of building without sanctioned plan and further he has not left proper set back to his building.
20. Sec. 321(1), (2) and (3) of the Act shows that when there is any construction in violation of the provisions of the Act or rules, bye-laws made under the Act, a provisional order may O.S.No.1453/2018 21 be passed requiring the owner or builder of the building to demolish the work unlawfully executed and shall serve a copy of provisional order on the owner or builder of the building with a show-cause notice as to why the provisional order shall not be confirmed and if the owner or builder fails to show cause, the provisional order may be confirmed.
21. Ex.P-24 shows that as per Sec. 321(1) and (2) of the Act, the provisional order has been made that the defendant no.1 has put up construction of building in violation of rules and bye-laws of the Act and ordered to remove the portion of the building which has been put up in violation of rules and bye-laws and notice has been issued to defendant no.1 calling upon him to show cause as to why the preliminary order shall not be confirmed. But, there is nothing to show that the preliminary order issued against the defendant no.1 has been confirmed as per Sec.321(3) of the Act. The plaintiff has not produced any material to show that preliminary order as per Ex.P-24 has been confirmed.
22. Sec. 443(A) of the Act reads as under:-
Sec. 443(A): Appeal to Karnataka Appellate Tribunal or District Court:-
O.S.No.1453/2018 22 (1) Any person aggrieved by any notice issued, action taken or proposed to be taken by the Commissioner under Sections 308,309, 321(3) may appeal:
i) to the Karnataka Appellate Tribunal in case of the (Bruhat Bangalore Mahanagara Palike)
ii) to the District Court having jurisdiction in case of other corporations.
(2) The decision of the Karnataka Appellate Tribunal or as the case may be the District court shall be final. (3) All appeals made against any notice issued or other action taken or proposed to be taken by the Commissioner under Sections 308, 309 and 321(3) and pending before the standing committee on the date of commencement of this section shall stand transferred to the Karnataka Appellate Tribunal, or as the case may be, District court and such appeals shall be disposed off by them as if they were filed before them.
23. As per the above provision, if any person is aggrieved by any notice issued, action taken or proposed to be taken U/sec. 321(3) may appeal to Karnataka Appellate Tribunal in case the order is passed by BBMP. Therefore, the appeal provision is O.S.No.1453/2018 23 available U/sec.443(A)of the Act for any aggrieved person, in respect of the action proposed to be taken U/sec.321(3) of the Act and such appeal lies to Karnataka Appellate Tribunal. In this case the documents produced by the plaintiff show that after provisional order issued as per Ex.P-24, it has not been confirmed. Under such circumstances, the remedy to plaintiff is to approach the Karnataka Appellate Tribunal with an appeal. If confirmation order is passed as per Sec. 321(3) of the Act and the plaintiff is aggrieved by the action taken against the defendant no.1, then also appeal lies to Karnataka Appellate Tribunal. Under the above circumstances, the present suit filed by the plaintiff for the reliefs claimed by him is not maintainable. In view of the same, I answer Issue No.1 partly in the Affirmative.
24. Addl. Issue No. 1:- The plaintiff has contended that he has acquired easementary right of air and light by way of prescription for useful and effective enjoyment of the suit schedule item no.1 property. But the plaintiff has not produced any evidence to prove the same. Hence, I answer Addl. Issue No.1 in the Negative.
O.S.No.1453/2018 24
25. Addl. Issue No. 2:- From the discussions made on Issue No.1, it can be made out that defendant no.1 has put up construction of fourth floor without obtaining sanctioned plan. Therefore, I answer Addl. Issue No.2 in the Affirmative.
26. Addl. Issue No. 3:- From the photographs produced as per Ex.P-24 and P-25, the construction of third and fourth floor can be seen. But the construction of structure over fourth floor supporting the over head tank cannot be seen. Further the window and roof projections and the set back area of plaintiff property cannot be seen. There is no evidence to prove that defendant no.1 has put up structure over the fourth floor supporting over head tank and he put up window and roof projections in the set back area of plaintiff's property. Therefore, I answer Addl. Issue No.3 partly in the Affirmative.
27. Issue No.2:- It is true that the plaintiff has proved that defendant no.1 has put up third floor and fourth floor construction of building without sanctioned plan and the defendant no.1 has not left proper set back to his building. However, he has failed to prove the other allegations made against defendant no.1. But as per Sec. 443(A) of the Act, the remedy of appeal is available to defendant no. 1 and such appeal O.S.No.1453/2018 25 lies before the Karnataka Appellate Tribunal. Therefore, the present suit is not maintainable. In view of the same, the plaintiff has not entitled for the relief's claimed in the suit. Accordingly, I answer Issue No.2 in the Negative.
28. Issues No. 3, 4 and 5:- The defendant no.1 has appeared before the court through his counsel, he has filed his written statement and made counter claim and sought for the reliefs against the plaintiff. But the defendant no.1 has not come before the court to give evidence. He has not cross-examined PW-1. He has not produced any document in support of his case. Under such circumstances, absolutely there is no evidence to prove the counter claim of defendant no.1. Therefore, the defendant no.1 has not proved Issues No.3, 4 and 5. Accordingly, I answer Issues No. 3, 4 and 5 in the Negative.
29. Issue No. 6:- In view of my above discussions, the suit of the plaintiff and the counter claim of defendant are liable to be dismissed. Accordingly, I proceed to pass the following:
ORDER The suit of the plaintiffs is hereby dismissed as not maintainable.
The counter claim of defendant no.1 is also dismissed.
O.S.No.1453/2018 26 Under the circumstances, the parties shall bear their own costs.
Draw decree accordingly.
(Dictated to the stenographer grade-I, transcribed and typed by her, corrected and then pronounced by me in open court, this the 30th Day of November 2024) (YASHAWANTH KUMAR) C/c. XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38), BENGALURU.
Schedule Property Item no.1 All the piece and parcel of the immovable house property bearing No. 15, 6th Main, Agrahara Dasarahalli, Magadi Road, Bengaluru- 560079, Ward No.21 measuring North to South: 39 feet, East to west : 30 feet:
East : Property of Chellamma, West : Property of defendant no.1, North : Road, South : Road, Item no.2 All the piece and parcel of the immovable house property bearing No. 145, 6th Main, Agrahara Dasarahalli, Magadi Road, Bengaluru- 560079, East : Property of Plaintiff, West : Property No.13, North : Road, South : Road, O.S.No.1453/2018 27 ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
PW-1 - D. C. Jagadish Gowda.
Documents marked on behalf of the plaintiff/s:
Ex.P-1 Katha Certificate
Ex.P-2 Katha Extract
Ex.P-3 Property tax receipt
Ex.P-4 Katha certificate dated 12.02.2018
Ex.P-5 Katha Extract dated 12.02.2018
Ex.P-6 Office copy of the request letter to AEE,
BBMP dated 06.12.2010
Ex.P-7 Representation by BBMP dated
11.12.2013
Ex.P-8 Photo bill.
Ex.P-9 to 14 photographs
22
Ex.P-23 Copy of the sanction plan issued by Asst.
Executive Engineer under RTI Act 2005. Ex.P-24 Copy of provisional order passed by BBMP u/Sec. 321(1) (2) of KMC Act 1976.
Ex.P-25 Copy of the information dtd:17.5.2018 furnished by AEE, BBMP, Govindarajanagar Sub-divisiion under RTI Act.
Ex.P-26 Duplicate sanction plan issued by BBMP in respect of item no.1 of the plaint schedule.
O.S.No.1453/2018 28 List of witnesses examined on behalf of the Defendant/s:
-Nil-
Documents marked on behalf of the Defendant/s:
-Nil-
(YASHAWANTH KUMAR) C/c. XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38), BENGALURU.