Bangalore District Court
Mrs. Sivagami D vs Mr. Mahesh Kumar on 12 April, 2021
IN THE COURT OF THE XXIX ADDL. CITY CIVIL
& SESSIONS JUDGE AT BANGALORE CITY. (CCH 30)
Dated this the 12th day of April 2021
PRESENT: SMT. NAGAJYOTHI. K.A., LL.M.,
XXIX ADDL CITY CIVIL & SESSIONS JUDGE, BANGALORE.
O.S.No. 4247/2011
Plaintiff : Mrs. Sivagami D.
'Srihari'
No.42, Gopalappa Layout,
Hebbal, Kempapura,
Bengaluru - 560 024.
(By Sri. T. Rajaram, Advocate)
Vs.
Defendants : 1. Mr. Mahesh Kumar,
No.36, Gopalappa Layout,
Hebbal, Kempapura,
Bengaluru - 560 024.
2. The Asst. Executive Engineer,
City Municipal Council,
Byatarayanapura Division,
Bengaluru.
3. The Commissioner,
BBMP,
Hudson Circle,
Bengaluru.
(By Sri. B.A. Belliappa, Advocate
for D.1)
(By Smt. V. Prathima, Advocate for
D.2 & D.3)
Date of institution of the suit 16/06/2011
Nature of the suit (suit on
pronote. Suit for declaration Permanent Injunction &
and possession suit for Mandatory Injunction
injunction, etc.)
Date of the commencement
of recording of the evidence. 17/08/2016
2
O.S.No.4247/2011
Date on which the judgment
was pronounced 12/04/2021
Total duration Year/s Month/s Day/s
09 09 26
JUDGMENT
This suit is filed for permanent injunction restraining the defendant from constructing or putting up any further construction on the said suit schedule property without leaving the setback area and mandatory injunction to demolish the construction which is already put up without leaving the setback area, and for costs and such other reliefs.
2. It is averred in the plaint that, the plaintiff is the absolute owner of the property bearing No.42, Gopalappa Layout. She has constructed the said house at site No.42, in the year 2004. Mr. Mahesh Kumar who has got a site bearing No.36, is situated backside of the plaintiff's house in the same Hebbal, Kempapura, Bengaluru. He has constructed the 1 st & 2nd floors on the top of the existing house. He has not left setback area as stipulated by the Karnataka Municipalities Act. Without leaving setback area, he has constructed so close to the compound wall of the plaintiff and proper air and ventilation is blocked. Because of the 1st & 2nd floors he has put up, the 3 O.S.No.4247/2011 entire light and air is blocked totally. In this regard, the plaintiff has lodged complaint with the 2 nd defendant dated 17.05.2011, and the 2nd defendant has acknowledged the receipt of the same. In the said complaint, the plaintiff has narrated each and everything about not leaving the setback area by the 1st defendant. When asked about such illegal construction, virtually he has shouted at the plaintiff. Annoyed by action of the 1st defendant, she has lodged a complaint with the 2 nd defendant dated 17.05.2011. As soon as the plaintiff is lodged the complaint, the Officers of the 2nd defendant came to the spot and summoned the 1st defendant as well as workers and made enquiries about not leaving the setback area. After making an enquiry, they left the place. Afterwards, the Officers of the 2 nd defendant did not initiate any action for not leaving the setback area and 2nd defendant did not cause any show cause notice for violation of the building byelaws. In such an event the construction of the 1st defendant has done, is totally illegal and opposed to the building byelaws. Hence, the construction which was done by the 1st defendant, has to be demolished by leaving proper setback area. If the 1 st defendant did not leave the setback area, the light and air will not smoothly pass into the house of the plaintiff's house. Hence, the practice of 4 O.S.No.4247/2011 causing such nuisance has to be strictly deprecated and further directions should be given tof the defendant No's.2 & 3 to initiate proper action against the 1st defendant for not leaving the setback area. The 1st defendant without leaving the setback area and constructing his toilets and entrance to toilet attached to the compound wall towards South side of the plaintiff's house. The plaintiff had purchased the said property with an old compound wall existing on the schedule property. The plaintiff demolished the old one and built a new compound wall during the construction of the house. The plaintiff has no privacy because of the said construction. When the Officers of the 2nd defendant told the 1st defendant to bring the sanctioned plan, he said that he does not have one at home. They told him to bring documents to BBMP's Office and left. The plaintiff is under the impression that he will stop construction till further orders. But, the plaintiff found the construction was taking place and no action was initiated neither by the 2 nd defendant and 3rd defendant. The inaction on the part of the defendant No's.2 & 3 are strictly deprecated by this court and proper directions are necessary to remove the portion of the building where no setback area was left by the 1 st defendant. On 04.06.2011, the BBMP Officers said that, Mr. Mahesh expected 5 O.S.No.4247/2011 to come on that day and also promised the plaintiff that, 3 feet setback will be ensured at the backside and the plaintiff visited BBMP on 7th June, the Officers said that they will come for measuring the deviations as per the approved plan and issue notice for demolition. But, it is 1.5 feet, which can be demolished and not 3 feet as they promised. In such an event, strict directions are necessary against the defendant No's.2 & 3 to demolish the construction which was done by the 1st defendant without leaving the setback area. Hence, files this suit.
3. The 1st defendant has appeared through his counsel and submitted in the writtenstatement that, there is no construction in the schedule property as averred by the plaintiff, and therefore, there is no cause of action to institute the suit and therefore, the suit is not maintainable. The 1 st defendant is putting up construction in site No.36, khatha No.463/514/465/36, situated at Kempapura village, Yelahanka Hobli, Bengaluru North Taluk, in strict compliance with the sanctioned plan issued by the 3rd defendant, vide No.725/2010 2011, which is valid for the period between 06.10.2011 to 05.10.2012, issued on 06.10.2010. Hence, prays for dismissing the suit with costs.
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O.S.No.4247/2011
4. The defendant No's.2 & 3's advocate filed vakalath, but has not filed any writtenstatement.
5. In proof of their case, the plaintiff herself examined as PW.1, and relied upon the documents Exs.P.1 to P.13. On behalf of the defendants, the 1st defendant was examined as DW.1. Ex.D.1 was marked.
6. Heard arguments.
7. Considering the facts and circumstances and the material available in the matter, my Learned Predecessor has framed the issues on 13.03.2015, as under:
ISSUES (1) Whether the plaintiff proves that, the defendant1 is illegally putting up construction on the suit schedule property without leaving the setback area? (2) Whether the defendant1 proves that, he has constructed building in site No.36 of Kempapura village, as contended in the writtenstatement? (3) Is there any interference in the peaceful possession and enjoyment of the plaintiff over the suit schedule property?
(4) Whether the plaintiff is entitled for the relief of permanent injunction as prayed in the plaint?
(5) Whether the plaintiff is entitled for the relief of mandatory injunction as prayed in the plaint?
(6) What order or decree?
8. My findings to the above issues are as under: Issue No.1 : In the Affirmative.
Issue No.2 : In the Negative.
Issue No.3 : In the Negative.
7
O.S.No.4247/2011 Issue No.4 : In the Negative.
Issue No.5 : In the Negative.
Issue No.6 : As per final order for the following:
REASONS
9. Issue No.1: It is a suit for permanent injunction restraining the defendant from putting up further construction in the suit schedule property and mandatory injunction to demolish the construction, which is already put up without leaving the setback area. The suit schedule site bearing No's.41 & 42 is plaintiff's ownership property. To the Southern side of it, the defendant's schedule house bearing No.36 is existing. It is alleged that, at Southern side when defendant started construction for the 1st and 2nd floors to his house, he has not left the setback area, as stipulated in the Karmataka Municipalities Act. Because of this construction work, the entire light and air to the plaintiff's house, is blocked. Initially, the plaintiff has submitted the complaint to the Municipality Authority, who came and visited the schedule property. But, thereafter, they have not taken any steps against the defendants. It is also alleged that, the defendant's further construction of toilet is attached to the compound wall to the Souther side of the plaintiff's house.
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O.S.No.4247/2011
10. In proof of the same, the plaintiff herself deposes as PW.1, and produced the photos and her registered sale deed. It is pertinent to note that, the plaintiff has the burden to prove the obstruction of light and air to the plaintiff's site bearing No's.41 & 42. On perusal of the photos shows, the plaintiff's entrance is not existing at the Southern side of the property. In the crossexamination PW.1 replies that, she purchased her property bearing site No's.41 & 42 on 03.02.2002. Then the defendant is already occupied his house property bearing No.36, and then site No.36 has the building of ground floor only. In between her property and defendant's property, the compound wall is existing 3 ½ feet height. She has taken photos/Exs.P.6 to P.9, during the filing of the suit. So, it shows, the progress of construction work and it is almost in the finishing sage. Even the earlier photo/Exs.P.1 to P.3 also shows, the construction is already completed. She admits the same when she files suit, 90% of construction is completed. Again she denies it when her counsel raised objection. But, her photos clearly shows, the stage of work is almost completed. She admits that, after receiving her complaint, the BBMP authority visited the spot but denied that BBMP officials found construction proper and went back. She has not taken copy of sanction plan for 1 st and 2nd 9 O.S.No.4247/2011 floors. When the Municipality authorities after spot inspection, have not taken the steps against the defendant, she has no obstruction for filing further complaint against the responsible officers. The BBMP officials told her that the defendant has not constructed as per plan.
11. Whereas, to corroborate the same, the plaintiff has the burden to prove by submitting the proper documents. So, herein the admitted fact is, the ground floor building is alrady constructed before plaintiff purchasing the schedule property. So, in respect of the setback area from the ground floor construction area/compound, she cannot object it. So, the contention is in respect of 1 st and 2nd floors. The defendant produced the sanction plan/Ex.D.1. It shows, the approval plan for 1st floor of the building along with ground floor and it also shows that the toilet constructed at corner portion and that said portion is almost attached to the compound of the defendant, at Southern side. So, this structure exists prior to her entry to the suit schedule property. So, it is evident that, court cannot conclude there is violation of building plan at ground floor.
12. However, the clinching point herein is, the mandatory injunction and permanent injunction prayed in respect of 10 O.S.No.4247/2011 progress of construction because of it blocks the light and air to her building. Whereas, admittedly, her entrance is not at Southern side. So, any construction at backside of the building, certainly it does not effects on light and air of site bearing No's.41 & 42. Moreover, in respect of the same, she has taken commissioner work. But, she has not given her work to report on possibility of getting light and air. So, the commissioner report also does not put light on the subject of the suit. However, he has specified the distance between objected building and the plaintiff's house, where it mentioned setback at ground floor in meters i.e., 1st floor is 0.17 meters, 2nd floor is 0.17 meters and 3rd floor is 7.23 meters. 3 feet = 0.9144 meters. It clearly shows, the defendant has not left the required setback in the 1st & 2nd floors.
13. The defendant examined as DW.1. In the chief examination he said that, his construction is as per plan and also said it is the authority of defendant No's.2 & 3 initiated action against him, if there is any deviation. After the spot inspection, the defendant No's.2 & 3 closed the complaint against him and he produced his plan/Ex.D.1. But, in the plan, there is approval for 1st floor, but he has put up 2nd and 3rd floors also. At Northern side of his house building, the bedroom 11 O.S.No.4247/2011 is existing in 1st and 2nd floors, and it has window at Northern side. It is suggested that, the distance between plaintiff's building and defendant's building is less than one feet. Whereas, as I have narrated the commission report is not disputed. So, it clearly proved the defendant has not left setback. Accordingly, I hold Issue No.1 in the 'Affirmative'.
14. Issue No.3: Admittedly, the compound wall exists in between plaintiff and defendant's property. The plaintiff claims only defendant has not left the setback area in the construction of 2nd and 3rd floors building. So, she has not alleged the interference. Her allegation of interference is in respect of light and air. But, to that aspect, absolutely nil evidence from plaintiff's side. Accordingly, I hold Issue No.3 in the 'Negative'.
15. Issue No.2: The defendant contends that, his house No.36 is built, as per building plan. He has produced Ex.D.1/plan. It is also admitted that, the BBMP authority visited the spot and verified his construction work. It is also admitted that, thereafter the BBMP authority have not taken any action against the defendant. The plaintiff has not approached the higher authority of the BBMP officials. The plaintiff contends that, the officials of BBMP told her the defendant violated the plan. But not produced any material to 12 O.S.No.4247/2011 corroborate the same. The defendant has not gave any evidence to corroborate his construction is legal. Whereas, in the cross examination he himself admitted that, he put up 2 nd floor as per the building plan. But, in fact, in Ex.D.1, there is no provision for 2nd floor. In fact, the defendant has not sought any approved plan for the 2nd floor. Whereas, the approved plan/Ex.D.1 also shows, it is not specific on reserving of setback of 3 feet at Southern side. The commissioner report does not speaks on violation of his building plan. Accordingly, appreciating Ex.D.1 and crossexamination of DW.1, I hold Issue No.2 in the 'Negative'.
16. Issue No's.4 & 5: In view of the same, I refer the citation (2007) 5 SCC 614, in the case of Hardesh Ores Pvt. Ltd., Vs. M/s. Hede and Company, where it is held that, "injunction without establishing the subsistence of valid agreement did not exist in fact. In it's absence, no relief as prayed for in the suit could be granted by clever device of filing a suit for injunction, without claiming a declaration as to their subsisting rights". So, herein also, the plaintiff is seeking permanent injunction and mandatory injunction. Whereas, the base for injunction is restriction of light and air to the site bearing No's.41 & 42. Whereas, in respect of that subject, the plaintiff has not sought 13 O.S.No.4247/2011 any declaratory relief. So, without establishing easementary right, she cannot obtain the prohibitory order.
17. As truly contended by the defendant, when plaintiff approached the court, 90% of building, is already completed. So, the question of injunction from restraining the further construction, does not arises. Now, in respect of mandatory injunction on demolishing the structure, the plaintiff has to prove her existence of right. So, without the same, the plaintiff cannot seek mandatory injunction. At present, she stresses on setback area. Whereas, it is the BBMP is the authority to setback area and to take action on that aspect. Prior to the purchase of site bearing No's.41 & 42, the defendant is already occupied the site bearing No.36, and house building also constructed. So, now she cannot raise objection in respect of ground floor of defendant's building.
18. While arguing the case, it is stressed the defendant No's.2 & 3 were not participated in the proceedings. During the existence of statusquo order, the 1st defendant completed the 2nd and 3rd floors of the building. Whereas, PW.1's evidence shows, when she filed the suit, the photos/Exs.P.6 to P.9 are taken, which shows the construction of building is already in finishing stage. It clearly shows, the plaintiff has not proved the 14 O.S.No.4247/2011 statusquo of the house property bearing No.36, during the filing of the suit. It also argued that, he has proved there is no setback and it proves the case. Whereas, his case is, because of no setback, there is no light and air. So, no light and air is the subject of the suit. There is no declaratory relief prayed in respect of the same. Hence, the plaintiff is not entitled for any relief. Accordingly, I hold Issue No's.4 & 5 in the 'Negative'.
19. Issue No.6: In view of the reasons stated supra, I proceed to pass the following:
ORDER Suit is dismissed.
No order as to costs.
Draw the decree accordingly.
(Dictated to the Judgment Writer, transcribed and typed by him, corrected and then pronounced by me in the open court, on this the 12th day of April, 2021) (NAGAJYOTHI.K.A) XXIX Addl. City Civil Judge, Bangalore City.
ANNEXURE List of witnesses examined for the plaintiff's side: PW.1 Mrs. Sivagami D List of documents exhibited for the plaintiff's side: Exs.P.1}{ Photos (3 in No's).
to P.3}{ 15 O.S.No.4247/2011 Ex.P.4 Copy of application dated 15.06.2007, issued to Byatarayanapura CMC.
Ex.P.5 Copy of letter dated 17.05.2011, issued to Asst.
Executive Engineer, BBMP.'
Exs.P.6}{ Photos (4 in No's).
to P.9}{
Exs.P.10}{ CD (2 in No's).
& P.11}{
Ex.P.12 CC of registered sale deed dated 03.02.2002.
Ex.P.13 Building licence sanctioned plan dated
28.06.2006.
List of witnesses examined for the defendants' side: DW.1 Mahesh Kumar List of documents exhibited for the defendants' side: Ex.D.1 Sanction plan in respect of site No.36.
XXIX Addl. City Civil Judge, Bangalore City.
16 O.S.No.4247/2011 Judgment pronounced in open Court, vide separate judgment.
ORDER Suit is dismissed.
No order as to costs.
Draw the decree accordingly.
XXIX Addl. City Civil Judge, Bangalore City.
17 O.S.No.4247/2011