Bangalore District Court
O.S./3116/2015 on 8 October, 2021
IN THE COURT OF XXXIX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, (CCH-40), BANGALORE CITY.
Dated on this the 8th day of October 2021
-: Present :-
Sri.Khadarsab, B.A, LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO. 3116/2015
Plaintiff :-
Sri. S.N. Gopal,
S/o Late Nanjundappa,
Aged about 62 years,
R/a. No.23, 11th 'A' Main Road,
Shivanagar, Rajajinagar,
Bangalore - 560 010.
[By Sri.K.P. Bhuvan, Advocate]
/ VERSUS /
Defendant :-
Smt. K. Meenakshi,
W/o Late C. Venkatappa,
Aged about 55 years,
R/a. No.22/1, 11th 'A' Main Road,
Shivanagar, Rajajinagar,
Bangalore - 560 010.
[By Sri.A.S, Advocate]
¯¯¯¯¯
Date of Institution of the
suit : 01.04.2015
/2/ O.S.No.3116/2015
Suit for permanent
Nature of suit : and mandatory
injunctions
Date of commencement of : 06.09.2018
evidence
Date on which the : 08.10.2021
judgment is pronounced
Duration taken for disposal : Years Months Days
06 06 07
***
JUDGMENT
The plaintiff has filed the suit against the defendant for permanent injunctions to restrain the defendant from putting up further construction on the western side of the plaintiff's property and not to interfere with the plaintiff's peaceful possession and enjoyment over the suit schedule property and for the relief of the mandatory injunction directing the defendant to remove illegal construction of sajja and staircase put up on the western side of the suit schedule property measuring East to West : 2 ½ feet and North to South : 12 feet.
/3/ O.S.No.3116/2015
2. The case of the plaintiff in brief is as under :
That, his father Nanjundappa was the absolute owner in possession of the property bearing new No.23 measuring East to West : 90 feet and North to South : 28 feet situated at 11 th 'A' Main Road, Shivanahalli, Rajajinagar, Bengaluru. After the death of Nanjundappa, plaintiff and his brothers have entered into a registered Partition Deed dated 16.09.1983. As per said Partition Deed, the suit schedule property has been allotted to the plaintiff.
As per partition deed, name of the plaintiff has been mutated in the BBMP records and presently Khatha certificate and Khatha extract are standing in his name. He paid update tax. In the year 2014 the plaintiff has started painting and repairing the suit schedule property. At that time the defendant came near the suit schedule property and obstructed the /4/ O.S.No.3116/2015 plaintiff's possession. Therefore, he lodged complaint on 06.09.2014 against the defendant. Defendant is claiming the possession of the western side of the suit schedule property and started construction adjacent to the suit schedule property without obtaining proper approval from the concerned authority. Defendant started construction without leaving setback. Defendant has put staircase and sajja on the western side of the suit schedule property. Defendant has already completed ground floor and she is going to commence first floor construction. Plaintiff is in peaceful possession and enjoyment of the suit schedule property since long period and she has put up compound wall long back. On the western side of the suit schedule property, the compound wall and toilets are situated. Due to the illegal construction made by the defendant, the natural easementary right of plaintiff has been obstructed i.e., light and air. Defendant has /5/ O.S.No.3116/2015 constructed building illegally. Therefore, plaintiff has lodged a complaint on 13.03.2015 and 16.03.2015 to the Assistant Executive Engineer, BBMP, Rajajinagar, Bengaluru. The officials of the BBMP came near the suit schedule property and verified the illegal construction put up by the defendant. The officials of BBMP have directed the defendant to stop further construction, but defendant has not stopped the construction. Defendant has constructed the building by encroaching the plaintiff's property to an extent 2 ½ feet East to West and 12 feet North to South. The act of the defendant is illegal and unauthorized. Hence, prayed for decreeing the suit.
3. After service of summons, defendant appeared through her counsel and has filed her written statement. The defendant has denied the plaint averments. The defendant took a specific contention that she has not made any encroachment /6/ O.S.No.3116/2015 over the plaintiff's property. She has constructed the building as per law. The plaintiff is falsely claiming that the construction is illegal. Defendant further contended that during the month of October 2014, she intended to put up construction on her property. Accordingly, she approached the Engineer/ Architecture for preparing the plan and while taking the actual measurement of the property, she came to know that one Lakshmana has illegally encroached upon the defendant's property to an extent of 12 feet 10 inches on the East to West and 9 feet 6 inches on the North to South. Plaintiff has illegally encroached to an extent of 10 feet 9 inches on the East to West and 5 feet 8 inches on the North to South and one Nanjundaswamy has encroached upon the half portion of the road towards Southern side of the defendant's property. Therefore, the defendant has requested the said persons including the plaintiff to remove the encroachment. The plaintiff has not /7/ O.S.No.3116/2015 removed the said encroachment. Therefore, the defendant has filed O.S.No.1783/2015 on 24.02.2015 for the relief of permanent injunction against the present plaintiff. The said suit is pending for consideration. The plaintiff by suppressing the material fact has filed the present suit. The suit of the plaintiff is not maintainable in the present form. Hence, she prays for dismissal of the suit.
4. On the basis of the pleadings and documents produced by both the parties, my predecessor in Office has framed following issues on 20.01.2018:
(1) Whether the plaintiff proves that he was in possession of the suit schedule property as on the date of filing the suit ?
(2) Whether the plaintiff further proves that the defendant has put up staircase and sajja on the Western side of the suit schedule property ?
/8/ O.S.No.3116/2015 (3) Whether the plaintiff proves alleged interference ?
(4) Whether the plaintiff is entitled for permanent injunction and mandatory injunction ?
(5) What order or decree ?
5. Plaintiff has examined himself as P.W.1 and the documents got marked as Exs.P.1 to P.82. While cross-examining PW.1, the counsel for the defendant confronted notice dated 24.03.2015 and 09.09.2015. Witness admitted the said documents. Accordingly, they have been marked as Exs.D.1 & D.2. The defendant examined herself as D.W.1 and documents got marked as Exs.D.3 to D.25.
6. Heard both sides.
7. My findings to the above issues are as follows:
/9/ O.S.No.3116/2015
Issue No.1 : In the negative.
Issue No.2 : In the negative.
Issue No.3 : In the negative.
Issue No.4 : In the negative.
Issue No.5 : As per final order, for
the following:
REASONS
8. Issues No.1 and 2 :- Since both the
issues are interconnected to each other, in order to avoid repetition of facts, evidence and law, these issues are taken up together for common discussion.
9. In order to establish his case, the plaintiff himself examined as PW.1 and relied upon the documents Exs.P.1 to P.82. Examination-in-chief of PW.1 is nothing but replica of plaint averments. PW.1 deposed that his father Nanjundappa was the absolute owner in possession of the suit schedule property. His father acquired the property under the Gift Deed dated 11.11.1918 as per Ex.P.73. Exs.P.74 to P.81 are the certified copies of Encumbrance / 10 / O.S.No.3116/2015 Certificates in respect of the suit schedule property. Ex.P.82 is the approved plan issued by BBMP. After death, himself and his siblings have entered into partition on 16.09.1983 as per Ex.P.1. As per Ex.P.1 - Partition Deed, the suit schedule property fallen to his share. Accordingly, Khatha certificates are standing in his name as per Exs.P.2 and P.3. Khatha extract and Khatha certificate in respect of property ID No.20- 19-23. Ex.P.4 is the Encumbrance Certificate in respect of site bearing No.23. Ex.P.5 is the tax paid receipt dated 26.04.2014. He paid update tax as per Ex.P.5 and Ex.P.6 is the acknowledgement issued by BBMP dated 26.04.2014. The defendant tried to interfere with his peaceful possession and enjoyment. Therefore, he lodged a complaint. But the police authorities have not initiated any action against the defendant and have issued an endorsement as per Ex.P.7. The defendant has constructed building by violating bye-laws and without leaving setback, / 11 / O.S.No.3116/2015 thereby caused obstruction to flow air and light. Therefore, he lodged complaints to BBMP as per Exs.P.8 & P.9. The defendant has constructed building without obtaining sanction plan. Ex.P.10 is the letter issued by the Public Information Officer, BBMP dated 24.03.2018. Ex.P.11 is the Work Order dated 31.05.2017 passed by the Executive Engineer, BBMP, Rajajinagar Division. After lodging the complaint, BBMP authorities have visited the spot, but have not initiated any action. Therefore, he lodged a complaint and issued reminders to BBMP and BWSSB as per Exs.P.12 to P.19, 22, 24 to 29, P.32 to P.38, P.41 and P.46, P.63 & P.64, P.70 & P.71. He lodged complaint to KEB and BESCOM as per Exs.P.21 and
37. The police authorities have issued endorsements as per Exs.P.30, P.31, P.39, P.42 & P.43. Subsequently, police have called the defendant and have recorded the statements of the defendant as per Exs.P.23, 40 & P.45. Exs.P.47 to P.59 are the photographs which / 12 / O.S.No.3116/2015 clearly goes to show that the defendant has laid construction by violating building bye-laws. Ex.P.60 is the CD in respect of Exs.P.47 to P.59. Exs.P.61 & P.62 are the receipts issued by Triveni Digitals. Subsequently, the BBMP has issued a show cause notice to the defendant on 20.07.2018 as per Exs.P.65 & P.67. BBMP authorities have conducted the proceedings as per Ex.P.72. Subsequently, BBMP authorities have passed order under Section 321 of KMC Act as per Exs.P.68 & P.69. The defendant has challenged the order passed by BBMP before the Karnataka Appellate Tribunal as per Ex.P.20. The Karnataka Appellate Tribunal had dismissed the appeal filed by defendant on 04.11.2016. The defendant has made an encroachment over the plaintiff's property to an extent of East-West : 2 ½ feet and North-South : 12 feet. Defendant constructed building by violating building bye-laws and also caused obstruction to flow of air and light.
/ 13 / O.S.No.3116/2015 The act of the defendant is illegal, unauthorized and high handed. Hence, prayed for decreeing the suit.
10. Though PW.1 deposed in his examination- in-chief that defendant has made an encroachment over the suit schedule property and has constructed the building without leaving setback and thereby caused obstruction to the free flow of air and light to the suit schedule property, but in his cross- examination at page No.18 & 19 clearly admitted that, "ಪಪತವವದ ನನನ ಮತತತ ಇತರರ ವರತದದ ಅಸಲತ ದವವವ ನನ.10183/2015 ನವನದದನತನ ದವಖಲಸರತತವತರವ ಎನತನವವದತ ನಜ. ಸದರ ಪಪಕರಣದ ಬಗವಗ ನನಗವ ಮವಹತ ಇರತತತದವ. ಪಪತವವದ ನನನ ಮತತತ ಇತರರ ವರತದದ ಅಸಲತ ದವವವ ನನ.10183/2015 ನವನದದನತನ ದವಖಲಸದತದ ಸದರ ದವವವಯ ವವದಪತಪದಲಲ ನವನತ ಪಪತವವದಗವ ಸವನರದ ಸಸತತನಲಲ ಪಪ-ಪಪ 10 ಅಡ 9 ಇನಚತ, ಉ-ದಪ 5 ಅಡ 8 ಇನಚತ (ಡ ಶವಡಡಡಲಲ ನ ಸಸತತನಲಲ) ಅತಕಪಮಣ ಮವಡ ಕಟಟಡ ಕಟಟಸರತತವತನನವನದತ ನಮಡದಸಲವಗದವ ಎನತನವವದತ ನಜ", which clearly goes to show that before filing the present suit, defendant has filed O.S.No.10183/2015 / 14 / O.S.No.3116/2015 against the present plaintiff and others as per Ex.D.13. The present defendant is the plaintiff in the said suit. In the said suit he contended that the present plaintiff made an encroachment. Though the present plaintiff appeared in the said case through his counsel, but has not whispered in his plaint regarding the said O.S.No.10183/2015. It is well settled law that one who approaches the Court, he must be with clean hand. The conduct of the plaintiff goes to show that he has suppressed the material fact only with an intention to get order which is not permissible under the law.
11. The plaintiff claims that the measurement of the suit schedule property is East-West : 90 feet and North-South : 28 feet. But, in order to establish the exact of suit schedule property plaintiff has not produced earlier title deeds. PW.1 also in his cross- examination at page No.19 clearly admitted that, "
/ 15 / O.S.No.3116/2015 ದವವವಸಸತತನ ವಸತನಣರ 1983 ಕಕನತ ಪಪವರದಲಲ ಪಪ-ಪಪ 90 ಮತತತ ಉ-ದಪ 28 ಇತತತ ಎನದತ ತವಡನರಸಲತ ಯವವವದವನ ದವಖಲವಗಳತ ಇರತವವದಲಲ". On perusal of Ex.P.1 - Partition Deed, it clearly reveals that plaintiff is falsely claiming that the measurement of suit schedule property is East - West 90 Feet and North - South 28 Feet. Though PW.1 claims that defendant has made an encroachment to the suit schedule property to an extent of East-West : 2 ½ feet and North-South : 12 feet, but, there is no evidence on record. PW.1 also in his cross-examination at page No.23 clearly admitted that, BBMP authorities have not conducted survey in order to ascertain the encroachment.
12. Plaintiff much relied upon Exs.P.1 to P.72 documents. It is well settled law that the documents as on the date of suit are to be considered. But the documents produced by the plaintiff are subsequent to filing of the suit. PW.1 also in his cross-examination / 16 / O.S.No.3116/2015 at page No.23 unequivocally admitted that, Exs.P.1 to P.72 documents came into existence subsequent to 24.03.2015. As per PW.1 himself, Exs.P.1 to P.72 came into existence subsequent to filing of the suit.
13. Plaintiff in his plaint pleaded and PW.1 in his examination-in-chief deposed that the defendant has made an encroachment over his property measuring East - West : 2 ½ feet and North - South :
12 feet. As per plaintiff himself, he is not in possession of the entire suit schedule property, but has filed the present suit for permanent and mandatory injunctions but has not sought for the relief of possession. In a decision reported in (2008) 4 SCC 594 (Anathulla Sudhakar Vs. P. Buchi Reddy (Dead) By LRs and others), wherein the Hon'ble Apex Court held at para No.14 and 15 clearly held that, "14) But what if the property is a vacant site, which is not physically / 17 / O.S.No.3116/2015 possessed, used or enjoyed ? In such cases the principle is that possession follows title.
If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the Court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where Court feels that parties had not proceeded on the basis that title was at issue, the Court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs.
/ 18 / O.S.No.3116/2015
15) There is some confusion as to in
what circumstances the question of title will be directly and substantially in issue, and in which circumstances the question of title will be collaterally and incidentally in issue, in a suit for injunction simpliciter. In Vanagiri Sri Selliamman Ayyanar Uthirasoma-
sundareswarar Temple Vs. Rajanga Asari, AIR 1965 Mad. 355, the Madras High Court considered an appeal arising from a suit for possession and injunction. The defendant contended that the plaintiff had filed an earlier suit for injunction which was dismissed and therefore the plaintiff was precluded from agitating the issue of title in the subsequent suit, being barred by the principle of res-judicata. It was held that the earlier suit was only for an injunction (to protect the standing crop on the land) and the averments in the plaint did not give rise to any question necessitating denial of plaintiff's title by the defendant; and as the earlier suit was concerned only with a possessory right and not title, the / 19 / O.S.No.3116/2015 subsequent suit was not barred. There are several decisions taking a similar view that in a suit for injunction, the question of title does not arise or would arise only incidentally or collaterally, and therefore a subsequent suit for declaration of title would not be barred. On the other hand, in Sulochana Amma Vs. Narayanan Nair 1994 (2) SCC 14, this Court observed that a finding as to title given in an earlier injunction suit, can operate as res-judicata in a subsequent suit for declaration of title. This was on the premises that in some suits for injunction where a finding on possession solely depended upon a finding on the issue of title, it could be said that the issue of title directly and substantially arose for consideration; and when the same issue regarding title is put in issue, in a subsequent title suit between the parties, the decision in the earlier suit for injunction may operate as res-judicata. This Court observed :
/ 20 / O.S.No.3116/2015
'Shri Sukumaran further contended
that the remedy of injunction is an equitable relief and in equity, the doctrine of res- judicata cannot be extended to a decree of a Court of limited pecuniary jurisdiction. We find no force in the contention. It is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res-judicata.' The said decision is squarely applicable to the case in hand. The plaintiff has sought the relief of permanent and mandatory injunctions without claiming the relief of possession. Hence, the suit of the plaintiff is not maintainable in the present form.
14. It is the consistent defence of the defendant that she has constructed building as per / 21 / O.S.No.3116/2015 sanction plan and has not made encroachment over the plaintiff's property. In order to substantiate her defence, defendant herself examined as DW.1 and got marked documents Exs.D.3 to D.25. The examination-in-chief of DW.1 is nothing but replica of averments made in the written statement. DW.1 deposed that she is the absolute owner in possession of property bearing No.22/1 measuring 30 X 50 feet. Accordingly, Khatha is standing in her name as per Ex.D.3. She paid update tax as per Exs.D.4 to D.10. Exs.D.11 to D.13 are the certified copies of Encumbrance Certificates. She has obtained water connection to the said property. Ex.D.14 is the water connection report issued by BWSSB. She further deposed that, in the month of October 2014, when she intended to put up construction on her property, she approached the Engineer for preparing the plan and while taking actual measurement of the property, she came to know that neighbouring property owners / 22 / O.S.No.3116/2015 including the plaintiff have made encroachments. Subsequently, one Nataraj and Ramesh have obstructed the peaceful possession and enjoyment. Therefore, she has filed O.S.No.1783/2015 for the relief of permanent injunction against the said Nataraj and Ramesh. Subsequently, herself and said Nataraj and Ramesh have entered into compromise as per Ex.D.25 - certified copy of Compromise Petition. The said Nataraj and Ramesh have agreed to leave space for ingress and egress. In terms of compromise, the said suit was decreed. The plaintiff is no way concerned with the suit schedule property, even then he has obstructed for construction activity. Therefore, she has filed O.S.No.10183/2015 as per Ex.D.15 against the plaintiff and others for the relief of mandatory and permanent injunctions. The said suit is pending for consideration. She has issued notice as per Exs.D.16 (Ex.D.1) and D.19 (Ex.D.2) to the plaintiff. Exs.D.17, D.18 & D.20 are the certified / 23 / O.S.No.3116/2015 copies of postal receipts. She has constructed building in her property without making any encroachment, but the plaintiff is making false complaint that his property has been encroached and plaintiff has even lodged a complaint to BBMP. Subsequently, BBMP authorities have passed order under Section 321 of the KMC Act. The said order has been challenged before the KAT. The said appeal has been dismissed for non-prosecution. Subsequently, Misc.No.49/2018 filed for restoration of appeal. The said miscellaneous petition is pending before the KAT. The plaintiff himself constructed the building by violating the building bye-laws and has not obtained sanction plan. Accordingly, the BBMP authorities have issued a letter stating that BBMP authority has not issued sanction order for construction of building in property No.9. Plaintiff has not obtained necessary permission for construction of the building, even then / 24 / O.S.No.3116/2015 making obstruction for construction activities. Hence, she prayed for dismissal of suit.
15. The counsel for the plaintiff cross-examined DW.1 in length, witness adhered to her original version. The counsel for the plaintiff made a suggestion that the properties of plaintiff and defendant are adjacent to each other, witness admitted the said suggestion. The counsel for the plaintiff further made a suggestion that defendant had constructed the building by violating building bye-laws and made encroachment over the plaintiff's property, witness denied the said suggestion. Further, he made a suggestion that defendant has constructed the building without leaving setback, witness denied the said suggestion also. Further he made a suggestion that defendant is constructing the building without obtaining the sanction plan, witness / 25 / O.S.No.3116/2015 admitted the said suggestion. Except this, nothing worth has been elicited from the mouth of DW.1.
16. On perusal of entire material available on record, it is an undisputed fact that, properties of plaintiff and defendant are situated abutting to each other. Plaintiff claims that defendant has made an encroachment over his property measuring East-West 2 ½ feet and North-South : 12 feet. But in order to establish the said fact, plaintiff has utterly failed to produce reliable documents. Except the oral testimony of PW.1, there is no evidence on record in order to come to the conclusion that the defendant has made an encroachment over the plaintiff's property. The evidence of PW.1 is not sufficient to hold that defendant is constructing house by encroaching the plaintiff's property. Further, it is not clear from the material placed on record to show the exact extent of suit property and area in which, / 26 / O.S.No.3116/2015 defendant constructed her house by violating the building bye-laws. Though P.W.1 deposed that defendant constructed building by violating building bye-laws, but he has admitted that BBMP had passed an order for demolition of building as per Exs.P.68 & P.69, defendant has challenged the said order before KAT in Appeal No.987/2015 as per Ex.P.20. The said appeal came to be dismissed for non-prosecution. On perusal of Ex.D.24 certified copy of Order Sheet in Misc.No.49/2018 on the file of the KAT, Bengaluru, it reveals that the present defendant has filed Misc. No. 48/2018 for restoration of said appeal. The said miscellaneous is pending for consideration. Hence, except oral testimony of P.W.1, there is no evidence to prove that, defendant is constructing structure without leaving set-back. As discussed above, the defendant constructed house well prior to filing of suit. It is worthwhile to state that, PW-1 in his cross-
examination at page No.22 deposed that, "On
/ 27 / O.S.No.3116/2015
13.03.2015 & 16.03.2015, the defendant has
constructed building, which clearly goes to show that the defendant has constructed the building much prior to the filing of suit.
17. Apart from this, if defendant constructed structure without leaving setback, it is a prerogative of concerned authorities to take action against defendant, but that itself will not give any right to plaintiff to file this suit unless his personal right is breached. Apart from this, it is well settled law that, construction of building in contravention of building law does not empower a neighbor to interfere with the construction. It is prerogative of the authorities to keep check on such construction and take appropriate action against owners of such building but that itself will not give any right to the neighboring owner to interfere with such construction. This preposition of law is supported by decision of Hon'ble High Court of / 28 / O.S.No.3116/2015 Karnataka reported in 2001 (1) Karnataka Law Journal 468 (S. SUNDAR RAJ V/s VIJAYENDRA KUMAR AND OTHERS) wherein it is held as under:
"When there is an infringement of the bye-law, the proper course would be for the Corporation Commissioner to take action either sue-motto or on a complaint made to him in this behalf. Section 321 of the Act provides for elaborate procedure to be followed by the Commissioner, in such an event and under Section 444 appeal lies to the standing committee against any notice or action taken by the Commissioner under Section 321 of the Act. Thus, Act itself has provided for machinery to inquire into such grievance and if the Commissioner does not decide to compound, then he may take action as he deems fit and proper.
18. Further, in Para No.6 it is held as under:
"This Court in the case of Mathew Phillips V/s P.O. Koshy, has categorically ruled in para 4 reading as under :
/ 29 / O.S.No.3116/2015 "The party, seeking the aid of the Court for an injunction must show that the act complained of is in violation of his right or is at least an act which, if carried into effect, will necessarily result in a violation of the right.
The provision in the bye-law framed by Municipality requiring a clear space of 4 feet between the two adjoining premises does not create a right in a neighbouring owner to institute a suit for injunction. It is for the appropriate authority under the Municipal Act to determine whether the terms and conditions of the licence have been contravened by the licensee of the building. No temporary injunction can be granted in favour of the neighbouring owner in such a case".
19. In this case also, plaintiff claims that defendant has constructed structure without leaving set back. Thus, the sacred ratio laid down in above said decision is aptly applicable to the case in hand.
/ 30 / O.S.No.3116/2015 Virtually, there is no material on record to show that, defendant is constructing structure by encroaching the plaintiff's property and without leaving set-back. In the absence of such evidence, the claim of plaintiff that the defendant constructed structure without leaving setback cannot be sustained, as such, claim of plaintiff does not appear to be probable.
20. The advocate for plaintiff argued that the plaintiff has got easementary rights over the suit schedule property. Hence, the suit of the plaintiff is maintainable. Per contra, the advocate for defendant argued that the plaintiff has to plead and prove that she is enjoying the easementary rights of air and light since more than 20 years, but, the said fact has not been pleaded by the plaintiff. Hence, prayed for dismissal of suit.
21. On perusal of the plaint it clearly goes to show that entire case of the plaintiff is that, he is the / 31 / O.S.No.3116/2015 owner of suit schedule property and the defendant has constructed building by encroaching portion of suit schedule property measuring East-West : 2 ½ feet and North-South : 12 feet and without leaving set-back. That, according to plaint pleadings plaintiff claims the relief of Mandatory injunction only on the basis of easementary rights, however not explaining under what mode he claims the right, by referring a stray sentence here and there in the pleadings or evidence because there are various kinds of easementary rights. The plaintiff has not pleaded that he is entitled to easementary right of air and light over the suit schedule property. The fact to be pleaded and proved for establishing title are different from the facts that are to be pleaded and proved for making out easementary rights. In a suit for enforcement of an easementary right relates to a right possessed by a dominant owner over a property not his own (servient property) having the effect of / 32 / O.S.No.3116/2015 restricting the natural rights of the owner of such property. Easement can be acquired by different ways and are different kinds, i.e., easement by prescription, easement by necessity, easement by grant, etc., A dominant owner seeking relief relating to an easement by prescription shall have to plead and prove the nature of easement, manner of acquisition of easementary right and the manner of disturbance or obstruction to the easementary right. In order to claim easementary right, plaintiff is required to plead and prove that he is in peaceful, open and uninterrupted enjoyment of the right for a period of 20 years ending within 2 years next before the institution of the suit. For claiming easement of necessity, tenement originally constituted a single tenement and the ownership thereof vested in the same person and that there has been a severance of such ownership and that without the easementary right claim, the dominant tenement cannot be used.
/ 33 / O.S.No.3116/2015 But, in this case the plaintiff has not at all specifically pleaded in his plaint regarding what type of easementary rights he has acquired over suit schedule property. Hence, without pleading Court cannot infer that plaintiff has got easementary rights by referring to a stray sentence here and there in the pleadings.
22. In the present case, plaintiff is required to satisfy the Court that he has pleaded and established the fact that he has peaceably and openly enjoyed the right of air and light as an easement without any interruption since 20 years ending within two years next before the institution of the suit and thereby he is entitled to claim right thereto. In the present case, admittedly, the servient heritage property is a private property, the period of such enjoyment should be 20 years. The plaintiff has to plead and prove that he is enjoying such easementary rights over the suit / 34 / O.S.No.3116/2015 schedule property since 20 years. Hence, the plaintiff is required to plead and establish that he has peaceably and openly enjoyed the right of easement without any interruption and therefore he is entitled to claim right thereon.
23. Suit for injunction based on a prescriptive easement for flow of air and light. It is necessary that in a suit for injunction based on a prescriptive easementary right, the plaintiff should seek for declaration that he has also acquired the prescriptive right of easement. In the present suit however the plaintiff has not sought for declaration that he has acquired right of easement with regard to flow of air and light. Hence, the plaintiff has to seek the relief of declaration regarding his easementary rights over the suit schedule property, but, in the present case, plaintiff has not sought for declaration that he has acquired prescriptive right of easement with regard to / 35 / O.S.No.3116/2015 inflow of air and light. Therefore, without seeking the relief of declaration, the suit of the plaintiff is not maintainable.
24. In a Judgment passed by our own Hon'ble High Court of Karnataka in RFA No.506/2010 dated 17.8.2012 (M/s. Spring Borewells Company Pvt. Ltd., Vs. Union Of India and others) clearly held that, "Suit for mere injunction is not maintainable without a prayer for declaration that the plaintiff acquired the prescriptive right." In this case also, the plaintiff sought the relief of mandatory injunction. The relief of declaration is not sought. The above said decision is aptly applicable to the case in hand.
25. In view of the above decisions and discussions and also subject matter of the suit, plaintiff has filed this suit for the relief of permanent and mandatory injunctions claiming that he has got easementary rights over the suit schedule property.
/ 36 / O.S.No.3116/2015 As per Sections 13 and 15 of Indian Easement Act, 1882 and as per the decision of the Hon'ble High Court of Karnataka as stated supra, the suit of the plaintiff is not maintainable without seeking the relief of declaration. The plaintiff has filed the present suit on imaginary cause of action. There is no cause of action to file the present suit. Hence, I answer Issues No.1 and 2 in the negative.
26. Issue No.3:- Plaintiff claims that defendant has obstructed his peaceful possession and enjoyment over the suit schedule property. But, in his plaint pleaded that defendant has made encroachment over the portion of suit schedule property measuring East-West : 2 ½ feet and North- South : 12 feet. Plaint pleadings and evidence of PW.1 clearly goes to show that plaintiff is not in possession of entire suit schedule property. As discussed supra, the plaintiff has utterly failed to / 37 / O.S.No.3116/2015 prove his possession over the suit schedule property as on the date of the suit. Hence, the question of interference does not arise at all. Accordingly, I answer Issue No.3 in the negative.
27. Issue No.4: - This issue is framed with respect to entitlement of relief claimed in this case. The plaintiff claimed the relief of permanent injunction restraining the defendant from obstructing his peaceful possession and enjoyment over the suit schedule property. The plaintiff in his plaint pleaded and PW.1 in his examination-in-chief deposed that defendant has made an encroachment over the Western side of the suit schedule property measuring East-West : 2 ½ feet and North-South : 12 feet. The evidence of PW.1 clearly goes to show that, he is not in possession of the entire suit schedule property. In order to claim the relief of permanent injunction, plaintiff must be in possession of the suit schedule / 38 / O.S.No.3116/2015 property as on the date of the suit, but as per evidence of PW.1, he is not in possession of the entire suit schedule property. Hence, plaintiff is not entitled for the relief of permanent injunction.
28. The plaintiff claimed one more relief of permanent injunction restraining the defendant from putting up further construction on the western side of the plaintiff's property. But, plaintiff in his plaint at para No.11(b) pleaded that the defendant has completed construction work. Plaintiff himself admitted that the construction work has been completed. As per Section 58 of Indian Evidence Act, facts admitted need not be proved. Admission made in the pleadings are the best evidence. In a decision reported in [2008] 7 Supreme Court Cases 85 (Goutham Sarup Vs. Leela Jetly and others) wherein the Hon'ble Apex Court held that, "Admission made in pleadings are not on par with admission / 39 / O.S.No.3116/2015 made in documents and are admissible against a party making the admission." In another decision reported in [2012] 8 Supreme Court Cases 516 (Ahmedsaheb [dead] by L.Rs and others Vs. Sayyed Ismail) wherein the Hon'ble Apex Court held that, "Admission made either in pleadings or orally is the best evidence and it needs no further corroboration." Both the decisions are aptly applicable to the case in hand. Hence, the plaintiff is not entitled for the relief of permanent injunction.
29. Plaintiff claimed the relief of mandatory injunctions directing the defendant to remove constructions and structures put up in the suit schedule property. It is worthwhile to state that, while answering Issues No.1 and 2, I have already concluded that, house of defendant is constructed well prior to filing suit. The plaintiff being neighbour must have come to know about the construction of / 40 / O.S.No.3116/2015 house by defendant, when it was constructed. P.W.1 in his cross-examination clearly admitted that, the construction work has already been completed. Thus, plaintiff has acquiesced his right to challenge the said construction. It is well settled law that, a person, who is guilty of acquiescence, has no right to seek for mandatory injunction. This preposition of law is supported by decision of Hon'ble High Court of Karnataka reported in ILR 2006 KAR 4251 (A.V.N. Prasad Vs. Sita Bai Raj Purohit), Wherein it is held that "If a person having a right to object has acquiesced in the construction of the structure that, is encroached upon, he is not entitled to discretionary remedy of mandatory injunction. Even though, the construction of wall and garage had come to the notice of plaintiff in the year 1984, the plaintiff filed this suit in the year 1995 and the plaintiff was certainly guilty of acquiescence. Hence, plaintiff is not entitled to the relief of mandatory injunction." The said decision is / 41 / O.S.No.3116/2015 applicable to the case in hand. In view of above discussion, plaintiff is not entitled for any of the reliefs of mandatory injunctions. Hence, I answer Issue No. 4 in the negative.
30. Issue No.5:- For the forgoing reasons, I proceed to pass the following:
ORDER Suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed directly on computer, script corrected, signed and then pronounced by me in the open court, this the 8th day of October, 2021.) (KHADARSAB) XXXIX Addl City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiff :
P.W.1 : S.N.Gopal
/ 42 / O.S.No.3116/2015
2. List of documents exhibited for plaintiff:
Ex.P1 C/c of partition deed dt 16/9/1983. Ex.P2 Khatha extract in respect of property ID No.20-19-23 dated 19/3/2015. Ex.P3 Khatha certificate in respect of property ID No.20-19-23 dated 17/3/2015. Ex.P4 Encumbrance certificate in respect of site No.23 dated 18/3/2015.
Ex.P5 Tax paid receipt dated 26/4/2014. Ex.P6 Acknowledgement issued by the Bruhat Bangalore Mahanagara Palike dated 26/4/2014.
Ex.P7 Endorsement issued by Santhosh SHO Basaveshwara Nagar PS dated 1/4/2015. Ex.P8 Office copy of letter written to BBMP dated 13/3/2015.
Ex.P9 Office copy of letter written to BBMP dated 16/3/2015.
Ex.P10 Letter issued by the public information officer Bruhat Bangalore Mahanagara Palike Bangalore dated 24/3/2018. Ex.P11 Copy of the order passed by the executive engineer Rajajinagar division, Bruhat Bangalore Mahanagara Palike Bangalore dated 31/5/2017.
Ex.P12 Copy of the reminder issued to the AEE Bruhat Bangalore Mahanagara Palike dated 15/3/2018.
Ex.P13 Copy of the letter issued to the AEE Bruhat Bangalore Mahanagara Palike dated 15/3/2018.
Ex.P14 Copy of the letter issued to the joint commissioner (west) Bruhat Bangalore Mahanagara Palike Bangalore dated 8/2/2018.
/ 43 / O.S.No.3116/2015 Ex.P15 Copy of the reminder issued to the AEE Bruhat Bangalore Mahanagara Palike ward No.107 Rajajinagara Bangalore dated 12/1/2018.
Ex.P16 Copy of the compliant given to the AEE, BWSSB (West) Bangalore dt 24/10/2017. Ex.P17 Copy of the representation given to the AEE Bruhat Bangalore Mahanagara Palike Bangalore dated 16/3/2017. Ex.P18 Copy of the reminder issued by the AEE Bruhat Bangalore Mahanagara Palike Bangalore dated 20/9/2017. Ex.P19 Copy of the letter issued to the AEE Bruhat Bangalore Mahanagara Palike dated 22/11/2016.
Ex.P20 C/c order sheet in appeal No.987/2015 on the file of KAT, Bangalore.
Ex.P21 Copy of the representation given to the AEE, Bescom Bangalore dt 27/9/2016. Ex.P22 Copy of the representation given to the AEE, Bruhat Bangalore Mahanagara Palike Bangalore dt 15/9/2016.
Ex.P23 Copy of the undertaking given by the defendant before the SHO Basaveshwaranagara PS Bangalore dated 19/7/2016.
Ex.P24 Copy of the representation given to AEE Bruhat Bangalore Mahanagara Palike Bangalore dated 28/5/2016. Ex.P25 Received copy of the letter dated 28/5/2016 given to the ARO Bruhat Bangalore Mahanagara Palike, Bangalore. Ex.P26 Representation given to the AEE Bruhat Bangalore Mahanagara Palike Rajajinagara Sub Division dt 17/5/2016.
/ 44 / O.S.No.3116/2015 Ex.P27 Copy of the letter given to the ARO Bruhat Bangalore Mahanagara Palike, Bangalore, dated 11/1/2016.
Ex.P28 Copy of the letter given to the ARO Bruhat Bangalore Mahanagara Palike, Bangalore, dated 1/9/2015.
Ex.P29 Copy of the letter given to the ARO Bruhat Bangalore Mahanagara Palike, Bangalore, dated 3/6/2018.
Ex.P30 Copy of the notice issued by the SHO Basaveshwara Nagar PS dt 11/4/2015. Ex.P31 Endorsement given by the SHO Basaveshwara Nagar PS dt 11/4/2015. Ex.P32 Copy of the representation given to the AEE Bruhat Bangalore Mahanagara Palike, Bangalore, dated 30/11/2015. Ex.P33 Copy of the reminder given to the AEE, Bruhat Bangalore Mahanagara Palike, Bangalore, dated 19/11/2015. Ex.P34 Copy of the representation given to the AEE, Bruhat Bangalore Mahanagara Palike, Bangalore, dt 7/11/2015.
Ex.P35 Copy of the reminder issued to the AEE, Bruhat Bangalore Mahanagara Palike, dated 3/7/2015.
Ex.P36 Copy of the reminder issued to the AEE Bruhat Bangalore Mahanagara Palike dated 8/6/2015 Ex.P37 Copy of the reminder issued to the AEE, Bruhat Bangalore Mahanagara Palike, dated 11/5/2015.
Ex.P38 Copy of the reminder issued to the AEE, Bruhat Bangalore Mahanagara Palike dated 7/5/2015.
Ex.P39 Endorsement given by the SHO Basaveshwara Nagar Police Station, Bangalore, dated 4/5/2015.
/ 45 / O.S.No.3116/2015 Ex.P40 Statement given by the defendant before the SHO Basaveshwara Nagar Police Station, Bangalore, dated 5/5/2015. Ex.P41 Copy of the representation given to the AEE, dated 25/4/2015.
Ex.P42 Acknowledgement given by the SHO, Basaveshwara Nagar Police Station, Bangalore, dated 11/4/2015. Ex.P43 Endorsement given by the SHO, Basaveshwara Nagar Police Station, Bangalore, dated 19/4/2015. Ex.P44 Copy of the representation given to the SHO, Basaveshwara Nagar Police Station, Bangalore, dated 9/4/2015. Ex.P45 Statement given by the defendant before SHO, Basaveshwara Nagar Police Station, Bangalore, dated 11/4/2015. Ex.P46 Copy of the representation given to the AEE, Bruhat Bangalore Mahanagara Palike, Bangalore, dated 20/4/2015. Ex.P47 13 photos to 59 Ex.P60 CD (Subject to display in the Court). Ex.P61 Receipt issued by the Triveni Digital Colour Lab, dated 20/6/2015.
Ex.P62 Receipt issued by the Triveni Digital Colour Lab, dated 27/4/2015.
Ex.P63 Copy of the representation given to the AEE, Bruhat Bangalore Mahanagara Palike, dated 18/6/2018.
Ex.P64 Copy of the representation given to the AEE, Bruhat Bangalore Mahanagara Palike, dated 18/7/2018.
Ex.P65 Copy of the cause notice issued by Bruhat Bangalore Mahanagara Palike.
/ 46 / O.S.No.3116/2015 Ex.P66 Letter issued by the Information Officer and
AEE, Bruhat Bangalore Mahanagara Palike, dated 11/2/2019.
Ex.P67 C/c notice dated 21/1/2010 issued by AEE, Bruhat Bangalore Mahanagara Palike. Ex.P68 C/c temporary order dated 16/26-3-2015 passed under Sec.321(1 and 2) of KMC Act. Ex.P69 C/c conformation order dated 6/4/2015 passed under Sec.321(3) of KMC Act. Ex.P70 C/c reminder letter dated 27/9/2018. Ex.P71 C/c reminder letter dated 22/12/2018. Ex.P72 C/c order sheet maintained by Bruhat Bangalore Mahanagara Palike in respect of property No.22/1 file No. AEE/RNR/PR/152/18-19.
Ex.P73 C/c of the Gift Deed dated 11.11.2018. Ex.P74 C/c of the Encumbrance certificate dated 23.11.1974.
Ex.P75 C/c of the Encumbrance certificate dated 27.11.1974.
Ex.P76 C/c of the Encumbrance certificate dated 03.03.1975.
Ex.P77 C/c of the Encumbrance certificate dated 28.06.1975.
Ex.P78 C/c of the Encumbrance certificate dated 09.06.1980.
Ex.P79 C/c of the Encumbrance certificate dated 08.12.1987.
Ex.P80 C/c of the Encumbrance certificate dated 30.04.2007.
Ex.P81 C/c of the Encumbrance certificate dated 30.04.2007.
Ex.P.82 Approved plan issued by Bengaluru City Corporation dated 20.01.1978.
/ 47 / O.S.No.3116/2015
3. List of witnesses examined for the
defendant:
D.W.1 : Smt. K. Meenakshi
4. List of documents exhibited by the
defendant: -
Ex.D1 Xerox copy of legal notice dated 24.03.2015.
Ex.D2 Xerox copy of legal notice dated 09.09.2015.
Ex.D3 C/c Form 'B' Property Register Extract dated
18.10.2014.
Exs.D4 2 C/c of Tax paid receipt dated 30.04.2014.
& D5
Exs.D6 5 C/c of Tax paid receipt dated 15.09.2012.
to D10
Ex.D11 C/c of Encumbrance certificate form No.15
dated 03.08.2012.
Ex.D12 C/c of Encumbrance certificate form No.16
dated 03.08.2012.
Ex.D13 C/c of Encumbrance certificate form No.16
dated 26.09.2014.
Ex.D14 C/c of form No.3A issued by BWSSB.
Ex.D15 C/c of plaint in OS No.10183/2015 on the
file of ACC Court, Bangalore.
Ex.D16 C/c of legal notice dated 24.03.2015.
Ex.D17 C/c of postal receipts.
Ex.D18 C/c of postal acknowledgement.
Ex.D19 C/c of legal notice dated 09.09.2015.
Ex.D20 C/c 5 Postal receipts.
Ex.D21 C/c of Sale Deed dated 19.04.1973.
Ex.D22 C/c of 6 Photos.
Ex.D23 C/c of Letter dated 26.03.2021 issued by
AEE, Rajajinagar Sub-Division BBMP. Ex.D24 C/c of order sheet in Misc. Petition No.49/2018 on the file of KAT, Bangalore.
/ 48 / O.S.No.3116/2015 Ex.D25 C/c of compromise petition filed in OS No. 1783/2015 on the file of Addl. City Civil Court, Bangalore.
(KHADARSAB) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
***
/ 49 / O.S.No.3116/2015
08/10/2021
P : K.P.B.
D : A.S.
For Judgment :
Judgment pronounced in the open
Court (Vide separate Judgment) :
ORDER
Suit of the plaintiff is hereby
dismissed with costs.
Draw decree accordingly.
(KHADARSAB)
XXXIX Additional City Civil
& Sessions Judge, Bangalore City.