Bangalore District Court
Smt. Radhamma vs Bangalore Mahanagara Palike on 12 March, 2015
IN THE COURT OF THE LII ADDL. CITY CIVIL & SESSIONS
JUDGE (CCH-53), BENGALURU CITY.
Dated this the 12th day of March, 2015
PRESENT:
Smt. Yadav Vanamala Anandrao, B.Com., LL.B (Spl.,)
LII Addl. City Civil & Sessions Judge, Bengaluru City.
: O.S. NO. 2334/2005:
PLAINTIFF : Smt. Radhamma,
W/o. Late D. Krishna Murthy,
Aged about 52 years,
Residing at No.118, 3rd Main,
Ramachandrapuram,
Bangalore - 560 021.
(By Sri. V.B.Shivakumar, Advocate)
-V/S-
DEFENDANTS : 1. Bangalore Mahanagara Palike,
Corporation Offices,
N.R.Square, J.C.Road,
Bangalore - 560 001, rep. by its
Commissioner.
2. The Executive Officer,
Bangalore Mahanagara Palike,
Corporation Offices,
N.R.Square, J.C.Road,
Bangalore - 560 001.
2 O.S.No.2334/2005
3. The Asst. Executive Engineer,
Bangalore Mahanagara Palike,
Corporation Offices,
Ward No.47, Sampige Road,
Malleshwaram,
Bangalore - 560 003.
4. Smt. Nazimunnisa,
W/o. not known to the plaintiff,
Major,
Residing at No.66, 3rd Main Road,
Ramachandrapuram,
Bangalore - 560 021.
(By Sri. MGV, Advocate, for
defendants No.1 to 3)
(Defendant No.4 placed exparte)
Date of institution of the suit: 22.03.2005
Nature of the suit:
Perpetual Injunction,
Declaration, Mandatory
Injunction & Permanent
Injunction
Date of commencement of 21.11.2009
recording of evidence:
12.03.2015
Date on which Judgment was
pronounced:
Duration:
Days Months Years
20 11 09
3 O.S.No.2334/2005
: JUDGMENT :
This suit is filed by the plaintiff against the defendants for a declaration, against defendants No.1 to 4 declaring that the third main road on Eastern side of the plaintiff's property, is a public road, which cannot be undertaken for the purpose of putting up construction thereupon and for a mandatory injunction directing the defendants No.1 to 3 to remove the illegal, unlawful construction undertaken on the Eastern side of the plaintiff's property on the 3rd Main Road and in the event of defendants No.1 to 3 failing to remove by exercising statutory power vested with them, permit the plaintiff to get it removed the illegal construction put up by defendant No.4 on the 3rd Main Road towards Eastern side of the plaintiff's property, with due process of law and for perpetual injunction, restraining the defendants, their agents or persons, claiming through them from interfering with the construction on the 3rd Main Road, Ramachandrapuram, Bangalore, towards Eastern side of the schedule property of the plaintiff, and such other reliefs with costs.
4 O.S.No.2334/2005(Note:- This case has been transferred from the Court of IX Addl. City Civil & Sessions Judge, Bangalore City, to this court as per Notification dated:01.12.2014.)
2. Brief facts of the case are that the plaintiff is the owner of the property bearing No.118 (which is described in the schedule), located in 3rd Main Road at Ramachandrapuram, Bangalore, as plaintiff's husband purchased it. After his death, on 21.07.2002 the plaintiff being successor along with other LRs inherited and the katha is standing in her name. To the Eastern side of her property, there is 3rd Main Road and it is only the road for user of her property as public road and it is an access road for all four and two-wheelers and beneficial use of her property and it is measuring 10 feet in width and lying to the Eastern side of suit property. The defendant No.4 is residing in the premises No.66, towards Western side of her property after 3rd Main Road and the construction of a permanent structure without obtaining due permission and license etc., was on the public road i.e., 3rd Main Road, and it is the disputed property that the defendant No.4 by undertaking illegal construction, has obstructed the plaintiff's free access on the public road to reach her 5 O.S.No.2334/2005 house. The plaintiff issued a telegraphic notice to the defendants No.1 to 3, but there was no response. But the defendants No.1 to 3 in collusion with defendant No.4 continued the work of construction on the public road. The defendant No.4 having influence of local councillor, has undertaken unauthorized construction. Said road towards the plaintiff's property has got narrowed. The construction was put up on the road after removing the tar and metalling etc. Since, there was no action taken by the defendants No.1 to 3, the complaint was lodged; An endorsement was issued on 28.11.2005 with reference to the blockade on the public road. In spite of making efforts to restrain the unauthorized construction on the public road and that, there was no any action taken by the defendants, the plaintiff has constrained to file the suit and accordingly, it is prayed to decree it.
3. On issuance of suit summons to the defendants after registering the case, the defendants No.1 to 3 have not filed written statement. The defendant No.4 placed exparte.
6 O.S.No.2334/2005
4. To prove the case, the power of attorney holder i.e., son of the plaintiff deposed as PW.1 and relied upon the documents at Exs.P.1 to P.26. Since the defendants have not contested the suit of the plaintiff, hence it is pressed to hear the arguments.
5. Heard the arguments of the learned counsels for the plaintiff and defendants No.1 to 3.
6. Perused the pleadings of the parties, evidence and record on hand.
7. Following points are formulated for consideration of this court:
(1) Whether the plaintiff proves that she has right to use the road lying on the East of her property measuring 10 feet in width known as 3rd Main Road, for the beneficial possession and enjoyment of her schedule property as on the date of filing of the suit?
(2) Whether the defendant No.1 has put up the permanent construction on the 3rd Main Road towards Eastern side of the plaintiff's property?7 O.S.No.2334/2005
(3) Whether the plaintiff proves that the defendants are interfering with the peaceful possession and enjoyment and user of 3rd Main Road lying towards Eastern side of the suit schedule property?
(4) Whether the plaintiff is entitled for relief as claimed for?
(5) To what order or decree?
8. My findings on the above points are as under:
(1) Point No.1 .. In the Affirmative.
(2) Point No.2 .. Does not survive for
consideration at this stage as it
is prematured claim without
recourse to law as required
under KMC Act.
(3) Point No.3 .. In the Affirmative.
(4) Point No.4 .. Partly Affirmative.
(5) Point No.5 .. As per final order for the
following:
R E A S O N S
9. Point Nos.1 to 4:- These issues are interlinked with
each other and it needs common consideration and discussion. 8 O.S.No.2334/2005 Hence to avoid repetition of facts and circumstances of the case, they are taken for common consideration. The plaintiff's claim is regarding the user of 3rd Main Road lying to the Eastern side of her property bearing No.118, 3rd Main Road, Ramachandrapuram, Bangalore, and described the boundaries of her property that, to the East : 3rd Main Road, West : Conservancy Road, North : Road, and South : private property. Plaintiff by adducing evidence of her son as her P.A.Holder as PW.1, has asserted the plaint averments in this regard. Her claim over the user of 3rd Main Road lying to the East of her property and it was measuring 10 feet in width. It is only the road towards Eastern side, to have access for all the four and two-wheeler vehicles. But the defendant No.4 is residing in the premises bearing No.66, towards the West of her property after the 3rd Main Road, has excavated and undertaken the construction of structure without obtaining the approved plan and license and it was on the public road used by the plaintiff and others. She has right to free access through the 3rd Main Road, measuring 10 feet in width lying to the Eastern 9 O.S.No.2334/2005 side of her property. The Learned counsel for the plaintiff has relied upon the decisions, supporting his arguments -
(1) AIR 1965 SC 1147 (The Municipal Board, Manglaur Vs. Mahadeoji Maharaj) (2) AIR 1980 Allahabad 376 (Ku. Aamina Saadat Ali Vs. Municipal Board, Bahraich) Both decisions are pertaining to grant of injunctory relief against the Statutory Body, not to put up construction over the public pathway / road etc. (3) AIR 1975 Allahabad 341 (Mst. Bhagwanti Vs. Mst.
Jiuti & Another), wherein it reads thus:
"Any person who has a house abutting on a public road or lane is entitled to access to the road or lane from the house and no person or authority can destroy that right. This right does not emanate from prescription or long user but from the fact that the house abuts on the public way. Hence, if an obstruction is made, by any person or authority, of such public way which affects the ingress and egress, special damage to the owner of the property must be presumed.
Where the defendant by raising a construction on public road completely blocked the door of the plaintiff's house which abutted on it.10 O.S.No.2334/2005
Held, that it cannot be denied that the plaintiff had suffered inconvenience and therefore special damage in the circumstances of the case must be presumed. By means of this public nuisance, special damage was caused to the plaintiff and therefore, she was entitled to maintain the suit for demolition of the construction in question and for the injunction prayed for."
With due respect to the said decisions, the dictum and guidelines are duly considered and proceeded to adjudicate the matter in issue in this suit.
10. The plaintiff's claim is acquisition of right over the public road and that the alleged illegal construction of defendant No.4 made it a narrow road and coming within the plaintiff's right to use it as free access to her property. She has asserted though PW.1, the excavation commenced on 14.03.2005 and immediately she tried to take recourse of law by approaching the defendants No.1 to 3, issued a telegraphic notice; But the defendants No.1 to 3 in collusion with the defendant No.4 have continued the alleged construction work; The plaintiff approached the jurisdictional police; Thus, reiterating these plaint averments, the plaintiff through her power of attorney 11 O.S.No.2334/2005 i.e., son put forth the oral evidence, as PW.1 and also relied the documents in respect of her case i.e., Exs.P.1 to P.26. Ex.P.1 is the Deed of Special Power of Attorney dated 21.11.2009. Exs.P.2 to P.5 are the negatives. Exs.P.2(a) to P.5(a) are the photographs. Ex.P.6 is the endorsement dated 11.11.2005 issued by BBMP. Ex.P.7 is the copy of complaint dated 12.07.2006. Ex.P.8 is the copy of requisition dated 12.02.2006. Ex.P.9 is the endorsement dated 28.11.2005. Ex.P.10 is the enquiry register extract. Exs.P.11 to P.14 are the negatives. Exs.P.11(a) to P.14(a) are the photographs. Ex.P.15 is the letter dated 16.02.2006 of BBMP. Ex.P.16 is the letter dated 20.03.2006 of BBMP. Exs.P.17 & P.18 are the receipts. Ex.P.19 is the sketch. Ex.P.20 is the encumbrance certificate. Ex.P.21 is the copy of plan. Ex.P.22 is the katha extract. Ex.P.23 is the encumbrance certificate. Exs.P.24 to P.26 are the electricity bills.
11. The contents of the said documents, which are marked without raising objections, and they are having evidentiary value of being true and correct and are relevant documents produced by the plaintiff, are proof of her case in connection with the identification 12 O.S.No.2334/2005 and existence of 3rd Main Road lying on the East of her property, stating its measurement as 10 feet in width running North-South on the Eastern side of the plaintiff's property.
12. The conduct of the defendants in not contesting the suit itself admitting the plaintiff's claim regarding her right over the said road to use it for access of four and two-wheeler vehicles and beneficial use of her property. The defendants No.1 to 3 though appeared through their counsel but not filed the written statement. They have tried to bring on record certain things through the mouth of PW.1 putting suggestion that the plaintiff has not submitted any documents to show the extent of area encroached upon by the defendant No.4, on the said disputed road in this case and also before the Corporation. No doubt she has admitted that, as per Ex.P.19, there is no any reference about the extent of area encroached upon by the defendant No.4. But the existence of 3rd Main Road is shown in Ex.P.19. The public road as revealed under Ex.P.19 which is issued by the very defendant (BBMP) throughout its authorized officer. So, the argument of Learned counsel for 13 O.S.No.2334/2005 defendants No.1 to 4 that, plaintiff has made defendants No.1 to 3 unnecessarily as party to the suit etc., does not sustain. From the evidence nothing has been brought on record from the mouth of PW.1 by defendants No.1 to 3 to disbelieve his version pertaining to the peaceful enjoyment of suit property and user of the said 3rd Main Road lying to the Eastern side of her property running North-South and measuring 10 feet in width and she has made an attempt to take action against defendant No.4 regarding unauthorized construction undertaken by him referring the property as property No.66, 3rd Main Road, Ramachandrapuram, Bangalore.
13. It is the duty and power conferred on BBMP under the special statute i.e., KMC Act and the defendants No.1 to 3 being authorized persons and competent to represent the BBMP, have to consider the application of the plaintiff and proceed with the same, with due process of law. Instead of doing so, it has avoided it stating the grounds under Exs.P.15 & P.16. It has not taken appropriate step with due procedure by giving an opportunity to the plaintiff and defendant No.4 in connection with the construction work undertaken 14 O.S.No.2334/2005 by the defendant No.4. Whether it is coming on the 3rd Main road and obstructing the plaintiff's peaceful enjoyment and user of the road. And amounting to unauthorized construction. Even in the reply letter of ADLR, it is revealed that the dispute pertaining to the construction, does not coming within its scope to exercise the power regarding removal of unauthorized construction; But it comes within the domine of BBMP and directed the plaintiff to approach BBMP. Thus from the letter of ADLR under Ex.P.9, there is refusal of the requisition of plaintiff regarding the blocking of road to be cleared off. The photographs referred are showing the construction work and there is digging of trenching on the tar portion of the road, which is apparent on record supporting the case of the plaintiff and version of plaintiff's son PW.1. As per Ex.P.15, the letter of BBMP issued by Asst. Executive Engineer to Gandhi Nagar Division, it discloses that it is in response to the letter of PW.1, who has sought for the approved plan pertaining to the construction of property No.66 and encroached upon the 3rd Main Road. But they referred the sanctioned plan annexed to Ex.P.15. But it does not reveal identification of plaintiff's 15 O.S.No.2334/2005 property and 3rd Main Road and its extent in width and no explanation how it was arrived at.
14. Referring the requirement and allegations made by the plaintiff regarding encroachment of defendant No.4 over the public road, it is further stated in Ex.P.15, explaining cause for not taking of any steps against the disputed factors i.e., 3rd Main road, its width, and alleged illegal and unauthorized construction of defendant No.4. It is in response to the objections raised by the plaintiff's son before BBMP, that, "there is the pendency of the present suit and hence the judgment is awaited and hence referred the sketch showing the existence of road". Thus, it was the response of the defendants No.1 to 3 which made it clear that it has not taken any steps as against the requisition or representation made by PW.1. The road has been referred as 3rd Main Road, Ramachandrapuram, Bangalore, in Ex.P.19 sketch, showing the width of the said road. But the width is not equal throughout, which is running North-South. The plaintiff is ascertaining the right over the said 3rd Main to the extent of 10 feet in width lying to the Eastern side of her property. As per Ex.P.19, one 16 O.S.No.2334/2005 cannot make out what would be the exact width of 3rd Main road. Ex.P.19 refers to as stated by Assistant Executive Engineer, Gandhi Nagar, Bangalore (BBMP), that it is detailed sketch showing the property of 4th defendant, width of existing road and property of plaintiff. Ex.P.20 the encumbrance certificate refers to property No.E.166 in Sy.No.67 and to its West there exists 3rd Main Road and said property measuring 28 X 60 feet. It is notable point that there is endorsement of the issuing authority that records are in damaged condition and if it is found any difference, the applicant may get it rectified by approaching the competent officer. Thus, Ex.P.20 is subject to correction. This Ex.P.20 was issued to PW.1. So, it is disputed document pertaining to defendant No.4. Defendants No.1 to 3 have not made out that, while issue approved plan, due opportunity was given to the plaintiff the adjoining owner. Whether the approved plan Ex.P.21 was issued, after due consideration of authenticated documents of defendant No.4, etc., is also important factor to be considered. Apart from this as per Ex.P.15, the BBMP Authorities, instead of exercising their powers and duties conferred 17 O.S.No.2334/2005 under KMC Act, which is within the domine of BBMP, Bangalore, the authority issuing Ex.P.15, has stated the cause for not taking any action as against the representation and objections raised on 12.02.2006, by plaintiff through PW.1 that suit is pending and decision is awaited. The contents of Ex.P.15 being relevant are reproduced below:
vÁªÀÅUÀ¼ÀÄ ¸ÀéwÛ£À ¸ÀAB66, 3£Éà ªÀÄÄRå gÀ¸ÉÛ, gÁªÀÄZÀAzÀæ¥ÀÅgÀzÀ ªÀÄAdÆgÁzÀ £ÀPÉëAiÀÄ ¥ÀæwAiÀÄ£ÀÄß ¤ÃqÀ¨ÃÉ PÉAzÀÄ ºÁUÀÆ ¸ÀzÀj ªÀiÁ°ÃPÀgÀÄ ¥Á°PÉAiÀÄ eÁUÀªÀ£ÀÄß MvÀÄÛªÀj ªÀiÁrPÉÆAqÀÄ ¤«Äð¸ÀÄwÛgÀĪÀ PÀlÖqÀ ©lÄÖ G½zÀ gÀ¸ÉÛAiÀÄ eÁUÀªÀ£ÀÄß ¸ÀÆa¸ÀĪÀ £ÀPÉëAiÀÄ£ÀÄß G¯ÉèÃR ¥ÀvÀæzÀ°è PÉý¢ÝÃj.
CzÀgÀAvÉ ªÀÄAdÆgÁzÀ £ÀPÉëAiÀÄ ¥ÀæwAiÀÄ£ÀÄß EzÀgÉÆA¢UÉ ®UÀwÛ¸À¯ÁVzÉ. DzÀgÉà ¤ÃªÀÅ G®ÉèÃR ¥ÀvÀæzÀ°è ¥Á°PÉAiÀÄ gÀ¸ÉÛAiÀÄ£ÀÄß ¸ÀA.66, 3£Éà ªÀÄÄRågÀ¸ÉÛAiÀÄ ªÀiÁ°ÃPÀgÀÄ MvÀÄÛªjÀ ªÀiÁrgÀÄvÁÛgÉ JAzÀÄ w½¹¢ÝÃj. EzÀgÀ §UÉÎ FUÁUÀ¯Éà ¹«¯ï ¸ÉµÀ£ï £ÁåAiÀiÁ®AiÀÄzÀ°è M.J¸ï.2334B2005gÀ°è ªÉÆPÀzÀݪÉÄ zÁR¯ÁVgÀÄvÀÛzÉ. ºÁUÀÆ EzÀgÀ §UÉÎ ¥Às£À £ÁåAiÀiÁ®AiÀÄ wÃ¥Àð£ÀÄß ¤ÃqÀ¨ÉÃPÁVgÀÄvÀz Û É.18 O.S.No.2334/2005
DzÀÝjAzÀ FUÀ EgÀĪÀ ºÁ° gÀ¸ÉÛAiÀÄ «ªÀgÀU¼À À£ÀÄß ¸ÀÆa¹gÀĪÀ £ÀPÉëAiÀÄ£ÀÄß ®UÀwÛ¸À¯ÁVzÉ.
It is also relevant to reproduce the contents of Ex.P.16.
G¯ÉèÃR ¥ÀvÀæzÀ°è vÁªÀÅUÀ¼ÀÄ gÁªÀÄZÀAzÀæ¥ÀÅgÀ 3£Éà ªÀÄÄRågÀ¸ÉÛAiÀÄ £ÀPÉëAiÀÄ£ÀÄß MzÀV¸À¨ÉÃPÉAzÀÄ PÉÆÃj¢Ýj.
gÁªÀÄZÀAzÀæ¥ÀÅgÀ ¥ÀæzÉñÀzÀ°è gÉ«£ÀÆå ¤ªÉñÀ£ÀzÀ°è ªÁ¸ÀPÉÌ ªÀÄvÀÄÛ ªÁtôdå G¥ÀAiÉÆÃUÀPÉÆøÀÌgÀ PÀlÖqÀUÀ¼À£ÀÄß PÀnÖgÀÄvÁÛgÉ. F ¥ÀæzÉñÀzÀ°è ¨ÀsƸÁé¢üãÀ¥Àr¹PÉÆAqÀÄ ¯ÉÃOmï £ÀPÉëAiÀÄ£ÀÄß ¹zÀÝ¥Àr¹ ¤ªÉñÀ£ÀªÀ£ÀÄß ºÀAagÀĪÀÅ¢®è. DzÀPÁgÀt F PÀbÉÃjAiÀÄ°è F ¥ÀæzÉñÀzÀ ¯ÉÃOmï £ÀPÉë EgÀĪÀÅ¢®è. ºÁ° EgÀĪÀ gÀ¸ÉÛAiÀÄ £ÀPÉëAiÀÄ£ÀÄß F ¥ÀvÀæzÀ PÀÆqÀ vÀªÀÄä ªÀiÁ»wUÁV PÀ¼ÀÄ»¸À¯ÁVzÉ, Thus these factors, revealed that defendants No.1 to have not followed the due process of law. BBMP under Ex.P.16, though stated in the area of Ramachandrapura residential and no residential buildings are come up. But that area was not acquired and not allotted such sites after preparing any layout plan and they have no any such layout plan and hence the map of existing 3rd Main Road has been issued. Thus the map, because of said reason as 19 O.S.No.2334/2005 stated in Ex.P.16, certainly considered to be disputed map pertaining to the properties of plaintiff, defendant No.4 and the existence of 3rd Main Road. It is the duty and power of BBMP, throughout its authorized and competent person required under KMC Act, to take necessary action and get the matter set right with reference to the said area which has not been developed with due process of law i.e., procedure needed for layout plan and fixing of the certain and clear width of 3rd Main Road. If it was not duly laid it shall be done with following the procedure and by giving an opportunity to plaintiff and defendant No.4, on account of submitting the objection by plaintiff about the alleged illegal construction on the 3rd Main Road.
The width of road under dispute shall be subject to requirement of public in the said area of Ramachandrapura, which requires regularization of width of 3rd Main Road. In this regard, plaintiff and defendant No.4 shall approach the BBMP - defendant No.1 for getting fix the width of 3rd Main Road, with due process of law. This court cannot grant mandatory and permanent injunction against defendants No.1 to 3. Yet defendants No.1 to 3 with due process of 20 O.S.No.2334/2005 law, has to identify the width of said 3rd Main Road. Hence, at this stage question of alleged encroachment of defendant No.4, cannot be considered. However, plaintiff can raise it before BBMP and get the relief of removal of unauthorized construction, if found at the time of enquiry and result of such proceedings before competent authority of BBMP (defendant No.1), under KMC Act. At this juncture, this court for the said legal aspects, places reliance on the reported decisions that, (1) AIR 1976 SC 2621 -
"An injunction cannot be granted, if equally efficacious relief can certainly be obtained, by any other usual mode of proceeding."
(2) AIR 1976 SC 2621 -
" Where the plaintiff can obtain relief by proceeding in the revenue court, an injunction should not be granted by a civil court; and that a civil court should ordinarily be reluctant to issue an injunction to restrain a person from performing the duty imposed on him by statute."
15. The plaintiff has proved the existence and use and enjoyment of 3rd Main Road. Hence, she is entitled for declaratory relief of user of 3rd Main Road as public road to have access to her property specifically taking of her four and two-wheeler vehicles etc. 21 O.S.No.2334/2005 The conduct of defendants as discussed above in not contesting the suit and non-rebuttal of evidence of PW.1, about their interference, and as such plaintiff has also proved the interference of defendants in peaceable user of the 3rd Main Road. So far as encroachment and removal of encroachment relief being prematured, cannot be granted and parties to the suit shall have recourse to law in that regard, before defendant No.1's competent authority.
16. Therefore, viewed from any angle, it is the proof of plaintiff's case pertaining to the right of user of the 3rd Main lying to the East of her property and there is apprehension of the encroachment over the suit property and her right to use as road has been jeopardized and hence she is entitled for declaratory relief and injunctory relief as held above. Hence, in view of the above discussion and conclusion arrived at, the plaintiff is entitled for the injunctory relief but she cannot claim permanent injunction against the defendant authority, as she has proved the disputed road i.e., 3rd Main Road is lying on the Eastern side of her property and it is a public road for the beneficial use of her property for ingress and 22 O.S.No.2334/2005 egress to the four and two-wheeler vehicles. Hence, Points No.1 & 3 are answered in the 'Affirmative' and Point No.2 is answered that it does not survive for consideration at this stage as it is prematured claim without recourse to law as required under KMC Act, and plaintiff has to avail it as efficacious remedy. Therefore, Point No.4 is answered in the 'partly affirmative'.
17. Point No.5:- In view of the above discussion and conclusion arrived at, this court is hereby proceeded to pass the following:
O R D E R Suit of the plaintiff, is hereby partly decreed.
In the result, it is hereby declared that the plaintiff has right to use 3rd Main Road lying on the Eastern side of her property described in the suit schedule, as public road and it cannot be used for putting up construction thereupon, without due process of law in connection with 23 O.S.No.2334/2005 its width of 10 feet or more as revealed under Ex.P.19.
However, the plaintiff and defendants No.1 to 4 have to get the width of 3rd Main Road to be duly fixed in pursuance of Ex.P.19, with due process of law as contemplated under KMC Act.
The defendant No.4 is hereby restrained from putting up permanent construction on the 3rd Main Road lying towards Eastern side of plaintiff's suit property described in the schedule to the plaint, without due process of law.
The defendants No.1 to 4 are restrained from interfering with peaceful user of 3rd Main Road of Ramachandrapuram, lying on the Eastern side of the plaintiff's suit schedule property, without due process of law.
However, the plaintiff and defendants have recourse to law as contemplated under KMC Act in connection with the alleged construction already undertaken by the defendant No.4 and if, it comes under the 3rd Main Road, measuring 24 O.S.No.2334/2005 10 feet or more lying to the East of plaintiff's property, then same can be removed, with due process of law as contemplated under KMC Act and the plaintiff and defendant No.4 have to approach the BBMP in this connection under KMC Act to get their grievance redressed as the remedy in this regard is available to them before the competent Authority established under KMC Act, within a period of 45 days from the date of this order.
Parties are directed to bear their own costs.
Draw the decree accordingly.
(Dictated to the Judgment Writer, transcribed by him, corrected and then signed and pronounced by me in the open court on this the 12th day of March 2015) (Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.
ANNEXURE List of the witnesses examined for the plaintiff:
PW.1 Nagaraj 25 O.S.No.2334/2005 List of the documents marked for the plaintiff:
Ex.P.1 Deed of Special Power of Attorney dated 21.11.2009.
Exs.P.2 to P.5 Negatives. Exs.P.2(a) to P.5(a) Photographs. Ex.P.6 Endorsement dated 11.11.2005 issued by BBMP. Ex.P.7 Copy of complaint dated 12.07.2006. Ex.P.8 Copy of requisition dated 12.02.2006. Ex.P.9 Endorsement dated 28.11.2005. Ex.P.10 Enquiry register extract. Exs.P.11 to P.14 Negatives. Exs.P.11(a) to Photographs. P.14(a) Ex.P.15 Letter dated 16.02.2006 of BBMP. Ex.P.16 Letter dated 20.03.2006 of BBMP. Exs.P.17 & P.18 Receipts. Ex.P.19 Sketch. Ex.P.20 Encumbrance certificate. Ex.P.21 Copy of plan. Ex.P.22 Katha extract. Ex.P.23 Encumbrance certificate. Exs.P.24 to P.26 Electricity bills.
List of the witnesses examined for the defendants:
- NIL -26 O.S.No.2334/2005
List of the documents marked for the defendants:
- NIL -
(Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.27 O.S.No.2334/2005
Judgment pronounced in the open Court (vide separate order) ORDER Suit of the plaintiff, is hereby partly decreed.
In the result, it is hereby declared that the plaintiff has right to use 3rd Main Road lying on the Eastern side of her property described in the suit schedule, as public road and it cannot be used for putting up construction thereupon, without due process of law in connection with its width of 10 feet or more as revealed under Ex.P.19.
However, the plaintiff and defendants No.1 to 4 have to get the width of 3rd Main Road to be duly fixed in pursuance of Ex.P.19, with due process of law as contemplated under KMC Act.
The defendant No.4 is hereby restrained from putting up permanent construction on the 3rd Main Road lying towards Eastern side of plaintiff's suit property described in the schedule to the plaint, without due process of law.
The defendants No.1 to 4 are restrained from interfering with peaceful user of 3rd Main Road of Ramachandrapuram, lying on the Eastern side of the plaintiff's suit schedule property, without due process of law.28 O.S.No.2334/2005
However, the plaintiff and defendants have recourse to law as contemplated under KMC Act in connection with the alleged construction already undertaken by the defendant No.4 and if, it comes under the 3rd Main Road, measuring 10 feet or more lying to the East of plaintiff's property, then same can be removed, with due process of law as contemplated under KMC Act and the plaintiff and defendant No.4 have to approach the BBMP in this connection under KMC Act to get their grievance redressed as the remedy in this regard is available to them before the competent Authority established under KMC Act, within a period of 45 days from the date of this order.
Parties are directed to bear their own costs.
Draw the decree accordingly.
(Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.
29 O.S.No.2334/200530 O.S.No.2334/2005 31 O.S.No.2334/2005