Bangalore District Court
Smt.Prema B Moola vs ) The Commissioner on 2 January, 2023
KABC010340262018
IN THE COURT OF THE X ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-26).
Dated this the 2nd day of January, 2023
Present
Smt.SAVITRI SHIVAPUTRA KUJJI, B.Com., LL.B.(Spl.),
X Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.8808/2018
Plaintiff: Smt.Prema B Moola
w/o Late M. Bhaktavatsala
Aged about 78 years
R/at No.9 (Old No.39/9)
Lalbagh Road, Bengaluru-27.
(By Sri. Ganesh Bhat, Y.H., Adv.)
Vs.
Defendants: 1) The Commissioner
Bruhat Bengaluru Mahanagara
Palike (BBMP), N.R. Square
Hudson Circle, Bengaluru-02.
2) The Assistant Director
Town Planning- North
Bruhat Bengaluru Mahanagara
Palike, N R Square, Hudson Circle
Bengaluru-02.
3) The Assistant Executive Engineer
Bruhat Bengaluru Mahanagara
Palike, Ward No.110, Rajaram
Mohan Roy Road
Sampangiramanagar
Bengaluru.
4) Saritha Shetty
aged about 40 years
r/at No.8/1, Old No.38
Lalbagh Road
Bengaluru-27.
(Placed exparte)
2 O.S.No.8808/2018
Date of institution of the suit 07.12.2018
Nature of the suit For permanent and
mandatory injunctions
Date of the commencement 03.02.2020
of recording of evidence
Date on which the judgment 02.01.2023
Pronounced
Total duration Years Months Days
04 00 26
(SAVITRI SHIVAPUTRA KUJJI)
X Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This suit is filed by the plaintiff against the defendants for the relief of permanent and mandatory injunctions.
2. The brief facts of the case of the plaintiff are summarized as under:-
That the subject matter of the suit is detailed in schedule 'A' and 'B' of the plaint. 'A' schedule property is said to be a residential site bearing Municipal No.9 measuring on the eastern side 138 feets, western side 119.6 feets, northern side 88.6 feets and southern side 128 feets situate at Lalbagh Road, Bengaluru and 'A' schedule property is also said to be a residential site bearing No.8/1 situate in the same area. It is stated that 'A' schedule property was originally owned by the husband of the plaintiff by name M. Bhakthavatsala who acquired the same under a registered sale deed dated 26.10.1970 executed by one Smt.Lalitha Chikkanna. It is stated that the plaintiff's husband by his registered WILL and testament dated 31.10.2017 bequeathed 3 O.S.No.8808/2018 the right of residence in 'A' schedule property together with residential house constructed thereon in favour of the plaintiff and on the death of her husband on 05.08.2018 the said WILL having come into effect the plaintiff said to have acquired the right of residence in 'A' schedule property. The khatha of the said property is said to be standing in the name of her husband Bhakthavatsala and she has taken steps to get it transferred in her name along with her sons. She has further stated that 'B' schedule property was originally owned by one Vidyalakshmi Nagarajan and it is stated that recently the plaintiff learned that this property has been purchased by defendant No.4 and the khatha of this property is standing in the name of defendant No.4. It is further alleged that in the early part of August 2018 defendant No.4 commenced illegal construction over 'B' schedule property on the western boundary which abuts the eastern boundary of 'A' schedule property belonging to the plaintiff without obtaining any valid sanctioned plan from defendant No.1 and without leaving the required set back as contemplated under the KMC Act and the building bye-laws. It is alleged that the construction activities undertaken by defendant No.4 are in violation of the said plan and bye-laws without leaving any set back towards eastern side of 'A' schedule property. It is further urged that the plaintiff intends to take up construction of residential building on 'A' schedule property and as defendant No.4 is putting up the said illegal construction on the 'B' schedule property it obstructs the ventilation to 'A' schedule property and so also free flow of air and light. It is further urged that after noticing the said illegal construction by defendant No.4 the plaintiff requested her to leave the required set back and since she did not comply with the same, the plaintiff through her sons said to have lodged complaint dated 14.08.2018 and 18.08.2018 to defendant No.1 to 3. It is 4 O.S.No.8808/2018 further stated that on receipt of the said complaint defendant No.2 vide his letter dated 25.08.2018 directed defendant No.3 to take appropriate action against the said illegal construction put up by defendant No.4 and defendant No.3 on receipt of the complaints of the plaintiff said to have conducted due investigation and found that defendant No.4 has constructed illegally and hence issued notice dated 12.08.2018 to defendant No.4 to stop the illegal construction and further notified that on her failure to comply with the same they would proceed with appropriate action under the provisions of KMC Act. It is however alleged that despite such notice being issued by defendant No.3, defendant No.4 proceeded with the said construction work in violation of the sanctioned plan in collusion with other defendants and trying to interfere with the plaintiff's property and continued illegal construction on the eastern side of 'A' schedule property. The plaintiff has further urged that in case defendant No.4 proceeds with such illegal construction it would obstruct the free flow of air and light to the plaintiff's property and therefore she has to come up with the present suit seeking the relief of permanent injunction restraining defendant No.4 from putting up illegal construction on the western side of 'B' schedule property in violation of the building bye-laws and also for mandatory injunction seeking direction to her to demolish the said unauthorized construction and hence the suit.
3. Despite of service of suit summons on defendant Nos.1 to 4, none of them have appeared and hence they are placed exparte.
4. To substantiate the claim of the plaintiff, her GPA Holder who is her eldest son, has been examined as P.W.1 and he has produced 13 documents marked from Ex.P.1 to Ex.P.13.
5 O.S.No.8808/20185. The plaintiff's counsel has submitted that his argument may be treated as heard.
6. On perusal of materials and evidence on record, following points arise for my consideration:-
1) Whether the plaintiff proves her lawful
possession over the suit schedule 'A'
property as on the date of suit?
2) Whether she further proves the alleged
interference by the defendants to her
possession over the suit property ?
3) If so, whether she is entitled to seek the relief of permanent injunction as sought for in para-
14(a) of the plaint?
4) Whether the plaintiff is entitled to seek the relief of mandatory injunction against defendant No.4 as prayed for in para-14(b) of the plaint?
5) What order or decree?
7. My findings on the above points are as under:-
Point No.1:- In the affirmative;
Point No.2:- In the negative;
Point No.3:- In the negative;
Point No.4:- In the negative;
Point No.5:- As per final order, for the following:
REASONS
8. Point No.1:- It is the specific claim put forth by the plaintiff that the suit 'A' schedule property was originally owned by 6 O.S.No.8808/2018 her husband Sri. M. Bhakthavatsala who acquired the same through a registered sale deed dated 26.10.1970 and by virtue of his bequeathing this property under a registered WILL dated 31.10.2017, 'A' schedule property was transferred in her name. It is her further claim that after the death of her husband on 05.08.2018 she acquired the right of residence in 'A' schedule property by virtue of the said WILL. However she has urged that her application to get the khatha changed in her name is pending consideration. As per her claim 'B' schedule property is owned and possessed by defendant No.4 who had purchased the said property from its original owner Smt.Vidyalakshmi Nagarajan.
9. It is however the allegation of the plaintiff that now the defendant No.4 has put up illegal construction over 'B' schedule property thereby violating the building bye-laws and without leaving the required set back towards west of the said property which is towards eastern boundary of 'A' schedule property belonging to her and thereby due to this unauthorized construction her property has been deprived of free flow of air and light. It is her further grievance that though she had given representation and complaints to defendant No.1 to 3- authorities, to take suitable action against defendant No.4 and although defendant No.3 had investigated into the matter and affirmed that the defendant No.4 has put up illegal construction in violation of the building bye-laws and also directed her to remove the said illegal construction, but defendant No.4 has not complied with the same which has compelled the plaintiff to seek necessary relief before this Court by filing this suit.
10. To controvert or deny the allegations of the plaintiff, admittedly we have no objection or defence from the defendants owing to their failure to appear before the Court despite service of 7 O.S.No.8808/2018 suit summons. However even in the absence of any defence from the defendants, the initial burden is cast on the plaintiff to prove her case independently. The eldest son of the plaintiff has deposed before the Court as P.W.1 and he has relied on 13 documents. As regards Ex.P.13, it is the GPA executed by the plaintiff in his favour. Ex.P.1 is the copy of sale deed dated 16.10.1970 under which the father of P.W.1 and husband of the plaintiff had acquired 'A' schedule property. Ex.P.2 is the copy of the WILL said to have been executed by the plaintiff's husband in her favour bequeathing the right of residence to her in 'A' schedule property. As regards Ex.P.3, it is his death extract. Ex.P.4 & P.5 are the khatha certificate and khatha extract respectively pertaining to 'A' schedule property standing in his name. P.W.1 has also produced a tax paid receipt standing in the name of his father at Ex.P.6. As regards Ex.P.7, it is the map showing the topography of the schedule properties.
11. As regards Ex.P.8 & P.9, they are the khatha certificate and khatha extract respectively with respect to 'B' schedule property which are standing in the name of defendant No.4. Ex.P.10 is the copy of complaint dated 14.08.2018 lodged by P.W.1 before defendant No.3 and Ex.P.11 is similar complaint lodged before defendant No.2 calling upon them to take action against defendant No.4 for her alleged unauthorized construction put up on 'B' schedule property. As regards Ex.P.12, it is the letter issued by the Asst. Director i.e., defendant No.2 to defendant No.3 directing him to take suitable action against defendant No.4 after investigating into the matter and to submit his report. In the backdrop of this oral and documentary evidence placed before the Court by P.W.1 now it is to be seen whether the plaintiff could be held entitled to seek the suit reliefs.
8 O.S.No.8808/201812. No doubt the defendants have not contested the matter to question the title and possession of the plaintiff over 'A' schedule property, but it is to be noted that though originally schedule 'A' property was owned and possessed by her husband, but the plaintiff claims her right over this property by virtue of the said WILL which is produced at Ex.P.2 executed by her husband in her favour. It is relevant to note that as per her case under this WILL she has been given the right of residence in 'A' schedule property. However this WILL has not been proved as required under Section 68 of the Evidence Act. Moreover the original WILL is not placed before the Court. Even though the defendants have not appeared before the Court, but still is burden is on the plaintiff to prove her exclusive right over 'A' schedule property by virtue of Ex.P.2.
13. It is however to be noted that the factum of possession of the plaintiff and her children over 'A' schedule property is evident from the available materials placed before the Court which have remained uncontroverted in this case. It is not a title suit brought by the plaintiff and the Court can go into the factum of possession of the plaintiff over 'A' schedule property on the basis of available materials. Therefore the fact that the plaintiff has been in lawful possession of 'A' schedule property is manifestly proved from these materials on record coupled with uncontroverted testimony of P.W.1. This suit being one for injunction, the court need not go into the issue regarding title. Hence point No.1 is answered in favour of the plaintiff in the affirmative.
14. Point Nos.2 To 4:- Since all these points are interconnected they are tried together to avoid repetition of facts. No doubt in view of finding rendered on the factum of possession 9 O.S.No.8808/2018 of the plaintiff over the schedule property has remained undisputed and the same could be proved by the plaintiff, but the material issue which requires consideration is whether the nature of the relief sought for in the suit could be granted to the plaintiff. As already discussed above, the main allegation of the plaintiff against the defendant No.4 is about her alleged illegal construction put up on the 'B' schedule property affecting the free flow of air and light to the plaintiff's property. If we peruse the entire plaint allegations it is revealed that according to the plaintiff the construction put up by the defendant No.4 is in violation of the building bye-laws and the sanctioned plan and licence. It is also relevant to note that already the plaintiff has complained before the defendant Nos.1 to 3 against defendant No.4 complaining about her illegal construction over 'B' schedule property.
15. From the own documents produced by P.W.1 particularly from Ex.P.10 to P.12 it appears that already defendant Nos.1 to 3 have acted upon the complaint lodged by P.W.1 as per Ex.P.10 & P.11. From Ex.P.12 it is revealed that already defendant No.2 had directed defendant No.3 to look into matter and to ascertain whether the construction put up by defendant No.4 is in violation of the building sanctioned plan and to report the same. Under such circumstances when already the plaintiff has moved before the competent authorities against the alleged construction of defendant No.4 and has already obtained some direction from defendant Nos.2 & 3 in this regard, whether she can maintain the present suit before this Court, is to be seen.
16. It is relevant to note that the first relief sought for in the suit is for permanent injunction against defendant No.4 restraining her from putting up the illegal construction over 'B' schedule property in violation of the BBMP building bye-laws 10 O.S.No.8808/2018 thereby obstructing free flow of air and light to 'A' schedule property and the second relief sought for is in the nature of mandatory injunction seeking direction against defendant No.4 to demolish the said unauthorized construction put on 'B' schedule property. Thus what could be gathered from the nature of the relief sought for in the suit is that the main allegations of the plaintiff as well as P.W.1 is that the construction put up by defendant No.4 is illegal and unauthorized because she has not put up the construction in accordance with sanctioned plan and building bye-laws. It is also alleged that the defendant No.4 has not even left the required set back while constructing her building. Therefore apparently all these grievances which are put-forth by the plaintiff or P.W.1 in the present suit are with regard to alleged violation of building bye-laws by defendant No.4. Under such circumstances when these issues are required to be resolved only by the competent authority constituted under KMC as well as BBMP Act, this Court certainly lacks jurisdiction to entertain the present suit.
17. It would be relevant to refer an authority reported in Prakash Manikji Puri v/s Radhakrishna in 2002(3) KCCR 1697 wherein it is clearly held that the jurisdiction to adjudicate the dispute regarding violation of building bye-laws in construction of building exclusively vests in the competent authority. The principles laid down therein are extracted as under:
Karnataka Municipal Corporations Act, 1976 -
Secs. 320 and 321 - Building Bye-laws-
Violation-- rights of neighbour-- Scope and
effect.
The appellant defendant contended that the
neighbouring owner of the property had no right 11 O.S.No.8808/2018 arising out of alleged violation of bye-laws and the Municipal Corporation alone had such right.
Held: Secs. 320 and 321 of the KMC Act empowers the Corporation to take action against the persons who have acted in violation of building bye-laws. The action that would be initiated under the above provisions of the Act do not take away the right of the owner of adjoining house to institute suit against the persons who interfere with legal rights to protect his interest.
18. Thus from the plain reading of the proposition of law laid down in the above cited decision it is clear that any issue or dispute touching the rules and regulations of building bye-laws, particularly with regard to violation of the sanctioned plan and licence or issue regarding set back, etc., are all the aspects which cannot be gone into or adjudicated by this Court whose jurisdiction is expressly barred U/S 320 and 321 of the Act. No doubt it is also held in the same decision that the action that would be initiated under the above provisions of the Act do not take away the right of the owner of adjoining property to institute the suit against the persons who interfere with legal rights to protect his interest, but in the instant case it is not the relief sought for by the plaintiff herein against the alleged interference caused by defendant No.4 to her possession over 'A' schedule property. On the contrary as already held above, her main grievance is that since defendant No.4 has not put up construction as per the building bye-laws and sanctioned plan it has affected the free flow of air and light to 'A' schedule property.
19. Moreover the plaintiff has already approached the competent authority in this regard seeking to take necessary 12 O.S.No.8808/2018 action against the defendant No.4 and acting on her complaint already defendant Nos.2 & 3 have taken action thereby defendant No.2 issued directions to defendant No.3 to look into this issue. Now it is for the plaintiff to substantiate as to whether defendant No.3 has initiated such action for removal of the alleged unauthorized construction put up by defendant No.4. It is also not the allegation of the plaintiff that after noticing such illegal construction the defendant Nos.1 to 3 have already issued notices regarding provisional or confirmation orders passed by them. Under such circumstances when the appellate authority is already constituted under the Act to look into these aspects, instead of approaching such competent authority, the plaintiff cannot maintain the present suit. Therefore even though her possession could be established before the Court, but nevertheless she cannot seek the relief as sought for in the present suit as the jurisdiction to grant such relief is outside the purview of this Court. Therefore if such construction is put up in contravention of the building bye-laws, the appropriate authority to adjudicate on such issue would be the Commissioner, Corporation and not the Civil Court. Hence she cannot be granted the injunctive reliefs as sought for in the suit.
20. Furthermore the Hon'ble High Court again in a subsequent decision in Roshini v/s B.S. Rajashree and others in 2005(1) KLJ 500 has again well settled the position of law that if the Corporation does not respond legally and does not take action against the illegal construction, the party can revoke the jurisdiction of the civil Court. In the instant case as already discussed above, it is not the allegation or grievance of the plaintiff or P.W.1 that despite complaining before defendant Nos.1 to 3 they have not taken appropriate legal action against defendant No.4 nor it is their allegation that the Corporation is not 13 O.S.No.8808/2018 positively responding to their request or complaint. On the contrary from the own documents of the plaintiff it is revealed that on his complaint already defendant No.2 had directed defendant No.3 to take appropriate action by producing letter as per Ex.P.12. Now even before any final action is being taken by defendant Nos.1 to 3, the plaintiff has approached this Court with the present suit which is certainly a premature one. Therefore the appropriate remedy which is available to plaintiff in this case is to get resolved her dispute before the competent authority constituted under the Act. Without exhausting such efficacious remedy she cannot maintain the present suit even though the defendants have not opted to contest the matter. Therefore viewed from any angle it cannot be said that the plaintiff could be held entitled to the equitable relief of injunction as sought for in the suit. Hence all these points are to be answered against the plaintiff in the negative.
21. Point No.5:- In the light of the findings given on the above points and in the facts and circumstances of the case the parties are directed to bear their own cost of litigation. In the result the Court hereby proceeds to pass the following:-
ORDER The suit filed by the plaintiff against the defendants for the relief of permanent and mandatory injunctions is hereby dismissed as not maintainable.
Parties to bear their own cost.
Draw decree accordingly.
I.A.No.II filed U/O XXXIX R.1 & 2 CPC is hereby disposed off accordingly.
(Dictated to the Judgment Writer, transcribed by him on Computer, carried out corrections, print out taken and then 14 O.S.No.8808/2018 pronounced in the Open Court on this the 2nd day of January, 2023) (SAVITRI SHIVAPUTRA KUJJI) X Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1 : Ananda Ranga Moola
List of documents exhibited for plaintiff:
Ex.P1 : C/c of Sale deed
Ex.P2 : C/C of Will
Ex.P3 : Death certificate
Ex.P4 : Khatha certificate
Ex.P5 : Khatha extract
Ex.P6 : Tax paid receipt
Ex.P7 : Topo map
Ex.P8 : Khatha certificate
Ex.P9 : Khatha extract
Ex.P10 -11 : Complaints
Ex.P12 : Reply
Ex.P13 : GPA
List of witnesses examined and documents exhibited for
defendants:
Nil
X Addl. City Civil & Sessions Judge,
Bangalore.