Bangalore District Court
Mrs.Ambujakshi K vs Mr.Jayaram on 18 December, 2019
O.S.No.9448/2015
1
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SRI.K.SUBRAMANYA, B.Com., LL.M.
LXVII ADDL CITY CIVIL & SESSIONS JUDGE ,
BENGALURU.
Dated this the 18 th day of December 2019.
O.S.No.9448/2015
PLAINTIFF : Mrs.Ambujakshi K.
W/o.Late Karthikeyan,
60 years,
R/at.No.40, 5th Cross,
Manorayanapalya,
Bengaluru.
(By Sri.V.S., Advocate)
.Vs.
DEFENDANTS : 1. Mr.Jayaram,
S/o.C.Gopal,
41 years.
2. Mr.Ramakrishna,
S/o.C.Gopal,
37 years.
Both are residing at No.1484,
5th Cross, Manorayanapalya,
R.T.Nagar, Bengaluru.
(By Sri.T.M.L., Advocate)
O.S.No.9448/2015
2
3. The Asst. Executive Engineer,
Bruhat Bengaluru Mahanagara
Palike,
Hebbal Sub-Division,
Bengaluru.
(By Sri.E.M., Advocate)
Date of institution of suit : 9.11.2015
Nature of Suit : Suit for Injunctin
Date of commencement of
evidence :
26.03.2018
Date on which the judgment 18.12.2019
is pronounced:
Duration taken for disposal : Year/s Month/s Day/s
04 01 09
(K.SUBRAMANYA)
LXVII Addl.City Civil and Sessions Judge,
BENGALURU.
JU DG M E NT
The plaintiff has filed this suit under Order VII Rule 1
of C.P.C., praying the court to grant permanent injunction
restraining the defendants, their agents, servants,
assignees or any other person or persons action or claiming
on their behalf from interfering with the peaceful
possession and enjoyment of the suit schedule property
and also costs and such other reliefs as the court deems fit.
O.S.No.9448/2015
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2. The plaint averments in brief are as under:
The plaintiff is in possession and enjoyment of the
property bearing Municipal Katha No.40, situated at 5 th
Cross, Manorayanapalya, Bengaluru, which is morefully
described in the schedule. The plaintiff being the
G.P.A.Holder of her son have purchased the plaint schedule
property from Mrs.K.Sumithra, Miss.Tejaswini R. and
Kumari.Ashwini R., under registered Sale Deed,
dated:31.10.2015. Pursuant to the aforesaid Sale Deed,
the plaintiff's son had been put in lawful possession of the
plaint schedule property and now, the plaintiff is in
physical possession and enjoyment of the same as licensee.
The vendors of the plaintiff have assessed the property
before BBMP and BBMP Katha was standing in her name.
The vendor of the plaintiff namely Smt.K.Sumithra had put
up two storied house on the plaint schedule property in the
year 2005 and thereafter, the katha was made in her name
on 1.10.2005 and she has been paying taxes to BBMP from
thereon and she has obtained water and electricity
connection to the said building. The said Smt.K.Sumithra
had acquired title to the plaint schedule property under a
registered Gift Deed executed by her father namely
P.Kuppuswamy Mudaliar.
The defendant Nos.1 and 2 are the owners of the
O.S.No.9448/2015
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adjoining property of the plaint schedule property and they
have encroached about ½ towards western side of their
property and 5 feet o the Eastern side and therefore, their
property measures 35½ feet from East to West. When the
position stands thus, the defendant Nos.1 and 2, who are
strangers to the plaint schedule property in order to cause
trouble to her and also in order to deprive from enjoyment
of the plaint schedule property, have tried to interfere with
the peaceful possession and enjoyment of the plaint
schedule property though they have no right, title or
interest over the same. But, somehow, with the help of
friends and well-wishers, the intervention of defendant
Nos.1 and 2 are prevented.
The defendant Nos.1 and 2 have filed a false complaint
with defendant No.3 alleging that she is trying to put up
construction and therefore, the defendant No.3, who has
become puppet at the hands of defendant Nos.1 and 2, has
come to the plaint schedule property for measuring the
same on 3.11.2015 and he has threated the plaintiff that
the second floor of the building is illegal construction and
he would demolish the entire structure. The building is
about three years old and by the time the plaintiff could
purchase, the vendor was in possession and enjoyment of
the same and the property was also assessed to tax and
therefore, the claim of defendant No.3 is also unfound.
O.S.No.9448/2015
5
The plaint schedule property has been assessed to
BBMP and the plaintiff's vendor was paying taxes to the
entire construction and in spite of it, the defendant No.3
being a Government Servant acting hostile to the interest of
the plaintiff and has become a puppet at the hands of
defendant Nos.1 and 2 is threating that he would take
action under KMC Act for the deviations and he would
demolish the structure and hence, this suit for injunction.
The plaintiff has purchased the plaint schedule property
by his hard earned money by borrowing loan from Andhra
Bank and he has mortgaged the property paper to them.
The defendants have no right, title or interest over the
plaint schedule property. In spite of it, they are trying to
interfere with the peaceful possession and enjoyment of the
property. The defendant Nos.1 and 2 are local people and
the defendant No.3 is a Government and they are men with
money and power, but the plaintiff is an aged lady and her
only son, who is residing in Foreign Country. If the illegal
act of the defendants are not resisted, she will be put to
greater hardship and injury, which cannot be compensated
in terms of money and as well as the illegal acts of the
defendants cannot be prevented without the aid of this
court. Hence, this suit for the above said relief.
O.S.No.9448/2015
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3. In spite of service of suit summons, the defendants
have appeared before the court through their respective
counsels and filed separate written statements.
The defendant Nos.1 and 2 in their written statement
have contended that the averments made in the plaint are
false and specifically denied. However, they have admitted
that Mrs.K.Sumithra being the owner of the suit schedule
property and she is facing serious building violations and
the predecessor of defendant No.3 has initiated proceedings
under KMC Act against the said Smt.K.Sumithra and
thereafter, Smt.K.Sumithra had approached KAT and now,
an order came to be passed by the Hon'ble KAT and a
direction was given to the defendant No.3 to take action
against Smt.K.Sumithra under KMC Act and hence, in
order to avoid the court proceedings, the plaintiff and the
said Smt.K.Sumithra have registered a collusive Sale Deed
just to avoid building violations and has falsely filed the
present suit. The said Smt.K.Sumithra had put up two
storied house on the plaint schedule property in the year
2005 and thereafter, the katha was made in her name on
1.10.2005 and she has been paying taxes to BBMP from thereon and she has obtained water and electricity connection to the said building is denied as false. The said Smt.K.Sumithra has constructed building against the building plan approved by the competent authority without O.S.No.9448/2015 7 leaving the set back and thereby, obstructed the rights of the adjacent owners in this regard. The predecessor of defendant No.3 had issued a provisional and final orders under Sections 321(1) and 321(3) of KMC Act and directed the said Smt.K.Sumithra to remove the illegal structure. Against the said orders, the said Smt.K.Sumithra had filed an appeal appeal before Hon'ble KAT in Appeal No.1920/2003 and the same was allowed on 10.07.2015 giving a liberty to the defendant No.3 to take action against Smt.K.Sumithra in accordance with KMC Act by giving opportunity to the owner of the schedule property. The said Smt.K.Sumithra and the plaintiff intentionally knowing the same, has suppressed the true facts before this court, has created a collusive Sale Deed and filed the present suit.
It is admitted that they are adjoining owners of the plaint schedule property. However, they have denied as to encroaching about ½ towards Western side and 5 feet on the Eastern side of the suit schedule property and the plaintiff is put to strict proof of the same. As per the admission of the plaintiff, they are in possession and enjoyment of the suit schedule property since from the date of its acquisition and the plaintiff or her predecessor was never in possession and enjoyment of the aforesaid property. It is a new story created by the plaintiff to create O.S.No.9448/2015 8 the cause of action and to drag the attention of the court by suppressing the action that was taken by the defendant No.3 for illegal construction thereby obstructing the rights of the adjacent owners.
Further, it is denied that the plaint schedule property has been assessed to BBMP and the plaintiff's vendor was paying the taxes to the entire construction and in spite of it, the defendant No.3 being a Government Servant, acting hostile to the interest of the plaintiff and has become a puppet at the hands of defendant Nos.1 and 2 and is threatening that he would take action under KMC Act for the deviations and he would demolish the structure. It is further denied that the plaintiff has purchased the plaint schedule property by his hard earned money by borrowing loan from Andhra Bank. The plaintiff by knowing the earlier proceedings before defendant No.3 and before Hon'ble KAT and before Hon'ble High Court of Karnataka has suppressed these facts and narrated the baseless cause of action against the defendants.
Without prejudice to the above, it is submitted that when Smt.K.Sumithra has started put up construction in her property during 2003 by violating the building Bye-laws and 100% deviating from the sanctioned plan approved by the then BBMP, affecting air and light to these defendants' property, which is situated on the Eastern side of her O.S.No.9448/2015 9 property. The father of these defendants had requested with the said Smt.K.Sumithra to leave set back, however she did not care the words and having no other option, he filed a representation to the predecessor of defendant No.3 i.e., officer in-charge of BBMP and the concerned Engineer conducted survey and had taken measurements of the building put up by Smt.K.Sumithra and had issued a notice under Section 321(1) and also issued provisional order on 13.05.2003 under Section 321(3) of KMC Act for removal of illegal construction. Against the said order, Smt.K.Sumithra has filed an Appeal before Hon'ble KAT in No.1920/2003 and the said appeal came to be dismissed for non-prosecution on 30.11.2004. Therefore, she had filed Mis. Petition No.13/2005 for restoration of the appeal. Upon hearing the same, the Hon'ble KAT was pleased to dismiss Mis. Petition on 23.05.2005. As against the said order, she had preferred a Writ Petition No.15707/2005 before the Hon'ble High Court of Karnataka and the same was dismissed vide order dated:5.01.2009. Against the said order, the said Smt.K.Sumithra had filed Writ Appeal No.651/2009 before Division Bench of Hon'ble High Court of Karnataka and the same came to be allowed and the matter is remanded back to KAT for fresh disposal by giving opportunity to both the parties.
In pursuance of the said order passed in Writ Appeal, O.S.No.9448/2015 10 the Hon'ble KAT has re-opened the case in Appeal No.1920/2003 and after giving opportunity to both the parties and the matter is allowed on 10.07.2005 and directed the defendant No.3 to hold a fresh enquiry and to pass necessary orders in accordance with law. Such being the case, the defendant No.3 has all rights to hold enquiry as per the orders of Hon'ble KAT and just to tainted the hands of defendant No.3, the plaintiff has filed this false suit. Even though the matter of violation and deviation of the building constructions on the property is pending before defendant No.3, the owner Smt.K.Sumithra and the plaintiff are not disclosing the pending proceedings before AEE, BBMP has filed the above false suit just to escape from the liability and to avoid compliance of KMC Act and thereby, Smt.K.Sumithra and the plaintiff have created a collusive Sale Deed and has filed this present suit for bare injunction. Hence, sought for dismissal of the suit.
4. The defendant No.3 in his written statement has contended that the suit of the plaintiff is not maintainable either in law or on facts and the same is liable to be dismissed. The plaintiff has suppressed the material facts and she has not approached the court with clean hands. The plaintiff has not issued mandatory legal notice under Section 482 of KMC Act. The defendant No.3 has not O.S.No.9448/2015 11 received any statutory notice from the plaintiff and the alleged notice is created and fabricated for the purpose of this case. The suit is not maintainable or entertainable without being compliance of statutory notice. The suit is not maintainable in law since the Commissioner of BBMP is not made as a party and only the Assistant Executive Engineer has been made as a party.
It is further submitted that Smt.K.Sumithra has put up the construction in utter violation of the Building Bye-laws and KMC Act and as such, the defendant has taken action and initiated the proceedings under Section 321 of KMC Act. It has issued provisional order and show cause notice and thereafter passed the conformation order dated:13.05.2003 under Section 321(3) of KMC Act. Against the said order, Smt.Sumithra had preferred an appeal before Hon'ble KAT in Appeal No.1920/2003. During the pendency of the said appeal, Smt.Sumithra has executed the Sale Deed in favour of Praveen Karthikeyan. The conveyance of the property made by Smt.Sumithra in favour of Praveen Karthikeyan on 31.10.2015 I in utter violation of Setion 52 of Transfer of Property Act and as such, the plaintiff has not acquired any right, title or interest. The plaintiff ought to have verified and satsfied with regard to actual right and dispute pending before obtaining the Sale Deed, dated:31.10.2015 and the appeal O.S.No.9448/2015 12 filed by Smt.Sumithra came to be disposed off on 10.07.2015. After remand by order dated:10.07.2015, the defendant No.3 has initiated the proceedings afresh. As such, during the pendency of the said proceedings, the entire transaction has taken place. For the reasons stated above, the plaintiff not being the owner and having no title over interest ought to have brought the suit in the name of Praveen Karthikeyan. There is no document to show that the plaintiff is in possession as a licensee. The assessment of the property by the vendor of the plaintiff is not in accordance with law. The vendor of the plaintiff has not furnished the completion certificate and also not obtained the occupancy certificate. In the absence of the same, the property cannot be assessed under Self Assessment Scheme.
It is further submitted that the plaintiff has no right to make such allegations in this suit. It is the duty of the plaintiff to ascertain the clear and marketable title before the acquisition of the property and get the property cleared from encroachments. The plaintiff has purchased the property on as is where is basis. And as such, the contention has nothing to do. The allegations made against the defendant Nos.1 and 2 are nothing to do with the defendant No.3. It is specifically denied the contention of the plaintiff that the building existing is three years old. In O.S.No.9448/2015 13 fact, the defendant has initiated the proceedigns and passed conformation order and the vendor of the plaintiff has filed an appeal before the Appellate Tribunal in the year 2003. The plaintiff has not only purchased the property in question, but also the existing dispute and as such, she has no right to make any allegations against the defendant No.3. The defendant No.3 has not colluded with anybody else much less with the defendant Nos.1 and 2 and the proceedings initiated will clearly establish the same. Hence, sought for dismissal of the suit.
5. From the above pleadings, the following issues have been framed.
1. Whether the plaintiff proves that, she is possession of the suit property on the date of filing of the suit?
2. Whether the plaintiff further proves about the alleged interference of the defendants?
3. Whether the plaintiff is entitled for permanent injunction as sought for?
4. What Decree or Order?
6. The plaintiff came to be examined herself as P.W.1 and got marked the documents Exs.P.1 to 15. The defendant No.2 got examined himself as D.W.1 and got marked the documents Exs.D.1 to 18.
O.S.No.9448/2015 14
7. Heard arguments of both the sides.
8. My findings to the above issues are as under:
ISSUE No.1 - Partly in the Affirmative, ISSUE No.2 - In the Negative, ISSUE No.3 - In the Negative, ISSUE No.4 - As per the final order, for the following :
R E A SON S
9. ISSUE Nos.1 TO 3 : Since all these issues are interconnected, they have been taken up together for my discussion in order to avoid the repetition of reasonings.
P.W.1 has testified through affidavit filed under Order XVIII Rule 4 of C.P.C., and reiterated the facts stated in the affidavit. P.W.1 has deposed that she is in possession and enjoyment of the property bearing Municipal Katha No.40, situated at 5th Cross, Manorayanapalya, Bengaluru, which is morefully described in the schedule. She being the G.P.A.Holder of her son have purchased the plaint schedule property from Mrs.K.Sumithra, Miss.Tejaswini R. and Kumari.Ashwini R., under registered Sale Deed, dated:31.10.2015. Pursuant to the aforesaid Sale Deed, O.S.No.9448/2015 15 her son had been put in lawful possession of the plaint schedule property and now, she is in physical possession and enjoyment of the same as licensee.
She has further deposed that her vendor has assessed the property before BBMP and BBMP Katha was standing in her name. Her vendor namely Smt.K.Sumithra had put up two storied house on the plaint schedule property in the year 2005 and thereafter, the katha was made in her name on 1.10.2005 and she has been paying taxes to BBMP from thereon and she has obtained water and electricity connection to the said building. The said Smt.K.Sumithra had acquired title to the plaint schedule property under a registered Gift Deed executed by her father namely P.Kuppuswamy Mudaliar.
The defendant Nos.1 and 2 are the owners of the adjoining property of the plaint schedule property and they have encroached about ½ towards western side of their property and 5 feet of the Eastern side and therefore, their property measures 35½ feet from East to West. When the position stands thus, the defendant Nos.1 and 2, who are strangers to the plaint schedule property in order to cause trouble to her and also in order to deprive from enjoyment of the plaint schedule property, have tried to interfere with the peaceful possession and enjoyment of the plaint O.S.No.9448/2015 16 schedule property though they have no right, title or interest over the same. But, somehow, with the help of friends and well-wishers, the intervention of defendant Nos.1 and 2 are prevented.
The defendant Nos.1 and 2 have filed a false complaint with defendant No.3 alleging that she is trying to put up construction and therefore, the defendant No.3, who has become puppet at the hands of defendant Nos.1 and 2, has come to the plaint schedule property for measuring the same on 3.11.2015 and he has threated the plaintiff that the second floor of the building is illegal construction and he would demolish the entire structure. The building is about three years old and by the time the plaintiff could purchase, the vendor was in possession and enjoyment of the same and the property was also assessed to tax and therefore, the claim of defendant No.3 is also unfound.
The plaint schedule property has been assessed to BBMP and the plaintiff's vendor was paying taxes to the entire construction and in spite of it, the defendant No.3 being a Government Servant acting hostile to the interest of the plaintiff and has become a puppet at the hands of defendant Nos.1 and 2 is threating that he would take action under KMC Act for the deviations and he would demolish the structure and hence, this suit for injunction.
O.S.No.9448/2015 17 She has further deposed that her son has purchased the plaint schedule property by his hard earned money by borrowing loan from Andhra Bank and he has mortgaged the property paper to them. The defendants have no right, title or interest over the plaint schedule property. In spite of it, they are trying to interfere with the peaceful possession and enjoyment of the property. The defendant Nos.1 and 2 are local people and the defendant No.3 is a Government and they are men with money and power, but she is an aged lady and her only son, who is residing in Foreign Country. If the illegal act of the defendants are not resisted, she will be put to greater hardship and injury, which cannot be compensated in terms of money and as well as the illegal acts of the defendants cannot be prevented without the aid of this court.
10. It is clear in the cross examination that the plaintiff has purchased the property from the erstwhile owners Smt.Sumithra, R.Tejaswini and R.Ashwini. It is also pertaining to note that the purchaser in Ex.P.1-Absolute Sale Deed, dated:31.10.2015 is Mr.Praveen Karthikeyan, represented by his mother G.P.A.Holder Mrs.Ambujakshi (plaintiff herein) and Mr.Saji Kumar and Mrs.Sobha. Therefore, the other purchasers are not made as a party in these proceedings and without being necessary party, the O.S.No.9448/2015 18 suit is affected for want of necessary party to seek the equitable relief of injunction. It is clearly admitted in the cross examination that other co-owners stated supra are not made as party to the proceeding. The site is measuring 30 X 40 feet and the boundaries is towards Eastern side Ramakrishna's House, but she do not know the boundaries of other side i.e., West, North and South. Therefore, her claim as to injunction is to be considered with sufficient care and caution.
11. It is admitted in the further cross examination that there is a case in KAT bearing No.339/2018 as per Ex.D.1 and the BBMP has taken steps for demolition of the building constructed in violation of Building Bye-laws. The notice is issued by BBMP under Section 321(1), dated:28.12.2012 is also admitted. She has deposed that she is not aware of another notice issued by BBMP on 28.12.2017 under Section 321(2) of KMC Act. It is admitted that some two persons Ramakrishna and Jayarama have complained to BBMP and accordingly, the BBMP has issued notice under Section 321(3) of the said Act for demolition, which is marked as Ex.D.2. It is also admitted that her children are also shown as purchasers in the Sale Deed, but they have not been made as parties. She had no objection to include other children as party. It is also stated that she has checked the site plan and the O.S.No.9448/2015 19 counsel has also checked the documents pertaining to the property. She has obtained legal opinion while purchase of the property, but the same is not produced in evidence. It is also admitted that the building is consisting of three floors. It is denied that the permission was granted for ground and first floor only, and the second and third floors are constructed illegally. It is also suggested by the defense counsel that the plan is not produced so as to overcome the illegal construction. It is also admitted that the construction was made in the year 2003 on site measuring 30 X 40 feet and there is a space beside construction. It is also admitted that she has not left any space towards East wherein the defendant Nos.1 and 2 are having house. It is also admitted that the defendant Nos.1 and 2 have approached BBMP as there is obstruction to air and light to their property. But, she do not know whether the BBMP authorities visited the spot on the complaint of defendants and issued notice to the erstwhile owner regarding the violation of rules and illegal construction and directed to remove the un-authorised construction. She do not know whether the earlier owner had filed a case before KAT in Appeal No.1920/2003. She do not know whether the appeal was dismissed on 30.11.2004. She do not know whether the earlier owner has preferred Misc.Appeal No.13/2005 against that order and the same was dismissed O.S.No.9448/2015 20 on 23.05.2005. She do not know whether the appeal was preferred before Hon'ble High Court of Karnataka in Appeal No.15707/2005 and it was dismissed on 5.01.2009. She do not know whether the earlier owner Smt.Sumithra had filed Writ Appeal No.651/2009 before the Hon'ble High Court of Karnataka and the Hon'ble Court issued direction for fresh enquiry and remanded the case to KAT. She has also pleaded ignorance as to KAT Order directing the earlier owner Smt.Sumithra to demolish the building on 10.07.2015. Therefore, while pendency of the litigation before KAT and Appeal proceedings before the Hon'ble High Court of Karnataka in Writ Appeal No.651/2009, the property has been purchased by this plaintiff is apparent on record and as well as in oral evidence. Therefore, the plaintiff is not justified in contending contrary and pleading ignorance of earlier proceedings. The suit is hit by lis pendens.
Lis Pendens :- (1) aims at (i) avoiding endless litigation;
(ii) protecting either party to the litigation against to the act of the other, and (iii) avoiding abuse of legal process.
Caveat Emptor : Let the buyer beware. It is a Contract Law Principle that controls sale, buyer assumes the risk.
O.S.No.9448/2015 21
12. SECTION 52 OF TRANSFER OF PROPERTY ACT 1882 reads thus:
Transfer of property pending suit relating thereto.--During the 1[pendency] in any Court having authority 2[3[within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by 4[the Central Government] 5[* * *] of 6[any] suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. 7[Explanation.-- For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.]
13. Section 52 of Transfer of Property Act, 1882 provides the doctrine of "Lis-Pendens" i.e., pending litigation ...... The effect of the applicability of the doctrine is that it does O.S.No.9448/2015 22 not annul the conveyance, but only renders it subservient to the right of the parties to the litigation. This section essentially prohibits alienation of property while lis- pendens. During litigation, nothing should be changed.
The seller knowingly conferred 'litigious' possession to the plaintiff. Hence, it is not fair and justified in seeking the relief of injunction. The litigious possession need not be protected under law.
14. Further more, the plaintiff's right is derived from the right, title and interest of the erstwhile owner Smt.Sumithra. The principles of subrogation is also applicable as the purchaser enters into the shoes of the seller and derives the right, title and interest from the erstwhile owner. The sale and transfer of property is subject to the proceedings before KAT and the earlier directions issued by the Hon'ble High Court of Karnataka in Writ Appeal No.651/2009. Therefore, the suit against the defendant No.3-BBMP is not in any way justified so as to grant equitable relief of injunction. The BBMP authorities have obey the orders of the Hon'ble High Court of Karnataka in Writ Appeal and also follow the procedure, rules and regulations of BBMP and KMC Act,1976.
15. The principles of Subrogation of Right, it is clear O.S.No.9448/2015 23 that it is a substitution of one person or group of persons in respect of debt or claim accompanied by the transfer of any associated right, duties and liabilities. Therefore, the transfer made by Smt.Sumithra in favour of the plaintiff and others is tainted with the proceedings made before BBMP and KAT and Appeal No.15707/2005 and Writ Appeal No.651/2009 before the Hon'ble High Court of Karnataka. Therefore, the plaintiff is not come before the court with clean hands so as to grant equitable relief of injunction as provided under Sections 38 and 39 of Specific Relief Act. When there is legal course adopted by the defendant so as to remove the un-authorised construction, which is in violation of The Karnataka Town & Country Planning Act, Rules and Regulations, it is not fair enough to confer the equitable relief violating the easementary right of defendant, who has to enjoy the property admittedly situated on the eastern side of the property. The defendants are entitle for air and light and if un-authorised construction of II and III Floor are if allowed and that will cause affect to the property of defendants and aso lead to violation of Building Bye-laws and Sanction Plan. The plaintiff could be protected with passive injunction so far as ground and first floor is concerned. That apart, the positive injunction restraining the defendants from interfering with the suit schedule property cannot be conferred when there O.S.No.9448/2015 24 is proceedings before BBMP, KAT and as per the orders of Hon'ble High Court of Karnataka.
16. The plaintiff has not proved that she is in lawful possession of the property consisting of three floors in view of the proceedings made against the erstwhile owner Smt.Sumithra by BBMP on the complaint of defendant Nos.1 and 2. Only so far as approved construction as per the plan issued by BBMP to the ground floor and first floor is concerned, the plaintiff's possession may be considered as lawful. To that extent only, the plaintiff is entitled to be protected under the provisions of Sections 38 and 39 of Specific Relief Act. Therefore, the suit of the plaintiff is hereby dismissed so far as II and III Floor of the property, which is in dispute and the proceedings is pending before BBMP in view of the directions issued in Writ Appeal No.651/2009. However, the plaintiff is entitled for protection of her possession as to ground floor and first floor is concerned. This order will not come in the way of BBMP to proceed against the unauthorised construction in violation of Building Bye-laws and The Karnataka Town & Country Planning Act. Hence, I answer the Issue Nos.1 to 3 accordingly.
O.S.No.9448/2015 25
17. ISSUE No.4: My finding on this Issue is as per the following :
O R DE R The suit of the plaintiff is decreed in part as against the defendant Nos.1 and 2 so far as the possession of ground and first floor of the schedule property and the passive injunction is granted not to interfering with the possession unless the course is adopted under law and Bye-laws of BBMP and The Karnataka Town and Country Planning Act.
The suit of the plaintiff is hereby dismissed so far as II and III Floor of the property, which is in dispute and the proceedings is pending before BBMP in view of the directions issued in Writ Appeal No.651/2009 The suit against the defendant No.3 is hereby dismissed.
Draw decree accordingly.
(Dictated to the Judgment-writer, transcript thereof is corrected and then pronounced by me in the open court on this the 18th day of December 2019) (K.SUBRAMANYA) LXVII Addl.City Civil and Sessions Judge, BENGALURU.
O.S.No.9448/2015 26 SC HE D UL E All that piece and parcel of the property bearing New Municipal No.40, PID No.96-115-40, 5 th Cross, Manorayanapalya, Bengaluru, BBMP Ward No.96 (formerly Site bearing House List No.23, in Assessment No.43/1, V.P.Khatha No.243, situated at Manorayanapalya, Cholanayakanahalli Dhakle, Bengaluru North Taluk), measuring East to West:30 feet and North to South: 40 feet, totally measuring 1200 sq. feet, along with 21 square RCC House of (Ground Floor : 5 square, First Floor : 8 square and Second Floor : 8 Square) with Vatrified flooring and jungle wood doors and windows, with all right of easement, appurtenances, advantages and bounded on :
East by : Site No.22,
West by : Site No.24,
North by : Private Property of Gopalappa,
South by : 20 Feet Road.
A NN E X U R E
1. WITNESSES EXAMINED IN FAVOUR OF THE PLAINTIFF:
P.W.1 Ambujakshi
2. WITNESSES EXAMINED IN FAVOUR OF THE DEFENDANT :
D.W.1 Ramakrishna G.
O.S.No.9448/2015
27
3. DOCUMENTS MARKED IN FAVOUR OF THE PLAINTIFF:
Ex.P.1 Certified copy of Sale Deed,
dated:31.10.2015.
Ex.P.2 Notarized copy of GPA
Ex.P.3 Khatha Certificate
Ex.P.4 Khatha Extract
Ex.P.5 Tax Paid Receipt 2018-19
Ex.P.6 Certified copy of Gift Deed,
dated:15.12.2000.
Ex.P.7 Encumbrance Certificate copy info.
Exs.P.8 to 10 Electricity Bills
Exs.P.11 to 14 Photos
Ex.P.15 C.D.
4. DOCUMENTS MARKED IN FAVOUR OF THE DEFENDANTS :
Ex.D.1 Copy of Memorandum of Appeal in 339/2018 Ex.D.2 Copy of notice issued by BBMP under Section 321(3) of KMC Act Ex.D.3 Copy of Order Sheet in Appeal No.339/2018 Ex.D.4 Copy of Order Sheet in Appeal No.339/2018 Ex.D.5 Copy of Order Sheet in Appeal No.339/2018 Ex.D.6 Copy of Order Sheet in Appeal No.1920/2003 before KAT.
Ex.D.7 Certified copy of Writ Appeal No.651/2009. Ex.D.8 Final Oder of Appeal No.1920/2003. Ex.D.9 Letter of BBMP, dated:15.11.2012. Ex.D.10 Letter to BBMP, dated:14.08.2015. Ex.D.11 Notice of BBMP, dated:4.06.2016. Ex.D.12 Reply notice to BBMP, dated:13.06.2016.
Exs.D.13 & 14 Endorsements
Ex.D.15 Certified copy of RTI Application
Ex.D.16 Notes of BBMP
Ex.D.17 Certified copy of RTI Application
Ex.D.18 Reply to RTI.
(K.SUBRAMANYA)
LXVII Addl.City Civil and Sessions Judge, BENGALURU.
O.S.No.9448/2015 28