Karnataka High Court
K Chandrashekaran vs P S Raghavendra on 13 December, 2018
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
REGULAR FIRST APPEAL No.788 OF 1999
BETWEEN
K.Chandrashekaran,
S/o. Durgappa,
Aged about 68 years,
Resident of No.7, 7th Main,
7th Street, Kamaraj Road,
Bengaluru-560042.
...Appellant
(By Sri. Jagadish D Hiremath, Advocate)
AND
1. P.S.Raghavendra
(Since deceased by his LRS)
1(a). Smt. Saraswati,
W/o. Late P.S.Raghavendra,
Aged about 64 years,
1(b). Smt. Latha,
D/o. Late P.S.Raghavendra,
Aged about 44 years,
1(c). Sri. Balaji,
S/o. Late P.S.Raghavendra,
Aged about 39 years,
1(d) Smt. Bharathi,
D/o. Late P.S.Raghavendra,
Aged about 34 years,
2
All are residing at
No.203, Kamaraj Road,
(Cavalry Road),
Bengaluru-560042.
...Respondents
(By Sri. T.N.Raghupathy, Advocate for R1(a-c),
R1(d) - served)
This RFA is filed under Section 96 of CPC., against the
judgment and decree dated 18.09.1999 passed in
O.S.No.691/90 by the XXXI Additional City Civil Judge,
Bangalore, decreeing the suit for declaration and injunction.
This RFA coming on for hearing this day, the court
delivered the following:
JUDGMENT
This appeal is filed by the defendant in the suit O.S.691/1990 on the file of XXXI Addl. City Civil and Sessions Judge, Bengaluru. He has challenged the judgment and decree dated 18.09.1999 passed in the said suit.
2. By referring to the parties with respect to the position of each of them in the suit, the pleadings can be summarized as below:
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The plaintiff is the owner of a house bearing No.203, Kamaraj Road, (Cavalry Road), Bengaluru - 42 and the defendant is the owner of the adjacent house bearing No.202. Towards the North of the plaintiff's house, there is a compound, the height of which is eight feet and length fourteen feet from East to West. The roof of the defendant's house was covered with asbestos sheets and its back portion of the roof rested on the plaintiff's compound. This compound was not a common wall, but it belonged to plaintiff. The defendant did not have any wall on the Southern side of his house. This being the position, the defendant started demolishing his house and at that time caused damage to the plaintiff's compound. It developed cracks. The plaintiff requested the defendant not to damage his wall, but the defendant threatened him. The plaintiff made a complaint to the City Corporation and also to the police. However the defendant was successful in demolishing his house completely and started constructing three pillars on the Northern side of the plaintiff's property. The plaintiff came to know that the defendant had obtained 4 sanction plan by giving wrong measurements of his property as North to South 15 ft., whereas the correct measurement was only 12.25 ft. In the plan, defendant had shown set back area of 3.3 ft., towards the North and the South of his property. But at the time of construction, he did not leave the setback. As a result of raising construction without leaving setback, free flow of air and light to the plaintiff's property got affected. The plaintiff's house has a veranda provided with grill door measuring about 4.25 x 7.5 ft. There were two windows on both the sides of the door. There was free flow of air and light into the plaintiff's house through the grill and windows for more than 30 years continuously and the plaintiff had acquired this prescriptive right of easement. The construction taken up by the defendant obstructed the plaintiff's easementary right. The plaintiff's property was nearly 100 years old. The defendant, while constructing the southern side of the wall, caused damage to the plaintiff's wall. The defendant also encroached upon the plaintiff's property while constructing new building. The plaintiff amended the plaint and stated further that though the court 5 had given a direction to the defendant not to proceed with further construction on the southern side of his property without leaving setback of three feet and that an order of status quo was passed, the defendant went ahead with construction of ground, first and second floors. He did not leave setback. The construction put up by the defendant on the southern side of the property was causing nuisance. Therefore the plaintiff sought a declaration that he had acquired right of easement by prescription with regard to free flow of air and light through the grill door and two windows and permanent injunction to restrain the defendant from constructing two storied building.
3. The stand of the defendant is that he constructed the building as per the approved sanctioned plan. There was an old structure and after demolishing it, he constructed a new building. The plaintiff did not object when the defendant demolished this house. When demolition was going on, the plaintiff wanted to know the manner in which the defendant would go ahead with the construction. If really he had violated the building bye laws and the 6 approved plan, the Corporation of Bangalore would have taken objection. The plaintiff cannot interfere in this matter. Defendant has denied that the plaintiff could assert right of easement for free flow of air and light into his house. It is not a right that could be vindicated in the civil suit. Whatever the plaintiff has pleaded regarding obstruction to air and light is nothing but his imagination. His construction was within his limits. As long as he remained within his domain, he was entitled to raise as many floors as permitted by the corporation and that the plaintiff could not assert easementary rights to stop the construction. The defendant has denied the other allegation that he threatened the plaintiff and his family members.
4. The trial court framed five issues and five additional issues which are as follows:
1. Does the plaintiff prove his acquisition of right of easement by prescription for flow of air and light to his property No.23 between points D and E in plaint sketch-A schedule?7
2. Whether the defendant has no right to put up two storyed construction in his property No.202?
3. Whether the court fee paid is insufficient?
4. Whether the frame of the suit is bad?
5. Whether the plaintiff is entitled for the declaration and injunction?
Additional issues
6. Does the defendant prove that executors and all beneficiaries of the trust of schedule-A property are necessary and proper parties and suit is not maintainable without impleading them?
7. Does the plaintiff prove that the defendant has encroached the suit schedule-A property?
8. Does he prove that construction of the defendant caused nuisance to him?
9. Whether the plaintiff is entitled to the relief of mandatory injunction as sought in paragraph 23(d) of the plaint?
10. Does the defendant prove that relief of mandatory injunction sought in paragraph 23(d) of the plaint is barred by law of limitation?" 8
5. The plaintiff and the defendant adduced evidence as PW-1 and DW-1 respectively. The plaintiff produced 29 documents as per Ex.P.1 to P.29 and the defendant produced 3 documents as per Ex.D.1 to D3. After appreciation of the evidence, the trial court decreed the suit holding that the plaintiff was entitled to easementary right for free passage of air and light into his house through open space marked ABED in the plaint sketch and permanent injunction restraining the defendant from causing obstruction to the plaintiff's right of easement. The trial court also further directed the defendant to remove the projection made towards the plaintiff's area as reported by the Commissioner and permitted the plaintiff to dismantle that projection at the cost of the defendant if the latter failed to do within one month.
6. The appellant/defendant has filed an application under Order 41 Rule 27 Civil Procedure Code seeking to produce certified copy of the Partition Deed dated 15.09.1921 by way of additional evidence. 9
7. I have heard arguments of learned counsel for the appellant as also the respondents, perused the lower court records and the application for production of additional document and the certified copy of the partition deed sought to be produced by way of additional evidence.
8. The points that arise for discussion are as follows:-
1. Whether the application filed by the appellant under Order 41 Rule 27 of Civil Procedure Code deserves to be allowed?
2. Are the findings of the trial court that the defendant's construction has caused obstruction to free flow of air and light into plaintiff's property and that the defendant's construction on the second floor was in violation of sanctioned plan and thereby the projected portion requires demolition, correct?
Point No.1
9. The argument of appellant's counsel is that the partition deed dated 15.09.1921 establishes the 10 measurement of his property as 18 ½ x 42 ½ feet. This measurement is mentioned in the rectification deed produced by him, but the trial court did not consider the rectification deed as there was no supporting document. The partition deed is the supporting document. The defendant could not produce the partition deed during trial as he could not trace it. Therefore it is produced now. He argued that since the partition deed shows the correct measurement of defendant's property, it is possible to appreciate the evidence that there is no encroachment by the defendant.
10. The respondents'/plaintiffs' counsel argued that the application cannot be allowed. The defendant has not given reasons for non production of the partition deed before the trial court and even otherwise that document is not at all relevant and necessary to decide the appeal.
11. In regard to this application, according to the sanctioned plan issued by the City Corporation, the measurements given are less than what is shown in the partition deed, and the commissioner's report also shows 11 that actual measurement is not as mentioned in the partition deed. Added to this, the defendant himself submitted a plan as per Ex.D3 for approval by the Corporation. In this plan, the measurement of his property is shown as 12.6 x 42.6 feet. Therefore the partition deed does not improve the defendant's case in any way. No purpose would serve even if additional evidence is received. Point No.1 is therefore answered in negative. Point No.2
12. The plaintiff's property and the defendant's property are situated adjacent to each other, the whole problem started when the defendant demolished the old house for the purpose of constructing a new house. There is no dispute about ownership of the two houses, for this reason there is no need to refer to documents that the parties have produced in proof of their ownership.
13. The trial court has answered issue No.1 in affirmative. It has come to conclusion that existence of windows and doors facing the passage is evidenced by the 12 commissioner's report. There is a grill window. The plaintiff is enjoying the flow of air and light into his house from the open space existing on the Northern side of his house.
14. The appellant's counsel argued that the finding given by the trial court as regards easementary right is not correct, as the two houses have been there for quite a long time. The defendant never encroached upon plaintiff's property and that he raised construction vertically, without obstructing the air and light that the plaintiff is getting to his house. The respondents' counsel has supported the findings given by the trial court.
15. On a perusal of oral evidence adduced by PW1 and DW1 on this issue, it is found that both of them have stuck to their contentions and nothing worth mentioning here has been elicited from them when they were cross examined. But it remains a fact that even before demolition of defendant's house, the roof sheets rested on the Northern side wall of the plaintiff's house for number of years. Before demolition of defendants' house, the flow of air and light into 13 plaintiff's house was through two windows and a grilled door facing the passage of his house and through a window or an open space overlooking the defendant's property. It is not the plaintiff's case that his house had a window facing or towards defendant's property. Therefore new construction undertaken by the defendant did not in any way cause obstruction to flow of air and light into plaintiff's property. The plaintiff cannot complain of obstruction to easementary right. For these reasons, findings of the trial court on issue No.1 cannot be upheld.
16. The trial court has ordered for demolition of projection made by the defendant in the second floor of his house. The trial court has given findings that the defendant did not construct the house in accordance with sanction plan. He did not leave set back area on the Northern and the Southern side of his house. When he constructed the second floor, he protruded upon plaintiff's property. The commissioner's report also shows projection which is illegal. 14
17. Meeting these findings, the appellant's counsel argued that the construction made by the appellant/defendant is within his limits. He constructed the house according to sanctioned plan. The measurement of plaintiff's house is not correct. The counsel for plaintiff/respondent argued that the defendant cannot dispute the measurement of plaintiff's property. The commissioner's report clearly shows projection made by defendant over the plaintiff's property. The defendant did not object to the commissioner's report. This encroachment or projection causes obstruction in case the plaintiff constructs first and second floors on his property. The trial court has come to right conclusion and it cannot be disturbed.
18. The evidence of PW1 in regard to construction made by defendant violating the sanctioned plan has remained undiscredited. But DW1, in the cross examination has clearly admitted that he has not left set back on the Northern and the Southern side; his explanation is that he was not required to leave the set back area. This 15 shows construction being made by him violating the sanctioned plan. Before demolition, there was no set back area between the adjacent houses, and it was only when he submitted a plan for approval by the corporation, the set back area to be left might have been insisted upon. Probably the plots being of smaller dimensions, adherence to sanctioned plan was practically found to be not possible; any way, it was for the Corporation to take action if there was violation. But the commissioner's report, which has not been assailed by the defendant, shows that the defendant has constructed the Southern side wall in the second floor by making a projection towards plaintiff's property by 1.3 feet. This projection is clearly shown in red slanted lines in the sketch drawn by him. This projection is also clearly visible in a photograph produced by plaintiff as per Ex.P29. This projection is illegal and protruding on plaintiff's property. In case the plaintiff constructs first floor and second floor over his existing house, this projection will be an obstacle. Re-appreciation of evidence on this aspect takes me to concur with findings given by trial court. The 16 defendant has to remove the encroachment made by him by way of projection or extension as can be seen in the photo Ex.P29.
19. Therefore from the above discussion I come to conclusion that the judgment of the trial court requires modification to some extent. Hence the following order:-
(a) Appeal is partly allowed.
(b) Judgment of the trial court to the extent of declaring plaintiff's right of easement for flow of air and light into his house through the space shown as ABED in the plaint sketch is set aside. The suit to this extent is dismissed.
(c) The judgment of the trial court directing the defendant to demolish or dismantle the projection made by him in the second floor of his house is confirmed. The defendant is directed to demolish this portion within six months from today or otherwise the plaintiff is at liberty to get the demolition done at the cost of defendant. The 17 defendant is further restrained permanently from encroaching upon or over the aerial space of the plaintiff's property.
(d) The respondent is entitled to cost of this appeal and the suit.
Sd/-
JUDGE ckl