Bangalore District Court
Dr. Prabha Eliya Singan vs Mr. K Sairam Patro on 25 November, 2021
Form No.9 (Civil)
Title Sheet for Judgment in suit
(R.P. 91)
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH-73)
Present:
Sri.Abdul-Rahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 25th day of November, 2021.
O.S.No.25542/2007
Plaintiffs:- 1. Dr. Prabha Eliya Singan,
W/o. Dr. Eliya Singan,
Aged about 48 years,
R/at Nos.12 & 13,
Lake City, Kodichickanahalli Village,
Begur Hobli,
Bommanahalli,
Bangalore-560 078.
2. Dr. Eliya Singhan,
S/o Late Eliya Thamby,
Aged about 56 years,
Kodichikkanahalli Village,
Begur Hobli,
Bommanahalli,
Bangalore- 560 078.
[By M/s Crest Law Partners- Adv]
2
OS No.25542/2007
V/s
Defendants: 1. Mr. K Sairam Patro,
S/o Mr. Ahara Patrro,
Aged about 35 years,
R/at Site No. P 15, Lake City,
Kodichickanahalli Village,
Begur Hobli, Bommanahalli,
Bangalore-560 078.
2. The Commissioner,
Bruhat Bangalore Mahanagara Palike,
Bommanahalli Zone,
Hosur Road, Bommanahalli,
Bangalore-560 078.
[By Sri. S. Hemachandra -Adv for D1] [
Defendant No.2- Exparte]
Date of Institution of the suit 12.03.2007
Nature of the (Suit or pro-note, suit for
Declaration & Injunction
declaration and possession, suit for
Suit
injunction, etc.)
21.06.2011
Date of the commencement of
recording of the Evidence.
Date on which the Judgment was
25.11.2021
pronounced.
Year/s Month/s Day/s
Total duration 14 08 13
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
3
OS No.25542/2007
JUDGMENT
This suit is filed by the Plaintiffs against the Defendants for the relief of Declaration withregard to Suit Schedule 'B' Property and for the relief of Injunction, inrespect of Suit Schedule 'A and B' Properties.
2. Facts of the Plaintiffs case are as under:
It is the case of the Plaintiffs that, they are the owners in possession of the property bearing No.355/12 and 355/13 (also referred as Site Nos.12 and 13) Kodichikanahalli Village, Begur Hobli, Bommanahalli, Bengaluru South Taluk, which is described as the Suit Schedule 'A' Property. The said property is purchased by the Plaintiffs under two different Sale Deeds both dtd.06.06.1997, from Mr. Byrappa. Since the day of purchase, they are in peaceful possession, enjoyment and occupation of the Suit Schedule A Property. They are residing in it. They have constructed boundary wall around the said property. Khathas pertaining to the said property stand in their names and they are paying taxes to the concerned authorities.4
OS No.25542/2007 Further it is contended that, their property is situated at an elevation, as compared to the adjoining properties, towards its Western side i.e., Site Nos.14, 15 and 16. So they were required to construct a retaining wall on the Western side of the said property. Since, the wall that was constructed on the Western side was a retaining wall, inorder to have proper foundation, they have taken care to ensure that the same is constructed well within their property. As per the advise of the Architect and structural engineer, they have provided for an area measuring 1 feet & 8 inches on the North-Western corner of the said property in breath and an area measuring 2 feet & 1 inch on the South-Western corner of the said property, alongwith the western boundary of the said property, inorder to provide for drainage water flow, that would seep through the exists that are provided in the wall, so constructed by them. Photographs are produced to demonstrate the same.
Further contend that, the Defendant No 1 is the owner of the Site No 15, which is situated adjacent to their property on the westernside i.e., at North- Western end. He had earlier constructed a house in 5 OS No.25542/2007 the said site, by leaving sufficient set back around the house. He has now takenup the foundation work for making further construction in the portion behind his existing house and within the setback area abutting their property. He has excavated the ground to lay foundation within the setback area and on encroaching upon the area of their land, which they have left for passage of drainage water and the foundation led for the wall constructed by them. They had called upon the Defendant No 1 to show the sanctioned plan for the construction that he had started, but the Defendant No 1 has failed to produce the same. So it is there belief that the Defendant No 1 is taking up construction work without any proper sanction plan from the appropriate authorities. In any event the construction of the Defendant No 1 is in violation of all building bye-laws relating to the setbacks. The Defendant No 1 is not only taking up constructional activities without leaving proper setback, but also encroaching upon their property.
The said acts of the Defendant No 1 were complained to the Defendant No 2. Despite the same the Defendant No 1 is carrying on the work of construction and the Defendant No 2 has completely 6 OS No.25542/2007 abdicated the powers and responsibility imposed on it, as per the provisions of the Karnataka Municipal Corporation Act and has failed to take action against the Defendant No 1. Strangely the Defendant No 2 has advised them to approach the Civil Courts of Law. Having no other alternative, they have filed the present suit.
Hence prayed to
a) declare them as the absolute owners of an area measuring 2 feet and Inch beyond the existing wall of their property on the Westernside, abutting the property of the Defendant No 1;
b) restrain the Defendant No 1, his agents, servants henchmen or anyother person claiming through him, by an order of Perpectual Injunction from encroaching upon Suit Schedule B Property, in any manner and from interfering with their peaceful possession and enjoyment over Suit Schedule B Property;
c) restrain the Defendant No 1, his agents, servants henchmen or anyother person claiming through him, by an order of Perpectual Injunction from putting up construction in Plot No 15, within a distance of 5 feet from their existing wall, situated 7 OS No.25542/2007 toward the Western side of the Suit Schedule A Property, in adherence to the Building Byelaws and mandate of leaving necessary setback;
d) Issue directions to the Defendant No 2 by way of Mandatory Injunction to ensure that the construction erected by the Defendant No 1 in the Property bearing No 15, is in compliance with the applicable byelaws and inaccordance with duly sanctioned plan.
Thus prayed to decree the Suit.
3. Suit Summon was issued to the Defendants. The Defendant No 1 has appeared through his Counsel and has filed his Written Statement on 19.04.2007. The Defendant No.2 has appeared through its Counsel on 08.06.2007. Defendant No 2 has not filed its Written Statement.
4. The Defendant No.1 in his Written Statement has denied all the allegations made by the Plaintiffs in the Suit Plaint. It is specifically contended by him that, he has purchased the Property bearing No 15P, which is shown as Schedule A of his Written Statement Schedule Property from, one Mohsin Ali 8 OS No.25542/2007 Vakil through his Special Power of Attorney Holder K T Sudarshan by virtue of a Registered Sale-deed. Khata of the said property was transferred in his favour and he is paying Tax of the said property. On purchasing he had started constructional work of the ground floor and the first floor in the said property after obtaining necessary permission/sanction. Copy of the said license is produced.
Further contends that, the residential construction put up by the Plaintiffs, infringes all building norms, since they have prepensely and with an ulterior motives have elevated the ground level and has put up construction of their residential premises. Above and below this, the Plaintiffs have constructed a retaining wall of about 20 feet height and about 2 feet breath. Further it is false for the Plaintiffs to contend that they have provided an area beyond their compound wall for the purpose of providing drainage for the water.
It is true that, he is putting up further constructions, but false to contend that, he is putting up constructions it the setback area abutting the premises of the Plaintiffs. It is false for the Plaintiffs to contend that, he has started excavation of 9 OS No.25542/2007 foundation within the setback area and encroaching upon the area of land belonging to the Plaintiffs, which they have left for the purpose of drainage and for foundation of wall. It is specifically contended that, he has takenup constructional work only after obtaining license and inadherence to the sanctioned plan and the building norms. He need not seek the consent and approval of the Plaintiffs to put up constructions in his property, likewise he is not bound to exhibit his sanctioned plan to the Plaintiffs.
Further the Plaintiffs in OS No 4975/2001 has filed statement of objections and counter affidavit wherein they have clearly stated that he has no property beyond their compound wall on the westernside. The copy of the Written Statement and Counter affidavit is produced for reference.
Thus the Plaintiffs cannot claim the reliefs, as sought for by them. So the suit of the Plaintiffs is liable to be dismissed, with costs.
Hence prayed to dismiss the suit.
5. On the basis of the above said pleadings, my Learned Predecessor in office has framed the following issues on 17.02.2011, as under:
10OS No.25542/2007 ISSUES
1) Whether the Plaintiffs prove their title over Suit B Schedule Property?
2) Whether the Plaintiffs prove that, they were in lawful possession of Suit B Schedule Property, on the date of the suit?
3) Whether the Plaintiffs are entitled for Mandatory Injunction claimed?
4) Whether the Plaintiffs are entitled for the reliefs claimed?
5) What order or decree?
6. Initially the case was made-over to CCH-
29. Then the said case was transferred to CCH-21, as per the notification No ADM 1(A) 797/2010 dated 26.11.2010. Issues were framed on 17.02.2011 and matter was posted for Evidence.
On affording sufficient opportunities, the said suit was Dismissed for Non-Prosecution on 17.06.2013.
The Plaintiffs filed a Misc Petition at Civil Misc No 25110/2013, which came to be transferred to this court by virtue of the notification No ADM-
11OS No.25542/2007 I(A)413/2018 dated 31.07.2018. On full fledged trial of the said Misc petition, the same was allowed on 05.06.2020 and this matter (OS No 25542/2007) came to be restored.
On securing the parties in this case, Evidence was recorded by this Court.
7. The Plaintiffs inorder to prove their case, got examined Plaintiff No 1, as PW1 and have got marked 29-documents as Ex.P.1 to Ex.P29. PW.1 was cross examined on behalf of the Defendant No 1 on 19.03.2021 & 31.07.2021. ExD1 to ExD5 were marked on confrontation to PW1.
Plaintiffs examined a Private Surveyor as their witness, as PW2 and got marked one document as ExP30. PW2 was cross examined on behalf of the Defendant No 1 on 19.08.2021.
Percontra, the Defendant No.1 got himself examined as DW.1 and got marked 68-documents as Ex.D6 to Ex.D73. DW.1 was cross examined on behalf of the Plaintiffs on 18.09.2021 & 01.10.2021.
Defendant No 2 has neither cross examine PW1 or DW1, nor has led its evidence.
Matter was posted for Arguments.
12OS No.25542/2007 Plaintiffs had filed an application at IA No 8/2021 U/Or XXVI R 9 of CPC, praying to appoint a Court Commissioner to inspect and to have local investigation of the Suit Schedule Property. The same was rejected on 18.10.2021.
8. Heard the Arguments of the Learned Counsels for the Plaintiff and the Defendant Nos.1, respectively.
Defendant No 2 has failed to advance its Arguments.
Learned Counsel for the Plaintiffs has placed his reliance on the below mentioned citations: a) AIR 2021 SC 4293; b) (2008) 4 SCC 594; c) AIR 1998 Mad 65; d) AIR 2005 Kar 115; and e) 2015(1) Bom CR 361.
Percontra, the Learned Counsel for the Defendant No 1 has relied the below mentioned citations: a) Civil Appeal No 1142 of 2003 D/d 03.02.2011; b) Civil Appeal No.726 of 1968, D/d 17.04.1972; c) Civil Appeal No.7605 of 2004, D/d 10.04.2013; d) Civil Appeal No.2342 of 2017, D/d 10.02.2017; e) Civil Appeal No.3654 of 1983, D/d 06.03.1992; f) F. A Nos.40 & 118 of 1989, D/d 13 OS No.25542/2007 24.08.2006; g) (2008) 4 SCC 182; h) (2012) 8 SCC 148; and i) ILR 1980 Kar 103.
9. My findings on the above said issues are as under:
Issue No 1 : In the Negative;
Issue No 2 : In the Negative;
Issue No 3 : In the Negative;
Issue No 4 : Partly in the Affirmative; Issue No 5 : As per final order for the following;
:R E A S O N S:
10. The undisputed facts inbetween the Plaintiffs and the Defendant No.1 are;
a) Plaintiffs are the owners of Suit Schedule 'A' Property;
b) Defendant No.1 is the owner of Property bearing No.15, as per the Plaintiffs; and Property No.15P, as per the Defendant No.1;
c) Property of the Defendant is situated towards the western side of the property of the Plaintiffs.
14OS No.25542/2007
11. The main disputed facts inbetween the Plaintiffs and the Defendant No.1 is that;
a) as per the Plaintiffs, they contend that, they have left 2 feet width area, in the Suit Schedule A Property and have constructed a compound wall.
As per the Defendant No.1, he contends that, no any space - area is left by the Plaintiffs beyond the compound wall, towards his property.
b) The Plaintiffs contend that, the Defendant No.1 is trying to put up construction within their area left beyond the compound wall and thereby violating the building bye laws relating to leaving off necessary setback, and thereby encroach upon their property shown, as the Suit Schedule 'B' Property.
But the Defendant No.1 denies the same.
12. ISSUE NO.1:-
The Plaintiffs contend that, they have left an area of 2 feet 1 inch beyond the existing wall, on its western side, abutting the property of the Defendant No.1, which portion is shown as the Suit Schedule 'B' Property, in this suit. And further contends that, the said portion i.e., Suit Schedule 'B' Property, is part 15 OS No.25542/2007 and parcel of the Suit Schedule A Property, which they had purchased under the Sale Deeds dtd.06.06.1997.
Percontra, the Defendant No.1 denies that, the Plaintiffs have left an area beyond the compound wall, towards his property, which is shown as the Suit Schedule 'B' Property. Inotherwords, the Defendant No.1 denies the existence of the Suit Schedule 'B' Property.
13. As per the plaint pleadings, more specifically, Para No.4 of the Suit Plaint the Plaintiffs contend that, they have constructed a compound wall, also called as retaining wall, towards western side of their property, by leaving an area of 1 feet 8 inches in breath on the north western corner of the said property; and an area measuring 2 feet and 1 inch on the south western corner of the said property, alongwith the western boundary of the said property, for the purpose of providing drainage for water, that has to seep through the exists that are provided in the wall constructed by them.
16OS No.25542/2007 As per the ocular evidence, more specifically, cross examination of DW.1 at Page No.13, Para No.2, which reads as under:-
"It is false to suggest that, the Plaintiffs have left an area measuring 2 ft. and 2 inches beyond the compound wall constructed by them, on their Western side, as a set back, which is shown by the Plaintiff as Suit Schedule 'B' Property, in this suit."
As per this evidence, on having suggestion to Defendant No.1/DW.1, the Plaintiffs contend that, they have left an area of 2 feet and 2 inches beyond the compound wall constructed by them, on their western side, as a setback, which is shown by them as the Suit Schedule 'B' Property, in this suit.
The fact of leaving an area beyond the compound wall is denied by the Defendant No.1, inturn existence of Suit Schedule 'B' Property is denied.
So as per Sec.101 and 103 of Indian Evidence Act, the Plaintiffs have to prove the existence of the Suit Schedule 'B' Property.
17OS No.25542/2007
14. Before adverting to the materials in the form of evidence, on record, it is necessary to know as to what is the Suit Schedule 'B' Property, mentioned by the Plaintiffs in this suit.
As per the Schedule annexed to the Suit Plaint withregard to Suit Schedule 'B' Property, the Plaintiffs have described it as a portion beyond the compound wall constructed by them, on the western side of the Suit Schedule 'A' Property and abutting the property of the Defendant No.1, measuring North to South: 40 feet and East to West: 2 feet 1 inch, in all measuring about 86 Sq. ft., which is bounded to the East: by Remaining portion of the Suit Schedule 'A' Property; to the West: by Property No.15; to the North: by portion of Property No.12; and to the South:
by portion of Property No.13.
As per this description of the Suit Schedule 'B' Property, the Plaintiffs want to term that, the area mentioned in the Suit Schedule 'B' Property, is not the entire area towards western side of their property, but the middle portion area of their property, which is abutting the eastern portion of the property of the Defendant No.1. Even this can be cult out from the boundaries of the Suit Schedule 'B' 18 OS No.25542/2007 Property given by the Plaintiffs, as they have described the boundaries, towards the Northern side of the Suit Schedule 'B' Property, as portion of Property No.12; and towards the Southern side of the Suit Schedule Property, as portion of the Property No.13.
So the Plaintiffs want to contended that, they have constructed a wall, which is referred to them, as compound wall in some places, and as retaining wall in some places, by leaving a space measuring North to South: 40 feet and East to West: 2 feet 1 inch.
With this background, now let us analyze the materials on record in the form of oral and documentary evidence.
15. Withregard to existence of the compound wall.
15.01. Coming to the ocular evidence, on this point, more specifically,
a) cross examination of PW.1, at Page No.8, Para No.3, which reads as under:-
"It is true to suggest that I have erected a compound wall towards the western side of the Suit Schedule "A"19
OS No.25542/2007 Property. It is false to suggest that the said compound wall was erected prior to my purchase of the Suit Schedule "A" Property . Witness volunteers that he after purchase of the Suit Schedule "A" Property has erected a compound wall and has built a drainage line in the Suit Schedule "A" Property. It is false to suggest that compound wall was erected in the year 1997."
As per this evidence, Plaintiff No.2/PW.1 admits the suggestion made to him that he has erected a compound wall towards the Western side of the Suit Schedule 'A' Property, but denies that the said compound wall was erected prior to his purchase of Suit Schedule 'A' Property. But PW.1 has specifically contended that, he has erected the compound wall and has built a drainage line in the Suit Schedule 'A' Property, after he purchasing the said property. And denies that, the said compound wall was erected in the year 1997.
b) cross examination of PW.1, at Page No.15, Para No.3, which reads as under:-
"It is true to suggest that, since 1997, right from my purchase, compound wall is in existence."20
OS No.25542/2007 As per this evidence, Plaintiff No.2/PW.1 admits the suggestion made to him on behalf of the Defendant No.1 that, since 1997, right from his purchase, compound wall is in existence.
c) cross examination of PW.1, at Page No.8, Para No.4, which reads as under:-
"It is true to suggest that the said compound wall collapsed in the month of April 2001. It is true to suggest that after collapse of the said compound wall I have erected the compound wall. Witness volunteers that he has erected the compound wall on the same foundation."
As per this evidence, Plaintiff No.2/PW.1 admits the suggestion made to him on behalf of the Defendant No.1 that, the compound wall was collapsed in the month April 2001, after its collapsed he has erected the compound wall, on the same foundation.
d) cross examination of PW.1, at Page No.15, Para No.2, which reads as under:-
"It is false to suggest that, since I am the owner of Suit Schedule 'A' 21 OS No.25542/2007 Property, I have erected compound wall at the boundary line of Suit Schedule 'A' Property. Witness volunteers that, even he is the owner of Suit Schedule 'B' Property."
As per this evidence, Plaintiff No.2/PW.1 denies the suggestion made to him on behalf of Defendant No.1 that, he being the owner of Suit Schedule 'A' Property has erected the compound wall at the boundary line of the Suit Schedule 'A' Property. Further he contends that, even he is the owner of the Suit Schedule 'B' Property.
e) cross examination of DW.1, at Page No.9, Para No.4, Line Nos.1 to 3, which reads as under:-
"At the time of my purchase of the property, compound wall was in existence towards Eastern side and beyond that, construction of house was taking place. ..."
As per this evidence, DW.1/ Defendant No.1 contend that, at the time of purchase of his property, compound wall was in existence towards Eastern side of his property and beyond that, construction of the house was taking place.
22OS No.25542/2007 Thus, as per the above ocular evidence, it can be concluded that, compound wall was in existence right from 1997, when the Plaintiffs have purchase the Suit Schedule 'A' Property. Thereafter the said compound wall was collapsed in the month April 2001 and again a compound wall was erected on the same foundation.
Existence of the compound wall, is proved by the Plaintiffs.
16. Withregard to construction of retaining wall.
16.01. Coming to the ocular evidence, on this point, more specifically,
a) cross examination of DW.1, at Page No.16, Para No.1, which reads as under:-
"I do not know as to what is 'Retaining Wall '. It is false to suggest that, Plaintiffs had built retaining wall towards Western side of their property. Witness volunteers that, it was a compound wall. It is false to suggest that, since I do not know as to what is retaining wall, so I am not in a position to distinguish inbetween compound wall and retaining wall. It is false to 23 OS No.25542/2007 suggest that, the Plaintiffs were constrained to built retaining wall inorder to keep the elevated soil, intact. Witness volunteers that, it was an existing compound wall."
As per this evidence, Defendant No.1/DW.1 contends that, the wall built by the Plaintiffs towards Western side of their property is not a retaining wall, but it is a compound wall and further denies the suggestion made to him on behalf of the Plaintiffs that, Plaintiffs were constrained to built retaining wall inorder to keep the elevated soil intact.
b) cross examination of DW.1, at Page No.16, Para Nos.2 and 3, which reads as under:-
"It is false to suggest that, since the old compound wall had collapsed, the Plaintiffs were constrained to built a retaining wall, in its place.
It is false to suggest that, the Plaintiffs have built retaining wall facing towards Eastern side of their property."
As per this evidence, Defendant No.1/DW.1 denies the suggestion made to him on behalf of the Plaintiffs that, since the said old compound wall had 24 OS No.25542/2007 collapsed, the Plaintiffs were constrained to built a retaining wall, in its place, facing towards Eastern side of their property.
c) cross examination of DW.1, at Page No.16, Para No.4, which reads as under:-
"It is true to suggest that, a wall is built by the Plaintiffs, in their property. Witness volunteers that, it is a compound wall."
As per this evidence, Defendant No.1/DW.1 admits that, the Plaintiffs have built a wall in their property, it is a compound wall.
16.02. The Plaintiffs contend that, the wall constructed by them is a retaining wall and not just a compound wall, which is denied by the Defendant No.1.
16.03. The Defendant No.1 has got confronted photographs marked at Ex.D3 to Ex.D5, which can be seen, as per the cross examination of PW.1, at Page No.13, Para Nos.1 and 2 and at Page No.14, Para No.2, which read as under:-
25OS No.25542/2007 Now I see a Positive Photograph, wherein it depicts the compound wall constructed by me. On confrontation and admission, the said positive Photograph is marked as Ex.D.3.
A question is posed to the witness, by showing a positive photograph that the open space seen in the Photograph, belongs to the Defendant No.1. Witness replied that, building seen beyond the compound wall, belongs to him and the open space seen in the said photograph, belongs to Defendant No.1. On confrontation and admission the said positive photograph is marked as Ex.D.4.
A question is posed to the witness, by showing a positive photograph that the fully constructed building seen in the Photograph, belongs to Sri. Gajendra Singh. Witness replied in the affirmative. On confrontation and admission the said positive photograph is marked as Ex.D.5."
As per this evidence, Plaintiff No.2/PW.1 admits the construction of the compound wall since in Ex.D3- photographs, by him. Further he admits that, the open space in Ex.D4 - photographs, belongs to the Defendant No.1. And further admits that, fully constructed building seen in the photographs - Ex.D3, belongs to Gajendra Singh.26
OS No.25542/2007 16.04. Likewise, the Plaintiffs have got referred two positive photographs, marked at Ex.P69 and Ex.P70, in the cross examination of Defendant No.1/ DW.1, which is found in the cross examination of DW.1 at Page No.13, Para Nos.5 and 6, which reads as under:-
"Now Ex.D.69 positive Photograph is shown to the witness and questioned whether the single storied building with yellow colour surrounded by greenery, is your property. Witness replies in the affirmative.
Now Ex.D.70 positive Photograph is shown to the witness and questioned whether the cement roof shed seen in it, is the temporary shed belonging to you. Witness replies in the affirmative. It is false to suggest that, I have constructed the temporary shed in Suit Schedule 'B' Property."
As per this evidence, the Defendant No.1/DW.1 admits that, single storied building with yellow colour, surrounded by greenary, found in Ex.D69- photographs, is his property and the cement roof shed seen in Ex.D70- photograph is the temporary shed belonging to him.
27OS No.25542/2007 16.05. As per the above ocular evidence coupled with documentary evidence - photographs at Ex.D3, Ex.D4, Ex.D5, Ex.D69 and Ex.D70, the position of the properties of the Plaintiffs and the Defendant No.1, remains to be admitted.
16.06. Retaining wall means a wall for holding in place a mass of earth or the like, as at the edge of a terrace or excavation. A retaining wall is a structure designed and constructed to resist the lateral pressure of soil, when there is a desired change in ground elevation that exceeds the angle of repose of the soil.
Further retaining wall are relatively rigid walls used for supporting soil laterally so that it can be retained at different levels on the two sides. Retaining walls are structures designed to restrain soil to a slope that it would not naturally keep to (typically a steep, near-vertical or vertical slope). They are used to bound soils between two different elevations often in areas of terrain possessing undesirable slopes or in areas where the landscape needs to be shaped severely and engineered for more specific purposes like hillside farming or roadway 28 OS No.25542/2007 overpasses. A retaining wall that retains soil on the backside and water on the front side is called a seawall or a bulkhead.
One of the important feature of a retaining wall is that, Every retaining wall supports a "wedge" of soil. The wedge is defined as the soil which extends beyond the failure plane of the soil type present at the wall site, and can be calculated once the soil friction angle is known. As the setback of the wall increases, the size of the sliding wedge is reduced. This reduction lowers the pressure on the retaining wall.
To maintain retaining wall, it is important to have proper drainage behind the wall, inorder to limit the pressure to the walls design value, as drainage materials will reduce or eliminated hydro-static and improve the stability of the materials behind the wall. Dry stone retaining walls are normally self draining.
With this background, now let us analyze whether the wall situated towards the Western side of the property of the Plaintiffs and Eastern side of the property of the Defendant No.1, is either a retaining wall, as contended by the Plaintiffs, or a compound wall, as contended by the Defendant No.1.
29OS No.25542/2007 16.07. As observed in Ex.D3, Ex.D4, Ex.D5, Ex.D69 and Ex.D70 - photographs, referred to supra, wherein a wall is seen. On careful perusal of the said photographs, it can be seen that,
a) the said wall is having the height, morethan the elevated soil portion, found in the property belonging to the Plaintiffs;
b) no any drain exists are found in the said wall, as contended by the Plaintiffs;
c) no any angle of repose of the soil seen, towards the said wall.
d) the said wall is not having sloppy nature.
16.08. Thus, the wall which the Plaintiffs contended as a retaining wall, does not possess the characteristics of the retaining wall. So the Plaintiffs have failed to prove that, the said wall is a retaining wall.
17. Withregard to construction of compound wall constructed after leaving setback by the Plaintiffs.
30OS No.25542/2007 17.01. Coming to the ocular evidence, on this point, more specifically,
a) cross examination of DW.1, at Page No.12, Para No.3, which reads as under:-
"It is false to suggest that, the present Plaintiffs have constructed the compound wall after leaving a set back of an area measuring 2 ft. 2 inches, at the Western portion of the Suit Schedule 'A' Property."
As per this evidence, Defendant No.1/DW.1 denies the suggestion made to him on behalf of the Plaintiffs that, the Plaintiffs have constructed a compound wall, after leaving a setback of an area measuring 2 feet 2 inches at the Western portion of the Suit Schedule 'A' Property.
b) cross examination of DW.1, at Page No.13, Para No.2, which reads as under:-
"It is false to suggest that, the Plaintiffs have left an area measuring 2 ft. and 2 inches beyond the compound wall constructed by them, on their Western side, as a set back, which is shown by the Plaintiff as Suit Schedule 'B' Property, in this suit."31
OS No.25542/2007 As per this evidence, Defendant No.1/DW.1 denies the suggestion made to him on behalf of the Plaintiffs that, Plaintiffs have left an area measuring 2 feet and 2 inches beyond the compound wall constructed by them on their Western side, as a setback, which is shown as Suit Schedule B Property.
17.02. Though the Plaintiffs contend that, they have constructed the compound wall and has built a drainage line in the Suit Schedule 'A' Property, but no any documents or materials are produced by the Plaintiffs to prove the existence of drainage lines and drain exists.
So also, the Plaintiffs have not produced the building sanction plan and the permission obtained by them from the Defendant No.2, for constructing the building and other structures in the Suit Schedule 'A' Property, otherwise it would have thrown light on the location of construction of the compound wall.
17.03. Firstly, the Plaintiffs contend in Suit Plaint that, they have left an area measuring 1 feet 8 inches on the north Western corner of their property 32 OS No.25542/2007 and an area measuring 2 feet 1 inches on the south Western corner of their property, while constructing the wall. Whereas, in the evidence, more specifically, cross examination of DW.1, at Page No.13, Para No.2, referred to supra, wherein the Plaintiffs have suggested to have left an area measuring 2 feet 2 inches though out, beyond the compound wall.
So firstly, the Plaintiffs are not clear, as to whether they have left the area measuring 1 feet 8 inches on the North Western corner and 2 feet 1 inch on the south Western corner, as contended by them in Para No.4 of the Suit Plaint; or they have left an area measuring 2 feet 2 inches as suggested in the ocular evidence of DW.1/ Defendant No.1; or they have left an area measuring 2 feet 1 inch width, as shown in Suit Schedule 'B' Property.
Secondly, the Plaintiffs are not clear, whether they have left the said area through out, towards their Western side of the Suit Schedule Property, and then have constructed the wall; or they have left only 40 feet North to South area, as described in Suit Schedule 'B' Property.
Thus, the Plaintiffs have failed to prove the identity of the Suit Schedule 'B' Property, i.e., 33 OS No.25542/2007 existence of an area measuring North to South: 40 feet and East to West: 2 feet 1 inch, beyond the compound wall constructed by them on the Western side of the Suit Schedule 'A' Property, with the boundaries shown by them, while describing Suit Schedule 'B' Property.
18. Secondly, the Plaintiffs have led the evidence of a private surveyor, who has examined as PW.2 and has got produced a sketch prepared by the said witness as Ex.P30.
18.01. PW.2 has been cross examined on behalf of the Defendant No.1 and the Defendant No.1 has tried to contend that, the said sketch is got prepared by the witness, without prior notice to him; and the same is prepared incollusion and at the instance of the Plaintiffs.
18.02. On careful perusal of the sketch prepared by PW.2 marked at Ex.P30, it is seen that, the said witness has shown the compound wall towards the Western side of the Suit Schedule 'A' Property, but has not specifically given the width and 34 OS No.25542/2007 length measurement of the said compound wall, nor he has mentioned the nature of the wall i.e., whether it is a compound wall or a retraining wall, but he has described the said wall, as a compound wall.
Even this evidence will not come to the aid of the Plaintiffs to prove either the description of the wall or the existence of Suit Schedule 'B' Property.
19. Thirdly, the Defendant No.1 would contend that, the present Plaintiff No.2 has filed Written Statement and affidavit in OS No.4975/2001, wherein he has contended that, he is not having any property beyond the compound wall.
19.01. The Defendant No.1 has produced the Suit Plaint of the said suit at Ex.D73. So also, the Defendant No.1 has got confronted the Written Statement and the affidavit filed by the Defendant No.2 in the said suit to him, in his cross-examination, which was marked as Ex.D1 and Ex.D2. The relevant cross-examination can be seen at cross- examination of PW.1, at Page No.9, Para Nos.2 and 3, which read as under:-
35OS No.25542/2007 "It is true to suggest that the name shown as Dr. Singan shown as Defendant in O.S.No.4975/2001, pertains to me. It is true to suggest that the said suit was filed by Mr. Moshin Ali Vakil, the present Defendant No.1 and one Mr. Gajendra Singh, against me. It is true to suggest that I have appeared in the said suit and I have filed my Written statement in the said suit. Now I see the Certified Copy of the Written statement filed by me in O.S.No.4975/2001 which bears my signature. On confrontation and admission the said Written statement is marked as Ex.D1 and the signature found on each page of Written statement and 2 signatures found on the said document at its last page is admitted by the witness. For identification only the last signature found above verification is marked as Ex.D1(A).
It is true to suggest that in the suit O.S.No.4975/2001 I have filed counter Affidavit to the application filed by the Plaintiffs therein for grant of injunction. Now I see the said Affidavit and my signatures. On confrontation and admission the said counter Affidavit is marked as Ex.D2. Signature of the witness shown on the last page above verification for identification is marked as Ex.D2(A)."
As per this evidence, Plaintiff No.2/PW.1 admits that, he had filed a Written Statement, the certified copy of which is at Ex.D1 and his signature on the 36 OS No.25542/2007 said Written Statement is at Ex.D1(A); and an affidavit, the certified copy of which is at Ex.D2 and his signature on the said affidavit is at Ex.D2(A).
19.02. On careful perusal of Ex.D1, more specifically, at Para No.20, which reads as under:-
"20. This Defendant further asserts that the outer end of the wall as it stands is within the property owned by the Defendant and his wife. The Defendant has never had and has no intention to interfere with the Suit Schedule Property that is situated beyond the said wall on the western side of the Defendant's property. It is submitted that while the Plaintiffs are not entitled to any relief in this suit, the Defendant on his part has no hesitation in placing on record his undertaking that he will not encroach upon or put up any construction or disturb the enjoyment of the Suit Schedule Property, which is situated beyond the said wall put up by the Plaintiff on the western side of this property, by any person."
As per the contention of the present Plaintiff No.2, who was Defendant in OS No.4975/2001, wherein he has contended that, the outer end of the wall, as its stands is within the property owned by him and his wife, he had nor has any intention to 37 OS No.25542/2007 interfere with the suit property i.e., situated beyond the said wall, on the Western side of his property. He has placed his undertaking on record that, he will not encroach upon or put up any construction or disturb the enjoyment of the Suit Schedule Property, which is situated beyond the said wall put up by the Plaintiff on the Western side of the property.
19.03. On careful perusal of Ex.D2, more specifically, at Para No.13, which reads as under:-
"13. I further state that the outer end of the wall as it stands is within the property owned by us. I state that I have never had and has no intention to interfere with the Suit Schedule Property that is situated beyond the said wall on the western side of the my property. It is submitted that while the Plaintiffs are not entitled to any relief in this suit, on my part I have no hesitation in placing on record my undertaking that I will not encroach upon or put up any construction or disturb the enjoyment of the Suit Schedule Property, which is situated beyond the said wall put up by the Plaintiff on the western side of this property, by any person."
As per the contention of the present Plaintiff No.2, who was Defendant in OS No.4975/2001, wherein he has taken up similar contentions, as 38 OS No.25542/2007 taken up in his Written Statement -Ex.D1, referred to supra.
19.04. As per the said contentions of the Plaintiff No.2, it is clear that, he has in unequivocal terms, as contended that, the outer edge of the wall (which is now referred as the compound wall) is said to be within his property; and further he has undertaken not to encroach and disturb over the property situated beyond the said wall, which is on the Western side of his property. Further it can be seen that, here the Plaintiff No.2 who was the Defendant in OS No.4975/2001, has neither contended nor claimed that, the property, situated beyond the compound wall, situated towards Western side of his property, muchtheless the property shown as the Suit Schedule 'B' Property, in this suit, either is in existence; or it belongs to him; or the said property is the part and parcel of the Suit Schedule 'A' Property, shown in this suit.
20. Fourthly, the Plaintiffs have failed to prove that, Suit Schedule 'B' Property is part and parcel of 39 OS No.25542/2007 Suit Schedule 'A' Property, by leading cogent and reliable evidence.
21. When the Plaintiffs have failed to prove the identity of the Suit Schedule 'B' Property coupled with its proximity with Suit Schedule 'A' Property, under such circumstances, though the Plaintiffs have shown to have ben purchased the Suit Schedule 'A' Property under the Sale Deeds dtd.06.06.1997-Ex.P1 and Ex.P2, which is also admitted by the Defendant No.1, but they cannot be declared as the owners of the unidentified property- Suit Schedule 'B' Property.
Therefore, I am constrained to answer ISSUE NO.1 IN THE NEGATIVE.
22. ISSUE NO.2:-
The Plaintiffs contend in the Suit Plaint that, they are the owners in lawful possession of the Suit Schedule 'B' Property and they seek injunction withregard to the said property.
The Defendant No.1 firstly contends that, Suit Schedule 'B' Property is not in existence; and secondly contends that, the Plaintiffs are not in 40 OS No.25542/2007 possession of the property shown as the Suit Schedule 'B' Property, in this suit.
22.01. Coming to the ocular evidence, on this point, more specifically,
a) cross-examination of PW.1, at Page No.11, Para No.1, which reads as under:-
"It is true to suggest that I am not in possession of the Suit Schedule "B" Property. Witness volunteers that the Defendant No.1 has encroached the Suit Schedule "B" Property."
As per this evidence, Plaintiff No.2/PW.1 admits that, he is not in possession of the Suit Schedule 'B' Property and further contends that, Defendant No.1 has encroached the Suit Schedule 'B' Property.
b) cross-examination of PW1, at Page No.14, Para No.3, which reads as under:-
"It is true to suggest that, the Defendant No.1 is in possession of Suit Schedule 'B' Property. It is false to suggest that, the Defendant No.1, at no point of time has encroached my property."41
OS No.25542/2007 As per this evidence, Plaintiff No.2/PW.1 admits that, Defendant No.1 is in possession of the Suit Schedule 'B' Property, but denies that, Defendant No.1 has not encroached over the said property at any point of time.
c) cross-examination of DW.1, at Page No.13, Para No.3, which read as under:-
"Que : You are in possession of Suit Schedule 'B' Property ?
Ans : I am in possession of my property."
As per this evidence, Defendant No.1/DW.1 replies that, he is in possession of his property.
22.02. Thus, as per the above ocular evidence and the admissions given by PW.1, referred to supra, it is crystal clear that, the Plaintiffs are not in possession of the property, shown as the Suit Schedule 'B' Property.
22.03. Though the Plaintiffs contends that, the Defendant No.1 has encroached over the property shown as the Suit Schedule 'B' Property, but they have not produced any material to show, as to when 42 OS No.25542/2007 the Defendant No.1 has encroached over the said property; to what extent he has encroached the said property; how he has encroached the said property. In the absence of cogent and believable evidence to answer the above questions, it is hard to believe the contentions of the Plaintiffs that, the Defendant No.1 has encroached over the property, shown as the Suit Schedule 'B' Property.
22.04. Thus, firstly, the Plaintiffs have failed to prove that, the existence and identity of the Suit Schedule 'B' Property; and secondly, failed to show that, they are in possession of the said property.
Hence, I am constrained to answer ISSUE NO.2 IN THE NEGATIVE.
23. ISSUE NO.3:-
The Plaintiffs contend that, the Defendant No.1 has taken up a constructional work in the property adjoining to their property and by violating the building construction byelaws, without leaving necessary setback, is trying to construct the 43 OS No.25542/2007 structure, by encroaching over the property shown as the Suit Schedule 'B' Property.
23.01. The said contentions of the Plaintiffs is denied by the Defendant No.1 and contends that, he has obtained necessary building construction permission; and he has taken up constructional activities, in accordance with the building construction license and sanction and approved plan.
23.02. The Defendant No.1 has produced the Approved Blue Print Map at Ex.D7. As per the said document, it is seen that, the BBMP authorities have approved and sanctioned the building construction of the Defendant No.1. The said sanction runs from 24.07.2006 to 23.07.2008.
On careful perusal Ex.D7- Approved Blue Print Map, more specifically, the Site plan shown in the said sketch, it can be seen that, the Defendant No.1 had undertaken to leave setback of 5 feet towards Eastern side of his property, which comes towards Western side of the property of the Plaintiffs.
44OS No.25542/2007 23.03. Coming to the ocular evidence, on this point, more specifically,
a) cross-examination of DW.1, at Page No.17 Para No.5, which reads as under:-
"I have constructed my house as per the building sanctioned plan, approved by the BBMP authorities. I have left set back area as per the building sanctioned plan approved by the BBMP authorities."
As per this evidence, the Defendant No.1/DW.1 contends that, he has constructed his house as per the building sanction plan, approved by the BBMP authorities and have left setback areas as per the building sanction plan approved by the BBMP authorities.
b) cross-examination of DW.1, at Page No.10 Para No.4, which reads as under:-
"I had started construction of new building in the year 2007. I have obtained the building construction plan for the construction of a new building in June 2006, as per Ex.D.7. It is false to suggest that, I have started taking up construction of new building work prior to obtaining the construction sanction plan."45
OS No.25542/2007 As per this evidence, the Defendant No.1/DW.1 contends that, he had started construction of a new building in the year 2007 on obtaining building construction plan of the said building in 2006, as per Ex.D7, but denies the suggestion made to him on behalf of the Plaintiffs that, he has commenced the constructional new building prior to obtaining the construction sanction plan.
a) cross-examination of PW.1, at Page No.15 Para No.1, which reads as under:-
"It is true to suggest that, at present, no any construction is taken place in Suit Schedule 'B' Property as well as Site No.15. Witness volunteers that, it is so, due to Court order."
As per this evidence, the Plaintiff No.2/PW.1 admits that, at present no any construction is taken place in the Suit Schedule B Property as well as Site No.15, as there is Court order.
24. The Karnataka Municipal Corporation Act, is itself a Self contained Code, which provides a remedy for any contravention of its provisions or the 46 OS No.25542/2007 bye-laws made thereunder. It is for the appropriate authority constituted under the said Act to determine whether or not a licensee of a building has contravened the terms and conditions of license. And when Section 321 of the KMC Act gives power to the Commissioner for demolition or alteration of buildings unlawfully commenced, carried or completed. Thus Act itself has provided for a machinery to inquire into such grievance and if the Commissioner doesnot decide to compound, then he may take such action as he deems fit and proper.
24.01. The Corporation of City of Bangalore has framed Building Bye-laws called City of Municipal Corporation Building Bye-laws of 1983. Bye-law 5.6.1 reads as follows:
"Whenever any construction is in violation/deviation of the sanctioned plan, the Commissioner may, if he considers that the violation/deviations are minor, viz., only when the deviations/violations is within 5% of (1) the minimum setback to be left around the building;
(2) the maximum plot coverage; (3) permissible floor area ratio (FAR) and the maximum height of the building and that the demolition under Chapter XV of the Act is not feasible without affecting the 47 OS No.25542/2007 structural stability, then he may regularize such violation/deviations by sanctioning of a modified plan with a levy of a suitable fee to be prescribed. The Commissioner shall come to such conclusion only after recording detailed reasons for the same.
Violations/deviations under the provision shall not include the buildings which are constructed without obtaining any sanctioned plan, whatsoever and also the violations/deviations which are made inspite of the same being specifically deleted or rejected in the sanction plan."
24.02. These Bye-laws are framed under the powers given to the Corporation U/Sec 295 of the KMC Act 1976. Section 321 of the said Act gives power to the Commissioner for demolition or alteration of buildings unlawfully commenced, carried on or completed. Sec 321(1)(i)(b) empowers the Commissioner that, if he is satisfied that the construction or reconstruction of any building is being carried on or has been completed otherwise than in accordance with the plans or particulars of which such permission or order was based; or under sub- clause (c) is being carried on, or has been completed in breach of any of the provisions of this Act or of any Rule or Bye-laws, made under this Act or of any direction or requisition lawfully given or made under 48 OS No.25542/2007 this Act, he may make a Provisional Order requiring the owner of the building to demolish the work done, or so much of it as, in the opinion of the Commissioner, has been unlawfully executed, or make such alterations as may, in the opinion of the Commissioner, be necessary to bring the work into conformity with the Act, Rules, Bye-laws, directions or requisitions as aforesaid, or with the plan or particulars on which such permission or order was based and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building.
Under Sub-section (2) a copy of the provisional order made under sub-section (1) is required to be served on the owner or builder of the building.
24.02. In the present case, the Plaintiff has produced the complaint filed by her before the Police Authorities at Ex.P10 and Ex.P11.
25. Thus, I am of the firm opinion that, when a Statute or Bye-law gives discretionary powers/Powers to a Competent Authority, that authority has to exercise that Power Judiciously and 49 OS No.25542/2007 the Court cannot compel any authority who had been conferred with the powers to exercise it, in any particular way. The Karnataka Municipal Corporation Act- the Statute and Byelaws confer such powers on the Defendant No.2. And therefore, no Injunction much the less of the nature of Mandatory can be granted infavour of the Plaintiffs, against the Defendant No.2.
26. If the Plaintiffs have any grievance with regard to violation of the building bye-laws, etc., then they have to approach the Commissioner and putforth their grievance, against such use of the Powers, in any way, known to law.
Accordingly, I answer ISSUE NO.3 IN THE NEGATIVE.
27. ISSUE NO.4:-
The Learned Counsel for the Plaintiffs would firstly contend that, when the Plaintiffs title is not under dispute from the side of the Defendants and when no cloud is raised on the title of the Plaintiffs, by the Defendant No.1, under such circumstances, Plaintiffs are entitle for the relief of Permanent 50 OS No.25542/2007 Injunction, on the basis of the finding on issue. He has placed his reliance, on two decisions viz.,
a) of the Hon'ble Apex Court, in the case T. V Ramakrishna Reddy V/s M Malappa and Ors., reported in AIR 2021 SC 4293, where it is observed in Para No.20 and held in Para No.21, as under:-
"20. It will also be relevant to refer to the following observations of this Court in the case of Jharkhand State Housing Board v. Didar Singh and another2:
"11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction."
21. In the facts of the present case, it cannot be said at this stage that the dispute raised by the defendant No.2 with regard to title is not genuine nor can it be said that the title of the plaintiff -appellant over the suit property is free from cloud. The issue with regard to title can be decided only after the full fledged trial on 51 OS No.25542/2007 the basis of the evidence that would be led by the parties in support of their rival claims."
b) of the Hon'ble Apex Court, in the case of Anathula Sudhakar V/s P Bujji Reddy (Dead) by LR's and Ors., reported in (2008) 4 SCC 594, wherein it is summarized in Para No.21, as under:-
21. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy.
Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and 52 OS No.25542/2007 substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to 53 OS No.25542/2007 identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
27.01. Secondly, the Learned Counsel for the Plaintiffs would contend that, when the Defendant No.1 admit that, Suit Schedule 'A' Property is adjoining to his property, then there will be justification for the Plaintiffs to apprehend that, defendants are likely to encroach upon their property. He has placed his reliance on the decision, of the Hon'ble High Court of Madras, in the case Kaliappan and Anr., V/s V Durai and Anr., reported 1997 SCC Online MAD 759, wherein it is held in Para No.15, as under:-
"15. However, it is evidenced that the Defendants are occupying the lands adjoining to the Plaintiff's land. There is justification for the Plaintiff to apprehend that the Defendants are likely to encroach upon his lands. In paragraph 11 of the plaint, the Plaintiff has prayed for the relief of permanent injunction restraining the Defendants from in any way extending to encroachment further into the Plaintiff's property and for permanently restraining the Defendants from in any way interfering with the peaceful possession and enjoyment of the Plaintiffs' 'A' schedule 54 OS No.25542/2007 property. It is found that the Defendants have encroached the promboke lands and put up thatched huts. As the encroachments are very near to the Plaintiff's land, the Plaintiff will be entitled to permanent injunction restraining the Defendants from encroaching upon the 'A' schedule property and for interfering with the peaceful possession and enjoyment of 'A' schedule property."
27.02. Thirdly, the Learned Counsel for the Plaintiffs would contend that, when the Defendant No.1 has violated the terms of the sanction plan, the Plaintiff being aggrieved by the same can invoke the jurisdiction of the Civil Court, when the authorities prescribed under the statute like Corporation does not respond. He has placed his reliance, on the decision of the Hon'ble High Court of Karnataka, in the case of Rohini Bai V/s B. L Rajashri and Ors., wherein it is observed in Para No.7, as under:-
"7. The Corporation is the sole agency for granting licence for constructions within the Corporation area. If there is any deviations in the constructions from the sanctioned plan, the Corporation is entitled to condone and compound the lapses under the building bye-laws. Therefore, it is for the Corporation to determine whether there is violation of the building bye-laws and 55 OS No.25542/2007 deviation from the sanctioned plan. Further, the Corporation has to decide whether the deviations could be condoned with composition in accordance with the building regulations. The aggrieved party can also report to the Corporation about the violation of the building bye-laws, if the Corporation does not respond legally, the party can invoke jurisdiction of Civil Court for appropriate reliefs against the violator and the Corporation as well. In such suit the Corporation is a necessary and a proper party. Without an opportunity the Corporation in the matter and without considering the stand of the Corporation, it is not proper for the Civil Court to adjudicate the matter.
In that view the relief granted in the judgment and decree of the Trial Court is bad in law and the same is set aside. Accordingly, the appeal is allowed with costs and the suit is dismissed."
27.03. Fourthly, the Learned Counsel for the Plaintiffs would contend that, when the Defendant No.1 has failed to cross examine PW.2 on Ex.P30, then their arises a presumption of acceptance of testmoney of the said witness. He has placed his reliance on the decision of the Hon'ble High Court of Bombay, in the case of Harish Loyalka and Ors., V/s Dilip Nevatia and Ors., reported in 56 OS No.25542/2007 2015 (1) Bom C R 361, wherein it is observed in Para No.10 as under:-
"10. The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. I t is wrong to think that this is merely a technical rule of evidence. I t is a rule of essential justice. I t serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross examination is being made comes to give and lead evidence by producing witnesses. I t has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponent 's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff's account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witnesses and when he 57 OS No.25542/2007 has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated."
28. Percontra, the Learned Counsel for the Defendant No.1 would contend that, when the Plaintiffs admit that, they are not in possession of the property- the Suit Schedule 'B' Property, then declaration of ownership over the said property cannot be granted, unless the Plaintiffs claim or seek the relief of possession. She has placed her reliance below mentioned decisions;
a) of the Hon'ble Apex Court, in the case of Gian Kaur V/s Raguveer Singh, reported Civil Appeal No 1142 of 2003 D/d 03.02.2011, wherein it is observed in Para No.7 and 11, as under:-
"7. The plaint which as been produced before this Court by way of additional documents contained the following prayer:
"a) A decree of declaration to the effect that the plaintiff is owner in possession of 16 Kanal 0 Marla of land fully detailed and described in headnote of plaint and situated in village Ajnoha H.B. No.52, P.S. Mahilpur, District Hoshiarpur as 58 OS No.25542/2007 entered in latest jamabandi, in view of Will dated 12.4.90 executed by Khushi Ram s/o Ram Ditta in her favour;
b) With consequential relief decree for permanent injunction restraining the Deft not to alienate the suit property or interfering in peaceful possession of plaintiff therein; and
c) In the alternative decree for possession if the plaintiff is dispossessed by Deft during pendency of suit; may kindly be passed in favour of the plaintiff and against the Deft with costs."
11. In that view of the matter, the finding of the High Court that the suit is merely for declaration and is not maintainable under Section 34 of the Specific Relief Act cannot be sustained. The High Court's reliance on a decision of this Court in Ram Saran (supra) is also not proper."
b) of the Hon'ble Apex Court, in the case of Ramsaran and Anr., V/s Smt. Ganga Devi, (Civil Appeal No.726 of 1968, D/d 17.04.1972, wherein it is observed in Para No.4, as under;-
"4. We are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act. As found by the fact-finding Courts, Ganga Devi is in possession of some of the suit properties. The plaintiffs have not sought possession of those properties. They merely claimed 59 OS No.25542/2007 a declaration that they are the owners of the suit properties. Hence the suit is not maintainable. In these circumstances, it is not necessary to go into the other contention that the suit is barred by limitation."
c) of the Hon'ble Apex Court, in the case of Venkataraja and Ors., V/s Vidyane Doureradjaperumal (D) through LR's and Ors., (Civil Appeal No.7605 of 2004, D/d 10.04.2013, wherein it is observed in Para No.17 and 18, as under:-
"17. A mere declaratory decree remains non-executable in most cases generally. However, there is no prohibition upon a party from seeking an amendment in the plaint to include the unsought relief, provided that it is saved by limitation. However, it is obligatory on the part of the defendants to raise the issue at the earliest. (Vide: Parkash Chand Khurana etc. v. Harnam Singh & Ors., AIR 1973 SC 2065; and State of M.P. v. Mangilal Sharma, AIR 1998 SC 743).
In Muni Lal v. The Oriental Fire & General Insurance Co. Ltd. & Anr., AIR 1996 SC 642, this Court dealt with declaratory decree, and observed that "mere declaration without consequential relief does not provide the needed relief in the suit; it would be for the plaintiff to seek both reliefs. The omission thereof mandates 60 OS No.25542/2007 the court to refuse the grant of declaratory relief." In Shakuntla Devi v. Kamla & Ors., (2005) 5 SCC 390, this Court while dealing with the issue held:
"......a declaratory decree simpliciter does not attain finality if it has to be used for obtaining any future decree like possession. In such cases, if suit for possession based on an earlier declaratory decree is filed, it is open to the defendant to establish that the declaratory decree on which the suit is based is not a lawful decree."
18. In view of the above, it is evident that the suit filed by the appellants/plaintiffs was not maintainable, as they did not claim consequential relief. The respondent nos. 3 and 10 being admittedly in possession of the suit property, the appellants/plaintiffs had to necessarily claim the consequential relief of possession of the property. Such a plea was taken by the respondents/defendants while filing the written statement. The appellants/plaintiffs did not make any attempt to amend the plaint at this stage, or even at a later stage. The declaration sought by the appellants/plaintiffs was not in the nature of a relief. A worshipper may seek that a decree between the two parties is not binding on the deity, as mere declaration can protect the interest of the deity. The relief sought herein, was for the benefit of the appellants/plaintiffs themselves."
61OS No.25542/2007
d) of the Hon'ble Apex Court, in the case of Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust Virudhunagar V/s Chandran and Ors., (Civil Appeal No.2342 of 2017, D/d 10.02.2017, wherein it is observed in Para No.36, as under:-
"36. The plaintiff, who was not in possession, had in the suit claimed only declaratory relief along with mandatory injunction. Plaintiff being out of possession, the relief of recovery of possession was a further relief which ought to have been claimed by the plaintiff. The suit filed by the plaintiff for a mere declaration without relief of recovery of possession was clearly not maintainable and the trial court has rightly dismissed the suit. The High Court neither adverted to the above finding of the trial court nor has set aside the above reasoning given by the trial court for holding the suit as not maintainable. The High Court in exercise of its jurisdiction under Section 100 C.P.C. could not have reversed the decree of the courts below without holding that the above reasoning given by the courts below was legally unsustainable. We, thus, are of the view that the High Court committed error in decreeing the suit."62
OS No.25542/2007
e) of the Hon'ble Apex Court, in the case of Vinay Krishna V/s Keshav Chandra and Anr., (Civil Appeal No.3654 of 1983, D/d 06.03.1992), wherein it is observed in Para No.13 as under:-
"13. From the reading of the plaint it is clear that the specific case of the plaintiff Jamuna Kunwar was that she was in exclusive possession of property bearing No. 52 as well She thought that it was not necessary to seek the additional relief of possession. However, in view of the written statement of both the first and the second defendant raising the plea of bar under Section 42, the plaintiff ought to have amended and prayed for the relief of possession also. In as much as the plaintiff did not choose to do so she took a risk. It is also now evident that she was not in exclusive possession because admittedly Keshav Chandra and Jagdish Chandra were in possession. There were also other tenants in occupation. In such an event the relief of possession ought to have been asked for. The failure to do so undoubtedly bars the discretion of the Court in granting the decree for declaration."
f) of the Hon'ble High Court of Karnataka, in the case of Aralappa and etc., V/s Jaganath and Ors., F. A Nos.40 & 118 of 1989, D/d 63 OS No.25542/2007 24.08.2006, wherein it is observed in Para No.30 as under:-
"30. In a suit for declaration of ownership and permanent injunction, not only the plaintiff has to prove his title to the property, but also his possession over the property on the date of the suit. When the plaintiff is not in possession of the property on the date of the suit, relief of permanent injunction is not an appropriate consequential relief. The appropriate relief consequential to declaration of ownership would be recovery of possession of the property. When the plaintiff is out of possession of the property and does not seek relief for possession, a mere suit for declaration is not maintainable. The reason is not far to seek. It is well settled that no Court would grant any relief which is not useful, or futile and not effective. If title of the plaintiff is to be declared and he is not in possession and possession is with the defendant or some other person, the plaintiff would be having title of the property and the person in possession would be having possessory title tot he property. It would lead to anomalous situation and create confusion in the public, which is to be avoided."64
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g) of the Hon'ble Apex Court, in the case of Union of India V/s Ibrahim Uddin and Anr., reported (2012) 8 SCC 148, wherein it is observed in Para No.85.12 as under:-
"85.12. The suit was barred by the proviso to Section 34 of the Specific Relief Act, for the reason that plaintiff/respondent No.1, admittedly, had not been in possession and he did not ask for restoration of possession or any other consequential relief."
28.01. Secondly the Learned Counsel for the Defendant No.1 would contend that, if the Plaintiffs are not in possession of the property no injunction can be granted inrespect of the said property. She has placed her reliance on two decisions;
a) of the Hon'ble Apex Court, in the case of Thimmaiah V/s Shabira and Ors., reported in (2008) 4 SCC 182, wherein it is observed in Para No.10 as under:-
"10. Undisputedly, the suit was one for permanent injunction and in such a suit the plaintiff has to establish that he is in possession in order to be entitled to a decree for permanent injunction. The general proposition is well settled that a plaintiff not in possession is not entitled to the relief 65 OS No.25542/2007 without claiming recovery of possession. Before an injunction can be granted it has to be shown that the plaintiff was in possession."
b) of the Hon'ble High Court of Karnataka, in the case of Poojari Puttaiah (by Lr's) and Ors., V/s Kempaiah, reported in ILR 1980 Kar 103, wherein it is observed in Para No.12 as under:-
"12. The evidence so far discussed established that the Plaintiff was not in possession of the properties, i.e., suit items Nos.4 and 8 on the date of the suit. Therefore it is clear the Plaintiff should have asked the relief of possession. The suit as brought by the Plaintiff for declaration and permanent injunction was not maintainable. In such a suit for declaration of ownership and permanent injunction. It is well established that not only the Plaintiff must prove his title, but his possession over the property on the date of the suit. When the Plaintiff is not in possession of the property on the date of the suit, the relief of permanent injunction is not an appropriate consequential relief. The appropriate relief consequential to declaration of ownership to be asked is only the possession of the property. The proviso to Section 34 of the Specific Relief Act, 1963, also affirms our view. The further relief referred under the said act proviso is the appropriate relief consequential to the declaration of such a right or title to the property. When the Plaintiff is out of possession of the property 66 OS No.25542/2007 inrespect of which the Plaintiff is out of possession of the property inrespect of which he seeks to have his title declared, the possession of the properties in dispute being a further appropriate consequential relief should be asked for. In Ramsaran and Anr. V/s Smt Gangadevi, the Supreme Court observed that where the Plaintiff was out of possession of the land and did not seek relief for possession, a mere suit for declaration was not maintainable."
29. The Plaintiffs have claimed four reliefs in this suit.
29.01. Firstly, to declare them as the absolute owners of an area measuring 2 feet and Inch beyond the existing wall of their property on the Westernside, abutting the property of the Defendant No 1;
Since the Plaintiffs have failed to prove existence of the Suit Schedule 'B' Property and the fact that, Suit Schedule 'B' Property is part and parcel of Suit Schedule 'A' Property, so such relief cannot be granted infavour of the Plaintiffs.
29.02. Secondly, to restrain the Defendant No 1, his agents, servants henchmen or anyother person claiming through him, by an order of 67 OS No.25542/2007 Perpectual Injunction from encroaching upon Suit Schedule B Property, in any manner and from interfering with their peaceful possession and enjoyment over Suit Schedule B Property;
Since the Plaintiffs have failed to prove the existence of the Suit Schedule 'B' Property; their possession over the Suit Schedule 'B' Property; and the alleged encroachment done by the Defendant No.1 over the property shown as the Suit Schedule 'B' Property, under such circumstances, this relief cannot be granted infavour of the Plaintiffs.
29.03. Thirdly, too restrain the Defendant No 1, his agents, servants henchmen or anyother person claiming through him, by an order of Perpectual Injunction from putting up construction in Plot No 15, within a distance of 5 feet from their existing wall, situated toward the Western side of the Suit Schedule A Property, in adherence to the Building Byelaws and mandate of leaving necessary setback;
Since the Defendant No.1 himself contend that, he has obtained necessary building construction permission and got sanctioned and approved 68 OS No.25542/2007 construction of the building, as per the blue print map produced at Ex.D7; and further contends that, he has undertaken the work, as per the approved sanction plan, wherein he has undertaken to leave setback of 5 feet towards Eastern side in his property, which falls towards Western side of the property of the Plaintiffs.
So under such circumstances, the Defendant No.1 is required to be restrained from carry-out any constructional work or activities, over the said setback area of 5 feet, shown by him in Ex.D7, from the compound wall constructed by the Plaintiffs, inbetween their property and property of the Defendant No.1.
Thus, Plaintiffs are entitle for the relief of Permanent Injunction against the Defendant No.1, as observed supra.
29.04. To issue directions to the Defendant No 2 by way of Mandatory Injunction to ensure that the construction erected by the Defendant No 1 in the Property bearing No 15, is in compliance with the applicable byelaws and inaccordance with duly sanctioned plan.
69OS No.25542/2007 Since Issue No.3 has been answered in the Negative, the Plaintiffs will not be entitled for the said reliefs.
29.05. As the Plaintiffs are entitle for the 3 rd relief of Permanent Injunction, as observed in supra in Para No.29.03, so I am constrained to answer ISSUE NO.4 PARTLY IN THE AFFIRMATIVE.
30. ISSUE NO.5:-
For having answered Issue Nos.1 to 3 in the Negative and Issue No.4 Partly in the Affirmative. Hence, I proceed to pass the following:
ORDER Suit of the Plaintiffs is hereby Decreed in part.
The Defendant No.1, his agents, servants or any other person claiming under him are hereby restrained byway of Permanent Injunction from taking up of constructional work in the 5 feet space left by him as a setback towards the Eastern side, in his property, as per Ex.D7, which falls towards the Western side of the Suit Schedule 'A' Property.
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The reliefs of Declaration,
Mandatory Injunction and other
relief of Permanent Injunction
claimed by the Plaintiffs are hereby rejected.
It is needless to mention that, the Plaintiffs can approach the Competent Authorities prescribed under the Karnataka Municipal Corporation Act, 1976 for their redressal, withregard to violation of building bye-laws by the Defendant No.1, pertaining to leaving of setback by the Defendant No.1. And in such an event, it is believed that the said authorities will perform their statutory duties, as prescribed under the law.
Looking to the special facts of the case, both the parties are directed to bear their own costs.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 25th day of November, 2021.) [Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) 71 OS No.25542/2007 :SCHEDULE ''A' PROPERTY:
All that piece and parcel of immovable property bearing No.355/12, Site No.12 and Property No.355/13, Site No.13 of Kodichickanahalli Village, Begur Hobli, Bomanahalli, Bangalore South Taluk, Bangalore, measuring East to West 70 feet and North to South _____ feet which is bounded as follows:
East by : 40 feet road, West by: Plot No.14, 15 & 16, North by : Plot No.11, South by : 30 feet road.
:SCHEDULE 'B' PROPERTY:
All that piece and parcel of immovable property, being a portion beyond the compound wall constructed by the Plaintiffs on the western side of the Schedule A Property, and abutting the Property of the 1st Defendant herein, measuring North to South 40 feet and East to West 2 feet 1 inch, in all measuring about 86 Sq. ft., and bounded on the:
East by : Remaining portion of Schedule A Property;
West by : Property No.15;
North by : Portion of Property No.12;
South by : Portion of Property No.13.
[Abdul-Rahiman. A.Nandgadi]
LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) 72 OS No.25542/2007 ANNEXURES:-
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW.1: Dr. Eliya Singan. PW.2: P. S Suresh Babu.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS:
Ex.P1 Original registered Sale Deed dt.
06.06.1997.
Ex.P2 Certified Copy of registered Sale Deed dt.
06.06.1997.
Ex.P3 Certified Copy of registered Sale Deed dt.
18.12.1995.
Ex.P4 Certified Copy of the mutation register extract.
Ex.P5 True copy of mutation register extract.
Ex.P6 to 9 4 Tax paid receipts.
Ex.P10 & P11 2 extracts from the assessment list of
buildings for the year 1997-98.
-Chandra Sharma
Ex.P12, (A) to
Ex.P29, 29(A) 18 positive Photographs with Negatives.
Ex.P30 Sketch.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANTS:
DW.1: K. Sairam Patro.
LIST OF EXHIBITS MARKED FOR THE DEFENDANTS:
Ex.D6: Certified Copy of the Sale Deed dated :
03.04.2001.
Ex.D7: Approved blue print map. Ex.D8 & 9: 2 Encumbrance certificates.73
OS No.25542/2007 Ex.D10: Certificate issued by BBMP. Ex.D11: Acknowledgment issued by Madiwala P.S. Ex.D12: Office copy of the Complaint. Ex.D13: Assessment list for building and land for the years 2001-02.
Ex.D14 to 19: 6 self assessment tax requisitions. Ex.D20 t0 31: 12 Tax paid receipts. Ex.D32: Extract from the property register. Ex.D33, 33(A), Ex.D34: 2 electricity requisitions with one bill. Ex.D35 to 39: 5 electricity requisitions. Ex.D40 to 66: 27 electricity bills. Ex.D67 to 72: 5 positive Photograph with one C.D. Ex.D73: Certified Copy of the Suit Plaint in O.S.No. 4975/2001.
[Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)