Bangalore District Court
Smt. Bhagyalakshmi D vs Smt. Y.L. Lalitha on 8 April, 2019
IN THE COURT OF THE XXIX ADDL. CITY CIVIL
& SESSIONS JUDGE AT BANGALORE CITY. (CCH 30)
Dated this the 8th day of April 2019
PRESENT: SMT. NAGAJYOTHI. K.A., LL.M.,
XXIX ADDL CITY CIVIL & SESSIONS JUDGE, BANGALORE.
O.S.No. 1141/2012
PLAINTIFF: Smt. Bhagyalakshmi D.
W/o. Late C.S. Shivakumar,
Aged about 50 years,
R/a. No.17/4, 3rd Main Road,
Lakshmana Nagar,
Hegganahalli Cross,
Bengaluru - 560 091.
(By Sri. R. Shashidhara,
Advocate)
Vs.
DEFENDANT: Smt. Y.L. Lalitha,
W/o. Channegowda,
Aged about 36 years,
R/a. No.26, 3rd Main Road,
Lakshmana Nagar,
Hegganahalli Cross,
Bengaluru - 560 091.
(By Sri. D. Gangadhara,
Advocate)
Date of institution of the suit 07/02/2012
Nature of the suit (suit on
pronote. Suit for declaration and Permanent Injunction
possession suit for injunction,
etc.)
Date of the commencement of 28/09/2013
recording of the evidence.
Date on which the judgment 08/04/2019
was pronounced
Total duration Year/s Month/s Day/s
07 02 01
2 O.S.No.1141/2012
JUDGMENT
This suit is filed against the defendant for permanent injunction restraining her from not to install the toilet pipes, water pipes etc., on the Eastern side of the plaintiff's property in the illegally constructed space in any manner, and for such other reliefs.
2. It is averred in the plaint that, plaintiff is the absolute owner of the suit schedule property bearing No.17/4. The suit schedule property was purchased by the plaintiff on 20.10.2003 from her vendors - R. Shamanna and R. Venkatesha. In the suit schedule property, the plaintiff constructed the residential house for her livelihood. The plaintiff is a poor lady along with her children are residing. On the Eastern side of the suit schedule property, there is a 3 feet setback area was left and the main door is fixed on the Eastern side and on the Southern side, there is a Government road. On the Eastern side of the suit schedule property, there is a property of the defendant bearing site No.26. Now, the defendant constructed a house in respect of her property. On the Western side of the defendant's property, she left some space. After the ground floor, the defendant completely covered the entire space and the defendant constructed the wall illegally. The defendant violated the plan and also the rules and regulations of the KMC Act, 1976, without leaving any setback, the defendant constructed the house illegally. The defendant encroached the setback area and constructed the wall. At the time of starting the 3 O.S.No.1141/2012 construction, the plaintiff gave a complaint to the Asst. Executive Engineer, BBMP, Ward No.71. The Asst. Executive Engineer after verification, has clearly stated that the Corporation rules have been violated and constructed the wall by the defendant illegally. Thereafter, under the provisions of the KMC Act, 1976, he passed an order that the defendant illegally constructed the wall by violating the rules and regulations and he gave direction to the defendant to demolish the illegal construction on the Western side of the defendant's property. Now, in the said illegal construction area, the defendant was trying to put up the toilet pipes and other water pipes hurriedly. On the Eastern side of the plaintiff's property, main door is fixed and if the defendant is fixes the pipes, the plaintiff will be put to great hardship. Further, the defendant is putting the pipes intentionally, to evict the plaintiff from her house. With regard to the illegal interference, the plaintiff lodged the complaint on various occasion before the jurisdictional police. The defendant got high political influence, taking advantage of that she is doing all illegal activities and also she is threatening the plaintiff. The plaintiff is a widow and nobody will support her when the complaint has been lodged by the plaintiff, the police will also not take any serious action against the defendant. The defendant using the influence and constructed the building illegally by violating the rules and regulations and now she is putting the pipes in front of the plaintiff's door intentionally and to harass the plaintiff. Hence, this suit.
4 O.S.No.1141/2012
3. The defendant has appeared through her counsel and submitted in the written statement that, the suit of the plaintiff is not maintainable either in law or on facts. Presently the suit schedule property stands in the name of one Kum. Dr. Bhanumathi H.S, through the gift deed dated 25.02.2010. Hence, the averment of the plaintiff is totally false and frivolous, as the plaintiff is not the absolute owner of the schedule property. Plaintiff has been unauthorisedly put up construction without leaving any setback according to the plan and also according to the CMC Rules as well as BBMP Rules. The said averments of the plaintiff are only story setout for the purpose of filing of this suit and there is no reality or genuinity to consider the statement of the plaintiff. The defendant has also purchased her property subsequent to the purchase of the plaintiff's property through the registered sale deed dated 18.09.2008. The defendant put up construction as per the plan approved by earlier Dasarahalli CMC and the defendant has completed the construction out of the measurement of 30 X 40 feet in the month of February 2011. The construction consisting of ground, 1st & 2nd floors painting works is also completed only interior decoration works is pending. Subsequently, after construction of the building, presently the defendant and her family members are residing at the ground floor premises. Later on the plaintiff has raised her voice unnecessarily by creating a story and filed a false and frivolous suit against the defendant. The plaintiff has unnecessarily created story against 5 O.S.No.1141/2012 the defendant. The plaintiff is creating nuisance at the area since March 2011, against the defendant. The defendant has not put up any water pipes and damaged the plaintiff's property. Hence, there is no cause of action arose for filing of this suit and the plaintiff has made false and frivolous statement against the defendant. Hence, the suit is not maintainable in law and liable to be dismissed with costs.
4. In proof of their case, the plaintiff examined herself as P.W.1 and relied upon the documents Exs.P.1 to P.14. The GPA Holder on behalf of the defendant was examined as D.W.1. Exs.D.1 to D.14 were marked.
5. Heard arguments.
6. Considering the facts and circumstances and the material available in the matter, my Learned Predecessor has framed the issues on 30.08.2012, as under:
ISSUES (1) Whether the plaintiff proves that, the defendant is laying the toilet pipes and water pipes on the Eastern side of the plaintiff's property illegally? (2) Whether the plaintiff is entitled for the relief of permanent injunction?
(3) What order or decree?
7. My findings to the above issues are as under:-
Issue No.1 : In the Negative.
Issue No.2 : In the Negative.
Issue No.3 : As per final order for the following:6 O.S.No.1141/2012
REASONS
8. Issue No.1:- It is a suit for bare injunction with a limited prayer not to install the toilet pipes and water pipes on the Eastern side of the plaintiff's property in the illegally constructed space. The plaintiff is the owner of the plaint schedule property. The defendant's property bearing House No.26. The defendant's property exists at Western side of the plaintiff's property bearing House No.24. It was contended that, the defendant by violating his building plan, completed the construction. The defendant house exists at Eastern side of plaintiff's house. It is alleged that, the defendant completed the construction without leaving setback. So, he is going to lay the sanitary pipes and water pipes on his Western side i.e., Eastern side of the plaintiff's property, which has the entrance towards Eastern side. Thus, it will cause nuisance to the plaintiff. The plaintiff's proprietary right is not disputed. Her title is not disputed. However, herein during the filing of the suit, it is contended the plaintiff is not the owner of the property, the same is admitted by the plaintiff. The plaintiff gifted the suit property to her own daughter. She has produced document Ex.P.10/gift deed dated 25.2.2010. Through this gift deed, the plaintiff gifted the property to her daughter - Kum. Dr. Bhanumathi H.S. Whereas, through the subsequent document Ex.P.11, the same was cancelled, it was dated 18.06.2012 headed as "zÁ£À¥ÀvÀæ gÀ¢ÝAiÀiÁw ¥ÀvÀæ". There is no reason mentioned for canceling the gift deed. But, in between the period, the suit has been filed 7 O.S.No.1141/2012 on 07.02.2012. However, the defendant filed written statement on 05.07.2012 contending that, plaintiff has no proprietary right on the suit property. Whereas, when he raises this defence, the plaintiff has no proprietary right in the suit property. After raising this defence, plaintiff cures this error subsequently through Ex.P.11.
9. Exs.P.1 & P.2 to P.7 are the demand register extract and tax paid receipts. These are not the subject of the dispute.
10. On behalf of the plaintiff, plaintiff deposed herself as P.W.1. Earlier she deposed on the basis of GPA/Ex.P.12. Whereas, admittedly, Ex.P.12 is absolutely silent in respect of authorization to depose before the court. But, in view of Ex.P.11, the plaintiff has the right to adduce the evidence.
11 The plaintiff herein heavily relied upon the order of BBMP dated 03.03.2011, which was marked as Ex.P.8, where it is referred that, the BBMP authorized persons visited the suit property and found that the construction of defendant is not as per the approved plan. They issued notice under Section 321(1) of KMC Act, for which the defendant replied through her advocate, but the same is not proper. So, they passed the confirmation order (¹ÜjÃPÀgÀt DzÉñÀ), through which they passed the order to demolish the portion, which violates the bye-law and plan of Municipality. He was also called upon to give explanation within 2 days. Questioning the same, the defendant filed Ex.P.9/Appeal No.183/2011 before the KAT, Bengaluru, where she was 8 O.S.No.1141/2012 succeeded in obtaining the stay order on confirmation order. Whereas, the plaintiff produced the subsequent document Ex.P.13, which clearly shows the appeal was dismissed on 19.03.2016. Ex.P.14/photocopies are produced by the plaintiff herself shows, the defendant has completed their construction work.
12. Whereas, the subject of the suit is restricted to the nuisance created by the defendant by laying the toilet pipes and water pipes on the Eastern side of the plaintiff's property illegally. Admittedly, the CMC has passed the confirmation order for demolishing the portion of the building, where it violates the approved plan. Whereas, the approved plan/Ex.D.7 shows, the existence of bath room, both in ground, 1st, 2nd & 3rd floors towards West i.e. plaintiff's side. It is not the case of the plaintiff that, the defendant constructed the building without getting approved plan. So, herein the question arises when the defendant kept bath room towards Eastern side of the plaintiff, certainly the water pipes and sanitary pipes proceeds from said area. Herein, the question arises whether the existence of pipe causing nuisance to the plaintiff. If so, how? To this extent, the plaintiff has not produced any sufficient material.
13. In the cross-examination, the plaintiff replied that, in the year 2003, plaintiff constructed the building. At that time she has not obtained any licence to construct the building and not even filed any application to obtain licence. In the year 2003 itself, she 9 O.S.No.1141/2012 has constructed the building she also accepts, before getting the revenue records, she completed the construction. From the last 10 years, she was residing in the house. She also put up compound wall and Western side property owner has put up compound in his property. The distance between the road and her house is 4½ feet. The distance between the road (Southern side) and her house is 5 feet. Towards Northern side she left 2½ feet setback. After her arrival, only the surrounding houses are constructed. Towards her Eastern side, 5 floors house building was in existence. When she gave complaint to BBMP for encroachment towards Western side of her property, the BBMP has not taken any action. In the year 2011 she complains to BBMP with regard to Eastern side of her property. She has also filed complaint before the police as well as Lokayuktha. After her complaint, the BBMP Authority were not measured her site or others sites. She was thoroughly cross-examined in respect of her own property. Whereas, all those evidence are not the matter of subject of the dispute. But, her reply shows, she has not perfected her own house building. She has put up compound in the edge, there is a grill. The grill is up to the road level. It is denied that, the compound and grill are in the same level with some diversion. Further, she says that the roofing is deviated. She cannot say the measurement of deviation. She has not filed any application to BBMP for regularizing the same. She denied the suggestion that, her building is constructed illegally. She cannot say the distance 10 O.S.No.1141/2012 between her compound wall and defendant's house. But, her house is existing about 3½ feet away from the compound wall and grill. The defendant started construction of building in the year 2008-2009. In between her building and defendant's building, there is a grill and her house is existing up to the pillar. It is denied that, when she wanted to utilize the defendant's property, the defendant refused it, so, she filed false complaint against them. Abutting to the grill, there is a iron gate, it is belong to the defendant. Her main allegation is, when defendant put up the wall in the Western side i.e., towards her Eastern side in the setback area and now they have put up toilet pipes and other water pipes illegally. Since there is a main door fixed on Eastern side of her house, it causes great hardship to her and pipes are fixed intentionally to evict her from the house. So, there is no explanation in respect of any nuisance by fixing the water pipes. There is no allegation of encroachment of her property. So, it only alleges it is a building on the setback area. It is also not alleged that, the sanitary pipes and water pipes are passing through her land. It is not her case that there is leakage in the pipe and caused health hazardous to the surrounding people. So, it clearly shows, there is no cause of action against the defendant.
14. The defendant's husband deposed as D.W.1. He has produced the copy of complaint filed by the plaintiff, where plaintiff alleges that, the defendant is constructing his house attached to her building. During the construction work, cement, 11 O.S.No.1141/2012 sand, pieces of bricks and glasses were falling to her house and not cleaning it. The complaint was lodged in November 2010. Whereas, the photocopies clearly shows, defendant has not constructed the house attached to her building. There is a gap wherein iron gate is fixed. Moreover, the plaintiff also covered her area by putting grill till the roof. In the cross-examination of D.W.1, he replies that, he has left some space between the compound wall and his house. He admits of receiving notice of BBMP Authority with regard to deviation in the building. He denied that they put up construction without obtaining the approved plan. Whereas, it is pertinent to note that, P.W.1 also specifically admitted that, in the year 2003, she has constructed the building without obtaining licence and approved plan.
15. Herein, I like to refer the citation AIR 1968 Andhra Pradesh 291 in the case of Allam GangadharaRao Vs. Gollapalli Gangarao, which reads thus:
"(A) Variance between pleading and proof - Party can only succeed according to what is alleged and proved -
No relief can be granted on facts and documents not disclosed in plaint - Suit based on one cause of action cannot be decreed on another cause of action".
It is true that, BBMP issued notice. Then their construction work is not yet completed. He admits the defects in Ex.D.7/sketch, there is no mention of date. However, he denied that, it is created for the case. Here, he clearly admits that, his staircase, bathroom and toilet were existing at Western side and they are in the Western side of the building. He denied the suggestion that, he 12 O.S.No.1141/2012 affixed the drainage and toilet pipes after he receiving notice from BBMP. He denied the suggestion that, pipes are existing in the plaintiff's land. He denied the suggestion that, his pipes were causing nuisance to the plaintiff, as dirty water flows in front of her house and it also emanates bad smell. Whereas, even the photocopies/Exs.D.3 & D.4 does not reveal flowing of dirty water in front of her house. She has not given complaint. Whereas, photocopies and evidence of either side clearly shows, pipes were not passing through the plaintiff's compound. Hence, appreciating the same, I hold Issue No.1 in the 'Negative'.
16. Issue No.2:- While arguing the case, the plaintiff counsel stresses that, their grievance is to remove the pipes. But, the defendant herein stresses of technical error that, at the time of filing of the suit, the plaintiff is not the owner. She has no permission to file the suit. The plaintiff has the habit of writing the complaint by suppressing the documents. Not only against the defendant, she has lodged complaint to the surrounding owners. He also stresses on existence of grills in the plaintiff's property towards Eastern side. His pipes are affixed on the walls and it is his property and he was not damaged the plaintiff's building. During the construction, the plaintiff has not made any complaint. When the defendant started residing in the building, the plaintiff has made galata by abusing them filthy language. She has obtained right "zÁ£À¥ÀvÀæ gÀ¢ÝAiÀiÁw ¥ÀvÀæ" only after her locus standi question raised before the Hon'ble High Court of 13 O.S.No.1141/2012 Karnataka. The plaintiff's suit is not maintainable. The roof existence beyond the plaintiff's land. This itself shows, plaintiff violated the rules. Whereas, only on the basis of GPA and gift deed, suit cannot be rejected. The illegal construction is referred in Ex.P.8. Plaintiff's Advocate stresses on the order of KAT, which has dismissed defendant's appeal. So, appreciating the above argument, it clearly shows the plaintiff's main contention is, defendant's building encroached the setback area. Whereas, in respect of setback area, the Corporation is the authority person, who has issued notice. It is the burden of the Corporation to get execute it's order. Whereas, for causing nuisance by fixation of pipes, it is the burden of the plaintiff. Whereas, the plaintiff failed to prove the nuisance on her property. The plaintiff has not questioned the approved plan of defendant herein. It is admitted that, the defendant's building structure and plan shows, the bathrooms are constructed on the Western side of the building i.e., Eastern side of the plaintiff's property. Whereas, when the sanitary pipes and water pipes are affixed on the wall of defendant, how it causes nuisance to plaintiff is not pleaded. There is no material to corroborate the nuisance or possibility of nuisance to plaintiff's property. So, appreciating the subject of fixation of pipes and disturbance caused because of the pipes has no cogent material to take action against the defendant. Hence, the plaintiff is not entitle for the relief of permanent injunction. Accordingly, I hold Issue No.2 in the 'Negative'. 14 O.S.No.1141/2012
17. Issue No.3:- In view of the reasons stated supra, I proceed to pass the following:
ORDER Suit is dismissed.
No order as to costs.
Draw the decree accordingly.
(Dictated to the Judgment Writer, transcribed and typed by him, corrected and then pronounced by me in the open court, on this the 8th day of April, 2019) (NAGAJYOTHI.K.A) XXIX Addl. City Civil Judge, Bangalore City.
ANNEXURE List of witnesses examined for the plaintiff's side:-
P.W.1 Smt. Bhagyalakshmi D List of documents exhibited for the plaintiff's side:-
Ex.P.1 Demand Register Extract.
Exs.P.2}{ Tax paid receipts.
to P.7}{
Ex.P.8 CC of the order passed by Asst. Executive Engineer.
Ex.P.9 CC of the Memorandum of Appeal in No.180/2003.
Ex.P.10 CC of the gift deed dated 25.02.2010.
Ex.P.11 Cancellation of gift deed dated 18.06.2012.
Ex.P.12 General Power of Attorney dated 01.03.2010.
Ex.P.13 CC of the judgment in Appeal No.183/2011 before
the KAT, Bengaluru.
Ex.P.14 Photocopies (2 in No's.).
List of witnesses examined for the defendant's side:-
D.W.1 K.N. Channegowda List of documents exhibited for the defendant's side:-
Ex.D.1 Copy of complaint dated 25.11.2010. 15 O.S.No.1141/2012 Ex.D.2 Copy of 1st complaint dated 24.12.2010. Exs.D.3}{ Photocopies (2 in No's.). & D.4}{ Ex.D.5 GPA dated 06.11.2014. Ex.D.6 CC of Sale Deed dated 18.09.2008. Ex.D.7 Copy of the plan. Ex.D.8 Electricity bills (10 in No's.). Ex.D.9 Water bill. Exs.D.10}{ Tax paid receipts (5 in No's.). to D.14}{ XXIX Addl. City Civil Judge, Bangalore City. 16 O.S.No.1141/2012 Judgment pronounced in open Court, vide separate judgment. ORDER Suit is dismissed. No order as to costs. Draw the decree accordingly. XXIX Addl. City Civil Judge, Bangalore City.