Karnataka High Court
Smt Kamalamma vs Sri Sanjeevappa on 4 December, 2025
Author: V Srishananda
Bench: V Srishananda
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NC: 2025:KHC:50914
RFA No. 995 of 2012
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL No.995 OF 2012 (DEC/INJ)
BETWEEN:
1. SMT KAMALAMMA
SINCE DEAD BY HER LRS
1(a) S. RAMADAS NAIDU,
AGED ABOUT 76 YEARS
R/A NO.72, CHIKKATHAYAPPA ROAD
7TH CROSS, VASANTH NAGAR
BANGALORE-560 052
1(b) R GOPALAKRISHNA
S/O RAMDAS NAIDU
AGED ABOUT 58 YEARS
RESIDING AT #35, 16TH B MAIN ROAD
J.C. NAGAR, BANGALORE-560 086
Digitally 1(c) R VENKATESH
signed by S/O RAMDAS NAIDU
MALATESH AGED ABOUT 54 YEARS
KC RESIDING AT #70, 7TH CROSS
Location: CHIKKATHAYAPPA ROAD,
HIGH VASANTH NAGAR
COURT OF BANGALORE-560 052
KARNATAKA
1(d) R GAJENDRA
S/O RAMDAS NAIDU
AGED ABOUT 50 YEARS
RESIDING AT #70, 7TH CROSS
CHIKKATHAYAPPA ROAD,
VASANTHANAGAR
BANGALORE-560 052
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RFA No. 995 of 2012
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1(e) R.DORAISWAMY
S/O RAMDAS NAIDU
AGED ABOUT 50 YEARS
RESIDING AT #70, 7TH CROSS
CHIKKATHAYAPPA ROAD
VASANTHANAGAR
BANGALORE - 560 052
1(f) SMT. PUSHPA
D/O RAMDAS NAIDU
AGED ABOUT 53 YEARS
RESIDING AT #18, RAJESHWARI LAYOUT,
2ND CROSS, T.C. PALYA MAIN ROAD
BANGALORE - 560 036
1(g) SMT. INDIRA
D/O RAMDAS NAIDU
AGED ABOUT 60 YEARS
RESIDING AT #1, 4TH CROSS,
DHARMARAJA TEMPLE STREET,
TIRUPATTUR, N.A.A. DIST.
TAMIL NADU
SINCE DECEASED REPRESENTED BY ITS LEGAL
REPRESENTATIVES
1(g)(i) SMT.NAGALAKSHMI PURUSHOTHAMAN
D/O LATE INDIRA
AGED ABOUT 52 YEARS
R/O NO.153, 10TH CROSS,
C-SECTOR, AMRUTHANAGAR
BENGALURU NORTH
BENGALURU - 560 092
1(g)(ii) SMT.HEMALATHA E
D/O INDIRA
AGED ABOUT 51 YEARS
#10, PUNYABHOOMI LAYOUT
5TH 'A' MAIN, KALKERE
HORAMAVU POST
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RFA No. 995 of 2012
HC-KAR
BENGALURU - 560 113
1(g)(3) SMT.E.SRIDEVI
D/O LATE INDIRA
AGED ABOUT 47 YEARS
R/O SEVATHUR, THIRUPATHUR
VELLORE DISTRICT
TAMIL NADU-635 654
1(g)(4) SRI E.KRISHNAMOORTHY
S/O INDIRA
AGED ABOUT 40 YEARS
R/O #1, 4TH CROSS, DHARMARAJA
KOIL STREET, TIRUPATHUR
VELLORE - 635601
...APPELLANTS
(BY SRI L M CHIDANANDAYYA, ADVOCATE)
AND:
1. SRI SANJEEVAPPA
SINCE DECEASED BY LRS
1(a) SRI MUNIYAPPA,
AGE ABOUT 60 YEARS
SON OF LATE SANJEEVAPPA
2. SRI BABU
AGE ABOUT 50 YEARS
S/O LATE SANJEEVAPPA
BOTH ARE RESIDING AT
NO.71, OLD NO.26,
7TH CROSS, CHIKKATHAYAPPA ROAD,
VASANTHANAGAR,
BANGALORE - 52
3. THE COMMISSIONER
BRUHAT BANGALORE MAHANAGARA PALIKE
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N.R. SQUARE
BANGALORE-02
...RESPONDENTS
(BY SRI. M B CHANDRACHOODA, ADVOCATE FOR C/R1(a AND b);
SRI N.R.JAGADEESWARA, ADVOCATE FOR R2)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT
AND DECREE DATED 12.03.2012 PASSED IN
O.S.NO.2440/1996 ON THE FILE OF THE XXVII ADDL. CITY
CIVIL JUDGE, BANGALORE, DECREEING THE SUIT FOR
DECLARATION, MANDATORY INJUNCTION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri L.M.Chidanandayya, learned counsel for the appellants and Sri M.B.Chandrachooda, learned counsel for the respondents.
2. Defendants in O.S No.2440/1996 are the appellants challenging the judgment and decree dated 12.03.2012 passed in said suit on the file of the XXVII Additional City Civil Judge, Bengaluru.
3. Operative portion of the judgment and decree reads as under:
"Suit of the plaintiff is decreed.-5-
NC: 2025:KHC:50914 RFA No. 995 of 2012 HC-KAR It is declared that, the construction made by defendant No.1, now her Legal heirs defendant No.1(a) to (g) upon the suit schedule 'B' property is in violation of sanction plan and is illegal construction.
Consequently, defendant No.1(a) to (g) are hereby directed to demolish the deviation as noticed by the Commissioner within 3 months from the date of order. In case of failure, defendant No.2 to take appropriate, action for demolition.
As the plaintiff and defendant No.1(a) to (g) are neighbours, looking to the their status, 1 pass no order as to costs.
There shall be decree in the above terms."
4. Parties are referred to as plaintiff and defendant as per their ranking before the Trial Court for the sake of convenience.
5. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under:
Respondent/Plaintiff filed a suit for declaration, permanent injunction and mandatory injunction in respect of the following immovable property hereinafter referred to as 'suit property'.-6-
NC: 2025:KHC:50914 RFA No. 995 of 2012 HC-KAR SCHEDULE 'A' PROPERTY Property bearing Old No. 26, New No.71, Chikkathayappa Road, 7th Cross, Vasanthnagar, Bangalore, 52, measuring East to West:- 27 feet and North to South: 26.5 feet, and bounded on the East by: Private property and 7th Cross, West by: Schedule 'B' property North by: Muninanjamma's property South by: Private property.
SCHEDULE 'B' PROPERTY.
Property bearing New No.72, Old No.63, Sri Anjaneya Temple Street, Chikkathayappa Road, Vasanthanagar, Bangalore-52, bounded on the:
East by: Schedule 'A' Property belonging to the Plaintiff. West by: Ro ad North by: Private property.
south by: Private property.
SCHEDULE 'C' PASSAGE Private passage being a part of Schedule 'A' property bearing Old No.26, New No.71, Chikkathayappa Road, Vasanthanagar, Bangalore-52, measuring 5.5. feet North to South and 27 feet East to West, and bounded on the East by: Private property and 7th Cross, West by: private property of I defendant North by: Private property South by: Remaining property of the plaintiff"-7-
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6. Plaintiff initially filed the suit for the relief of permanent injunction alone and later on amended the plaint whereby he sought for declaration that the construction carried out by the defendant in the suit property is in utter violation of the sanctioned plan and licence resulting in blockage of light and air to the plaintiff and also not leaving the setback as per the plan and licence and opening the door onto the eastern side of the defendant's property which is on the western side of the plaintiff's property leaving open to the passage (common passage as decided by this Court in RFA No. 475/2006 and RFA No.476/2006 dated 03.12.2025). There is no dispute as to the ownership of the property of the plaintiff and defendant.
7. However, plaintiff maintained that the passage on the northern side is a private passage of the plaintiff, whereas defendant contended that said passage measuring 5.5 feet x 27 feet is a common passage.
8. This Court by considered judgment in RFA No.475/2006 and RFA No.476/2006 rendered on 03.12.2025 concurred with the finding of the Trial Court that the said passage is a common passage.
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9. Therefore, for all practical purposes, opening the door by the defendant to enter into the (common) passage without leaving the setback as per the sanctioned plan and license issued by the Bangalore City Corporation, was complained by the plaintiff against the defendant.
10. Defendant appeared before the Trial Court and filed written statement opposing the claim of the plaintiff.
11. Learned Trial Judge, considering the rival pleadings, raised the following issues and additional issues:
"ISSUES (1) Whether the plaintiff proves that the 1st defendant is putting up construction in B schedule property in violation of building bye-laws of the Corporation?
(2) Whether the plaintiff is entitled to a permanent and mandatory injunction as sought for?
(3) What decree? What order?
ADDITIONAL ISSUES
1) Whether the plaintiff proves that the defendants without leaving the required set-back as per the sanction plan on either side of B schedule property have completed the ground floor construction as alleged in the plaint? -9-
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2) If so, whether the plaintiff further proves that the construction made by the defendant over the B schedule property is in utter violation of sanctioned plan and illegal as alleged in the plaint?
3) Whether LRs of defendant No.1 prove that the declaratory relief so claimed by the plaintiff is barred by law of Limitation contended in their additional written statement?"
12. In order to establish the case of the plaintiff, son of the plaintiff by name Babu was examined as PW-1 and placed on record as many as 26 documents which were exhibited and marked as Exs.P-1 to P-26 comprising of general power of attorney, certified copy of the document of the year 1956, certified copy of the receipts, sanctioned plan, rough sketch, photographs, another sanctioned plans, report of the Executive Engineer, panchanama, sketch, certified copy of the order on I.A. passed in O.S No.6156/1997, photographs and negatives.
13. As against the evidence placed on record by the plaintiff, son of the defendant by name R.Doreswamy was examined as D.W-1. On behalf of defendants, 14 documents were placed on record which were exhibited and marked as Exs.D-1 to D-14, comprising of certified copy of the sale deed dated 23.07.1977,
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NC: 2025:KHC:50914 RFA No. 995 of 2012 HC-KAR certified copy of Khatha Certificate, tax paid receipt, sanction plan, sale deed, encumbrance certificate, special power of attorney, certified copy of the sale deed in respect of property bearing No.70, tax paid receipt in respect of property bearing No.70, certified copy of the complaint dated 06.04.1999, certified copy of the acknowledgment issued by the police, certified copy of the complaint dated 24.04.1997, certified copy of the complaint lodged to the Police Commissioner on 28.04.1997 and certified copy of the report of the Court Commissioner in OS No.6156/1997.
14. Thereafter learned Trial Judge heard the arguments of the parties and by the impugned judgment, decreed the suit of the plaintiff as referred to supra.
15. Being aggrieved by the same, defendant has filed the present appeal on the following grounds:
"That the order passed by the Trial Court is erroneous and illegal and improbable contrary to the materials available on record and as such is completely erroneous in law.
That the judgment and decree passed by the Trial Court is contrary to the judgment and decree passed by
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NC: 2025:KHC:50914 RFA No. 995 of 2012 HC-KAR the trial court in O.S.No.2006/96 and O.S.No.6156/97 and when there is already a judgment and decree against the respondent passing a contrary order, contrary to the judgment and decree passed earlier that too in the suit filed by the same parties is completely erroneous and illegal in law. Therefore, passing of the contradictory decrees is sufficient ground to set aside the judgment and decree passed by the Trial Court.
That the trial court failed to consider that O.S.No.2440/96 was alleging that the Appellant was making construction in violation of the sanctioned plan and sought for an injunction for the demolition of the constructed portion. On the same averments another suit is filed and the suit is barred in law in as much as if there are any grievances regarding the violations of the building bye-laws and sanctioned plan, the respondent has an alternate remedy under Sec-321 of the Karnataka Municipal Act and as such the suit itself was not maintainable. The said fact has already been found by the Trial Court in O.S.2006/1996. When there is already been finding that the suit is not maintainable, entertaining another suit is completely erroneous and illegal in law.
That the Trial Court failed to consider that O.S.No.2440/96 was barred by res-judicata. Admittedly the respondent filed a suit O.S. No.2006/96 before the trial court and in the said suit is based on the allegations that the Appellant is not making
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NC: 2025:KHC:50914 RFA No. 995 of 2012 HC-KAR construction in accordance with the sanctioned plan and there is a deviation in the sanctioned plan. On the same cause of action the suit for the 2nd time in the form of O.S.No.2440/96 was not maintainable and consequently the O.S.No.2440/96 was barred by res- judicata and as such the judgment and decree passed by the Trial Court in that regard is completely erroneous and illegal in law. The suit at any rate is barred by constructive res-judicata as is evident from the peladings and therefore it is legally impermissible for the trial court to entertain another suit on the same cause of action and decree the suit giving findings and reasons contrary to the finding already given by the trial court. At any event of the matter the Trial Court failed to consider the judgment and decree already passed in O.S.No.6156/97 clubbed with O.S.No. 2006/96 wherein the Trial Court has given a categorical finding that there is no encroachment and violation what so ever and therefore there cannot be any judgment and decree contrary to the judgment and decree already passed in favour of the Appellant. Now there is a judgment and decree in favour of the Appellant and contrary to that the present judgment and decree which was passed, declaring that the Appellant has not put up the construction in accordance with the sanctioned plan is completely erroneous and illegal in law.
That the trial court failed to consider that there is no evidence in the eye of law as the defendant did not
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NC: 2025:KHC:50914 RFA No. 995 of 2012 HC-KAR step into the witness box and depose the truth and subject himself to cross examination. On the other hand he has given a General Power of Attorney in favour of Sri. Babu whose evidence is not admissible in the eye of law and therefore, there is no evidence on the eye of law to decree the suit. The reliance placed on the evidence of the power of attorney and pass a judgment and decree is completely illegal and without the authority of law.
That the trial court heavily relied on the report of Commissioner which has been objected to by plaintiff as well as the defendant. In fact the respondents have filed an objection wherein the Court Commissioner found several deviation committed by the Respondents in the construction. The Court commissioner has also found that the construction made by the respondents is also not according to law and he has not left any set back, when he has not left any set back in respect of A- Schedule property, he has no right to call upon the Appellant to leave the set back though the appellant has made construction by leaving set back though the Appellant has made construction by leaving set back on all sides and the report of the Court Commissioner is not according to the ground reality and the same has been done for extraneous considerations. The same commissioner has said that the respondent has made false submission over his own construction to grab the common passage and further, there is an encroachment made by him east to west 39.5 feet as against his
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NC: 2025:KHC:50914 RFA No. 995 of 2012 HC-KAR measurement of 27 feet and also unauthorized construction of 27 feet North to South as against his claim of construction of only 21 feet. Further, it is worth mentioning here that the plaintiff himself has raised written objections to the contents of the commissioner report and his deposition in toto, which brings out the truth that the Appellant has not got the constructed property as per the sanctioned plan due to encroachment made by the plaintiff/respondent. Therefore the trial court has committed serious error in passing the judgment and decree only against the appellant when the deviations are found against the respondent/plaintiff as well.
That the trial court has heavily relied on the report of the Court Commissioner, instead of relying on the evidence produced by the plaintiff. The burden of proof is on the plaintiff to show that there is a violation. The Plaintiff cannot rely on the evidence of CW-1 without first establishing that there was a deviation in the matter of construction by the Appellants. It may not, be out of place to mention the appointment of court Commissioner itself is illegal in as much as the court cannot appoint a court commissioner for the purpose of collecting the evidence for the plaintiff and therefore the reliance placed on the sole evidence of the Court Commissioner CW-1 to pass a judgment and decree is completely erroneous and illegal in law. On that ground alone the impugned judgment and decree is liable to be set aside by this Hon'ble Court at the threshold itself.
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NC: 2025:KHC:50914 RFA No. 995 of 2012 HC-KAR That the trial court further failed to consider there is no evidence adduced much less credible evidence by the respondent to show that the Appellant has constructed contrary to the sanctioned plan except to his vague and uncertain oral statement made in the original suit. There is no other independent evidence adduced by the respondent to show that the Appellant either constructed without leaving the set back or violated the sanctioned plan as alleged. The best evidence was not made available to the Trial Court to prove the averments in the plaint and seek for the judgment and decree at the hands of the trial court. There is no evidence in the eye of law to come to conclusion that the Appellant has violated. On the other hand the earlier decree passed by the trial court on the basis of oral and documentary evidence is sufficient to reject the suit. On the basis of the statement of the power of attorney which is not admissible in law, the judgment and decree passed is completely erroneous and illegal in law.
That the trial court failed to frame the following issues:
a) Whether the suit is maintainable in view of the judgment and decree passed in O.S.No.6156/97?
b) Whether the O.S.No.2440/96 is barred more so on account of constructive res-
judicata?
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c) Whether the evidence of the power of attorney is admissible in the eye of law? That the trial court failed to consider the evidence of Appellant 1(e) which has clearly deposed stating that there is no construction made contrary to the sanctioned plan which is supported by the judicial finding given in O.S.6156/1997. On the other hand the intention of the respondents/plaintiff is to encroach the common passage by falsely pleading before the trial court and therefore the suit was filed with malicious intention which ought to have been rejected at the threshold on the ground bad conduct of the plaintiff/respondent.
That the reliance placed by the Trial Court in the rough sketch to show that the Appellant have not left the set back is completely erroneous and illegal in law and therefore the Trial Court has no jurisdiction to pass such orders. Wherefore there is a violation or not when power is given to the statutory authorities under Sec.321 of the Karnataka Municipal Corporation Act and therefore the suit is barred in law and therefore the judgment and decree passed is completely erroneous and illegal in law.
That the Trial Court without assigning any reason disbelieved the evidence given on behalf of the Appellant except the oral testimony of PW1 who is the power of attorney holder, there is no other evidence led
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NC: 2025:KHC:50914 RFA No. 995 of 2012 HC-KAR to prove the same. Therefore, the trial court committed serious error in that regard. That the finding of the trial court that the defendant has given in the cross examination the Appellant has given a different evidence is completely incorrect. The evidence of the appellant has been consistent as is found in the decree passed by the trial court in O.S.No.6156/1997. On the basis of the oral submissions of the plaintiff/respondent passing a judgment and decree by the trial court is completely erroneous and illegal in law. On that ground alone the judgment and decree is liable to be set aside by this Hon'ble Court.
That the Trial Court has completely misread the evidence adduced by the Appellant. The question whether there is a set back or not, it is the plaintiff who is required to establish by producing the best evidence available before the Trial Court. The appellants have produced the documents such as the sale deed containing the boundary description of B Schedule Property and also the Licence Plan to show that the construction is made according to the Licence Plan. Therefore the trial Court misread the evidence of the Appellant by erroneously coming to a conclusion that the appellant has deviated from the sanctioned plan. That the Trial Court has committed serious error in relying on the partial evidence of CW1 who is an Assistant Executive Engineer he himself has not taken any action under Sec.321 of the Act against the
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NC: 2025:KHC:50914 RFA No. 995 of 2012 HC-KAR Respondent for the violation of the sanctioned plan and therefore except preparing the false report there was no other facts emerged from the said report warranting judgment and decree against the Appellants, Therefore, the allegation made is completely incorrect. Similarly the trial court further failed to consider the respondent has also not made construction in accordance with the sanctioned plan and therefore the trial court has committed complete serious error in not passing any direction against the respondent/plaintiff for the violation of sanctioned plan. There is no reference what so ever.
That the further finding recorded by the trial court that the Appellant has not left the set back towards the North East and Southern side is completely incorrect. Even now the Appellant has left the set back on all the sides. The respondent who have filed suit has not left any set back and therefore the judgment and decree passed by the trial court is completely erroneous and illegal in law. The said finding of the trial court is not supported by any documentary evidence adduced by the respondent/plaintiff. Therefore, the trial court has committed a serious error in passing the decree on the basis of assumption without looking into substantive evidence available on record.
The Trial Court failed to consider the several judgments rendered by the Appellant and therefore committed a serious error in passing a judgment and decree.
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NC: 2025:KHC:50914 RFA No. 995 of 2012 HC-KAR That the further reasons assigned by the trial court for decreeing the suit that there is no pleading of resjudicata and therefore the earlier decree can be ignored is completely erroneous and illegal in law and when the decree is operating against the defendant passing a contrary decree is completely erroneous and illegal in law when the plaintiff/respondent himself has pleaded filing of the O.S.No.2006/1996 the same was sufficient to dismiss the suit filed by the plaintiff/respondent.
That the Trial Court failed to consider if there is a violation which is within the compoundable limits that the Appellant is entitled to approach the 2nd respondent for the compounding of the same. In that background direction given to demolish is completely erroneous and illegal in law and therefore the judgment and decree suffers from error apparent on the face of the record.
That the further finding given by the Trial Court at Page 29 of the judgment that the liberty was given in O.S.2006/1996 to complaint to the 2nd defendant is completely incorrect and false. The final order of dismissal passed clearly shows that no subject liberty was given by the trial court earlier. AT any event of the matter the said finding itself is sufficient ground to reject the suit in as much as if there is a liberty given, the respondent/plaintiff was required to approach the
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NC: 2025:KHC:50914 RFA No. 995 of 2012 HC-KAR Defendant No.2 and therefore the suit was not maintainable on that ground.
That the erroneous reading of the evidence of CW1 on the set back is concerned is contrary to the evidence given CW1. The said finding is recorded with respect to the deviation of the respondent/plaintiff. The finding of the CW1 with regard to the constructions that there is no room in place of room, kitchen in place of hall on the front side and abandoned room on the rear side in place of Veranda are all the violation of the respondent/plaintiff. The trial court assuming that those violations are committed by the appellant and passing a decree is completely erroneous and illegal in law."
16. Sri L.M.Chidanandayya, learned counsel for the appellant reiterating the grounds urged in the appeal memorandum, vehemently contented that the plaintiff had the alternate remedy under Section 321 of the Karnataka Municipal Corporation Act.
17. He also contended that plaint relief is barred under Section 41(h) of the Specific Relief Act and therefore, decreeing of the suit has resulted in miscarriage of justice.
18. He would also contend that the plaintiff cannot agitate the issue with regard to the non leaving the setback, as it is in
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NC: 2025:KHC:50914 RFA No. 995 of 2012 HC-KAR between the Bangalore City Corporation and the defendant. Plaintiff has no legal right to seek declaration that the construction in violation of the sanctioned plan and licence needs to be demolished, and sought for allowing the appeal.
19. Per contra, Sri M.B.Chandrachooda, learned counsel for the respondents/plaintiffs, supports the impugned judgment.
20. He would further contend that, in fact a counter claim was filed by the defendant which was dismissed by the Trial Court against which an appeal came to be filed. Appeal also got dismissed.
21. Therefore, the question of illegal construction allowed to be in existence in perpetuity is not the purpose of the enactment of statutory provisions. Therefore, the judgment and decree passed by the Trial Court needs to be confirmed and sought for dismissal of the appeal.
22. Having heard the arguments of both sides, this Court perused the material on record meticulously.
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23. On such perusal of the material on record, following points would arise for consideration:
(i) Whether the plaintiff had made out a case that the defendant has constructed her house in violation of the sanctioned plan and license?
(ii) Whether the plaintiff has made out a case seeking mandatory injunction of removal of the construction which is in violation of the sanctioned plan and license without leaving the setback to the eastern side of the property of the defendant?
(iii) Whether the impugned judgment is suffering from legal infirmity or perversity?
(iv) What order?
24. REGARDING POINT Nos.1 TO 3: In the case on hand, a Court Commissioner was appointed to find out whether there was any violation of the terms of sanctioned plan and license while constructing the house by the defendant.
25. Learned Court Commissioner after visiting the spot has filed a report vide Ex.C-1. So also, there is a report by the jurisdictional Executive Engineer vide Ex.P-17.
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26. Sanctioned plan is marked by both the plaintiff as well as the defendant. Ex.P-12 is the sanction plan and certified copy of the sanction plan is marked as Ex.D-4 by the defendant. Admittedly the construction that has been carried out by the defendant is in utter violation of sanctioned plan and license. Therefore, there is no difficulty in recording the finding that there was a violation which has been rightly done by the learned Trial Judge in the impugned judgment.
27. Taking note of the fact that there is an alternate remedy under the Karnataka Municipal Corporation Act, 1976, learned counsel for the appellants contended that in all cases where there is a violation in respect of sanctioned plan, demolition of the structure in violation of the sanctioned plan is not the only remedy. Wherever it is possible, the Authorities may impose suitable compounding fee and then allow the structure to remain. As such, the judgment is bad in law.
28. Sri L.M.Chidanandayya would contend that if the plaintiff is agreeable, he would compensate the plaintiff in terms of money by way of costs and seeks the permission of the Court to file necessary application before the Corporation Authorities
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NC: 2025:KHC:50914 RFA No. 995 of 2012 HC-KAR for compounding the violations while constructing the house by the defendant in the suit property.
29. Sri M.B. Chandrachooda, learned counsel for the plaintiff however submits that plaintiff is not interested in any monetary consideration and would submit that Court may pass suitable orders with regard to the alternate submission made by Sri L. M.Chidanandayya.
30. In the light of rival contentions on compounding the violations, this Court considered the provisions of Section 321 of Karnataka Municipal Corporation Act. No doubt, Section 321 prescribes a procedure for the constructions which have been carried out in violation of the sanctioned plan.
31. But in the case on hand, parties cannot be relegated to such proceedings again inasmuch as when the construction was in progress itself, plaintiff complained to the Corporation Authorities. So also defendant complained to the Police Authorities when violation was committed by the plaintiff.
32. Corporation Authorities visited the suit property at that juncture and without taking any action, the Authorities
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NC: 2025:KHC:50914 RFA No. 995 of 2012 HC-KAR relegated the parties to the Civil Court. Authorities did not exercise the power vested in them in directing the appellant to stop the construction. Thus, by their inaction, illegality continued.
33. So also, the parties approached the Police Authorities including the Commissioner of the Police. But police also did not give necessary aid to any of the parties nor directed the Corporation Authorities to take necessary action with regard to the violation alleged by the plaintiff against the defendant especially when defendant high handedly constructed the house in utter violation of the sanctioned plan. Police Authorities also relegated the parties to the Civil Court.
34. In other words, the defendant had an opportunity to approach the Corporation Authorities in seeking the compounding of the violations already committed even before the suit came to be filed.
35. But such a course was not taken by the defendant, but contested the matter before the Civil Court.
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36. Pertinently, defendant also filed a suit in O.S.No.6156/ 1997 and succeeded which was subject matter of the appeal before this court in RFA No.476/2006.
37. This Court confirmed the judgment and decree in favour of the defendant in the said suit in declaring that the suit property which was the passage in holding that it is a common passage.
38. It is settled principles of law that a party to the litigation cannot approbate and reprobate in respect of a set of facts in a given case.
39. In other words, when the defendant had the benefit of a decree in declaring the passage in between the property of the plaintiff and defendant as common passage, he cannot now be permitted to say that his construction is legal which is per se illegal having regard to the fact that defendant did not leave any setback area as per the sanctioned plan.
40. Therefore, equity is not in favour of the defendant in seeking modification of the decree of the Trial Court. Indisputably, a person who seeks equity must do equity.
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41. Having said so, the material on record would also make it clear that the competent authority having failed to take necessary action in respect of the violation committed by the defendant as per the sanctioned plan, the Civil Court jurisdiction would automatically come into picture in passing appropriate orders.
42. Therefore, contentions urged on behalf of the appellant that the impugned judgment needs to be set aside cannot be countenanced in law.
43. In view of the foregoing discussions, point Nos.1 and 2 are answered in the affirmative and point No.3 is answered in the negative.
44. REGARDING POINT No.4: In view of the finding of this Court on point Nos.1 to 3 as above, the following:
ORDER Appeal is meritless and hereby dismissed.
No order as to costs.
Sd/-
(V SRISHANANDA) JUDGE kcm List No.: 1 Sl No.: 79