Bangalore District Court
Mani vs Murugayyan T on 7 January, 2025
KABC010050892021
IN THE COURT OF THE LII ADDL. CITY CIVIL & SESSIONS
JUDGE, BANGALORE (CCH-53)
Dated this the 07th day of January, 2025
PRESENT
Sri.Gangappa Irappa Patil, B.A., LL.B. (Spl.).,
LII Addl. City Civil & Sessions Judge,
Bangalore.
O.S.No.1528/2021
Plaintiff : Mr. Mani
s/o late Kollapuri Reddy
aged about 54 years,
represented by his
Power of Attorney Holder
Mr. Balaraju Reddy
aged about 63 years,
s/o late Kollapuri Reddy
residing at No. 292,
8th cross, Shastrinagar,
Bengaluru 560 028.
(By Sri.V.S.Sham Sundar., Advocate)
Vs.
2
OS No. 1528/2021
Judgment
Defendants: 1 T.Murugayya
aged about 66 years
s/o late K.M.Thyagarajan
residing at No. 215, 9th block,
K.S.R.T.C Quarters, Shanthinagar,
Bengaluru 560 027.
also at No.
65, Extended Vrushabhavathinagar
4th T Block, BSK 6th stage,
Bengaluru.
2 Mrs. Chandrika
w/o Mr. V.Ramesh
3. Mr. V.Ramesh
s/o Venkateshappa
both are residing at No. 39,
4th T Block, BSK 6th stage,
Behind Thalagattapura Police Station,
Bengalore 560 109
(By Sri MS for Defendant 1
D2 and D3 exparte)
Date of institution of the suit: 01.03.2021
Nature of the suit: Suit for injunction
Date of commencement of 30.10.2021
recording of evidence:
Date on which Judgment was 07.01.2025
pronounced:
3
OS No. 1528/2021
Judgment
Duration 03 Years 10 months 06 days
JUDGMENT
This suit is filed by the plaintiff under Order VII Rule 1 R/w Sec.26 of CPC, praying to pass judgment and decree against the defendants, his men, agents, servants or anybody claiming through him from fixing a window on the northern side of the plaint schedule A property obstructing the flow of free air and light for the plaintiff`s property.
2. It is averred by the Plaintiff that the plaintiff is the absolute owner of residential vacant BDA site bearing No. 66 situated at Extended Banashankari 6th stage, 4th T block, Bengaluru measuring East - West 9.00 meters and North to South 6.00 meters totally measuring 54 sq meters which is morefully described in the schedule `A` vide Sale Deed dated 18.10.2012 duly executed by Mr. T.Srinivas s/o Mr. Teekappa Gowda and the said Sale Deed had been registered as document No. JPN-1-05698/2012-13 stored in CD No. JPND 182 in the office of the Sub Registrar, Jayanagar.
4OS No. 1528/2021 Judgment
3. It is further averred by the plaintiff that the first defendant is the owner of site bearing No. 65 situated on the northern side of the schedule `A` property and the property of the defendant is morefully described as schedule `B` property which he acquired the same as per Sale Deed executed by BDA in favor of the defendant dated 24.11.205 registered as document No. BDA-1-08171/2005-06.
4. It is further averred by the plaintiff that he noticed that the defendant has constructed a wall on the northern side of the plaintiff`s property, also made a provision for installation of a window on northern side of the plaintiff`s site abutting the site of the plaintiff which prevents from passing of free air and light towards plaintiff`s property when he constructs a house in his site in future. If the defendant succeeds to install a window on the northern side of the plaintiff`s property, which amounts to aerial encroachment of the plaintiff`s side. When the plaintiff requested the defendant not to fix a window abutting the property of the plaintiff which prevents the passing of free air and light , the defendant has threatened the plaintiff with dire consequences and challenged with the plaintiff that he will certainly install the window on the northern side of the plaint schedule `A` property and no one can obstruct him from doing so.
5OS No. 1528/2021 Judgment
5. Inspite of repeated request and demands made by the plaintiff, the illegal act of the defendant is continuous in nature. Hence, the plaintiff has filed this suit seeking the relief of permanent injunction. The cause of action arose to file the suit is on 15.02.2021 when the plaintiff noticed the act of the defendant.
6. On summons being served the defendant No.1 has appeared through his counsel Sri VSS, but has filed the Written Statement. Further, inspite of service of summons the defendant No.2 and 3 have not appeared before the court and not contested the case. Hence, they have been placed exparte.
7. In order to prove the case, the plaintiff examined as PW1 and produced and marked the documents as Ex.P1 to Ex.P.11.
8. Heard arguments and perused records.
9. The points that arisen for consideration are:-
1. Whether the plaintiff is entitle for the relief sought?
2. What decree or order?
10. The findings on the above points are as under:-
6OS No. 1528/2021 Judgment Point No.1 : In the Negative, Point No.2 : As per the final order for
-the following:
REASONS
11. POINT NO.1 : It is the case of the plaintiff that . the plaintiff is the absolute owner of residential vacant BDA site bearing No. 66 situated at Extended Banashankari 6th stage, 4th T block, Bengaluru measuring East - West 9.00 meters and North to South 6.00 meters totally measuring 54 sq meters which is morefully described in the schedule `A` vide Sale Deed dated 18.10.2012 duly executed by Mr. T.Srinivas s/o Mr. Teekappa Gowda and the said Sale Deed had been registered as document No. JPN-1-05698/2012-13 stored in CD No. JPND 182 in the office of the Sub Registrar, Jayanagar.
12. It is further case of the plaintiff that the first defendant is the owner of site bearing No. 65 situated on the northern side of the schedule `A` property and the property of the defendant is morefully described as schedule `B` property which he acquired the same as per Sale Deed executed by BDA in favor of the defendant dated 24.11.205 registered as document No. BDA-1-08171/2005-06.
7OS No. 1528/2021 Judgment
13. It is further case of the plaintiff that he noticed that the defendant has constructed a wall on the northern side of the plaintiff`s property, also made a provision for installation of a window on northern side of the plaintiff`s site abutting the site of the plaintiff which prevents from passing of free air and light towards plaintiff`s property when he constructs a house in his site in future. If the defendant succeeds to install a window on the northern side of the plaintiff`s property, which amounts to aerial encroachment of the plaintiff`s side. When the plaintiff requested the defendant not to fix a window abutting the property of the plaintiff which prevents the passing of free air and light , the defendant has threatened the plaintiff with dire consequences and challenged with the plaintiff that he will certainly install the window on the northern side of the plaint schedule `A` property and no one can obstruct him from doing so. Inspite of repeated request and demands made by the plaintiff, the illegal act of the defendant was not stopped.
14. On perusal of the records it is forthcoming that the plaintiff has not properly described the suit schedule property and it is not in consonance with the Sale Deed which is alleged to be the Sale Deed of the suit schedule property . On perusal of the Ex.P.2 Sale Deed it is forthcoming that in the description of the property at the northern side site No. 65 is shown, but in the Ex.P. 3 Sale Deed of defendant No.1 on the northern side it 8 OS No. 1528/2021 Judgment is mentioned as site No. 64. The description mentioned in Ex.P. 2 and Ex. P. 3 and the suit schedule property shown in the plaint is not tallied with each other.
15. Further, the plaintiff contends that he is the owner of the suit schedule `A` property bearing site No. 66 and at the northern side of his property the defendants site bearing No. 65 is existing. In the description of the `B` schedule property he has mentioned towards south site bearing No. 65 is situated, but in the Sale Deed of defendant No.1 ie in Ex.P. 3 it is mentioned that at the northern side site No. 66 is situated. The description of the schedule `A` property and schedule `B` property and the description mentioned in Ex.P. 2 which is the Sale Deed of the plaintiff and in the description of the property mentioned in Ex.P. 3 are not in consonance with each other relating to the suit schedule property. Hence, under such circumstances , the schedule mentioned by the plaintiff is not reliable one.
16. Further the plaintiff avers that at the northern side of his site the defendants are constructing the building and installing the windows and thereby there is aerial encroachment, but on perusal of the schedule as mentioned in the plaint , it is the open space, it is not a built up area. Under such circumstances, the plaintiff is every right to install the 9 OS No. 1528/2021 Judgment windows to access air and light. Under such circumstances on the basis of the foresight consequences, no injunction could be granted against the defendants, as the plaintiff has not made out the case before this court that there is aerial encroachment by the defendants side. Further plaintiff deposed that the defendants without leaving the set back is went on constructing on `B` schedule property. If the plaintiff has any grievance against the defendants, he can approach the BBMP authority and not before this court.
17. Under such circumstances , it is established principle of law that if the suit schedule property is not properly described no injunction could be granted. Even in the present case defendant No. 2 and 3 are placed exparte and defendant No.1 though appeared through counsel has not filed the W.S. and not cross examined PW. 1. Merely on this ground the suit cannot be decreed in favor of the plaintiff. It is established principle of law that the plaintiff has to prove his case on his own stand and he cannot take the shelter under the weakness of the defendants and cannot take the defense that the defendants have not filed the Written Statement and even not cross-examined PW. 1. Therefore, Point No. 1 is answered in the Negative.
10OS No. 1528/2021 Judgment
18. POINT NO. 2:- In view of the aforesaid reasons this court passed the following:-
ORDER The suit filed by the plaintiff is hereby dismissed. The counter claim of the defendants is hereby dismissed.
No order as to cost.
Draw decree accordingly.
(Dictated to the Sr.Shr/SGI, script thereof is corrected, signed and then pronounced by me in the open court on this the 07th day of January, 2025).Digitally signed by GANGAPPA I
GANGAPPA I PATIL PATIL Date: 2025.01.10 12:28:49 +0530 (Gangappa Irappa Patil) LII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiff:
P.W.1 Balaraju Reddy List of the documents marked for the plaintiff:
Ex.P.1 Special Power of Attorney
Ex.P.2 Original Sale Deed dated 18.10.2012
Ex.P.3 CC of Sale Deed dated 26.11.2005
Ex.P.4 Khata patra dated 30.10.2021 issued by BBMP
Ex.P.5 to 8 4 photos
Ex.P.9 CD
Ex.P.10 Encumbrance Certificate
11
OS No. 1528/2021
Judgment
Ex.P.11 Endorsement issued by BDA
List of the witnesses examined for the defendants: NIL List of the documents marked for the defendants: NIL GANGAPPA I Digitally PATIL signed by GANGAPPA I PATIL (GangappaDate: 2025.01.10 12:30:08 +0530 Irappa Patil) LII Addl. City Civil & Sessions Judge, Bengaluru.12
OS No. 1528/2021 Judgment Dt: 07.01.2025 Judgment pronounced in the open court (vide separate order) ORDER The suit filed by the plaintiff is hereby dismissed.
No order as to cost.
Draw decree accordingly.
LII Addl. City Civil & Sessions Judge, Bengaluru.