Bangalore District Court
Sri.C.Anjaneya vs The Commissioner on 13 June, 2016
Govt. Of Karnataka
C.R.P.67] TITLE SHEET FOR JUDGMENT IN SUITS
IN THE COURT OF THE XIII ADDL. CITY CIVIL &
SESSIONS JUDGE,
Form No.9 MAYOHALL UNIT, BANGALORE.
(Civil)
Title sheet for Present: Sri. B.NARAYANAPPA, M.A, LL.B.,
Judgment in
suits (R.P.91) (Name of the Presiding Judge)
OS NO.15933/2002
(CCH-22)
Plaintiff:-
Sri.C.Anjaneya, So.Late. A.N.Chinnaiah, Residing at No.34, Stephen Road,
Frazer Town, Bangalore-560 005. Dead by LRs.
1[a] Smt.A.Parvathi, W/o.late.Anjaneya.C, Aged about 64 years.
1[b] Sri.A.Diwakar, S/o.Late. Anjaneya.C., Aged 31 years.
1[c] Smt.A.Hemalath, D/o.Late. Anjaneya.C., Aged 33 years
All are residing at No.34, Stephen Road, Frazer Town, Bangalore-560 005.
(Plaintiff and LRs of plaintiff: By Advocate Sri.V.Prabhakar)
V/s.
Defendants:-
1. The Commissioner, Bangalore Mahangara Palike, Bangalore
2. The Executive Engineer, Bangalore Mahanagara Palike, Ward No.79,
Bangalore-560 051.
3. The Asst.Executive Engineer, Bangalore Mahanagara Palike, Ward No.79,
Bangalore-560 051.
4. Smt.Rahamathunnissa @ Taj, W/o.Sri.Jamshed, No.3/2, 'B' No.4th Street,
Shivajinagar, Bangalore-560 051.
5. Sri.Jamshed, No.3/2, 'B' No.4th Street, Shivajinagar, Bangalore-560 051.
Since deceased by his LRs.
2 OS No.15933/2002
5[a] Sri.J.Sameer, S/o.S.R.Abdul Masjid @ Jamshed, Aged about 33 years,
No.7, Kemp Road, Opp.Coles Park, Frazer Town, Bangalore-560 046.
5[b] Smt.Husna Taj, D/o. S.R.Abdul Masjid @ Jamshed, W/o.Syed Iqbal,
Aged about 34 years, No.3/2, 'B' No.4th Street, Shivajinagar,
Bangalore-560 051.
5[c] Smt.Shabana Taj, D/o. S.R.Abdul Masjid @ Jamshed, W/o.Irshad Khan,
Aged about 32 years, No.3/2, 'B' No.4th Street, Shivajinagar,
Bangalore-560 051.
5[d] Sri.J.Hameed, S/o. S.R.Abdul Masjid @ Jamshed, Aged about 27 years,
No.7, Kemp Road, Opp.Coles Park, Frazer Town, Bangalore-560 046.
5[e] Smt.Farzana Taj, D/o. S.R.Abdul Masjid @ Jamshed, W/o.Syed Nayeem,
Aged about 26 years, No.3/2, 'B' 4th Street, Shivajinagar, Bangalore-560 051.
5[f] Smt.Tippu Taj, D/o. S.R.Abdul Masjid @ Jamshed, W/o.Zameer, Aged
about 24 years, No.3/2, 'B' 4th Street, Shivajinagar, Bangalore-560 051.
5[g] Shri.J.Nizam, S/o. S.R.Abdul Masjid @ Jamshed, Aged about 20 years,
No.7, Kemp Road, Opp.Coles Park, Frazer Town, Bangalore-560 046.
5[h] Shri. J.Jawad, S/o. S.R.Abdul Masjid @ Jamshed, Aged about 20 years,
No.7, Kemp Road, Opp.Coles Park, Frazer Town, Bangalore-560 046.
6. Sri.Naveed, Father's name not known to the plaintiff, No.3/2,
'B' 4th Street, Shivajinagar, Bangalore-560 051.
(Defendants-1 to 3: By Advocate Sri.K.K.Surendra)
Defendants-4 to 6 and LRs of defendant No.5: By
Advocate Sri.Shakeel Ahmed]
3 OS No.15933/2002
Date of Institution of the suit 28.06.2002
Nature of the (Suit or pro-note, suit for Mandatory Injunction and
declaration and possession, suit for Permanent Injunction and
injunction, etc.) damages
Date of the commencement of recording of 8.11.2006
the Evidence.
Date on which the Judgment was 13.06.2016
pronounced.
Year/s Month/s Day/s
Total duration 13 09 15
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
MAYOHALL UNIT: BANGALORE.
4 OS No.15933/2002
JUDGMENT
The plaintiff has filed this suit against the defendants seeking relief of Mandatory Injunction directing defendants to remove the illegal and unauthorized construction, constructed by defendants-4 and 5 on the eastern side of the plaintiff's Property measuring approximately 6 feet X 3 feet with rolling shutters along with the illegal constructions put up by the defendants-4 and 5 during the pendency of the present suit, i.e., 1st and 2nd floor with staircase and for Permanent Injunction restraining the defendants not to put up any construction on the eastern side of the plaintiff's property and permission to the plaintiff to demolish the said illegal construction constructed by defendants-4 and 5 on the eastern side of the plaintiff's property in the event of defendants failure to demolish the said construction and to pay a sum of Rs.15,000/- as damages, which was caused by defendants-4 5 OS No.15933/2002 and 5 breaking the eastern side of the wall, windows and sajjah of the plaintiff's property.
2. Brief facts of the plaintiff's case are that:
The plaintiff is the owner of the Property bearing Nos. 1 and 2, 'B' No.4th Street, Shivajinagar, Bengaluru, ward No.79, on the eastern side of the plaintiff's property, the defendant No.4 and her husband, the defendant No.5 illegally constructed a shop measuring approximately 6 X 3 feet with rolling shutters by blocking the window and breaking 2 feet sajjah of the plaintiff's on the eastern side by affecting easementary rights and causing heavy damages to the plaintiff's property to the tune of Rs.15,000/- and further contended that, defendants-4 and 5 illegally constructed the said shop on the corporation drainage chamber where the plaintiff's [Jyothi cafe] drainage system is connected thereby affecting excess to the underground drainage system and main electrical cable connection to the plaintiff's property. The 6 OS No.15933/2002 said fact were brought to the notice of defendants-1 to 3. Several representations were made by the plaintiff to defendants-1 to 3 to take necessary action against defendants-4 and 5, but, defendants-1 to 3 have not taken any action against defendants-4 and 5. The illegal construction of defendants-4 and 5 on the eastern side of the plaintiff's property is morefully described in the schedule of the plaint. Defendants-4 and 5 have nothing to do with the land, which is situated on the eastern side of the plaintiff's property. The plaintiff issued legal notice dated: 27.8.2011 to defendants-4 and 5 alleging that, they have unauthorizedly constructed a shop measuring approximately 6 X 3 feet with rolling shutters and further contended that, the defendants-4 and 5 during the pendency of this suit again constructed two more floors i.e., 1st and 2nd floors and put up stair case, which is affecting the plaintiff's right. Hence, the plaintiff has constrained to file the present seeking the above said relief's. 7 OS No.15933/2002
3. After registration of this suit, suit summons were issued to the defendants-1 to 6. In-response to the summons, the defendants-1 to 6 appeared before this through their respective counsels. But, defendants-1 to 3 have not filed written-statement.
4. Defendants-4 to 6 have filed their written-statement by denying all the material averments pleaded in the plaint and contended that, defendants-4 and 5 have put up construction on their own Property and the plaintiff cannot question the same. Hence, prays to dismiss the suit of the plaintiff. In their Additional written-statement, defendants-4 and 5 have contended that, the plaintiff is not entitled for any relief as prayed for in the suit and the suit of the plaintiff is liable to be dismissed as the claim made by the plaintiff by way of amendment is beyond reasonable time limit and the relief sought for by him is barred by lay of limitation and further contended that, the first and second floor construction 8 OS No.15933/2002 is in existence since for more than 20 years when the daughters of the defendants-4 and 5 have purchased the property by virtue of registered Sale Deed dated: 14.3.1985 along with a registered plan. Thus, it is very clear that, there is already existence of ground, first and second floors way back in the year 1985 and prior to filing of this suit. As such, the contention taken by the plaintiff regarding illegal construction of first and second floors over the property does not arise. If at all defendants-4 and 5 had committed any violation of bylaws of the revenue authorities, it is for the revenue authorities to take action against defendants-4 and 5 and the plaintiff is nothing to do with the property of defendants-4 and 5 and further contended that, the plaintiff is claiming easementary right over the Property of defendants-4 and 5. The plaintiff cannot claim easementary right over the property of defendants-4 and 5 and he [plaintiff] is not entitled for the same. There is no base in the suit and the relief 9 OS No.15933/2002 sought by the plaintiff by way of amendment is false. The plaintiff is not entitled to any reliefs as sought for in the case. Hence, defendants-4 and 5 prays to dismiss the suit of the plaintiff.
5. During the pendency of this suit, defendant No.5 died and his LRs have been brought on record as defendant No.5[a] to 5[h]. Defendant No.5[a] to 5[h] have filed their written-statement contending that, the suit as brought by the plaintiff is not maintainable either in law or on facts and the same is liable to be dismissed. It is true that, defendant No.5[a] to 5[h] are the children of the deceased defendant No.5. The suit is bad for mis-joinder of necessary parties in as much as defendant No.5[a], 5[c], 5[d], 5[f] and 5[h] are not the owners of the suit schedule property but, defendant No.5[b] and 5[e] are the full and absolute owners by virtue of registered Sale Deed dated:14.3.1985. Defendant No.5[a] to 5[h] adopt the 10 OS No.15933/2002 written-statement of defendants-4 to 6 and prays to dismiss the suit of the plaintiff.
6. On the basis of the above Pleadings, following Issues and Additional Issues have been framed:
ISSUES
1) Whether the plaintiff proves that, the constructions at the eastern side of his property measures 6-Ft x 3-Ft put up defendants 4 and 5 with rolling shutters is illegal and unauthorized and defendants are bound to remove to same?
2) Whether plaintiff proves that, he enjoys a right to restrain defendants 4 and 5 in the matter of construction abutting his Property at the eastern side?
3) Whether plaintiff is entitled to a sum of Rs.15,000/-
towards damage from defendants 4 and 5 in the matter of breaking the eastern wall window and chajja?
4) Whether plaintiff is entitled to the relief claimed?
5) What Order?
11 OS No.15933/2002
ADDL.ISSUES
1) Whether the plaintiff proves that, defendants No.4 & 5 have illegally constructed 1st and 2nd floor and put up stair case during the pendency of this suit and the same is liable to be demolished?
2) Whether the relief sought for by the plaintiff is barred by time as contended by the defendants no.4 & 5?
7. The plaintiff in order to prove his case, has got filed his Affidavit by way of examination-in-chief. Same was taken as PW1 and got marked the documents at Exs.P1 to P41 and closed his side evidence. On the other hand, on behalf of defendants-4 and 5, defendant No.5 and LR No.5[a] of deceased defendant No.5 have filed their affidavits by way of examination-in-chief. Same were taken as DWs-1 and 2 and got marked the documents at Exs.D1 to D3 and closed the evidence of defendants-4 and 5.
8. I have heard the arguments of the learned counsel for the plaintiff. Defendants and their counsels remained absent 12 OS No.15933/2002 on the date of arguments and not canvassed arguments on behalf of the defendants. Hence, this case was posted to this day for Judgment.
9. My findings to the above Issues are as follows:
Issue Nos.1 to 4 and Addl.Issue No.1: In the negative Addl.Issue No.2: The suit of the plaintiff is not barred by time Issue No.5: As per the final orders, for the following:
REASONS
10. ISSUE NOS. 1 TO 3 AND ADDL.ISSUE NO.1:-
These Issues are inter-connected to each other. Hence, they are taken up together for common discussion to avoid repetition of facts.
11. PW1/plaintiff in his Affidavit evidence reiterated and re-affirmed the contents of the plaint averments and got marked the documents at Exs.P1 to P41. The description of the documents at Exs.P1 to P41 are as follows"
13 OS No.15933/2002
Exs.P1 and : Original registered Sale Deed dated: 16.5.1949 P2 and another Sale Deed dated: 16.5.1949 Ex.P3 : Khata certificate Ex.P4 : Certificate issued by CITB that, the Khata of the Property old No.2B/B17 and 2A, new No.1 and 2 stands in the name of PW1 Exs.P5 and : Tax paid receipts P6 Ex.P7 : Copy of the complaint filed before Asst.Executive Engineer dated: 6.10.1998 Ex.P8 : Endorsement Ex.P9 : Copy of the representation dated: 19.12.1998 submitted to the Commissioner, BMP Ex.P10 : Copy of the representation submitted to Asst.
Executive Engineer, BMP dated: 18.1.1999 Ex.P11 : Copy of the complaint dated: 31.1.1999 Exs.P12 : Police endorsements and P13 Ex.P14 : Endorsement given by BMP after having received the complaint Exs.P15 : Copy of the representation submitted to the and P16 Commissioner and Munikrishna, IGP Task Force respectively 14 OS No.15933/2002 Ex.P17 : Endorsement given by the BMP Ex.P18 : Endorsement given by Shivajinagar Police dated: 16.2.1999 Exs.P19 : Copy of the representation submitted to BMP and P20 respectively dated: 8.4.1999 Ex.P21 : Endorsement given by BMP Ex.P22 : Copy of the legal notice Exs.P23 to : Postal receipts P26 Exs.P27 to : Postal Acknowledgements P30 Ex.P31 : Acknowledgement issued by BBMP Exs.P32 to : Copy of the complaint addressed to BBMP P34 Exs.P35 to : 7 photographs P41 Exs.P35(a) : Respective negatives to P41(a) PW1 in his cross-examination led by the counsel for defendants-4 and 5 has stated that, he do not know if defendant No.6, is the son of defendants-4 and 5. He has 15 OS No.15933/2002 produced the photographs to show that, defendant No.6 is running STD booth. But, he has not produced any documents to show that, STD booth stands in the name of defendant No.6. He denied the suggestion that, defendants-4 and 5 have not put up any construction on the drainage. He has produced the documents to show that, his windows and sajja on the eastern side of his property have been damaged due to the construction by defendants-4 and 5. He denied the suggestion that, defendants-4 and 5 have not put up any construction and no obstructions is caused to him in the use of the way and receiving light and air. He has assessed the damages of Rs.15,000/- but, he has no documents to show the damages. He has not produced any documents to show that the defendants-4 and 5 are the owners of the property, in which, they have put up construction. He denied the suggestion that, defendants-4 and 5 have not put up any construction and therefore, defendants-1 to 3 have not taken any action against 16 OS No.15933/2002 them and he has denied the suggestion that, defendants-4 and 5 have not caused any damage to him and therefore they are not liable to pay any damages to him. He does not know that, the children of defendants-4 and 5 are the owners of the said property and not defendants-4 and 5. He denied the suggestion that, he has filed false suit against defendants-4 and 5 to harass them and he further denied the suggestion that, defendants-4 and 5 have effected alteration in their own building and they have not put up any new construction. He denied the suggestion that, defendants-4 and 5 are in possession of their property since the date of purchase in the year 1985 and he further denied the suggestion that, when he filed this suit in 2002, there was already construction of ground, first and second floors. He denied the suggestion that, he is not aware that, the daughters of defendants-4 and 5 are the owners of the schedule property. He has not filed false 17 OS No.15933/2002 complaint against defendants-1 to 3 for not taking action on his complaint.
12. During the pendency of this suit, the original plaintiff died and his LRs have been brought on record as plaintiff NO.1[a] to 1[c].
13. DW1/defendant No.5 in his Affidavit evidence has reiterated and reaffirmed the contents of written-statement and got marked the documents at Exs.D1 to D3. The description of documents at Exs.D1 to D3 are as follows:
Ex.D1 : Original Sale Deed dated: 14.3.1985 Ex.D1(a) : Registered Plan in respect of 1st floor of building Ex.D2 : Original Sale Deed dated: 14.3.1985 Ex.D2(a) : Plan in respect of 2nd floor Ex.D3 : Tax paid receipt DW1 in his cross-examination led by the plaintiff's counsel has stated that, he know the plaintiff, but, he does not 18 OS No.15933/2002 know if the plaintiff is the owner of the property bearing No.1 and 2, B. No.4th Street, Shivajinagar, Wad No.79, Bengaluru. But, he has seen the building in which Jyothi Cafe is being run. He denied the suggestion that, there was a passage in between the building consisting Jyothi Café and the Church running North to South. Jyothi cafe building is seen in Ex.P35-Photograph. He denied the suggestion that, they have demolished the sajja of the building of the plaintiff and put up the construction of the portion covered with shutter as seen in Ex.P35-Photograph and he further denied the suggestion that, after filing of this suit, they have made further construction on the shutter portion as seen in Ex.P36-Photograph and he further denied the suggestion that, the they have put up construction covered by the shutter and the upstairs by demolishing the sajja of the building of the plaintiff, as seen in Ex.P38-Photograph. There is a galli by the side of shutter, which runs from South to North. His daughter has purchased 19 OS No.15933/2002 property bearing No.3 and 3/1. Their property is situated adjoining to the property of the plaintiff.
14. DW2-J.Sameer in his Affidavit evidence has supported the affidavit evidence of DW1. But, he has not been cross-examined by the plaintiff's counsel.
15. It is pertinent to note that, the plaintiff has not at all shown his property in the schedule and not given the description of his property in the schedule. Only he has shown the unauthorized construction alleged to have been made by defendants-4 and 5 on the eastern side of his property measuring 6 feet X 3 feet with rolling shutters, as schedule.
16. It is the case of the plaintiff that, defendants-4 and 5 have put up construction measuring 6 feet X 3 feet on the side of his property with rolling shutters illegally and unauthorizedly, as such, they are bound to remove the same and it is the further case of the plaintiff that, defendants-4 and 5 have removed the eastern wall window and sajja of the 20 OS No.15933/2002 plaintiff property and caused damages to an extent of Rs.15,000/- and it is the further case of the plaintiff that, during the pendency of this suit, defendants-4 and 5 have illegally constructed first floor and second floor and put up staircase and hence the same is liable to be demolished. PW1/plaintiff in his cross-examination has denied the suggestion that, defendants-4 and 5 have not put up any construction on the drainage and he further denied the suggestion that, he has produced documents to show that, defendants-4 and 5 have constructed structure on the drainage and he has produced the documents to show that, his window and sajja on the eastern side of his property has been damaged. But, on perusal of the documents produced by the plaintiff, it is noticed that, no documents are produced by the plaintiff to show that, defendants-4 and 5 have demolished the window and sajja of the plaintiff's property and they [defendants-4 and 5] had put up illegal and unauthorized construction measuring 21 OS No.15933/2002 6 feet X 3 feet on the eastern side of the plaintiff's property and though PW1 in his cross-examination has stated that he had assessed the damages to an extent of Rs15,000/-, but, he has clearly stated in his cross examination that, he has not produced any documents to show about the damages. As I have already stated above, the plaintiff has not produced any documents to show that, defendants-4 and 5 have damaged the window and sajja on the eastern wall of the plaintiff's property and put up illegal and unauthorized construction measuring 6 feet X 3 feet. Therefore, it is crystal clear that, the plaintiff has failed to prove that, defendants-4 and 5 have damaged the window and sajja on the eastern wall of the property of the plaintiff and put up illegal and unauthorized construction measuring 6 feet X 3 feet on the eastern side of his property. When the plaintiff has failed to prove that, defendants-4 and 5 have damaged the window and sajja on the eastern wall of his property and put up illegal and 22 OS No.15933/2002 unauthorized construction measuring 6 feet X 3 feet, on the eastern side of the property of the plaintiff, the question of claiming damages of Rs.15,000/- by the plaintiff from defendants-4 and 5 does not arise at all and the plaintiff further contends that, he enjoys right to restrain defendants-4 and 5 in the matter of construction abutting his property at the eastern side, but, it is the specific case of defendants-4 and 5 that, defendants-4 and 5 are the owners of property bearing Municipal Nos.3/2, 3/3, 3/4, 3/5, 3 and 3/1 situated in B.No.4th Street, Bangalore, which is adjacent to the property of the plaintiff. The plaintiff got marked Exs.P1 and P2-registered documents to show that, the deceased plaintiff was the owner of the property bearing Municipal No.2-B, situated in B.No.17 Street [Meenatchi Kovil Street], Civil Station, Bangalore and it is the further case of defendants-4 and 5 that, prior to filing of this suit, the ground, first and second floors have been constructed on the property of the defendants-4 and 5 and the 23 OS No.15933/2002 said building was in existence much earlier to filing of the present suit. Defendants-4 and 5 have totally denied the allegations made by the plaintiff that, defendants-4 and 5 have damaged the window and sajja on the eastern wall of the property of the plaintiff and put up illegal and unauthorized construction measuring 6 feet X 3 feet on the eastern side of the property of the plaintiff. DW1 in his Affidavit Evidence has clearly stated that, there is no illegal construction, as contended in the Plaint. The first and second floors construction was in existence from more than 20 years when their daughters have purchased the property by virtue of a registered Sale Deed dated: 14.3.1985 along with a registered plan and the existing building consists of ground, first and second floors, which can be seen from the plan annexed to the Sale Deed. On perusal of Ex.D1-Sale Deed produced by defendants-4 and 5 , which clearly goes to show that, LR No.D5(c) of deceased defendant No.5 by name Shabana Taj 24 OS No.15933/2002 Jamshed Alias Umme Hunsa is the owner of the property bearing Municipal Nos. 3/2, 3/3, 3/4, 3/5, 3 and 3/1, situated in B.No.4th Street in Corporation Division No.70 [Old No.58], Bangalore, which is situated adjoining the property of the plaintiff and the schedule of Ex.D1 clearly goes to show that, building consists of four shops on the ground floor, first floor and second floor and Ex.D1-registered Sale Deed is dated:14.3.1985. So, from Ex.D1-registered Sale Deed dated: 14.3.1985, it is crystal clear that, on the date of purchase of the property by LR of defendant No.5(c) of the deceased defendant No.5, ground floor, first floor and second floor were in existence. Under such circumstances, the allegation made by the plaintiff that, defendants-4 and 5 have damaged the window and sajja on the eastern wall of his property and put up illegal and unauthorized construction measuring 6 feet X 3 feet on the eastern side of his property and caused damage to an extent of Rs.15,000/- and he has 25 OS No.15933/2002 right to restrain defendants-4 and 5 in the matter of construction abutting his property at the eastern side, holds no water and there is no basis in the aforementioned allegation made by the plaintiff against defendants-4 and 5.
17. It is important to note that, the plaintiff has made defendant No.1-Commissioner, BMP, defendant No.2-The Executive Engineer, BMP and defendant No.3-The Assistant Executive Engineer as parties to this suit as defendants-1 to 3 and it is also the allegation of the plaintiff that, he made complaint to defendants-1 to 3 regarding illegal and unauthorized construction made by defendants-4 and 5, but, defendants-1 to 3 have not taken any action against defendants-4 and 5. If at all defendants-4 and 5 have made any illegal and unauthorized construction, as alleged by the plaintiff, by damaging the window and sajja on the eastern wall of the property of the plaintiff, then, defendants-1 to 3 could have definitely taken action against defendants-4 and 5, 26 OS No.15933/2002 but, defendants-1 to 3 have not taken any steps against defendants-4 and 5, since, defendants-4 and 5 have not damaged the window and sajja on the eastern side of the plaintiff's property and they have not put up any illegal or unauthorized construction measuring 6 feet X 3 feet on the eastern side of the plaintiff's property and they have not caused damage to the extent of Rs.15,000/-. Therefore, defendants-1 to 3 have not at all taken any action against defendants-4 and 5. As I have already stated above, the ground floor, first floor and second floor were in existence on the property of defendants-4 and 5 prior to filing of this suit from the date of purchase of property by the daughter of defendants-4 and 5 in the year 1985, whereas, the plaintiff has filed this suit in the year 2002 alleging the alleged construction by defendants-4 and 5. The documents produced by defendants-4 and 5 clearly shows that, the ground floor, first floor and second floor were in existence in the property of 27 OS No.15933/2002 defendants-4 and 5 prior to filing of this suit from the year 1985, the year in which the daughter of defendants-4 and 5 has purchased the property. Under such circumstances, the allegation made by the plaintiff that, defendants-4 and 5 have damaged the window and chajja on the eastern side of his property and caused damages to the extent of Rs.15,000/- are all appears to be vague and baseless allegations made by the plaintiff against defendants-4 and 5, whereas, as I have already stated above, the documents produced by defendants-4 and 5 clearly shows that, ground floor, first floor and second floor on the property of defendants-4 and 5 was in existence prior to filing of this suit. Hence, the allegations made by the plaintiff that, defendants-4 and 5 have illegally and unauthorizedly constructed first floor and second floor with staircase during the pendency of this suit, holds no water. Therefore, viewed from any angel, I am of the considered view that, the plaintiff has failed to prove that, the constructions at the eastern side of 28 OS No.15933/2002 his property measuring 6 feet X 3 feet put up by defendants-4 and 5 with rolling shutters is illegal and unauthorised and defendants-4 and 5 are bound to remove the same and the plaintiff has also failed to prove that, defendants-4 and 5 have damaged the window and sajja on the eastern side of the plaintiff's property and caused damage to the extent of Rs.15,000/- and the plaintiff has also failed to prove that, he enjoys a right to restrain defendants-4 and 5 in the matter of construction abutting his property at the eastern side and the plaintiff has also failed to prove that, defendants-4 and 5 have illegally constructed first and second floors and put up staircase during the pendency of this suit and the same is liable to be demolished. Therefore, I answer Issue Nos. 1 to 3 and Additional Issue No.1 in the Negative.
18. ADDL.ISSUE NO.2:- The plaintiff at the first instance had filed this suit praying for Mandatory Injunction directing the defendants to remove the illegal and unauthorized 29 OS No.15933/2002 construction constructed by defendants-4 and 5 on the eastern side of the plaintiff's property approximately measuring 6 feet X 3 feet with rolling shutters and for Permanent Injunction to restrain defendants not to put up any construction on the eastern side of the plaintiff's property and to grant permission to the plaintiff to demolish the said illegal construction constructed by defendants-4 and 5 on the eastern side of the plaintiff's property in the event of the defendants failure to demolish the said construction and for damages of Rs.15,000/-. Subsequently, the plaintiff filed an application under Order 6 Rule 17 of CPC for amendment of the plaint, which came to be allowed by this court on 19.9.2009. Therefore, amendment was carried out by the plaintiff, as per the order dated: 19.9.2009 and the plaintiff has filed amended plaint by incorporating Para No.7[A] and additional Prayer to prayer [a] for Mandatory Injunction directing defendants-4 and 5 to remove illegal construction constructed 30 OS No.15933/2002 by defendants-4 and 5 on the eastern side of the plaintiff's property measuring approximately 6 X 3 feet with rolling shutters along with the illegal constructions put up by defendants-4 and 5 during the pendency of the present suit i.e., 1st and 2nd floor with staircase. The defendants-4 and 5 have filed additional written-statement contending that, the suit of the plaintiff is liable to be dismissed as the claim made by the plaintiff by way of amendment is beyond reasonable time limit and the relief sought by him is barred by law of limitation. As I have already stated above, as per the Order of this court dated: 19.9.2009, plaintiff has carried out the amendment incorporating Para No.7[A] and additional Prayer to Prayer[a]. When the court has allowed the application filed by the plaintiff under Order 6 Rule 17 of CPC, and permitted the plaintiff to amend the plaint by incorporating Para No.7[A] and additional Prayer to prayer[a], the contention taken by defendants-4 and 5 that, the suit of the plaintiff is liable to be 31 OS No.15933/2002 dismissed, as the claim made by the plaintiff by way of amendment is beyond reasonable time limit and the relief sought for by him is barred by law of limitation, holds no water and defendants-4 and 5 cannot contend so, since, as per the order of this court only, the plaintiff had carried out amendment. Under such circumstances, it cannot be said that, the suit of the plaintiff is barred by law of limitation, as contended by defendants-4 and 5 in their additional written- statement. Therefore, I am of the considered view that, suit of the plaintiff is not barred by law of limitation. Hence, I answer Addl. Issue No.2 accordingly.
19. ISSUE NO.4:- The plaintiff has filed this suit against the defendants seeking relief of Mandatory Injunction directing defendants to remove the illegal and unauthorized construction, constructed by defendants-4 and 5 on the eastern side of the plaintiff's Property measuring approximately 6 feet X 3 feet with rolling shutters along with the illegal 32 OS No.15933/2002 constructions put up by the defendants-4 and 5 during the pendency of the present suit, i.e., 1st and 2nd floor with staircase and for Permanent Injunction restraining the defendants not to put up any construction on the eastern side of the plaintiff's property and permission to the plaintiff to demolish the said illegal construction constructed by defendants-4 and 5 on the eastern side of the plaintiff's property in the event of defendants failure to demolish the said construction and to pay a sum of Rs.15,000/- as damages, which was caused by defendants-4 and 5 breaking the eastern side of the wall, window and sajjah of the plaintiff's property. I have already come to the conclusion and answered Issue Nos. 1 to 3 and Additional Issue No.3 in the Negative holding that, the plaintiff has failed to prove that, the constructions at the eastern side of his property measuring 6 feet X 3 feet put up by defendants-4 and 5 with rolling shutters is illegal and unauthorised and defendants-4 and 5 are 33 OS No.15933/2002 bound to remove the same and the plaintiff has also failed to prove that, defendants-4 and 5 have damaged the window and sajja on the eastern side of the plaintiff's property and caused damage to the extent of Rs.15,000/- and the plaintiff has also failed to prove that, he enjoys a right to restrain defendants-4 and 5 in the matter of construction abutting his property at the eastern side and the plaintiff has also failed to prove that, defendants-4 and 5 have illegally constructed first and second floors and put up staircase during the pendency of this suit and the same is liable to be demolished. When the plaintiff has failed to prove Issue Nos. 1 to 3 and Additional Issue No.1, I am of the considered view that, the plaintiff is not entitled to the relief's as sought for in the plaint. Hence, I answer Issue No.4 in the Negative.
20. ISSUE NO.5:- In-view of the reasons stated on Issue Nos.1 to 4 and Additional Issues-1 and 2 above, I proceed to pass the following:
34 OS No.15933/2002
ORDER Suit of the plaintiff is hereby dismissed.
2) No order as to costs.
3) Draw decree accordingly.
(Dictated to the Stenographer partly and directly on the computer, corrections carried out and then pronounced by me in the open court on this the 13th day of June, 2016).
(B.NARAYANAPPA) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.
SCHEDULE All that piece and parcel of the unauthorised construction made by defendant 4 & 5 on the eastern side of the plaintiff Property measuring 6 to 3 feet with rolling shutters.
Bounded on:
EAST BY: Corporation Road WEST BY: Plaintiff's Property NORTH BY: Property No.3 "B" No.4th Street SOUTH BY: Open space XIII ADDL.CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT, BANGALORE.
ANNEXURES:-35 OS No.15933/2002
LIST OF WITNESSES EXAMINED AND DOCUMENTS MARKED FOR THE PLAINTIFF:
P.W.1 : C.Anjaneya 8.11.2006 Exs.P1 and : Original registered Sale Deed dated: 16.5.1949 P2 and another Sale Deed dated: 16.5.1949 Ex.P3 : Khata certificate Ex.P4 : Certificate issued by CITB that, the Khata of the Property old No.2B/B17 and 2A, new No.1 and 2 stands in the name of PW1 Exs.P5 and : Tax paid receipts P6 Ex.P7 : Copy of the complaint filed before Asst.Executive Engineer dated: 6.10.1998 Ex.P8 : Endorsement Ex.P9 : Copy of the representation dated: 19.12.1998 submitted to the Commissioner, BMP Ex.P10 : Copy of the representation submitted to Asst.
Executive Engineer, BMP dated: 18.1.1999 Ex.P11 : Copy of the complaint dated: 31.1.1999 Exs.P12 : Police endorsements and P13 Ex.P14 : Endorsement given by BMP after having received the complaint 36 OS No.15933/2002 Exs.P15 : Copy of the representation submitted to the and P16 Commissioner and Munikrishna, IGP Task Force respectively Ex.P17 : Endorsement given by the BMP Ex.P18 : Endorsement given by Shivajinagar Police dated: 16.2.1999 Exs.P19 : Copy of the representation submitted to BMP and P20 respectively dated: 8.4.1999 Ex.P21 : Endorsement given by BMP Ex.P22 : Copy of the legal notice Exs.P23 to : Postal receipts P26 Exs.P27 to : Postal Acknowledgements P30 Ex.P31 : Acknowledgement issued by BBMP Exs.P32 to : Copy of the complaints addressed to BBMP P34 Exs.P35 to : 7 photographs P41 Exs.P35(a) : Respective negatives to P41(a) 37 OS No.15933/2002 LIST OF WITNESSES EXAMINED & DOCUMENTS MARKED FOR DEFENDANTS-4 AND 5:
DW1 : Sri.S.R.Jamshed 21.10.2010 DW2 : J.Sameer 27.6.2013 Ex.D1 : Original Sale Deed dated: 14.3.1985
Ex.D1(a) : Registered Plan in respect of 1st floor of building Ex.D2 : Original Sale Deed dated: 14.3.1985 Ex.D2(a) : Plan in respect of 2nd floor Ex.D3 : Tax paid receipt LIST OF WITNESSES EXAMINED AND DOCUMETNS MARKED FOR DEFENDANTS-1 TO 3 AND 6: NIL XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT: BANGALORE.38 OS No.15933/2002
13.6.16 Judgement pronounced in the open court (Vide separate detailed Judgement) Suit of the plaintiff is hereby dismissed.
2) No order as to costs.
3) Draw decree accordingly.
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT: BANGALORE.
39 OS No.15933/2002