Bangalore District Court
Smt. K. Meenakshi vs Smt. Sarojamma on 29 November, 2018
IN THE COURT OF THE XXIX ADDL. CITY CIVIL
& SESSIONS JUDGE AT BENGALURU CITY. (CCH 30)
Dated this the 29th day of November 2018
PRESENT: SMT. NAGAJYOTHI. K.A., LL.M.,
XXIX ADDL CITY CIVIL & SESSIONS JUDGE, BENGALURU.
O.S.No. 595/2010
PLAINTIFFS: 1. Smt. K. Meenakshi,
W/o. Late Raman,
Aged about 56 years.
Since deceased by her LRs
Plaintiff No's.2 & 3.
2. Sri. R. Narayan,
S/o. Late Raman,
Aged about 37 years.
3. Sri. R. Naganathan,
S/o. Late Raman,
Aged about 33 years.
All are residing at No.45/8,
New No.152,
Behind Shiva Theatre,
6th Block, Koramangala Village,
Bengaluru - 560 095.
(By M/s. A. Krishna Bhat &
Associates, Advocates)
Vs.
DEFENDANTS: 1. Smt. Sarojamma,
W/o. Sri. Murugan,
Aged about 64 years.
2. Sri. Murugan,
S/o. Shivagurunathan,
Aged about 72 years.
Since deceased by his LR
2(a) Purushothaman,
S/o. Late Murugan,
Aged about 28 years
3. Sri. Chandrashekar,
S/o. Sri. Murugan,
Aged about 39 years.
2 O.S.No.595/2010
4. Sri. Kannan,
S/o. Sri. Murugan,
Aged about 30 years.
All are residing at No.97,
Behind Shiva Theatre,
6th Block, Koramangala Village,
Bengaluru - 560 095.
(By Sri. E.S. Indiresh, Advocate
for D.1 & D.3)
(By Sri. Philomena Pinto,
Advocate for LR of D.2)
Date of institution of the suit 28/01/2010
Nature of the suit (suit on
pronote. Suit for declaration and Perpetual Injunction &
possession suit for injunction, Mandatory Injunction
etc.)
Date of the commencement of 09/07/2004
recording of the evidence.
Date on which the judgment 29/11/2018
was pronounced.
Total duration Year/s Month/s Day/s
08 10 01
JUDGMENT
This suit is filed for perpetual injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiffs and for mandatory injunction directing the defendants to remove the structure put up in the 1st floor of the property beyond the alignment of their Southern wall, excluding towards the suit schedule property on the Northern side and to direct the defendants to close the space left for keeping a window on the 3 O.S.No.595/2010 Southern wall of the defendants property and also to remove the steel extension on the Southern wall of the defendants property and costs, and for such other reliefs.
2. It is averred in the plaint that, the plaintiffs are in possession of the property referred as suit schedule property. It was purchased by Late Raman, who is the husband of the 1st plaintiff and father of the remaining plaintiffs. It was purchased in two sale deeds. Later, it was commonly renumbered as No.152, totally measures 52 X 30 feet. In the year 1977, Raman constructed two sheet roofed houses on the suit schedule property and now the tenants are occupied it and they are dwelling houses. In the remaining portion, there is a two storied building, wherein the plaintiffs are residing. The defendants are in possession of the property bearing khatha No.45/3, which is situated towards Northern side of the suit schedule property. Late Raman had also purchased two adjacent properties, which are situated towards Northern side of the suit schedule property and Western side of the defendants' property. When plaintiffs put up construction in their Northern side of properties of khatha bearing No.45/2 & 45/6, the 1st plaintiff filed O.S.No.378/1985 for the relief of permanent injunction and mandatory injunction alleging the encroachment. The same was dismissed. They preferred RFA No.973/2002 before the Hon'ble High Court of Karnataka. Now, the defendants again started construction in khatha No.45/3. They excavated the ground and dug up trenches for erecting 4 O.S.No.595/2010 concrete pillars. On 23.01.2010, it was observed that the defendants trespassed into the suit schedule property and damaged a portion of the sheet roofed house situated in the North- Eastern portion of the suit schedule property. The defendants were not heeding the request for stopping the construction work. Hence, the plaintiffs approached the court. Whereas, the police visited the spot. Thereafter, the defendants stopped the construction for 3 days. But, the defendants again digging the trenches on 27.01.2010. In this suit, the plaintiffs were obtained exparte order. The defendants were not served with this order, still, they defied the interim order. On 15.06.2010, the plaintiffs again filed another application as not to put up any construction and the same was allowed by this court. But, the defendants continued the construction projecting beyond the alignment of the Southern wall of the defendants' property. The defendants erected centering poles for laying cement concrete. On 15.06.2010, the court was passed the order. But, again they violated the order and completed the laying of RCC overnight. So, the construction was done in violation of the interim order. The defendants left the open space in the Southern wall adjacent to the suit schedule property for the purpose of keeping a window. But, it was stretching the Northern wall of the plaintiffs' property. So, the defendants cannot put up a window. The space left for window will be the common wall of the plaintiffs and defendants. Hence, 5 O.S.No.595/2010 the construction is illegal and directed to close by issue of mandatory injunction. Hence, this suit.
3. The LR of the 2nd defendant has appeared through his counsel but not filed written statement.
4. The defendant No's.1, 3 & 4 have appeared through their counsel and submitted in the written statement that, the deceased Raman is elder brother of the 1st defendant. The plaintiffs are in the habit of encroaching the adjacent properties. The 1st defendant is the absolute owner in possession of the house property bearing Khaneshmari No.45/3, It was purchased through the registered sale deed dated 23.04.1983. In between the suit schedule property and 1st defendant's property, there was a road runs from East to West measuring 6 feet width and 52 feet length. The plaintiffs encroached the said road by taking undue advantage of the fact that their properties situated on both the sides. The entire road is now blocked. So, they encroached the portion measuring East-West : 21 feet and North-South : 3½ feet in the 1st defendant's property. The husband of the 1st defendant and father of the other defendants was looking after the affairs of the entire family properties. So, these defendants had no occasion to get knowledge about the illegal encroachment made by the plaintiffs. Only after they received suit summons of this suit, they verified and came to know of this fact in the month of April 2010. The plaintiffs' father N. Raman also encroached some extent in the Western side of their property. Then, the 1st defendant filed 6 O.S.No.595/2010 O.S.No.378/1985, wherein she has preferred RFA No.973/2002. These defendants never tried to interfere or trespass the suit schedule property. The suit filed on false and vexatious grounds. Hence, prays for dismissing the suit with exemplary costs.
5. In proof of their case, the plaintiff No's.2 & 3 have got examined themselves as PWs.1 & 2 and relied upon the documents Exs.P.1 to P.14. On behalf of the defendants, the 3rd defendant was examined himself as D.W.1. Exs.D.1 to D.21 were marked.
6. Heard arguments.
7. Considering the facts and circumstances and the material available in the matter, my Learned Predecessor has framed the issues on 04.09.2013, and this court has framed the additional issues on 24.11.2018, as under:
ISSUES (1) Whether the plaintiffs prove that they are in lawful and settled possession of suit schedule property as on the date of this suit?
(2) Whether the plaintiffs further prove that defendants are interfering or obstructing the plaintiff's peaceful possession and enjoyment of suit schedule property? (3) Whether the plaintiffs are entitled for permanent injunction as sought for?
(4) What order or decree?
ADDITIONAL ISSUES (1) Whether the plaintiff proves that, after interim order of this court on 15.06.2010, the defendants continued the construction work and completed the RCC by overnight and kept window at their Southern wall adjacent to the suit schedule property?7 O.S.No.595/2010
(2) Whether the plaintiffs are entitled for mandatory injunction as prayed in prayer (2) & (3) of the plaint?
8. My findings to the above issues and additional issues are as under:-
Issue No.1 : In the Affirmative.
Issue No.2 : In the Negative.
Issue No.3 : In the Negative.
Addl. Issue No.1 : In the Affirmative. Addl. Issue No.2 : In the Negative.
Issue No.4 : As per final order for the following:
REASONS
9. Issue No.1:- Initially, it is a suit for bare injunction. Whereas, subsequently, it has amended the prayer for mandatory injunction, as per the order dated 22.02.2013. Plaintiffs' claims herein it's lawful possession in the suit schedule property. The suit schedule property is bearing No.152 (old No's.44 & 45/8), totally measuring East-West : 52 feet and North-South : 30 feet, situated at Koramangala Village, Bengaluru South, bounded by East : Property of Muniraju, West : BDA Road, North : K.No's.45/2 & 45/6 owned by the plaintiffs and a portion of K.No.45/3 owned by the defendants, and South : Property of Muniappa. The plaint averred that, Late Raman - husband of the 1st plaintiff and father of the other plaintiffs, purchased these properties during his lifetime. Later there two sites are commonly renumbered as 152, after merged and assessed. Accordingly, khatha was also issued. During the lifetime of Raman, in the year 1977, he had constructed two sheet roofed houses on the suit schedule property, in the extreme East portion. Now, they are occupied by 8 O.S.No.595/2010 the tenants. The plaintiffs dwelling house exists in the remaining portion which had two storied building. During the lifetime of Raman, he was also purchased two adjacent properties at K.No's.45/6 & 45/2 in different sale deeds and both properties are situated towards Northern side of the suit schedule property and Western side of the defendants' property.
10. The plaintiff herein produced the certified copy of the two sale deeds of suit schedule property, they are marked as Exs.P.1 & P.2. The documents i.e., sale deeds/Exs.P.1 & P.2 clearly establishes plaintiff's title and possession on the suit schedule property. From the year 1977 till this day, the defendant has not questioned/obtained order in respect of ambiguous in boundaries Exs.P.1 & P.2 are not disputed. Hence, I hold Issue No.1 in the 'Affirmative'.
11. Issue No's.2 & 3:- It is pertinent to note that, the defendants' contention is, in between plaintiffs' suit schedule property and defendants' property, there is a 6 feet wide road. The deceased Raman encroached the road portion and also acquired his small portion in the Southern side of their property. Further, it alleges that, in the Western side also Raman purchased the property and started construction and during the construction he encroached their portion in the Western side also. Then, the defendants preferred the suit O.S.No.378/1985, and it was dismissed. The defendants preferred RFA and it was also dismissed. In the angle of the defence, it shows the necessity of 9 O.S.No.595/2010 scrutinizing the boundaries. So, in the sale deed/Ex.P.1, the portion of suit schedule property referred as follows:
East : K.R. Chinnappachari's property West : Private property North : K.R. Chinnappachari's property South : Chikkayellappa & Muniraju's properties, measuring East-West : 40 feet and North-South : 25 feet. This sale deed was executed on 13.01.1976. Another sale deed is Ex.P.2 executed on 22.05.1976. The boundary of this property is, East : Chinnappachari's property, West : Private property (Plaintiffs' purchased property), North : Road, and South :
Muniyappa's property, measuring East-West : 12 feet and North-
South : 25 feet. So, if two properties are joined, it comes East-
West : 52 feet and North-South : 25 feet. Whereas, the plaint schedule refers it as North-South : 30 feet, and the sale deed/Ex.P.2 refers North : Road.
12. Here, I like to discuss on document Ex.P.3 is the judgment of O.S.No.378/1985 filed by the 1st defendant against N. Raman, husband of 1st plaintiff alleging encroachment at the Western side of their property. In the reasons, it shows they have taken the assistance of Commissioner. This judgment is dismissed based upon the Commissioner's Report only and it was discussed in Page-11 of the judgment, as follows:
"P.W.2 is the court commissioner. Ex.C.1 is the report of the commissioner. As already stated, it is the specific case of the plaintiff that the defendant encroach upon an area measuring 2½ X 13' on the Western side of his property. There is no allegation against the defendant that the defendant had encroached upon any portion either on the Southern side of the property or on the Northern side. So, the plaintiff was required to prove 10 O.S.No.595/2010 through the commissioner's report was that the encroachment was on the Western side of his property. But, unfortunately commissioner's report does not say that there was any encroachment on the Western side of the suit schedule property. There is a foundation said to have been put up on the plaintiff's property by one Krishnan and in page-13, he adjudicated the plaintiff's property is on the Eastern side of the defendant's property. The encroached portion is shown by letters CDGH which is shown in the plaintiff's property on the Western end of her property, and further discussed is as follows:
"P.W.2 is the court commissioner. He has stated that when he inspected there was a foundation on the encroached portion. In the cross-examination he has stated that he has not shown the directions of the plaint schedule property in Ex.C.5. He has clearly stated that one N. Krishnan owns portion of the suit schedule property and at the time of visit of the commissioner, the said Krishnan had encroached upon an area measuring east-west 25' on the northern side. Ex.C.1 is the report of the commissioner. It clearly shows that the encroachment into the plaintiff's property appears to be on the northern and southern side and also on the eastern side of defendant's property. But the commissioner's sketch shows that the encroachment was on the southern side. Hence, I am of the opinion that the court can safely act upon the commissioner's report rather than interested version on either side and if it is acted upon then it has to be held that the plaintiff has failed to prove that the defendant has encroached upon the western portion of her property. But the commissioner's sketch shows that the encroachment was on the Southern side, and concluded that there is no encroachment on the Western portion of her property. There is no allegation against the defendant that the defendant had encroached upon any portion either on the southern side of the property or on the northern side."
So, as per the version the commissioner report shows, encroachment at Southern side of the suit schedule property i.e., defendant's property, the dispute herein raised in respect of Northern side of the plaintiffs' property. The defendants' Southern side is plaintiffs' Northern side. So, it gives herein the clinching point that, the portion above commissioner report shows encroached at Northern side of the plaintiff's property. The 11 O.S.No.595/2010 defendant's earlier suit was dismissed observing the plaint does not alleges on encroachment on the Southern side of the plaintiffs' property (the defendants herein). During the pendency of this suit, the defendant filed another suit in O.S.No.7071/2010. It was also dismissed. Here also plaintiff admitted, the defendant suggestion that, in the said O.S.No.7071/2010, on 15.07.2017, both plaintiff and defendants prays time. But, the court rejected their prayer and posted the case for judgment. Even thereafter on 17.07.2017, the plaintiff (defendant herein) filed advance petition. The court rejected it and posted for judgment. He denied the suggestion that, without examining the plaintiff, said suit was dismissed. In view of the same, the plaintiff counsel strongly relied upon the judgment of O.S.No.7071/2010. The said suit was dismissed on 22.07.2017.
13. O.S.No.7071/2010 is filed by the defendant alleging that, defendant/plaintiff of this suit encroached a road measuring East-West in 6 feet width and 52 feet in length at the Southern boundary of 'A' schedule property of the defendant. The defendant further encroached East-West : 21 feet and North-South : 3½ feet in the suit schedule property. So, the said suit alleges the encroachment at the Northern side of their suit schedule property. The defendant relied on judgment of O.S.No.378/1985. It shows that the 1st defendant i.e., plaintiff and plaintiff's witnesses were not cross-examined in O.S.No.7071/2010. Thus, I consider that, plaintiff cannot rely upon the judgment of O.S.No.7071/2010 to 12 O.S.No.595/2010 prove his possession. This suit is earlier, to O.S.No.7071/2010 filed alleging interference at his Northern side. So, it is a different cause of action. So, plaintiff cannot take the defence of res- judicata.
14. Whereas, the dispute herein shows, Ex.P.1 does not shows about existence of road at Northern side. But, Ex.P.2 shows existence of road at Northern side and this portion of Eastern portion i.e., Ex.P.2/sale deed shows, it refers the measurement East-West : 12 feet and North-South : 25 feet, where it shows Northern boundary is Road. The defendant has lost the limitation period for claiming his 6 feet road. It needs the discussion on this point because, herein the ambiguity of boundaries of Northern of plaintiff's property and next to that only the defendant's property is existing. Earlier suits both O.S.No's.7071/2010 & 378/1985 were not completely adjudicated upon this point. But, the suit O.S.No.378/1985 gives a light on encroachment on Southern side of the defendant's property. So, as I discussed earlier as per the sale deeds of Exs.P.1 & P.2, the measurement of schedule property could be 52 X 25 feet. Whereas, the plaint schedule refers it 52 X 30 feet. So, there is an enhancement of 5 feet at North-South, is not properly proved.
15. While arguing the case, the defendants' counsel also stresses that, the suit schedule properties are originally partitioned property between Amruthappachari and Chinnappachari. Since it is a mandatory injunction, there is need of discussion in detail about the partition 13 O.S.No.595/2010 between two brothers. It is argued further that, the cross-examination of P.W.1 proves that the khatha No.44 by showing boundary of 45 feet, and it stresses on ambiguity in the boundary of Eastern side, it is a vacant site. So, there is overlapping of boundaries of Exs.P.1 & P.2. The defendant stresses on the document of Ex.D.1/partition deed between Chinnappachari and Amruthappachari. It shows, 'A' schedule property is given to Chinnappachari and 'B' schedule property is given to Amruthappachari. The boundary of 'A' schedule property is, East : Common wall and pathway, to which the remaining road and 'B' schedule property; West : CITB acquired land; North : Property of Munireddy, and South : Properties of Muniraju & Chikkayellappa, measuring 40 X 30 feet. 'B' schedule property is the property bearing No.44, where the boundary is East : Road and Thigalara Muniyappa's house, West : Common warranda and well with pathway. Ex.D.2 is the sale deed of defendant, where the boundary is given as Khaneshumari No.44, East-West : 25 feet, North-South : 28½ feet, East : Private property, North : Property of Ramamurthy. Ex.D.15/encumbrance certificate shows, in 1974, it is partitioned 'B' schedule; in 1976, Amruthappachari sold it to Rajamma, measuring 29 X 11 feet i.e., house khaneshumari No.44 is sold by Amruthappachari to Raman in 1976 and khaneshumari No.44, measuring 22 X 29 feet sold to N. Govindan, and khaneshumari No.44, measuring 29 X 11 feet sold in the year 1984 by Rajamma to G. Raniyamma. Ex.D.18 is the encumbrance certificate of defendant, which gives khaneshumari No.45, measuring 25 X 14 O.S.No.595/2010 28½ feet. It shows, East : Pushpa Raju's property, West : N. Ramaiah's property, North : Murugaiah's property, and South :
Ramaiah's property. Ex.D.19 is the approved sketch of the defendant's construction. The plaintiff is not disputing this document.
16. While arguing the case, the defendant's counsel stresses on Ex.D.20, an application under Order VI, Rule 17 of CPC filed in O.S.No.7071/2010, where it seeks for amendment in respect of measurement. There is a 6 feet common passage towards Southern side of the sites and by mistake strongly shown as Ramaiah towards Southern side. The sale deed dated 16.09.1976 in the name of Raman is not executed by Chinnappachari.
Whereas, all these contentions cannot be adjudicated herein, as this defendant is not seeking relief from the court. Ex.D.21 is the sketch in respect of property bearing No's.44 & 45. But, it is not approved sketch. Whereas, infact in the suit property at present there is no road and there is no necessity of existence for road. So, this court cannot give much importance of boundary of road. But, it corroborates there is a variation in the boundary on North- South. Whereas, without clarifying all these facts, the plaintiff's counsel stresses that, his possession clarified and reached finality because of O.S.No.7071/2010. Whereas, admittedly, it's appeal is pending, so it cannot be concluded the judgment reached it's finality. Moreover, the defendant's suit O.S.No.7071/2010 also the permanent injunction in respect of defendant's property. The 15 O.S.No.595/2010 relief of permanent injunction is relief in personam restricted to cause of action referring the said suit. So, this court cannot rely upon the reasons given in O.S.No.7071/2010.
17. The 3rd plaintiff deposes as P.W.2 and in the cross- examination he admits that, originally the suit schedule property belongs to Amruthappachari and Chinnappachari. The property is purchased from Chinnappachari. But, the documents Exs.P1 & P.2/sale deeds are executed by Amruthappachari. So, here it concludes on reason and ambiguity in the boundaries as demonstrated by the defendant. It is true that, Chinnappachari's share is existed in the Western side and Amruthappachari's schedule property existing in the Eastern side. He specifically denied on common road existing at Northern side. It is true that, site No's.45/6 & 45/2 are belongs to Amruthappachari. It is denied that, since the property is purchased from Chinnappachari and Amruthappachari, and since they are joint family property, it cannot be specified on existence of schedule property. He admitted that, the defendant's land existed at Northern side and there is vacant land. When they were started construction in the year 1986, they obtained permission and approved plan. He denied the suggestion that, the suit filed against the plaintiff was dismissed and defendant preferred the appeal, wherein the appeal was dismissed by giving liberty to the defendant to file fresh suit or to file amendment petition. It is true that, the Western side of the suit property is private property and, it is a BDA land. He is 16 O.S.No.595/2010 not knowing that, the khaneshumari No.44 is allotted to the share of Amruthappachari and khaneshumari No.45 is given to Chinnappachari. But, he knows that, khaneshumari No.44 is given to Amruthappachari. He was also questioned in respect of khatha No.45.
18. The 3rd defendant deposes as D.W.1. In the cross- examination he replies that, plaintiffs' father Raman is his uncle (¸ÉÆÃzÀgÀ ªÀiÁªÀ). On 13.01.1976, Raman purchased khatha No.44 from Amruthappachari. He denied the suggestion that, thereafter, he built the house in the said site. He cannot say the measurement of khatha No's.44 & 45. He also admitted filing of suit in O.S.No.7071/2010. All these facts show in view of ambiguity in Northern boundary of suit property, earlier defendant alleges interference at Western side property not proved but subsequent to this suit, he filed O.S.No.7071/2010 alleging encroachment, although dismissed has not reached finality. Hence, I hold plaintiff failed to prove interference. Hence, I hold Issue No's.2 & 3 in the 'Negative'.
19. Addl. Issue No's.1 & 2:- Through the subsequent amendment in the plaint, it is alleged that, initially they obtained exparte interim order and the defendants were not served with this order, still, they defied the interim order and proceeded with the construction. On 15.06.2010, again the plaintiffs filed application for restraining the defendants from putting up further construction projecting beyond the Southern wall of the 17 O.S.No.595/2010 defendants' property adjacent to the Northern side of the suit schedule property. This court was pleased to allow that application and issued direction to the defendants. The defendants were preparing to put up construction projecting beyond the wall of defendants' property. They also erected centering poles for laying cement concrete and completed the RCC overnight. So, it extends beyond 2½ feet Southern wall of the building and towards Northern side of the suit property on East- West and this construction is in the 1st floor of defendants' property. The defendants also left open the space in the Southern wall adjacent to the suit property for keeping window. When two walls touching each other, the defendants cannot put up window which touches the wall of the plaintiffs. The space left for window is in the 1st floor of defendants' property and when plaintiff put up 1st floor on the property, the space for window in the common wall of plaintiff and defendant. So, it prevents the plaintiff from putting up wall from their side of the property. The opening left in the Southern wall is illegal and have to be closed by issue of mandatory injunction. Hence, subsequently, he is seeking mandatory injunction to remove the structure put up in the 1st floor from the alignment of Southern wall i.e., measuring East- West : 13 feet and North-South : 2 ½ feet and also mandatory injunction to close the space left for keeping window on the Southern wall of the defendants' property. Initially there is an issue in respect of interference. But appreciating this prayer, 18 O.S.No.595/2010 subsequent additional issue No's.1 & 2 framed. Both parties were adjudicated upon this matter in the evidence as well as arguments. So, it is not obtained the proceedings on mandatory injunction. Hence, appreciating the same shows, in respect of boundary from North-South, the plaintiff has no reliable document. He has the document for North-South : 25 feet. But, there is no corroborative material for enhancement of further 5 inches. Earlier proceedings were not completely adjudicated upon this subject.
20. D.W.1 denied the suggestion that, on 23.01.2010, he tried to build the house and damaged the plaintiff's house building. He denied the photocopy. However, he admits his photo in Ex.P.7/photocopy. He cannot say on what basis he started construction in the defendant's land. It is admitted that, either before purchasing or after purchasing the suit property is not surveyed. He is not knowing that, whether there is any other document to show the same, except Exs.P.25 & P.28. He denied the suggestion that, the photocopies produced by the plaintiff are connected to the period after obtaining the interim order. However, there is no date in the photos. He was not challenged this interim order. Subsequent amendment made in the plaint on 22.02.2013, by adding para-9(a) & 9(b) and prayer (2) & (3), wherein it is mentioned that, this court passed the exparte order restraining the defendants from causing any damage to the building of the suit schedule property. Thereafter on 15.06.2010, 19 O.S.No.595/2010 the plaintiffs again filed another application for construction projecting beyond the alignment of the Southern wall of the defendants property. But, the defendants completed laying of RCC overnight and construction work extended up to 2 ½ feet beyond the Southern wall of their building. 9(b) column refers the defendants left open space in the Southern wall adjacent to the suit schedule property for the purpose of keeping a window. If the window is kept, it will touches the plaintiffs' wall. So, when plaintiffs put up 1st floor on property, the space left for window will be in the common wall and plaintiffs prevented from putting up wall from their side of the property. So, the space left on the Southern wall of the defendants property, is illegal. Whereas, the crucial fact is, the defendants started construction after obtaining the building plan. Ex.D.19 shows, their plan was approved on 11.06.2010 and they should complete the construction within 10.06.2012, otherwise again they have to apply for renewal of building plan. So, it shows, the reason for continuation of the building. P.W.2 also deposed on these further construction but he was not cross-examined on these aspects and not even made denial suggestion. The clinching point herein is, the plaintiff is not alleging encroaching of the suit schedule property. The plaintiff is not alleging the trespassing to his property and it is absolutely silent in respect of setback area. These 3 points clearly shows, plaintiff has not approached the court with clean hands. Admittedly, the plaintiff's building is not existing within the ambit 20 O.S.No.595/2010 of the measurement given in Exs.P.1 & P.2. So, one who seeks the equity, must do the equity. Moreover, in respect of the damages to the suit schedule property, there is no evidence. The plaintiff has not even sought for commissioner work to report on the construction of the wall attaching to their building and causing inconvenience to their building as referred in the plaint. Further, it is also pertinent to note that, the plaintiff herein has not approached CMC Authority challenging the building plan, which is the proper forum to adjudicate upon the grievance of building. Moreover, if the defendants made construction as per the building plan, certainly the prayer sought herein, effects it approved the plan. So, without challenging the plan, he cannot seek the order of mandatory injunction. In view of all these grounds, I hold Addl. Issue No.1 in the 'Affirmative' and Addl. Issue No.2 in the 'Negative'.
21. Issue No.4:- 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 29th day of November, 2018) (NAGAJYOTHI.K.A) XXIX Addl. City Civil Judge, Bengaluru City.21 O.S.No.595/2010
ANNEXURE List of witnesses examined for the plaintiffs' side:-
P.W.1 R. Narayan P.W.2 R. Naganathan
List of documents exhibited for the plaintiffs' side:-
Ex.P.1 CC of sale deed dated 13.01.1976.
Ex.P.2 CC of another sale deed dated 22.05.1976.
Ex.P.3 CC of judgment in O.S.No.378/1985.
Ex.P.4 Photocopies along with Negatives and payment receipt.
(Photocopies 4 in No's.).
Ex.P.5 True copy of police complaint dated 23.01.2010.
Ex.P.6 True copy of another police complaint dated
11.06.2010.
Exs.P.7}{ Photocopies (6 in No's.).
to P.12}{
Ex.P.13 CC of order-sheet in O.S.No.7071/2010.
Ex.P.14 CC of judgment in O.S.No.7071/2010.
List of witnesses examined for the defendants' side:-
D.W.1 Chandrashekar List of documents exhibited for the defendants' side:-
Ex.D.1 CC of registered partition deed dated 30.12.1975.
Ex.D.1(a) True copy of typed copy.
Ex.D.2 CC of registered sale deed dated 23.04.1983.
Ex.D.3 Khatha certificate
Ex.D.4 Khatha extract.
ExsD.5}{ Tax receipts (9 in No's.).
to D.13}{
Ex.D.14 Encumbrance Certificate for the period from 01.04.2004 to 19.09.2016.
Ex.D.15 Encumbrance Certificate for the period from 01.04.1972 to 31.03.2014.
Ex.D.16 Encumbrance Certificate for the period from 01.04.2004 to 19.09.2016.
Ex.D.17 Encumbrance Certificate for the period from 01.04.1972 to 31.03.2004.
Ex.D.18 Encumbrance Certificate for the period from 01.04.2005 to 23.05.2010.22 O.S.No.595/2010
Ex.D.19 Building sanctioned plan dated 12.062012. Ex.D.20 CC of I.A. under Order VI, Rule 17 of CPC in O.S.No.7071/2010.
Ex.D.21 Sketch showing the residential site at V.P.No's.44 & 45 of Koramangala Village, Bengaluru.
XXIX Addl. City Civil Judge, Bengaluru City.
23 O.S.No.595/2010Judgment 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, Bengaluru City.