Bangalore District Court
Asha Robert vs Theresa on 19 October, 2024
KABC0A0036352019
IN THE COURT OF LVII ADDL.CITY CIVIL AND
SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU.
(CCH-58)
Present:
SRI. Rajesh Maruthi Kamate, B.Com., LL.B (Spl)
LVII Addl. City Civil & Sessions Judge,
Mayo Hall Unit, Bengaluru.
Dated this the 19th day of October, 2024.
Original Suit No.26372/2019
Plaintiff : Ms.Asha Robert
D/o.Mr.J.Robert,
Aged about 37 years,
R/at No.5, Govindappa Garden,
Kateriamman Temple,
Doodigunta,
Cox Town,
Bengaluru.
(By YSP., Advocate)
-Vs-
Defendants: Mrs.Theresa
W/o.R.Venugopal,
Aged about 49 years,
Site No.5, 5th Cross,
Vaddarapalya Village,
2
O.S.No.26372/2019
Hormavu Agra Main Road,
Bengaluru.
2. Asst.Executive Engineer,
Hormavu Sub-Division,
Bruhat Bengaluru Mahanagara Palike,
Bengaluru.
3. The Commissioner,
Bruhat Bengaluru Mahanagara Palike,
Bengaluru.
(By KM., Advo for D1,
NS/RS., Advo for D2 & D3)
Date of Institution of the suit 23.10.2019
Nature of the suit Injunction suit
Date of the commencement of 22.11.2022
recording of the evidence
Date on which the Judgment 19.10.2024
was pronounced
Year/s Month/s Days
Total duration 04 11 26
JUDGMENT
The plaintiff has filed the present suit against the defendants for the relief of permanent injunction restraining the defendant No.1 from proceeding with the illegal construction on suit schedule 'B' property and mandatory 3 O.S.No.26372/2019 injunction directing the defendant Nos.2 and 3 to demolish the unauthorized illegal construction or structures put on the western side of the suit schedule 'A and B' properties.
Suit Schedule 'A' Property Property on Western portion of site No.5, Khatha No.168, BBMP B-Form S.L.No.24396, situated at Vaddara Palya Village, Horamavu Agra, Dhakalae, K.R.Puram Hobli, Bengaluru East Taluk, Bengaluru within the administrative jurisdiction of BBMP, Ward No.25, measuring Eastern side 41 feet, Western side 40 feet, Northern side 18 feet and on Southern side 26.5 feet in all measuring 901 sq.ft together with RCC roofed house of 461.96 sq.ft in ground floor and 461.96 sq.ft in 1st floor with all rights appurtenances whatsoever whether underneath or above the surface and bounded by:-
East by : Remaining portion of site No.5 West by : Property belonging to Kumarvelu North by : 15 feet Road South by : Site No.4.
Suit Schedule 'B' Property Property on Western Portion of site No.5 East by : Railway Truck West by : Remaining portion of same site No.5 North by : 15 feet Road South by : Site No.4.4
O.S.No.26372/2019
2. Brief facts of the case are as under.
It is the case of the plaintiff that, she is the absolute owner in possession and enjoyment of the suit schedule A property bearing Site No.5, Khatha No.168, measuring 30 X 40 feet and 18 X 26.5 feet in all totally measuring 901 sq.ft., with RCC roofed house of 461.96 sq.ft., on the ground floor and 461.96 in first floor, purchased by her through Registered Sale Deed dtd.25.04.2012 from one Sri. L Suresh, who had obtained sanction plan from the Horamavu Agra Grama Panchyatha on 06.12.2006 and accordingly he is in lawful possession and paying municipal taxes to the BBMP. Whereas the defendant No.1 started to put up construction without any sanctioned plan and has blatantly violated all the building norms laid down by the Karnataka Municipal Corporation Act and also is putting up construction without leaving set back as per rules and regulation of bye-law of BBMP, on schedule B property by blocking the entire free flow of light and air on the eastern portion of the plaintiff's suit schedule A property, for which 5 O.S.No.26372/2019 easementary rights of the plaintiff are affected as there is no proper ventilation and circulation of air and light on the western side of the suit schedule A property and hence the defendant No.1 requested to remove the unauthorized structure but he has threatened him with dire consequences of life, for which he has also lodged police complaint and given representation to Assistant Executive Engineer, BBMP. But he did not take any action and hence the plaintiffs being woman was made to run from pillar to post without any positive rules and constrained by the same, she has filed the present for permanent and mandatory injunction.
3. Percontra, the defendant No.1 after appearance, has filed written statement and not disputed the measurements of the plaintiff's property as 901 sq.ft., and his property as 934 ½ sq.ft.,, which are situated at Site No.5 and both are in opposite direction towards east west facing towards northern side as per sale deeds, which has been purchased by him on 11.08.2017. It is also contended that, the plaintiff has constructed house long back and the defendant 6 O.S.No.26372/2019 has purchased vacant site and after obtaining plan, started to putting up construction from one year and is at the grudge of finishing stage, same is reached upto lintel level and RCC roof also completed except doing some plastering work and fittings, but inorder to harass and trouble the plaintiff has filed the present suit without seeking any relief of easementary right and also as suppressed the material true facts on making false allegations, same is liable to be dismissed.
4. It is also contended that, the defendant has purchased the said property on 11.08.2017 and after availing the loan from Dewan Housing Corporation Ltd., and obtaining NOC from the South western railway and also the suit schedule A and B properties are originally pertaining to Sy No.114/1, measuring 1 acre 10 ½ guntas of Horamavu Agara Village, for which one Raghu and others have filed suit for partition in OS No.26109/2018 and himself is arrayed as defendant No.36 and plaintiff is arrayed as defendant No.32 and also there is an order of status-quo to 7 O.S.No.26372/2019 be maintained over the nature of the property in that suit and both of them have filed necessary application to strike out/delete this defendant from the said proceedings, which is still pending and on this count also the suit of the plaintiff is liable to be dismissed.
5. It is also contended that, the plaintiff has filed the suit to harass the poor lady and to prevent her from enjoying her property, even though she has no right to question the ownership and construction carried out by the defendant in her property on schedule B property and the plaintiff's suit schedule A property without any sanction plan as per the norms laid down by the KMC Act but inspute of which she has filed the present false suit and the same is liable to be dismissed.
6. The defendant Nos.2 and 3 even though appeared in this case, but have not filed any written statement or led evidence.
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O.S.No.26372/2019
7. Based on the above pleadings, this court have framed following 6 Issues as under:-
ISSUES
1) Whether the plaintiff proves that she is the absolute owner and in peaceful possession and enjoyment of the suit schedule 'A' property?
2) Whether the plaintiff proves that the defendant No.1 is constructing an illegal construction on the schedule 'B' property without leaving property set back?
3) Whether the plaintiff proves that she is entitled for the permanent injunction against the defendant No.1, her agents, gangmen, contractors laborers and persons claiming any rights under her restraining them from proceeding with the illegal and unauthorized construction on the suit schedule 'B' property?
4) Whether the plaintiff proves that she is entitled for the mandatory injunction against the defendant No.2 and 3 directing them to demolish the unauthorized and illegal construction/ structure put on the western 9 O.S.No.26372/2019 side of the suit schedule 'B' property by the defendant No.1?
5) Whether the plaintiff proves that she is entitled for a direction against the defendants to maintain the proper setbacks as per the provisions of the KMC Act?
6. What order or decree?
8. In support of the same, the plaintiff herself has got examined as PW1 and got marked Ex.P1 to 12 and by confront has got marked as photographs to DW1 as Ex.P12 to 21.
9. Percontra, the husband and GPA holder of the defendant has got examined as DW1 and got marked Ex.D6 to 11 and by confront to PW1 has got marked Ex.D1 to 5.
10. Heard arguments of both side. The plaintiff counsel has filed written arguments in support of their case and the defendants have submitted their oral arguments and in 10 O.S.No.26372/2019 support of their case defendants have filed memo alongwith following citations.
1. Civil Appeal Nos.5798-5799 of 2008 (Bachhaj Nahar V/s Nilima Mandal and Anr).
2. 2001(1) Kar.L.J 468 (S. Sundar Raj V/s Vijayendra Kumar and Ors).
3. The Hon'ble High Court of Madras in SA No.266 of 2017 (S. Vimala Bai V/s C. N Kumaran).
11. My findings on the above issues are as under:-
Issue No.1 : In the Affirmative;
Issue No.2 : In the Negative Issue No.3 : In the Negative;
Issue No.4 : In the Negative;
Issue No.5 : In the Negative;
Issue No.6 : As per the final order
-for the following:
REASONS
12. Issues No.1 :-
In this issue, the burden is on the plaintiff to prove that, she is absolute owner and in possession and enjoyment of the suit schedule A property. 11
O.S.No.26372/2019 Now looking into the averments made in the plaint and the written statement and as well as the evidence available before this court, it clearly goes to show that, the plaintiff is claiming to be the owner of the suit schedule A property at Site No.5 and insupport of the same, she has produced the documents at Ex.P1 to Ex.P10, which are the sale deeds, betterment charges, katha certificates, katha extracts, licence of construction, sanction plan, encumbrance certificates and tax paid receipts, which clearly goes to show that, the plaintiff is the owner of the schedule A property. Whereas the main dispute of the properties with respect the schedule B property, wherein the construction has taken place by defendant No.1 and the same has been challenged by the plaintiff by filing the present suit. It is pertinent to note here itself that, the defendant has not disputed or questioned the title of the plaintiff and his possession over the suit schedule A property neither in the pleadings or in the cross examination and the same has been remained undisputed facts. 12
O.S.No.26372/2019
13. Therefore based on the evidence of the plaintiff, it clearly goes to show that, she has produced the documents that, she is absolute owner in peaceful possession and enjoyment of the suit schedule A property and accordingly I answer Issue No.1 in the Affirmative.
14. Issue No.2.
In this issue, the burden is on the plaintiff to prove that, the defendant No.1 is constructing an illegal construction on schedule B property without leaving proper setback.
Looking into the averments in the plaint and the written statement, it goes to show that, the plaintiff's property is the schedule A property as shown in the plaint and the defendant's property is schedule B property situated at eastern side of schedule A property and the plaintiff is the owner of the schedule A property as on 19.08.2014 and thereafter the defendant has purchased the said property on 11.08.2017, as per the sale deed produced before the court at Ex.P3 and Ex.D8 by both the said parties. Further as per 13 O.S.No.26372/2019 the documents at Ex.P5 to Ex.P10 are the katha extract, katha certificates, license for construction, sanction plan, tax paid receipts and encumbrance certificates with respect to schedule A property and the defendant has produced the documents at Ex.D7 and Ex.D9 to 11 are the sanctioned plan, property tax receipts and construction license to show that, they have made construction in schedule B property. Now it is the main contention of the plaintiff that, due to the construction put up by the defendant in schedule B property on eastern side, there is no light and air to the plaintiff's possession of the property and the construction of the defendant No.1 is without leaving any setback as per Bye- laws of the BBMP and putting up of the construction, she has blocked proper ventilation and flow of air and light towards western side of her property and she should be stopped by way of permanent injunction and by direction to remove the said construction by way of mandatory injunction. It is the main contention of the defendant that, the relief claimed by the plaintiff is not on schedule A property, but only with respect to the schedule B property, 14 O.S.No.26372/2019 where the defendant has put up the construction up to lintle level and is claiming easementary right of air and light contending there is no setback left by the defendant. But he has also contended that, the plaintiff on other side i.e., western side has also not left out any setback and the surroundings of the schedule A property is also constructed without any setback on north and sought side and as such the claim of the plaintiff is not maintainable in the eye of law.
15. Now looking into the oral evidence available before this court, it goes to show that, in the cross of PW1, she has clearly admitted the photographs shown to her at Ex.D1 to Ex.D5, which are marked by confront and clearly admits that, there is no setback area left by them on other side of her building at schedule A property and also has stated that, she does know whether the defendant has constructed house by 3 sq.ft., on the eastern side of her property and whether the defendant No.1 has obtained approved plan from the BBMP but she has lodged complaint, 15 O.S.No.26372/2019 when the defendant No.1 was putting up construction in the said property. Apart from it, even though she has reiterated that the schedule B property measuring one or two feet was constructed without leaving setback is illegal and same is to be dismissed, but has admitted that, the defendant No.1 has constructed the building in his own property and not made any encroachment in others property and also that the owners of other properties on southern side have built their building by leaving setback and further that BBMP has not given any report regarding violation committed by the defendant No.1, even though she has filed the complaint. Therefore looking into the photographs produced by the defendant at Ex.D1 to Ex.D5 and the admissions given by PW1, it clearly goes to show that, the plaintiff is ascertaining that the defendant has put up construction on eastern side of her property without leaving setback but the plaintiff who has approached this court has put up building prior to construction of the defendant No.1 and as per the documents of photographs at Ex.D1 to 5, which are marked by confront clearly goes to show that, there is no set back 16 O.S.No.26372/2019 area left by the plaintiff in either portion of his property except on northern side where there is a road and there is also construction of the defendant No.1 is in her own property on southern side schedule B property, but has not made any encroachment over the schedule A property. Apart from it, even the DW1 has been cross examined by the plaintiff and in her cross, the plaintiff counsel has got marked Ex.P13 to 21 photographs to show the construction made by defendant, which is constructed without leaving any setback and due to the said construction there is a damage to their property and the said construction is made on the western side of the schedule B property. But it is also goes to show that, the plaintiff on her western side has not left any setback but she is claiming that the defendant No.1 is constructing the schedule property without leaving any set back which clearly goes to show that, even though the construction made by defendant No.1 at his completely is at schedule B property and his without leaving any setback area, but it is also settled principle of law that, the person who seeks equity must to do equity and plaintiff by 17 O.S.No.26372/2019 not leaving any setback area on the other side of the property cannot claim against the defendant to leave setback is not sustainable in the eye of law and as such in the cross of DW1, even though she has admitted that, they had put up the construction without leaving setback as per Ex.D13 to 21, but the said admission itself is not sufficient to prove the case of the plaintiff, as it could be seen that, the construction of the plaintiff made by him in her property is also without any setback, for which the defendant cannot be restrained to stop the said construction.
16. Apart from it, goes to show that, IA filed by the plaintiff under Or.39 Rules 1 and 2 came to be allowed by this court and being aggrieved by the same, the defendant has challenged the same before the Hon'ble High Court of Karnataka in WP No.2942/2020, in which the Hon'ble High Court of Karnataka has made observation that the defendant is permitted to carry on plastering, painting and other minor works on the suit schedule B property subject to filing of an undertaking that she shall not claim equity in 18 O.S.No.26372/2019 this regard and the same would be subject to the result of the suit and also has directed to dispose of the suit as expeditiously as possible and preferably within a period of the six months. Thereafter in view of the orders of the Hon'ble High Court of Karnataka, the defendant has appeared and led the evidence. Hence, as per the observations made by the Hon'ble High Court of Karnataka also it goes to show that it is an admitted facts that, the construction is over and defendant is permitted to carry on plastering, painting and other minor works and as such on this aspect also it goes to show that, the major construction of the defendant is already over as contended by the defendant in his written statement and through his evidence.
17. Whereas in this case, it is observed that, before commencement of the evidence of the plaintiff, she had filed an application for appointment of Commissioner, which came to be allowed and accordingly one Sri. Abdul Ameen M, Advocate was appointed as Court Commissioner and he 19 O.S.No.26372/2019 has filed report before this court, for which the plaintiff has filed objections and defendant did not filed any objections, before my Predecessor in court and also the plaintiff, who has filed the objections to the Commissioner report has not made any efforts to examine the said Commissioner before the court and order has been passed on 16.01.2020 by discarding the Commissioner report on 03.01.2020 and accordingly Civil Engineer was appoint as Court Commissioner to ascertain the facts. But thereafter neither all the parties have not made any efforts for appointing Engineer as Court Commissioner for further evidence.
18. As discussed, the report of the Commissioner has even though been discarded but he has opined that the plaintiff has put up construction without leaving any set back. Thereafter based on the opinion of the said Commissioner, no efforts has been made by the plaintiff to lead the evidence to appoint the Civil Engineer for Commissioner report also goes to show that, the plaintiff has not made any further efforts to get the Commissioner work 20 O.S.No.26372/2019 done on the schedule A and B properties to show the exact possession & encroachment of the property & whether the construction is causing interference with the peaceful possession and enjoyment of the suit schedule property. Hence, on this count also, it can be safely held that the Report of Commission has remained infact and not challenged or lead evidence and also not make efforts to get done the same through civil engineers.
19. In this case, the defendant has filed memo along with citation as under:-
1. 2001 SCC online Kar 39:
(2001) 1 Kant LJ 468 (S.Sundar Raj V/s. Vijayendra Kumar).
I have gone through the citations relied both the sides counsels, but in view of the my discussion made earlier goes to show that, the plaintiff has failed to prove that the construction made by the defendant is an illegal construction on schedule B property without leaving proper setback and as such in the absence pleadings of 21 O.S.No.26372/2019 easementary right and said relief not sought by the plaintiff with due respect to the said principle, the same is not applicable to the present case in hand. Therefore it clearly goes to show that, in this issue the plaintiff has failed to prove that the defendant No.1 is constructing an illegal construction on schedule B property with leaving proper setback and accordingly I answer Issue No.2 in the Negative.
20. Issues Nos.3, 4 and 5:-
In these issues, the burden is on the plaintiff to prove that, she is entitled for the direction against the defendant Nos.5 and 3 to maintain proper setbacks as per the provisions of KMC Act. In the instant case on hand, it can be seen that, the plaintiff has failed to prove that, the defendant No.1 has put up construction of her building in violation of building Bye-laws and without the prior sanction and approved plan of the license of BBMP authorities and also has not shown that such violation of plan or license has resulted in an injury to her or the same is violation of 22 O.S.No.26372/2019 Municipal laws. In the absence of injury or violation, it clearly goes to show that, even though there is no set back left by the defendant, but the KMC Act is itself contained code which proves the remedy for any contravention of its provision or the bye-laws made thereunder. It is for the appropriate authority constituted under the act to determine whether or not a license of building has contravened the conditions of license and under Sec.321 of KMC Act give the power to Commissioner for demolition or alteration of buildings and lawfully commenced carried or completed. Thus act itself provides for machinery to enquiry into such matter if the Commissioner does not decide then he may take action as he deems to fit and proper. Thus efficacious remedy is available to the plaintiff, then injunction cannot be granted as per Sec.41(h) of Specif Relief Act.
21. Hence, the plaintiff is not entitled for the relief of permanent injunction and mandatory injunction as prayed in the suit and accordingly I answer Issue Nos.3 to 5 in the Negative.
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22. ISSUE NO.6:- In view of the finding on Issues No.1 to 5, I proceed to pass the following:-
ORDER The suit of the plaintiff is hereby dismissed.
Draw decree accordingly.
(Dictated to the Stenographer on Computer, corrected and then pronounced by me in open Court on this the 19th day of October, 2024.) Digitally signed by KAMATE KAMATE RAJESH M RAJESH M Date: 2024.10.29 12:00:50 +0530 (Sri. Rajesh Maruthi Kamate) LVII Addl.City Civil & Sessions Judge, Mayo Hall Unit, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1 : Miss. Asha Robert List of documents marked for the plaintiff:
Ex.P.1 : Sale Deed dtd.16.10.2006
Ex.P.2 : Sale Deed dtd.25.04.2012
Ex.P.3 : Sale Deed dtd. 19.08.2014
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O.S.No.26372/2019
Ex.P4 : Betterment charges
Ex.P.5 : Katha certificate
Ex.P.6 : Katha extract
Ex.P.7 : License for having construction
Ex.P.8 : Sanctioned Plan
Ex.P9 : Encumbrance certificate
Ex.P10 : 6 Tax paid receipts
Ex.P11 : Certified copy of list of documents produced
before LIC Housing Finance Limited.
Ex.P12 : Copy of complaint
Ex.P13
to P21 : Photos
List of witnesses examined for the defendant:
DW.1 : Mr.Renu Gopal List of documents marked for the defendant:
Ex.D1 to D5 : Photos Ex.D6 : Original SPA dated 01.08.2023 Ex.D7 : Original Sanction Plan 25 O.S.No.26372/2019 Ex.D8 : Digital computerized copy of the Sale Deed dated 11.08.2017 Ex.D9 : Digital computerized copy of Tax paid receipt Ex.D10 : 65(B) certificate Ex.D11 : Construction license. Digitally signed by KAMATE KAMATE RAJESH M RAJESH M Date: 2024.10.29 12:00:56 +0530
LVII Addl.City Civil & Sessions Judge, Mayo Hall Unit, Bengaluru.26
O.S.No.26372/2019 Judgment pronounced in open court (vide separate Judgment) ORDER LVII Addl. City Civil & Sessions Judge, Mayo Hall unit, Bengaluru.