Bangalore District Court
A.Govindaraju vs Smt.Munira Niyamathulla on 10 October, 2017
IN THE COURT OF XVIII ADDL.CITY CIVIL JUDGE,
AT BENGALURU CITY [CCH.NO.10]
Dated this day the 10th October 2017
PRESENT
Smt.M.PANCHAKSHARI, M.Com., LL.B.
XVIII Addl.City Civil Judge.
O.S.No.7956/2012
Plaintiff: A.Govindaraju,
S/o Late M.Abbaiah,
Aged about 63 years,
R/at No.44, C.K.Garden,
St.Thomas Town, Bangalore -84.
By Sri.R.B.S.,Advocate]
/VS/
Defendants: 1. Smt.Munira Niyamathulla,
W/o Niyamathulla,
2. Naseer Ahmed,
S/o Niyamathulla,
3. Smt.Valangar Nazreen,
D/o Niyamathulla,
4. Junaid Ahmed,
s/o Niyamathulla,
2 OS.No.7956/2012
All are major and r/at No.17,
Balaji Layout, D' Costa Square,
St. Thomas Town,
Bangalore - 84.
[ Sri.L.R.S.,Advocate]
Date of institution of 08.11.2012
suit
Nature of the suit permanent injunction
(Suit on pronote, suit
for declaration and
possession suit for
injunction, etc.
Date of the 16.04.2015
commencement of
recording of the
evidence.
Date on which the
Judgment was 10.10.2017
pronounced.
Year/s Month/s day/s
Total duration: 04 11 02
(M.PANCHAKSHARI)
XVIII Addl.City Civil Judge, Bangalore.
JUDGMENT
The plaintiff has filed this suit against the defendants for permanent injunction to restrain the defendants, their agents, and servants from putting up the construction on the suit 3 OS.No.7956/2012 schedule B property affecting the rights of the plaintiff in respect of suit A schedule property and for costs.
2. The brief and relevant facts as alleged in the plaint are as follows:
It is alleged that the plaintiff is the absolute owner and in possession and enjoyment of the suit A schedule property consisting of a residential house bearing No.44, measuring east-west 60+73 / 2 feet and north-south 32+33 /2 feet in all measuring 2,3222 sq.feet situated at CK.Garden, St. Thomas Town, Civil Station Bangalore having purchased the same under registered sale deed dtd. 13.7.1988. It is further contended that when he purchased the same it was vacant site and he after obtaining necessary permission and sanctioned plan from the authorities has constructed the dwelling house and residing therein. The revenue records mutated in his name. It is further contended that the defendants are owners of the adjacent property situated on the northern side of suit A schedule property, bearing No.45 which is measuring east-west 60 feet and north-south 35 feet ie., suit B schedule property purchased recently remained vacant for considerable time. It is further contended that the defendants taken up the construction activity and have not 4 OS.No.7956/2012 left any set backs on all the sides of their property as per sanctioned plan. The entrance of the suit A schedule property is also on the western side ie., entrance of the suit A & B schedule properties are on the western side and western side is the frontage to both the properties. As the defendants have not left set back on the northern and western side of schedule B property, same affects his right in respect of his property for free flow of natural air and light to his property. There would be no access to the schedule A property in any other sides except on the western side. It is further contended that the defendants are acting high-handedly and inspite of his several requests they have not heeded to the same. He had also lodged complaint with the jurisdictional Asst. Executive Engineer, but they have not taken any action against the defendants. Hence the suit.
3. The Defendants appeared through their counsel and filed written statement denying the plaint averments and further contended that the suit is not maintainable and this court has no jurisdiction to try the suit as Karnataka Municipal Act being a special legislation, is the right authority to deal with the same. It is further contended that the plaintiff has not left any set back and parapet wall on the northern 5 OS.No.7956/2012 side towards the schedule B property is constructed till the compound wall, thus obstructing the set back of the defendants. It is further contended that they have obtained sanctioned plan No.SP/646/2012-13 dtd.14.9.2012 from the Joint Director (Town Planning), BBMP, Bangalore and put up construction on the Schedule B property. The plaintiff causing to trouble to the defendants from the day one of the construction. They have left necessary set backs as per the sanctioned plan on all the sides of their building. They have left 3 feet set back towards the northern side of their building which is facing the property of the plaintiff. And left 7 feet set back in front of the building which is on western side. It is further contended that the plaintiff was asked to leave set back of 18 feet on the western side of his property according to his sanctioned plan dtd.23.2.1988 and now he is demanding them to leave the same. Plaintiff cannot force them to leave the set back of 18 feet. Cross road leading up to and in front of the plaintiff's property is in fact the only access to all the residents living in the said street. The plaintiff has already initiated action against them under Karnataka Municipal Act with BBMP and BBMP is seized of the matter as such plaintiff cannot file present suit for the same relief. It is further contended that they have borrowed money heavily to put up 6 OS.No.7956/2012 construction of their house. Once plaintiff had agreed to compromise the matter and to file compromise petition on 25.2.2013 and on the said date the Presiding officer was on leave they could not file the compromise petition, now the plaintiff has gone back on his words. The plaintiff had also allowed them to proceed with the construction after the compromise talks but now started obstructing them. If the suit decreed they will be put to hardship and injury. On the above grounds prayed to dismiss the suit.
4. On the basis of the above pleadings the following issues were framed:
1. Whether the plaintiff proves his possession and enjoyment over the suit schedule property as on the date of suit?
2. Whether the plaintiff further proves the alleged interference by the defendants?
3. Whether the plaintiff is entitled for the relief of permanent injunction as prayed?
4. What decree or order?7 OS.No.7956/2012
5. Plaintiff got examined himself as PW1, got marked Ex.P1 to P16 and EX.D1 photograph and closed his side. The defendants got examined their GPA holder as DW1, got marked Ex.D1 and closed their side.
6. Heard the arguments of learned counsel for defendants. Despite granting sufficient opportunity plaintiff counsel had not cross examined DW1 nor addressed the arguments. Perused the materials placed on record. My findings on the above issues are as under:
Issue No.1 : In the affirmative
Issue No.2 : In the affirmative
Issue No.3 : In the affirmative
Issue No.4 : As per final order,
For the following:
REASONS
7. Issue Nos.1 & 2:- The plaintiff had filed the present suit for the relief of permanent injunction to restrain the defendants, their agents and servants from putting up the construction on the suit B schedule property affecting the right of the plaintiff in respect of suit A schedule property.
8. As per the relief sought by the plaintiff he is seeking easement right over the property of defendants which is 8 OS.No.7956/2012 described as suit B schedule property. It is the contention of the plaintiff that he is the absolute owner of the immovable property consisting of a residential house bearing no.44, situated at CK.Garden, St.Thomas Town, Civil Station, Bangalore measuring east-west 60+73 / 2 and north-south 32+33 / 2 in all measuring 2322 sq.feet which is described as suit A schedule property. He had acquired the said property through a registered sale deed dtd. 13.7.1988. It was a vacant site and plaintiff after obtaining necessary permission from the concerned authorities constructed dwelling house and residing therein. So he is in exclusive possession and enjoyment of the said property since from its acquisition. Then Corporation of Bangalore city had granted sanction plan for putting up construction over the suit A schedule property.
9. It is further contended by the plaintiff that defendants are owner of adjacent property situated on the northern side of suit A schedule property bearing No.45 measuring east-west 60 feet and north-south 35 feet which is described as suit B schedule property. After purchase the defendants had taken up construction work by obtaining sanctioned plan from BBMP and the validity of sanction plan is from 14.9.2012 to 13.9,.2014. The defendants without 9 OS.No.7956/2012 leaving any set back on all the sides of the suit schedule property as they are required to do so had started putting up construction. Suit A schedule property which belongs to the plaintiff is situated on the northern side of the suit B schedule property and the entrance of suit A schedule property is also on the western side. So western side is the frontage to both the properties. Since defendants have not left proper set back on the northern and western side of the suit B schedule property, which had affected the plaintiff's right in respect of suit A schedule property which will affect the free flow of natural air and right to the suit A schedule property. So if the defendant put up any construction on the western side then suit A schedule property would be invisible to the road and there will be no access to the suit A schedule property. So plaintiff had also lodged complaint to the Assistant Executive Engineer in respect of the construction made by the defendant affecting the right of the plaintiff. But the said authorities had failed to take any action against the defendant in putting up the illegal construction. So it is also contended that as the construction of the defendant on the suit B schedule property is oppose to the sanctioned plan, it is utter violation of the building byelaws.10 OS.No.7956/2012
10. The defendants have contended that suit of the plaintiff is not maintainable as Karnataka Municipality Act being the Special Legislation is the proper authority to deal with if there is any violation of building byelaws. Defendants totally denied the contention of the plaintiff with regard to the construction having made in suit B schedule property by violation of sanctioned plan. Defendant had left proper and prescribed set back on both sides of suit B schedule property.
It is only contention of the plaintiff that defendant should have also left set back of 18 feet in front portion as he has done in the suit A schedule property. They have left 7 feet as prescribed in the sanctioned plan dtd. 14.9.2012. Further it is in fact the plaintiff had agreed to compromise the matter after elaborate discussion and parties were suppose to file the compromise petition on 25.2.2013, but on the concerned day as the presiding officer was on leave, compromise could not be filed, but later the plaintiff gone back of his words and proceeded in the case. As per the compromise plaintiff had allowed them to proceed with the construction work as per compromise talks but now he is once again started obstructing the defendant.
11 OS.No.7956/201211. The plaintiffs in order to prove his case had examined himself as PW1. PW1 in his affidavit filed for examination in chief, he had reiterated the plaint averments. In support of his evidence he had got marked various documents as per Ex.P1 to P16. Ex.P1 is the Sale deed dtd.30.7.1988, Ex.P2 is the katha certificate (Uthara Patra), Ex.P3 is the katha extract of Suit A schedule property, Ex.P4 is the sanctioned plan of A schedule property, Ex.P5 is the katha extract of B schedule property, Ex.P6 & 7 are the complaints given to BBMP, Ex.P8 is the certified copy of evidence given by PW1 in Mis.petition No.520/2014, Ex.P9 is the certified copy of letter dtd. 26.11.2012 issued by BMTF to Asst. Executive Engineer, Ex.P10 is the certified copy of reminder dtd. 4.1.2013, Ex.P11 is the CC of notice u/s 321 (1) dtd.8.3.2013, Ex.P12 is the certified copy of TI order passed u/s.321(3) under BMC Act, Ex.P13 is the certified copy of order passed in C.C.1508/13 dtd.10.10.2013, Ex.P14 is the certified copy of order passed in WP.No.47571/12 dtd.11.12.2012, Ex.P15 is the certified copy of Memorandum of appeal No.35/2013 before KAT, Ex.P16is the certified copy of orders passed by KAT in appeal No.365/13. The defendants got marked photograph Ex.D1 by confronting to the plaintiff.
12 OS.No.7956/201212. Plaintiff had mainly relied on the proceedings which had taken place before Karnataka Appellate Tribunal with regard to the issue of violation of Building Byelaws. Ownership of suit A schedule property by the plaintiff and suit B schedule property by the defendants is not in dispute. Ex.P1 is the sale deed of the plaintiff Ex.P2 is the katha certificate and Ex.P3 is the copy katha extract of suit A schedule property. Ex.P4 is the sanctioned plan of the plaintiff and as per the said sanctioned plan site measures 2322sq. feet by sanctioned ground floor extent 950 sq.ft and 1st floor extent 950 sq.ft. Ex.P6 & 7 are the complaints given by the plaintiff to the BBMP in respect of construction over the suit B schedule property. In Ex.P6 it is narrated that his neighbour who is the owner of the property had started construction work without leaving set back as per plan sanctioned thereby affecting him free flow of air and light and his building is not seen to the road. Ex.P7 it is stated that his neighbour had not left 10 feet, but he had left only 3 feet. Ex.P8 is the evidence affidavit filed by the plaintiff herein in Mis.Petition No.520/2004 which is registered in respect of IA., filed under order 39 rule 2A of CPC. Ex.P9 is the letter 13 OS.No.7956/2012 addressed by the plaintiff to the Additional Commissioner of police for not taking action in respect of his complaint by the Asst. Executive Engineer. Ex.P10 is the direction issued by the Joint Director of Town Planning to the Asst. Executive Engineer. Ex.P11 is the material document whereby Asst.Executive Engineer of BBMP had filed report with regard to the construction made in the site No.45 of CK.Garden ie., defendant's property and also filed report with sketch with extent of construction put up against the sanctioned plan. On perusal of the sketch it makes out that the building construction having made beyond the sanctioned plan limit on 3 portions. An temporary order is also passed stating that the violation of byelaws and rules of Karnataka Municipal Corporation Act 1976 which is liable to be demolished. On the basis of the said temporary order, permanent order was passed as per Ex.P12. Ex.P15 is the appeal filed by the defendants herein before the KAT challenging the orders of Asst. Executive Engineer. It is the appeal copy where the plaintiff herein had filed an application under order 1 rule 10(2) CPC under IA.NO.4 for impelading him as proper and necessary party in the proceeding and the said application came to be dismissed. Against the said order plaintiff herein having filed appeal it came to be allowed by Hon'ble Chairman 14 OS.No.7956/2012 of KAT. So it makes out that in the appeal No.365/2013 which is filed by the defendants herein before KAT plaintiff had been considered as necessary party. Whether the said appeal is still pending or any order is passed or not is not forthcoming from the evidence of defendants.
13. Plaintiff having examined as PW1 was cross examined on behalf of the defendants whereby in the cross examination he had stated that the entrance to his property as well as that of the defendants' property is from the western side. He denied that the defendant's property is bounded by a compound wall, but admits that there is a compound wall on the northern side and the said northern wall divides the properties of plaintiff and defendant. PW1 had stated that eastern side compound wall is the compound wall of neighbouring property, not that of the defendants. He had also stated that height of his building is about 20 feet including the parapet wall. He had denied the suggestion that he had not constructed the building as per sanctioned plan. He had also admitted that as per Ex.P5 his total building area is 2300 sq. feet. But his total site area is 2322 sq.feet. From the cross examination of PW1 nothing is made out to make out that plaintiff himself had put up construction beyond the 15 OS.No.7956/2012 extent of his sanctioned plan. He had also denied the suggestion that Ex.P11 order is stayed by KAT. Further later he had deposed that KAT had stayed only the order of demolition. In the cross examination suggestions had neen put forward with regard to his impleading application got dismissed. But Ex.P15 from page No.9 to 12 makes out that the IA.NO.4 filed under order 1 rule 10(2) CPC by impleading applicant Sri.A.Govindaraju as 3rd respondent is allowed. After part cross examination though PW1 was present before court he was not cross examined on behalf of the defendants till 28.1.2016. Thereafter when he had not been subjected for further cross examination plaintiff evidence was taken as closed.
14. The defendants got himself examined their GPA holder as DW1 and DW1 in his affidavit filed in lieu of examination in chief, he had reiterated the written statement averments. The photograph which is confronted in the cross examination of PW1 is already marked as Ex.D1. Thereafter the GPA is once again came to be marked as Ex.D1 by mistake by giving the same ranking. So as Ex.D1 is already marked this GPA is hereby ordered for renumbering as Ex.D2. Except these two documents defendants have not opted to produce 16 OS.No.7956/2012 any other documents. The only contention of the defendants is that they have not violated their sanctioned plan they have left 7 feet set back in front of the building which is on the western side. Even DW1 had denied the plaintiff contention that it will affect the free flow of natural air and light to suit A schedule property. Further it is their contention that plaintiff had already initiated action against the defendant with BBMP and BBMP has authority to deal the matter hence plaintiff cannot file present suit as the proceedings had already been initiated under Karnataka Municipality Act by BBMP.
15. On perusal of the material document which are submitted before court whereby Ex.P11 & 12 clearly makes out that defendants who are the owners of site no.45 had put up construction violating the rules and municipal byelaws. So an action also initiated for demolition. This order is now challenged by the defendants before KAT. As no further documents are produced by both parties, it makes out that the matter is still pending before KAT. As BBMP is the competent authority where there is violation of any right or byelaws and whether the defendants had put up construction against the sanctioned plan. So this order ie., Ex.P12 makes out as of now the appropriate authority had come to the conclusion that 17 OS.No.7956/2012 there is violation. So plaintiff is entitled for the relief of permanent injunction restraining the defendants, their agents, servants from putting up construction on suit B schedule property affecting the right of the plaintiff in respect of suit A schedule property. So in such circumstances, if defendant put up its further construction in the suit B schedule property without leaving appropriate set back as per sanctioned plan, it will naturally affect the plaintiff's enjoyment of suit A schedule property with free flow of natural air and light. So subject to the result of the orders in KAT Appeal No.365/2013 at this stage defendants has to be restrained with the act of their interference as it is proved by the plaintiff. In the circumstances I hold the above issues in the affirmative.
16.Issue No.3: Inview of answering issue No.1 & 2 in the affirmative, plaintiff is entitled for the relief of permanent injunction as prayed. Hence I hold the above issue in the affirmative.
17. Issue No.4: In the result I pass the following:
ORDER Suit of the plaintiff is hereby decreed.18 OS.No.7956/2012
The defendants, their agents and servants are hereby restrained from putting up the construction on the suit schedule B property affecting the rights of the plaintiff in respect of suit A schedule property by way of permanent injunction.
Parties to bear their own costs.
Draw decree accordingly.
[Dictated to the Judgment Writer, computerised, and print out taken by him, corrected and then pronounced by me in open court, this day the 10th October 2017.
(M.PANCHAKSHARI.) XVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU ANNEXURE
1. No.of witnesses examined on behalf of plaintiff/s:
PW1 : A.Govindaraju
2. No.of documents marked on behalf of plaintiff/s:
Ex.P1 : Sale deed dtd.30.7.1988.
Ex.P2 : katha certificate (Uthara Patra)
Ex.P3 : Katha extract of Suit A schedule property.
Ex.P4 : Sanctioned plan of A schedule property
Ex.P5 : katha extract of B schedule property.
Ex.P6 & 7 : Complaints given to BBMP
19 OS.No.7956/2012
Ex.P8 : Certified copy of evidence given by PW1 in
Mis.petition No.520/2014
Ex.P9 : Certified copy of letter dtd. 26.11.2012 issued by
BMTF to Asst. Executive Engineer.
Ex.P10 : Certified copy of reminder dtd. 4.1.2013 Ex.P11 : CC of notice u/s 321 (1) dtd.8.3.2013.
Ex.P12 : CC of TI order passed u/s.321(3) under BMC Act. Ex.P13 :CC of order passed in C.C.1508/13 dtd.10.10.2013 Ex.P14 :CC of order passed in WP.No.47571/12 dtd.11.12.2012.
Ex.P15 : CC of Memorandum of appeal No.35/2013 before KAT Ex.P16 : CC of orders passed by KAT in appeal No.365/13 Ex.D1 : Photograph
3. No. of witnesses examined on behalf of defendant/s:
DW1 : Niyamathulla
4. No. of documents marked on behalf of defendant/s:
Ex.D2 : GPA
XVIII Addl. City Civil Judge
Bangalore City.
20 OS.No.7956/2012
Judgment pronounced in the open court vide separate judgment. The operative portion of judgment reads thus:
ORDER Suit of the plaintiffs is hereby decreed. The defendants, their agents and servants are hereby restrained from putting up the construction on the suit schedule B property affecting the rights of the plaintiff in respect of suit A schedule property by way of permanent injunction.
Parties to bear their own costs.
Draw decree accordingly.
XVIII Addl.C.C. & S.J., Bangalore 21 OS.No.7956/2012