Bangalore District Court
Mr. Michael Von. Sausman vs Mr. Manjunath B on 13 March, 2018
C.R.P. 67) Govt. of Karnataka
Form
No.9(Civil)
Title sheet for
Judgment in
Suits
(R.P.91)
TITLE SHEET FOR JUDGEMENTS IN SUITS
IN THE COURT OF XVI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY.
(CCH.NO.12)
PRESENT : SRI R.Y. SHASHIDHARA,
B.Com.,LL.B.,
XVI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY.
DATED THIS 13TH MARCH, 2018.
ORIGINAL SUIT NO.1154/2011
*****
PLAINTIFF: 1. Mr. Michael von. Sausman,
S/o Late H.T.J. Sausman,
Aged about 65 years,
Residing at No.351, 1st 'C' Cross,
Koramangala 8th Block,
Bangalore - 560 095.
Since deceased represented
By his legal heirs :
1(a). Mrs. Mildred Sausman,
Wife of Mr. Michael vn. Sausman,
Aged about 63 years
1(b). Mrs. Jacqueline Sausman,
Daughter of Michael von. Sausman,
Aged about 37 years,
(Both plaintiff 1(a) & 1(b),
Residing at No.351, 1st 'C' Cross,
Koramangala 8th Block,
Bangalore -560 095.
(By Sri S.P., Advocate)
2 OS No.1154/2011
- Vs -
DEFENDANTS: 1. Mr. Manjunath B,
Father's name not known,
Aged about 36 years,
R/a No.354, 1st 'C' Cross,
8th Block, Koramangala,
Bangalore.
2. The Commissioner,
Bangalore Mahanagara Palike,
Bangalore.
3. Assistant Executive Engineer,
Bangalore Mahanagara Palike,
Ward No.67, Koramangala Division,
Bangalore.
4. Smt. Pushpa,
Wife of B. Manjunath,
Major,
R/a No.354, 1st 'C' Cross,
8th Block, Koramangala,
Bangalore.
(For D-1 by Sri K.V.K., Advocate)
(For D-2 & 3 by Sri SVG, Advocate)
(For D-4 Exparte)
Date of institution of the suit 08-02-2011
Nature of the suit: Suit for permanent injunction and
mandatory injunction.
Date of the commencement of 17-2-2016
recording of the evidence:
Date on which the Judgment was 13-03-2018
pronounced
Total duration Year/s Month/s Day/s
07 01 05
3 OS No.1154/2011
JUDGMENT
This suit is filed by the plaintiffs that restraining the defendant No.1, his henchmen or any person acting under or through him from putting up construction (building) upon schedule-B property, in violation of building byelaws, zonal regulations and building sanctioned plan. For mandatory injunction directing the defendants to demolish portions of set back of the building constructed upon schedule-B property in violation of building byelaws, zonal regulations and building sanctioned plan and grant such other reliefs.
It is seen from the records that originally this suit filed by the plaintiff Mr. Michael von. Sausman. During the pendency of the suit he is reported to be dead. Then his legal heirs (wife and daughter) brought on record as plaintiff No.1(a) and (b).
2. In the plaint the it is stated that the plaintiff (Michael von. Sausman) is the owner of the 'A' schedule property i.e., site bearing No.351, 1st 'C' cross, 8th Block, Koramangala, Bangalore with building thereon measuring 4 OS No.1154/2011 East-west 9.15 meters and North-south 14.18 meters. The defendant No.1 is claiming to be owner of 'B' schedule property i.e., site bearing No.354, 1st 'C' Cross, 8th Block, Koramangala, Bangalore, consisting building measuring East-west 9.15 meters and North-south 14.18 meters. That 'B' schedule property is situated towards western side of suit 'A' schedule property.
3. It is stated that deceased plaintiff purchased 'A' schedule property through registered sale deed dated 22- 01-2003. Since the date of purchase he is in peaceful possession and enjoyment of the said property.
4. It is stated that the property of the defendant No.1 is situated towards western side of 'A' schedule property. The defendant No.1 started putting up construction in his property i.e., 'B' schedule property. Without leaving proper set back on four side of the property, he constructed building which is total violation of building law and zonal regulations. In spite of repeated request by the plaintiff, the defendant No.1 unauthorizedly and illegally continued to put up construction. The plaintiff 5 OS No.1154/2011 has brought the said fact to the defendant No.3 (Assistant Executive Engineer, BBMP) through orally and lodging complaint. But they have not initiated any action against the defendant No.1, they have also not visited the spot. The defendant No.3 and his officials are hand in glove with the defendant No.1 and permitting him to proceed with illegal construction.
5. The defendant No.1 has completed the construction of ground floor and proceeded for construction of first floor, in which already raised pillars. After sanctioned plan, the defendant No.2 and 3 have never visited the property of the defendant No.1 and inspected that whether he is going to construct the building as per sanctioned plan and building byelaws. They have also not initiated any action against the defendant No.1 and they have utterly failed in their duty.
6. It is stated that the illegal construction of the defendant No.1 infringed right of the plaintiff for natural air and light, it has diminished the value of property, 6 OS No.1154/2011 caused severe mental agony to the plaintiff and his family members. Cause of action to file this suit arose in the month of November 2010 when the defendant No.1 started construction work in his property, in spite of oral request, the defendant No.1 put up construction in violation of the building byelaws, zonal regulations and building sanctioned plan. Hence, the plaintiff constrained to file this suit and prayed for decree.
7. After service of suit summons the defendant No.1 has appeared through his counsel and filed the written statement. The defendant No.2 and 3 have appeared through their counsel but not filed written statement.
8. During the pendency of the suit, wife of the defendant No.1 impleaded as defendant No.4. After service of suit summons the defendant No.4 has not appeared and placed exparte.
9. The defendant No.1 in the written statement stated that the plaintiff has not approached this Court with clean hands and he has suppressed the material facts. Without 7 OS No.1154/2011 seeking for appropriate reliefs the present suit of the plaintiff is not maintainable. The plaintiff has no legal right to file this suit. It is stated that the defendant No.1 and his wife - defendant No.4 are absolute owners of the 'B' schedule property bearing No.354 measuring 8.90 meters x 14.18 meters. It is admitted that the property of the defendant No.1 is situated towards the western side of the plaintiff's property. The defendant No.1 and 2 purchased the suit schedule 'B' property by way of auction and sale deed dated 9-4-2003 from Bangalore Development Authority. Their names changed in the khatha, they are in possession of the same. In order to put up residential building, they obtained license for construction of stilt, 1st and 2nd floor including terrace floor in the property. Accordingly they have constructed residential building.
10. It is stated that even though the defendant No.1 and his wife obtained plan, license and constructed house, the Bangalore Development Authorities and their officials attempted to interfere with their peaceful 8 OS No.1154/2011 possession and enjoyment of the suit schedule property. Hence, they had filed OS 25931/2001 against the Commissioner, BBMP for decree of permanent injunction and obtained order of temporary injunction.
11. It is stated that the plaintiff is co-owner in respect of 'A' schedule property is not within the knowledge of this defendant. The plaintiff is put to strict proof of the same. It is denied that without leaving proper set back on the four sides of the 'B' schedule property, the defendant No.1 constructed building and violated the building byelaws and zonal regulations. It is denied that in respect of repeated request made by the plaintiff, defendant No.1 continued for putting up construction. It is denied that the defendant No.3 and his officials are hand in glove with the defendant and they are permitted him to proceed with the illegal construction. It is denied that in spite of complaint the defendant No.2 and 3 having inspected spot and taken any action against the defendant No.1. It is denied that the construction of the building by the defendant No.1 infringed the plaintiff's 9 OS No.1154/2011 right of natural light and air, diminished the value of his property and caused severe mental agony to the plaintiff and his family members. There is no cause of action to file this suit. The plaintiff has no independent right to file this suit. As per the plaint it is stated that he is co-owner in respect of 'A' schedule property. The suit is bad for mis-joinder and non-joinder of necessary parties. From the above said grounds the defendant No.1 prayed for dismissal of the suit of the plaintiff with exemplary costs.
12. From the above said pleadings of both parties my learned Predecessor has framed the issues as follows:-
1. Whether the plaintiff proves that the 1st defendant put up illegal construction upon the 'B' schedule property by violating the building bye-laws, zonal regulations and sanctioned plan ?
2. Whether the plaintiff is entitled for the reliefs of permanent injunction and mandatory injunction?
3. What order or decree ?
13. In order to establish the said issues, the plaintiff No.1(b) examined as PW.1. Documents got marked Ex.P1 to P12. The defendant No.1 examined himself as 10 OS No.1154/2011 DW.1 and documents got marked as Ex.D1 to D25. Then the case posted for arguments on main.
14. Heard the arguments.
15. My answer to the above issues are as follows:-
ISSUE NO.1 : In the negative.
ISSUE NO.2 : In the negative.
ISSUE NO.3 : As per final order for the
following :
REASONS
16. ISSUE NO.1:- From going through pleadings, oral and documentary evidence placed by both the parties, it is undisputed fact that 'A' schedule property i.e., site bearing No.351 measuring East-west 19.15 meters and North-south 14.18 meters is under the co-ownership of the plaintiff - deceased Michael von. Sausman, Mildred Sausman and Jacqueline Sausman. Ex.P1 is the certified copy of the sale deed dated 22-01-2003 is clear about the same. It is also admitted fact that 'B' schedule property i.e., site No.354 measuring East-west 8.90 meters and North-south 14.20 meters which is situated 11 OS No.1154/2011 to the western side of 'A' schedule property is belongs to the defendant No.1 and his wife defendant No.4. Ex.D3 is the registered sale deed is clear about the same.
17. The plaintiffs have produced certified copy of the sale deed dated 22-1-2003 and got marked as Ex.P1. It reveals that one V. Chandran S/o R. Narayanan Nair sold 'A' schedule property in favour of the plaintiff - Mr. Michael Sausman, Mrs. Mildred Sausman and M.S.Jacqueline Sauman.
18. I am of the opinion that in the cross-examination of PW.1, the defendant No.1 side never denied the above said pleadings and oral evidence of PW.1 that the plaintiff deceased Mr. Michael Sausman and two others are the owners of the suit schedule 'A' property and plaintiffs are in possession and enjoyment of the same. In the cross-examination of DW.1, the plaintiff's side also not disputed that defendant No.1 and 4 are the owners and in possession of the 'B' schedule property. 12 OS No.1154/2011 From the above discussion, I come to the conclusion that there is no dispute regarding title and possession of 'A' schedule property by the plaintiffs and 'B' schedule property by the defendant No.1 and 4.
19. In the plaint the plaintiffs contended that the defendant No.1 has started construction in 'B' schedule property without leaving proper set back on the four sides, in total violation of building bye law and zonal regulations. They further contended that in spite of repeated request by them with the defendant No.1 he continued for construction of building. They further contended that they brought to the notice of defendant No.3 (Assistant Executive Engineer) BBMP regarding illegal construction in 'B' schedule property. On 10-1- 2011 they have also filed written complaint to the defendant No.3 and prayed for initiate action against the defendant No.1 as per law. In spite of the same defendant No.3 has not initiated any action against the defendant No.1. The defendant No.3 and their officials are hand in glove with the defendant No.1, they are 13 OS No.1154/2011 permitting the defendant No.1 to proceed with the illegal construction.
20. The plaintiffs further contended that in spite of the same the defendant No.1 has completed construction, which is against building byelaws and zonal regulations. Because of above such illegal construction of the defendant No.1 they are put to severe hardship and irreparable loss which cannot be compensated in terms of money, their right to natural light and air are infringed, which has diminished the value of 'A' schedule property and it caused severe mental agony to them and their family members. PW.1 in her examination-in- chief reiterated the above said averments of the plaint.
22. The plaintiffs have produced one tax paid receipt for the year 2009 is in the name of deceased plaintiff in respect of suit schedule property and got marked as Ex.P2. They produced letter dated 10-01-2011 issued by deceased plaintiff to the defendant No.3 for taking action against the defendant No.1 for construction of 14 OS No.1154/2011 house without leaving proper set back. They have produced four photographs to show the existence of 'A' and 'B' schedule properties with negatives and got marked as Ex.P4 to P7. They have produced notice dated 23-5-2011 issued by the defendant No.3 to the defendant No.1 under Section 321(2) and provisional order passed under Section 321(1) of KMC Act, 1976 and got marked as Ex.P8 and P9. They produced certified copy of order sheet, plaint and written statement in OS 25931/2011 and got marked as Ex.P10 to P12.
23. Per contra, the defendant No.1 contended that they constructed building in their property ('B' schedule property) as per sanctioned plan. He specifically denied that they constructed building without leaving proper set back and which is against building bye-law and zonal regulations. He denied that due to illegal construction of building from him, the plaintiffs right of nature air and light are infringed and it will affect the plaintiffs and 15 OS No.1154/2011 family members. DW.1 in his examination-in-chief reiterated the averments of the written statement.
24. The defendant No.1 has produced two photographs of his property and got marked as Ex.D1 and D2. These two photos confronted in the cross-examination of PW.1. He has produced original sale deed dated 9-4-2003 belongs to the 'B' schedule property and got marked as Ex.D3. He has produced the document for registration of khatha and got marked as Ex.D4. He has produced 11 tax paid receipts in respect of 'B' schedule property and got marked as Ex.D5 to D15. He has produced sanctioned plan in respect of 'B' schedule property approved by BBMP dated 4-10-2010 and got marked as Ex.D16. He has produced another six photographs in respect of 'A' and 'B' schedule properties and got marked as Ex.D19 to D24. He has also produced C.D. of the said photos and got marked as Ex.D25.
25. I have carefully perused the above said pleadings, oral and documentary evidence placed by both parties 16 OS No.1154/2011 with arguments canvassed by both sides. I am of the opinion that the plaintiffs specifically alleged that the defendant No.1 and 4 constructed building in their property without leaving proper set back and it will affect their house for getting air and light. The plaintiffs have also sought for relief of mandatory injunction for demolition of deviations in the defendant No.1 and 4 building. Such being the case, I am of the opinion that the plaintiffs have to prove their case with cogent, oral and documentary evidence. Further I am of the opinion that firstly they have to prove that they constructed building in their property as per sanctioned plan and they left the proper set back. Thereafter they have to prove that the defendant No.1 and 4 have constructed building without leaving proper set back.
26. It is noticed that the defendant No.1 also contended that the plaintiffs have constructed house without proper set back. From perusal of the pleadings and oral evidence of PW.1, I am of the opinion that it is not the case of the plaintiffs that they have obtained 17 OS No.1154/2011 sanctioned plan and accordingly they constructed building in their property. It is also not the case of the plaintiffs that they left proper set back as per sanctioned plan. Further, I am of the opinion that the plaintiffs have not furnished particulars in respect of total extent of their site, out of the same in what extent they constructed building and leaving set back. Because the plaintiffs claiming that the defendant No.1 and 4 are adjacent owners have constructed building without leaving set back and which is against building byelaws and zonal regulations, they have sought for mandatory injunction for demolition of the alleged deviation by the defendant No.1 and 4. For that reason the plaintiffs have to approach this Court with clean hands with furnishing particulars that they have constructed building in their property as per approved plan and left proper set back. But the plaintiffs did not pleaded, adduced oral evidence and produced documents in this regard. They have also not produced sanctioned plan related to their property. In the plaint and PW.1 in his evidence stated that the defendant No.1 and 4 put up 18 OS No.1154/2011 construction in their property ('B' schedule property) without leaving proper set back of four sides. But the plaintiffs have not specifically pleaded that on what extent of land the defendant No.1 and 4 have encroached and put up construction on set back area. The plaintiffs have also not produced sale deed and approved plan belongs to the defendant No.1 and 4. Further I am of the opinion that the plaintiffs have not chosen to appointment of Court Commissioner for ascertaining alleged violation of the defendant No.1 and 4 in construction of building without proper set back.
27. In the plaint the plaintiffs claiming that 'B' schedule property belongs to the defendant No.1 and 4 and it is measuring 9.15 meters x 14.18 meters. Ex.D3 is the sale deed belongs to the defendant No.1 and 4 in respect of 'B' schedule property. It is mentioned that 'B' schedule property is measuring 8.90 x 14.20 meters. PW.1 in her cross-examination has admitted that they have wrongly shown the measurement of defendant No.1 and 4 property ('B' schedule property). She 19 OS No.1154/2011 further stated that they have not seen the sale deed of defendant No.1 and 4 and measurement of their property. Considering the same I am of the opinion that while the plaintiffs claiming that the defendant No.1 and 4 have put up construction without leaving proper set back and prayed for order of demolition, it is their duty to furnish correct measurement of 'B' schedule property. But as discussed above the plaintiffs have not furnished correct measurement of defendant No.1 and 4 property. Before filing the suit they did not verified the measurement of the property of the defendant No.1 and
4. I am of the opinion that without verified the measurement of the defendant No.1, 4 property, the plaintiffs cannot claiming that they are constructed building without proper set back and it is against sanctioned plan.
28. Ex.P3 is letter dated 10-01-2011 given by the plaintiff deceased Michael von. Sausman to the defendant No.3. It is mentioned that 'B' schedule property is adjacent to their house. They have not left 20 OS No.1154/2011 the proper plinth (byelaw) on the four sides of house being built. They left only gap of 1 feet on their boundary wall. Hence, he prayed for taking urgent action in this regard. From perusal of Ex.P3 it is clear that the plaintiffs contended that the defendant No.1 and 4 have constructed building in their property and left 1 feet set back. But this fact is not pleaded in the plaint.
29. The plaintiffs have produced four photographs and got marked as Ex.P4 to P9 with negatives. These photographs reveal that some distance between buildings of plaintiffs and defendant No.1 and 4. I am of the opinion that without supported documents, on the basis of these photos only it cannot be ascertained that the defendant No.1 and 4 constructed building without proper set back.
30. The plaintiffs have produced copy of notice under Section 321(2) of the K.M.C. Act, 1976 issued by the defendant No.3 to the defendant No.1 and got marked 21 OS No.1154/2011 as Ex.P8. In the said notice it is mentioned that on inspection of spot it is noticed that building is being constructed contrary to the sanctioned plan and used partially for commercial purpose. Therefore, show- cause notice issued and called upon the defendant No.1 and 4 to give reply why the provisional order should not be confirmed. The plaintiffs have produced provisional order passed by the defendant No.3 dated 23-05-2011 under Section 321(1) of KMC Act, 1976. As per this provisional order the defendant No.3 found that the defendant No.1 and 4 constructed building by violation and deviation of building byelaws. It is noticed that after passing provisional order the defendant No.3 has not passed final order under Section 321(3) of the said Act. The plaintiffs have not produced that final order before this Court. They have also not disclosed before this Court that after passing provisional order, whether final order passed or not.
31. It is admitted fact that after passing the above said provisional order the defendant No.1 and 4 have 22 OS No.1154/2011 filed suit against the Commissioner, BBMP in OS No.25931/2011. They prayed for a decree of permanent injunction restraining the defendant(BBMP) in interfering with their lawful possession of the suit schedule property. Ex.P10 is the certified copy of the order sheet, Ex.P11 is the certified copy of the plaint and Ex.P12 is the certified copy of the written statement related to OS No.25931/2011. As per the order sheet on 30-07-2014 the said suit has been dismissed for default of non-prosecution.
32. In Ex.P9 of the provisional order, the defendant No.3 furnished details of deviations in the defendant No.1 and 4 building. I reproduce the above said details as under :-
Detailed deviations made with reference to the sanctioned plan L.P. NO.918/2010-11 dated 04-10-2010 sanctioned by Assistant Director (Town Planning) Suvarna Paravanige, South Zone, Bruhath Bengaluru Mahanagara Palike.
Sl. Description As per As per Set Backs Percentage Remarks
No. Sanctioned Actuals Deviations Of set backs
plan deviations
1. Set Backs
Front 1.70m 0.45m 1.25m 73.52%
Rear 1.15m 0.45m 0.70m 60.86% Building
23 OS No.1154/2011
Left 1.00m 0.7 & 0.4m 0.30 & 0.60m 30% & 60% Constructed
Right 1.00m 0.45m 0.55m 55% violating and
deviating the
building
bye-laws
2. Coverage 61.96% 85.96%
3. FAR 1.75 Building
Under
Construction
4. Zoning Residential Residential
Regulations Building building
Thus the owner is deviating from the sanctioned plan viz that the owner is constructing the building contrary to the sanctioned plan and thereby is violating the provisions of section 321(1) of the KMC Act 1976 and has also violated the building byelaws and zoning regulations.
33. It is noticed that in OS No.25931/2011 the defendant (BBMP) has appeared and filed written statement and furnished details about deviations as per Ex.P9. As per Ex.P9 and Ex.P12, the defendant No.1 and 4 should be leave 1 meter set back towards left side (eastern side) of their property. But it is mentioned that they left only 0.7 and 0.45 meters.
34. As stated above Ex.P9 is showing about deviations found in building of defendant No.1 and 4. But it is only provisional order passed under Section 321(1) of the said Act. The BBMP did not passed final order in respect of alleged deviations by the defendant No.1 and 4 under 24 OS No.1154/2011 Section 321(3) of said Act. The plaintiffs also not produced the said final order passed by the BBMP. To prove Ex.P8 and Ex.P9 the plaintiffs have not chosen to examining the person who issued the same. Therefore, I am of the opinion that without proving the Ex.P8 and Ex.P9, on the basis of above said documents it cannot be held that the defendant No.1 and 4 have constructed building without leaving proper set back and it is against building byelaws and zonal regulations. Further I am of the opinion that Ex.P8 and P9 are not conclusive proof to hold that the defendant No.1 and 4 constructed building without leaving proper set back as alleged by the plaintiffs.
35. In his cross-examination DW.1 has admitted that as per Ex.P9 BBMP got issued notice to him and his wife under Section 321(2) of KMC Act. He also admitted that himself and his wife put their signatures in the said notice. He further admitted that in the said order it has been mentioned that they constructed house with deviations and violated building byelaws, they have not 25 OS No.1154/2011 replied to Ex.P8 and P9 and not questioning Ex.P9 before concerned authority. I am of the opinion that without supported documents above said admission of the DW.1 will not help the case of the plaintiffs. Because DW.1 in his cross-examination only admitted about issuance of Ex.P8 and P9 by the BBMP. But, he has not at all admitted the case of the plaintiffs that they put up construction without leaving set back and violated building byelaws.
36. In the plaint the plaintiffs specifically contended that at the time of construction of building by the defendant No.1 and 2 they have requested them not to putting up unauthorized construction without set back. They also brought the said fact before the defendant No.3 by way of oral and written complaint and prayed for taking action against the defendant No.1 and 4. In spite of the same the defendant No.3 did not came to the spot and taking any action, they have permitted the defendant No.1 to proceed with the illegal construction. But as against said contention, the plaintiffs have produced Ex.P8 and Ex.P9 26 OS No.1154/2011 and contended that the defendant No.3 has visited the spot, inspected and issued show-cause notice and also passed provisional order for demolition of deviations. I am of the opinion that the plaintiffs have set up Ex.P8 and P9 as against their pleadings. In the plaint the plaintiffs contended that in spite of complaint that the defendant No.1 and 4 constructed building as against sanctioned plan, the defendant No.3 did not taken any action. But, again the plaintiffs contended that the defendant No.3 visited the spot and issued show-cause notice and passed provisional order regarding violation of sanctioned plan by the defendant No.1 and 4. I am of the opinion that the plaintiffs have not firm about the same. On these count also I am not accepted Ex.P8 and Ex.P9 and hold that as per the said documents the defendant No.1 and 4 have violated sanctioned plan and put up construction without set back.
37. In the cross-examination of DW.1 it was suggested that the plaintiff orally requested them not to put up construction without leaving set back, it will affect natural 27 OS No.1154/2011 air and light to his house, in spite of same they constructed house. It was further suggested that BBMP authorities came to the spot and found that they have constructing house as against sanctioned plan for that reason they got issued notice. It was further suggested that they have colluded with defendant No.3 and constructed house by way of violating the building plan, they created photographs to their case, it was further suggested that tenants of the defendant No.1 and 4 causing trouble to the plaintiffs. But DW.1 has denied the same.
38. I have perused the cross-examination of PW.1 by the defendant No.1 side. She has stated that they have not seen the sale deed of defendant No.1 and its measurement. She has denied that as per Ex.D1 her vendor has not leave any set back and constructed building, as per Ex.D2 of photographs the defendant No.1 and his wife were left space and constructed building as per sanctioned plan. She admitted that as per Ex.D2 there is a passage in between two properties, but again 28 OS No.1154/2011 she stated that it is a small passage and it is existing in the first floor. She denied that because of her vendor constructed building in the entire area of 'A' schedule property there is no flowing of air and light to their house. Their vendor constructed building by violation of sanctioned plan.
39. I am of the opinion that while the plaintiffs blaming that the defendant No.1 and 4 are constructing building without leaving proper set back and prayed for mandatory injunction for demolition of alleged deviations in the building of the defendant No.1 and 4, the plaintiffs have to approach this Court with clean hands that they constructed building in their property as per sanctioned plan and left proper set back. But as stated above in the pleadings and oral evidence the plaintiffs not contended that they constructed building as per sanctioned plan and leaving proper set back. They have also not produced any documentary evidence to prove that they constructed their building as per sanctioned plan and left proper set back. The defendant No.1 contended that the plaintiffs 29 OS No.1154/2011 themselves put up construction without leaving proper set back. But they have not proved the said fact with cogent, oral and documentary evidence. I am of the opinion that non-proving of alleged fact by the defendant No.1 that the plaintiffs have not put up construction as per sanctioned plan and left the set back is not a ground to hold that the plaintiffs have proved their case. It is well settled law that the plaintiffs who asserting the fact, they have to prove their case on their own stand, but not on the weakness of the defendants. As discussion above, I am of the opinion that the plaintiffs have not proved that they constructed house in their property as per sanctioned plan and left proper set back.
40. From the above discussion I come to the conclusion that the plaintiffs have failed to prove that the defendant No.1 and 4 put up illegal construction upon the 'B' schedule property by violating building byelaws, zonal regulations and sanctioned plan. Hence, I answer the issue No.1 in the negative.
30 OS No.1154/2011
41. ISSUE NO.2:- In the plaint the plaintiffs prayed for decree of permanent injunction restraining the defendant No.1 from putting up construction on 'A' schedule property, in violation of building law, zonal regulations and building sanctioned plan. But, by considering the pleadings, oral and documentary evidence of both the parties it is clear that as on the date of suit itself the defendant No.1 and 4 have completed construction in their property. Such being the case the plaintiffs are not entitled the relief of permanent injunction as prayed for. I am of the opinion that this prayer sought by the plaintiffs is become infractuous.
42. In view of the findings on issue No.1, the plaintiffs have not proved that the defendant No.1 and 4 illegally constructed building in their property i.e., 'B' schedule property which is against building byelaws, zonal regulations and sanctioned plan. The plaintiffs have also not proved their case that the defendant No.1 and 4 have constructed building without leaving proper set back and violated the sanctioned plan. For that reason the 31 OS No.1154/2011 plaintiffs are not entitled for the relief of mandatory injunction as prayed in this suit. Therefore, I come to the conclusion that the suit of the plaintiffs is liable to be dismissed. From looking into the facts and circumstances of the case, parties are directed to bear their own costs. Hence, I answer the issue No.2 in the negative.
43. ISSUE NO. 3:- in view of the findings on issue No.1 and 2, I proceed to pass the following order:-
ORDER The suit of the plaintiffs is dismissed.
No costs.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, the transcript corrected by me, signed and then pronounced by me in open Court on this the 13th day of March, 2018).
(R.Y. SHASHIDHARA), XVI Addl. City Civil & Sessions Judge, BANGALORE.32 OS No.1154/2011
ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFFS:-
PW.1 Mrs. Jacqueline Sausman LIST OF DOCUMENTS MARKED FOR PLAINTIFFS:-
Ex.P-1 Cc of sale deed dated 22-1-2003 Ex.P-2 Tax paid receipt dt: 29-7-2009 Ex.P-3 Copy of complaint dt: 10-1-2011 Ex.P-4 to 7 Photos with negatives Ex.P-8 Notice issued under Section 321(2) of KMC Act dt: 23-5-2011 Ex.P-9 Provisional order dt: 23-5-2011 Ex.P-10 Cc of order sheet of OS 25931/2011 Ex.P-11 Cc of application in OS 25931/2011 Ex.P-12 Cc of written statement of defendant in OS 25931/2011
LIST OF WITNESSES EXAMINED FOR DEFENDANTS:-
DW.1 B. Manjunath LIST OF DOCUMENTS MARKED FOR DEFENDANTS:-
Ex.D-1 & 2 Two photographs
Ex.D-3 Sale deed dt: 9-4-2003
Ex.D-4 Khatha extract dt: 18-10-2005
Ex.D-5 to 15 11 tax paid receipts
Ex.D-16 Sanctioned plan
Ex.D-17 Khatha certificate dt: 5-8-2017
Ex.D-18 Khatha extract dt: 5-8-2017
Ex.D-19 to 24 Six photographs
Ex.D-25 One C.D.
(R.Y. SHASHIDHARA),
XVI Addl. City Civil & Sessions Judge,
BANGALORE.
33 OS No.1154/2011
ORDER
The suit of the plaintiffs is
dismissed.
No costs.
Draw decree accordingly.
(Vide separate Judgment)
(R.Y. SHASHIDHARA),
XVI Addl. City Civil & Sessions Judge,
BANGALORE.