Bangalore District Court
Sri N. Harish Kumar vs The Commissioner on 24 February, 2015
C.R.P. 67) Govt. Of Karnataka
TITLE SHEET FOR JUDGEMENTS IN SUITS
Form No.9(Civil)
Title sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF XVI ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
(CCH.NO.12)
Dated, this the 24th day of February, 2015.
PRESENT
SRI SHUKLAKSHA PALAN, B.Com.,LL.M.
PRESIDING OFFICER, FAST TRACK COURT-XV
AND C/C OF XVI ACC & SJ, BANGALORE.
O.S.NO.252/2006
PLAINTIFFS 1. Sri N. Harish Kumar,
S/o S. Nanjappa,
Aged about 35 years,
Residing at No.HIG.30/2,
K.H.B. colony, II Stage,
Basaveshwaranagar,
Bangalore -560 079.
2. Sri N. Shankar,
S/o S. Nanjappa,
Aged about 36 years,
Residing at No.1000,
III Block, III Stage,
Basaveshwaranagar,
Bangalore -560 079.
3. Sri N. Manjunath,
S/o S. Nanjappa,
Aged about years,
Residing at No.HIG 30,
K.H.B. colony, II Stage,
Basaveshwaranagar,
Bangalore -560 079.
2 O.S.252/2006
4. Smt. N. Nagarathna,
W/o Sri Venkatesh Murthy,
Aged about 40 years,
Residing at No.736,
9th Main, III Block,
III Stage, Basaveshwaranagar,
Bangalore - 560 079.
5. Smt. N. Vijayakumari,
D/o Sri Nanjappa,
Aged about 42 years,
Residing at No.387,
II Block, III Stage,
Basaveshwaranagar,
Bangalore - 560 079.
6. Sri K.E. Kumaraswamy,
S/o Sri K.M. Erallaiah,
Aged about 44 years,
Kadur Clinic, K.M. Road,
Near Market, Chikkamagalur.
(By Sri B.C.C., Advocate)
- V E R S U S -
DEFENDANTS 1. The Commissioner,
Bangalore Mahanagara Palike,
Near Hudson Circle,
Bangalore.
2. Smt. Rajamma,
W/o Govind P. Vadeyaraj,
Aged about 56 years,
Residing at No.HIG 21,
(Address known to plaintiffs)
K.H.B. Colony II Stage,
1 Cross, Basaveshwaranagar,
Bangalore -560 079.
(For D-1 by Sri S.R., Advocate)
(For D-2 by Sri J.C., Advocate)
3 O.S.252/2006
Date of institution of the suit : 7.1.2006
Nature of the suit (suit on Suit for permanent injunction.
pronote, suit for declaration and
possession suit for injunction,etc) :
Date of the commencement of
recording of the evidence :
Date on which the Judgment was 24.2.2015
pronounced :
Total duration Year/s Month/s Day/s
09 01 17
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(SHUKLAKSHA PALAN)
Presiding Officer, FTC-XV and
C/C of XVI ACC & SJ, BANGALORE.
4 O.S.252/2006
J U D G M E N T
This suit is filed by the plaintiffs against the defendants 1 and 2 with the relief of permanent injunction in restraining the 1st defendant from demolishing the existing structure, which is already raised by them in the suit property and further restrain both the defendants from interfering with the construction work carrying out in the suit schedule property.
2. The brief facts of the plaintiffs' case are that one V. Natarajan had got allotted with the suit property by the Karnataka Housing Board by virtue of the lease agreement during 1984 and subsequently there was a Sale Deed in his favour executed by the Karnataka Housing Board dated 12.7.1996. One Jayashree Balasubramaniam had filed a suit in OS No.15388/2001 upon him and there was a compromise taken place in the said suit. Hence, this V. Natarajan became the owner 5 O.S.252/2006 to 60% of the suit property and Jayashree Balasubramaniam became the owner to the extent of 40%. Later on, there was a joint katha taken place in their names and new number was assigned to the property as 22/28. But, both of them later on sold the suit schedule property jointly in favour of M.V. Chandrashekar and B.S. Seshadri equally to the extent of 24 x 77 feet dated 9.4.2003. These joint purchasers after the purchase have demolished the RCC roofed building, which was constructed in the suit property earlier. Since these B.S. Seshadri and M.V. Chandrashekar are the co-owners of the suit property wanted to dispose of the property, since the plaintiffs are their relatives wanted to purchase each portion of this property respectively. The 3rd plaintiff purchased two shares and remaining plaintiff No.1, 2 and 4 to 6 have purchased one share each by virtue of separate Sale Deeds dated 1.7.2005 from B.S. Seshadri and M.V. 6 O.S.252/2006 Chandrashekar. Afterwards, they though of to raise the structure for their residential purpose in the suit schedule property, they have approached the respective banks for getting the loan by mortgaging the property and the respective banks have sanctioned a sum of Rs.1,07,00,000/- to the plaintiffs. The said loan amount was sanctioned basing upon the progress of the work. When the construction work was over, the 2nd defendant who is the neighbour, with the malicious intention filed complaint against the plaintiffs with the 1st defendant by alleging that there is a diversion in the construction of the structure. The 2nd defendant had instigated the officials of the 1st defendant to take steps for demolition of the construction already constructed by them in the suit property. Finally on 8.11.2005 at about 11.30 a.m., some of the 1st defendant's officials came to the schedule property and started to interfere in the construction of their building. The 7 O.S.252/2006 officials even threatened to demolish the entire structure constructed by them in the suit property. Finally left the spot due to their intervention, but threatened them with dire consequences in case construction continued or completed afterwards. The plaintiffs approached the concerned Police Station, but no action was taken against the defendants, made them to approach this Court with appropriate reliefs. They are in lawful possession and enjoyment of the suit schedule property in joint and constructed the building with the help of their hard earned money and loan obtained by them in banks. Under such circumstances, if the building is demolished, they will put into untold hardship, inconvenience and losses. They never violated any one of the building bye-laws and rules or against the sanctioned plan issued by the 1st defendant. Hence, prayed for decree of the suit.
8 O.S.252/2006
3. Both the defendants have appeared through their counsel and filed their written statement separately. But none of the defendants have specifically denied and disputed about the ownership and possession of the suit property held by the plaintiffs. On the other hand, according to the 1st defendant one V. Natarajan and Smt. Jayashree Balasubramaniam had applied for sanctioned plan to construct the residential building and that was sanctioned on 24.4.2003. They further took the contention that on usual visits as well as on the basis of the complaint of the 2nd defendant it is noticed to them that there was a construction of the building in the suit property having basement, ground, first and second floors, which is not in accordance with the sanctioned plan, third floor was constructed unauthorizedly. Hence, the defendants issued P.O. Notice dated 3.9.2005 with sketch showing deviation under Sec.321(1) of KMC Act, but the 9 O.S.252/2006 plaintiffs did not give any reply or objections. Hence, C.O. Notice was issued on 15.9.2005 under Sec.321(3) of KMC Act. Accordingly they have taken action in accordance with law since there is gross violation of the sanctioned plan as well as against to the building byelaws. The allegation about lodging complaint against them and action taken by them without notice is totally incorrect. Later on defendant has passed an order under Sec.321(3) of KMC Act. The plaintiffs have no cause of action to file the suit. On the other hand, plaintiffs have to approach the concerned Karnataka Appellate Tribunal. Hence, prayed for dismissal of the suit.
4. The 2nd defendant specifically taken the contention that the plaintiffs have all along keeping their mouth close in respect of construction raised by them regarding sanctioned plan and license obtained by them nor the amount of construction 10 O.S.252/2006 existing in the suit property. There is a massive construction in the suit property, which constructed illegally, unauthorizedly without leaving proper set back and curtailing the enjoyment of the air and light towards their property. Accordingly 2nd defendant has also prays for dismissal of the suit.
5. On the above pleadings of the parties, my learned predecessor has framed the following issues :-
1. Whether the Plaintiffs prove their lawful possession over the suit schedule property on the date of the suit?
2. Whether the Plaintiffs further prove the alleged interference and obstructions to such of their possession and enjoyment of the suit property, by the defendants and their men and also the attempt of illegal demolition of the portion of the existing structure in the suit property?
3. Whether the suit as brought against the 1st defendant is not maintainable for non-issuance of statutory notice under Section 482 of KMC Act?
4. Whether the Plaintiffs are entitled for the relief of permanent injunction as prayed?
5. What Order or Decree?11 O.S.252/2006
6. To prove the case of the plaintiffs, 1st plaintiff herself examined as PW.1 and examined one more witness as PW.2 and got marked 46 documents and closed their side. The 2nd defendant examined one witness as DW.1 and got marked the documents as per Exs.D-1 to D-14 and closed their side.
7. Heard the arguments canvassed by Sri B.C.C., learned counsel for the plaintiffs and the arguments canvassed by the 1st defendant's learned counsel Sri S.R., and Sri J.C., learned counsel for 2nd defendant. Perused the materials on record.
8. My findings on the above issues are as under: -
(1) ISSUE NO.1 : In the Negative.
(2) ISSUE NO.2 : In the Negative.
(3) ISSUE NO.3 : In the Negative.
(4) ISSUE NO.4 : In the Negative.
12 O.S.252/2006
(5) ISSUE NO.5 : As per final order for the
following:
REASONS
9. ISSUE NO.1:- It is an undisputed fact that the suit property originally belonging to the Karnataka Housing Board bearing site No.22, later on it was sold to V. Natarajan by virtue of the registered Sale Deed dated 12.7.1996 and there was a suit in OS 15388/2001 taken place in between V. Natarajan and one Jayashree Balasubramaniam and that suit was compromised, accordingly for the 60% of the property V. Natarajan became the owner and for the remaining 40% of the property Smt. Jayashree Balasubramaniam became the owner. Later on they have jointly sold the property in favour of M.V. Chandrashekar and B.S. Seshadri by virtue of the registered Sale Deed dated 9.4.2003 and in turn these two vendors have also sold the very same property to these plaintiffs. Accordingly, 3rd 13 O.S.252/2006 plaintiff purchased two shares out of the suit schedule property and remaining plaintiffs 1 & 2 and 4 to 6 have purchased one share each by virtue of the Sale Deeds dated 1.7.2005. Later on katha of the property is also respectively changed in the name of the plaintiffs. Later on the plaintiffs made an attempt to construct the building for their residential purpose with the help of loan sanctioned by the respective banks. When the construction work is in progress the 2nd defendant admittedly neighbor of the plaintiffs made the complaint to the 1st defendant and 1st defendant officials have inspected the suit property and threatened the plaintiffs with dire consequences and directed to remove the illegal construction made in the schedule property by deviating the sanctioned plan and permission. So, the plaintiffs have approached this Court with the remedy of permanent injunction against both the defendants. 14 O.S.252/2006
10. Since the 1st defendant is the Corporation and 2nd defendant is the neighbor of the plaintiffs not at all disputed the ownership and possession of the plaintiffs over the schedule property. But only grievance according to the 1st defendant is that there was a construction made by the plaintiffs against sanctioned plan and permission granted to one V. Natarajan and Jayashree Balasubramanian dated 24.4.2003. The plaintiffs without obtaining further permission had constructed the building by violating the earlier sanctioned plan and permission. Hence, according to the defendants they have issued P.O. Notice on 3.9.2005 under Sec.321 of KMC Act, when there is no reply or objection from the plaintiffs in the stipulated period have also issued C.O. Notice dated 15.9.2005 under Sec.321(3) of KMC Act and afterwards passed an order in this regard. So, according to the 1st defendant the present suit is not maintainable before this Court. According to 15 O.S.252/2006 2nd defendant without leaving proper set back building has been constructed, thereby the plaintiffs have blocked the air and light towards their property. Hence, they have made the complaint to the 1st defendant. Accordingly 1st defendant came to the property, inspected the building and reported in the sketch about violation and along with the sketch notice was issued under Sec.321(1) of K.M.C. Act 1976. When there is no reply, they have issued notice under Sec.321(3) of KMC Act and finally passed the confirmation order.
So, these things goes to show that the plaintiffs are the absolute owner to the suit property have constructed the building in the property against the plan and permission obtained by their vendor's vendor Natarajan and Jayashree Balasubramaniam. Under such circumstances, it is to be seen that there is only dispute prevails in between the parties about the construction of building and not for any other reason. Hence, it is 16 O.S.252/2006 to be seen that whether the plaintiffs constructed the building in the suit property in accordance with the building plan and permission granted earlier by the 1st defendant to the plaintiffs vendor's vendor. To ascertain these facts in issue the evidence of both the parties is required to be taken into consideration.
11. The plaintiffs examined 1st plaintiff as PW.1 and filed his affidavit in-chief and thereby reiterated the plaint averments as contemplated under Order 18 rule 4 of CPC. He had been cross- examined by the learned counsel for the defendants on several aspects. It is specific defense of the defendants that the building constructed by the plaintiffs upon the permission and license took by their vendor's vendor Jayashree Balasubramaniam, construction is contrary to the approved layout plan and map. But the plaintiff denied this fact in his evidence. 17 O.S.252/2006 Under such circumstances, whether it is revealed in the cross-examination is a matter for consideration in this juncture.
12. In his cross-examination PW.1 deposed that he had constructed the ground, first and second floor by obtaining sanctioned plan in the year 2004 for constructing ground, first and second floors. It is also further specific admission that sanctioned plan obtained in the name of Jayashree Balasubramaniam, who is none other than the plaintiffs' vendor's vendor. On the other hand, he had no idea about the fact that whether sanctioned plan is produced before this Court or not. When the defendants categorically disputed the fact that the plaintiffs have constructed the building against the sanctioned plan and even by violating the byelaws and rules, it is their duty to produce the sanctioned plan. Even otherwise, nothing prevented them to examine their vendor's vendor, 18 O.S.252/2006 who took sanctioned plan, before this Court. According to the defendants there was a construction in the third floor as well as without leaving specific set back building has been constructed by the plaintiffs. But the witness in his further cross-examination has categorically turned down the suggestion put to him about these facts in issues are concerned. He further even disputed the issuing of notice by the 1st defendant under Sec.321(1) of K.M.C. Act. On the other hand, defendants have produced certain photos of the property which have got marked at Exs.D-2 to
5. On perusing these photographs it is very much revealed to this Court that there was a construction in the ground floor, first floor, second and third floors. On the other hand, PW.1 had denied this fact in issue. Hence, this fact in issue is required to be proved by the defendants. In the further cross-examination, this PW.1 admitted that they have not taken any permission or license from 19 O.S.252/2006 the 1st defendant for construction of the building. On the other hand, even these plaintiffs are subsequent purchasers they can construct the building in the property on the basis of the plan and permission obtained by their vendor's vendor. On the other hand, there should not be any deviation to the original plan and permission without authority by the 1st defendant. During the course of further cross-examination the defendants counsel has confronted Ex.D-1, which is the statement given by this PW.1 before the Criminal Court when they have filed a criminal case against the 2nd defendant in CC No.15155/2008. If this document is taken into consideration, it is revealed that certain admission has been made by the PW.1 before the Criminal Court. The said admissions as follows :- The 2nd defendant's counsel has cross- examined this witness in the Criminal Court, there he had specifically admitted that prior to purchasing of their property, this 2nd defendant 20 O.S.252/2006 husband had purchased the property situated beneath their property. He further admitted that after purchasing the property he took license from the BBMP (1st defendant) for construction of building in the ground, first and second floors only. He further admitted that he constructed the building in basement floor, ground floor, first floors to third floors. It is his specific admission that because of constructing the building against the license the accused no.1 (2nd defendant's husband) had filed a complaint in BBMP for violating the permission and license. Accordingly on 3.9.2005 the BBMP 1st defendant) issued notice for stopping the construction. So, the admissions made by PW.1 before the Criminal Court is going to prove that there was a violation in constructing the building by the plaintiffs because there is a permission to built ground, first, second floors only. On the other hand, they have constructed the building in basement floor as well as third floor 21 O.S.252/2006 in addition without permission. Hence, the BBMP officials have inspected the property and issued notice as contemplated under Sec.321(1) of KMC Act. But this fact has been disputed by PW.1 in his cross-examination before this Court. So, how much reliance can be attributed to this Ex.D-1 is a matter for consideration before this Court for the present. Since witness has given such admission before the Criminal Court is also amounts to an admission as contemplated under Secs.17 and 18 of Indian Evidence Act. This PW.1 is none other than the co-owner to the suit property and he is looking after entire management of property as well as deposing on behalf of other owners in Criminal Court as well as before this Court. He had every knowledge about the development taken place in the suit property. Such being the case, the said admissions made out by this PW.1 before the Criminal Court is to be accepted and it is relevant and admissible also. Under such circumstances, it 22 O.S.252/2006 can be very well able to come to the conclusion that the building as seen from Exs.D-2 to 5 - photographs is the building of plaintiffs and it has been constructed against the permission and license granted by this 1st defendant.
13. The plaintiffs have produced the documents i.e., Ex.P-1 - Lease-cum-Sale agreement executed in favour of original grantee by the Karnataka Housing board and possession is also delivered to him. Ex.P-2 is the copy of Sale Deed executed by V. Natarajan and Smt. Jayashree Balasubramaniam in favour of B.S. Sheshadri, Ex.P-3 is the copy of Sale Deed executed by V. Natarajan and Smt. Jayashree Balasubramaniam in favour of M.V. Chandrashekar. Ex.P-5 is the copy of Sale Deed executed by M.V. Chandrashekar and B.S. Sheshadri to 1st plaintiff - Harishkumar, Ex.P-6 is the copy of Sale Deed executed by M.V. Chandrashekar and B.S. 23 O.S.252/2006 Sheshadri in favour of 2nd plaintiff. Ex.P-7 & 8 are the copies of Sale Deeds executed by M.V. Chandrashekar and B.S. Sheshadri in favour of 3rd plaintiff - N. Manjunath, Ex.P-9 is the copy of Sale Deed executed by M.V. Chandrashekar and B.S. Sheshadri in favour of 4th plaintiff - Smt. N. Nagarathna, Ex.P-10 is the copy of Sale Deed executed by M.V. Chandrashekar and B.S. Sheshadri in favour of 5th plaintiff - Smt. N. Vijayakumari and Ex.P-11 is the copy of Sale Deed executed by M.V. Chandrashekar and B.S. Sheshadri in favour of 6th plaintiff - K.E. Kumaraswamy, are the title deeds of the documents pertaining to the suit property passed in favour of the plaintiffs gradually, that is not in dispute. Exs.P-12 to 19 are the Form No.15. Exs.P-20 to 24 respectively are certificates issued by the different bankers showing about deposit of title deeds of the suit schedule property for the purpose of obtaining loan to do the construction of 24 O.S.252/2006 the building. Ex.P-25 is the tax paid receipt to the 1st defendant. Exs.P-27 to 31 are the positive photos showing about leaving set back while doing construction of their building. Exs.P-32 to 38 are katha certificates, Exs.P-39 to 45 are the katha extracts are also other documents proving the possession of the plaintiffs over the schedule property. Ex.P-46 is the notice issued to the defendants prior to the suit. Thereby, it is disclosed to the defendants that there is no deviation in the construction of the building made by them in the suit property. Even though these documents are not at all challenged by the defendants, they are not at all material to decide the dispute involved in this case on hand.
14. On the very same footings the defendants also got marked the other documents. Among them Ex.D-6 is the copy of the absolute Sale Deed executed by the Karnataka Housing Board in 25 O.S.252/2006 favour of 2nd defendant. The ownership and possession of the 2nd defendant property is not in dispute. Ex.D-7 is the katha extract of the 2nd defendant property and Ex.D-8 is the katha certificate of her property. Ex.D-9 is the copy of the notice issued by the 1st defendant under Sec.321(2) of KMC Act. Ex.D-10 is the order came to have been passed since no reply has been given by these plaintiffs as contemplated under Sec.321(1) of the Act. Ex.D-11 is the copy of the inspection note is going to disclose that building constructed by the plaintiffs is all together contrary to the original permission and plan. There is deviation in basement floor, ground floor, first floor, second floor and third floor. Ex.D-12 is describing the area which has been divided by the plaintiffs while constructing the building. Ex.D-13 is the subsequent notice issued by the 1st defendant under Sec.321(3) of K.M.C. Act. Ex.D-14 is the order issued under Sec.462 of 26 O.S.252/2006 K.M.C. Act, there by directed the plaintiffs to remove the unauthorized construction. Accordingly BBMP Engineer has empowered to take necessary action in this regard. So the defendants documentary evidence going to reveal that the 1st defendant had taken lawful action against these plaintiffs for the reason of constructing the building by the plaintiffs against the building byelaws and sanctioned plan by deviating the same. So the defendants took the contention in the written statement itself that the suit before this Court is not at all maintainable since the plaintiffs have to approach the Karnataka Appellate Tribunal for redressal of their remedies. Under such circumstances, it is to be seen that whether the plaintiffs have to approach the concerned authorities prior to approach this Court for redressal of the remedy or not herein afterwards.
27 O.S.252/2006
15. The plaintiffs have examined one witness PW.2 - Girish in support of their case and he is none other than the neighbor of the plaintiffs. He is acquainted with both plaintiffs and 2nd defendant. According to him there are only six residential flats in the property belonging to the plaintiffs. But in his cross-examination done by the 2nd defendant's counsel he had admitted that he is very much acquainted with PW.1 since he is his friend. Such being the case, he has to support the case of the plaintiffs. Even otherwise, it is his specific admissions that after demolition of structure in the suit property the plaintiffs have constructed their house in that property and he had identified, even the photographs which is marked at Exs.D-4 and 5. He had specifically turned down the suggestion put to him that there is also an apartment in the third floor of the said building and the plaintiffs have only left 3 feet width by the side of their building as set back. The 28 O.S.252/2006 witness further specifically admitted about the inspection made by the 1st defendant officials, but according to him they did not dispute the construction of the building in that property. So, inspection of the suit property by the defendants officials is proved even though this fact is not proved from the oral evidence of PW.1.
16. It was canvassed by the learned counsel for the plaintiffs in the written argument that as per the issues framed by this Court plaintiffs are only to establish their lawful possession and enjoyment of the property and interference made by the defendants. To that effect the plaintiffs adduced their evidence oral and documentary and it is not denied by the defendants about the ownership and possession of the suit property by the plaintiffs. Under such circumstances, there is no difficulty to grant an order of permanent injunction against the defendants. It is further high lighted in the 29 O.S.252/2006 arguments that only because of the interference made by the 1st defendant's officials at the instance of the 2nd defendant, the plaintiffs have approached this Court, even though the plaintiffs built their building as per the plan and permission obtained earlier without any deviation. Hence, the suit is required to be decreed.
17. Against this, the learned counsel for the 1st defendant filed written argument and took the categorical contention that there is deviation in construction of the building by the plaintiffs. The plan took by the vendors vendor of the plaintiffs was lapsed on 23.4.2005 and without renewing the same the building was constructed in the suit property unauthorized, because the plaintiffs have no right to construct the building in the third floor as well as in the basement floor. The plaintiffs or their vendors vendor are only allowed to construct the building to the extent of built up area is 30 O.S.252/2006 4206.08 sq.ft., but it was built to the extent of 13020 sq.ft. So, this is more than 100% deviation. Under such circumstances, on inspection of the property they have taken action by issuing notice as contemplated under Sec.321 of KMC Act and they have not relied to the said notice within time stipulated to them, later on said order was confirmed as contemplated under Sec.321(3) of KMC Act and order was passed to take action under Sec.462 of KMC Act. Under such circumstances, even though the defendants having no right, title and interest over the schedule property, they are eligible to take action against such persons whom have constructed the building contrary to sanctioned plan and permission by deviating it. On the other hand, after passing such an order as contemplated under Sec.321(3) of KMC Act, the Civil Court had no jurisdiction and they have to approach the concerned Appellate Tribunal for redressal of the remedy. Under such 31 O.S.252/2006 circumstances, 1st defendant prays for dismissal of the suit.
18. The 2nd defendant counsel specifically argued that since the building of the plaintiffs constructed without leaving proper set back, air and light of the 2nd defendant's building has been effected as well as in one occasion the compound wall of the 2nd defendant was demolished, which has been reconstructed by her as well as even a complaint is also filed against her husband. Such being the case, the plaintiffs themselves are the persons violated the law, they are not eligible to get an order on discretionary relief in their favour. Hence, prays for dismissal of the suit.
19. Even though the arguments canvassed by the learned counsel for the plaintiffs holds good to some extent because both the defendants do not dispute the plaintiffs' title and possession over the suit schedule property. On the other hand, the 32 O.S.252/2006 dispute prevails in between the parties all together different because the plaintiffs have approached this Court with the remedy of permanent injunction in restraining the defendants from demolishing any portion of the schedule building constructed in the suit property, because according to them there is no deviation as alleged by the defendants and the construction is made within the prescribed limits and permission granted by the 1st defendant. It is also their contention that the alleged notice claimed by the defendants as contemplated under Secs.321(1) and 321(3) of KMC Act is served upon them. Hence, they need not replied to it also. So, the arguments canvassed by the learned counsel for the plaintiffs is not fully accepted by this Court. On the other hand, it is to be seen that whether the action taken by the 1st defendant is in accordance with the law. Under such circumstances, whether the plaintiffs suit for permanent injunction is maintainable or 33 O.S.252/2006 not. In this regard it is seen from the evidence of PW.1 that he has fails to yield the contention of the defendants about service of notice under Secs.321(1) and 321(2) of KMC Act. But this Court has already come to the conclusion on the basis of Ex.D-1 that the plaintiffs had in the knowledge of service of notice in accordance with Secs.321(1) and (2) of KMC Act. Even otherwise, when the 1st defendant has took specific contentions in the written statement, about confirmation of the order passed under Sec.321(3) of KMC Act, after notice under Secs.321(1) and (2) of the said Act as well as issuing order to the concerned Executive Engineer for taking action under Sec.462 of the Act, then how the Court can presume that still the plaintiffs have no knowledge about passing of such an order against them about construction of the building contrary to the permission and license granted to them or their vendors vendor by deviating it. When the plaintiffs are within the knowledge of 34 O.S.252/2006 these facts, then the suit of the plaintiffs is not definitely maintainable before the Civil Court since the jurisdiction of this Court is ousted under Sec.443-A of K.M.C. Act, which runs as follows :-
Sec.443-A. Appeal to Karnataka Appellate Tribunal or District Court - (1) Any person aggrieved by any notice issued, action taken or proposed to be taken by the Commissioner under Sections 308, 309 and 321(3) may appeal -
(i) in the Karnataka Appellate Tribunal in case of the Bruhat Bangalore Mahanagara Palike.
So, on perusing this provision of law, it is very much clear that whatever the notice issued under Sec.321(1) & (2) of KMC Act either upon the plaintiffs or anybody, who is doing construction of the building and if a confirmation order was issued under Sec.321(3) of KMC Act, then aggrieved party has to approach the concerned Karnataka Appellate Tribunal, which is having the jurisdiction. So, it is further revealed that efficacious remedy is available to the plaintiffs under the KMC Act 1976 itself, without exhausting such remedy, they are unable to approach the Civil 35 O.S.252/2006 Court. The dispute prevails in between the plaintiffs and defendants can be very well adjudicated under the provisions of KMC Act. Such being the case, even though the plaintiffs are owners in possession and enjoyment of the suit property, defendants not having any right, title or possession on that piece of property, when there is deviation in construction of the building by the plaintiffs in the suit property and the 1st defendant being the local administrative Body had passed such an order as contemplated under Sec.321(3) of KMC Act, the plaintiffs shall have to approach the concerned Appellate Tribunal. So, when the suit of the plaintiffs itself is not maintainable, question of granting remedy would not arise for consideration. That is why this Court is answered this issue No.1 in the Negative.
20. ISSUE NO.2:- For the above made discussions in the above said issues it is revealed 36 O.S.252/2006 that even though the plaintiffs are the owners in possession and enjoyment of the suit property, since the 1st defendant - Corporation is empowered to take necessary action upon them, in case there is deviation in construction of the building, for the present, it is also revealed to this Court that there is some deviation, accordingly the 1st defendant had taken necessary action within the four corners of law. The action taken by the 1st defendant would not be considered as illegal and unlawful act since the 1st defendant is discharging his functions within the four corners of Karnataka Municipal Corporation Act 1976. Such being the case, the plaintiffs are not entitled for the relief of permanent injunction as claimed. Hence, I answer this issue No.2 in the Negative.
21. ISSUE NO.3:- The defendants took the contention that the suit is not maintainable for not issuance of statutory notice under Sec.482 of KMC 37 O.S.252/2006 Act. On the other hand, this fact in issue is already answered by this Court on 3.7.2010 and application filed by the defendants was dismissed. Hence, that fact in issue cannot be re- agitated. Accordingly, I answer this issue No.3 in the Negative.
22. ISSUE NO.4:- For the above made discussions, this Court has already come to the conclusion that the plaintiffs are not entitled for the remedy as claimed. Hence, I answer this issue No.4 in the Negative.
23. ISSUE NO.5 :- In view of the discussions made in the above said issues, I proceed to pass the following :-
ORDER The suit of the plaintiffs is hereby dismissed with the costs of the defendants. However, plaintiffs are granted 30 days time to approach the concerned Karnataka Appellate Tribunal for redressal of their remedy from today.38 O.S.252/2006
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in open Court on this the 24th day of February, 2015).
(SHUKLAKSHA PALAN) Presiding Officer, FTC-XV and C/C of XVI ACC & SJ, BANGALORE.
SCHEDULE PROPERTY All the part and parcel of the entire property bearing site No.22, HIG, presently comes under Bangalore Mahanagara Palike bearing No.22/28, situated at I Cross, II Stage, Karnataka Housing Board Colony, Agrahara Dasarahalli, Bangalore Mahanagara Palike Ward No.21, Bangalore measuring East to West 48 feet and North to South 77 feet, which consist of Basement, ground floor, first floor and second floor with a total built up area of 4206.08 sq. feet and bounded as follows : East by - Property No. HIG 21 West by - Property No.HIG 23
North by - Property No.19 South by - Road 39 O.S.252/2006 ANNEXURE LIST OF WITNESSES EXAMINED FOR PLAINTIFFS:-
PW.1 N. Harish Kumar @ Harish Punam PW.2 Girish
LIST OF DOCUMENTS MARKED FOR PLAINTIFFS:-
Ex.P-1 CC of Sale agreement dt: 1.8.1984
" P-2 Cc of Sale Deed dt: 9.4.2003
" P-3 Cc of Sale Deed dt: 9.4.2003
" P-4 Tax paid receipt.
" P-5 Cc of Sale Deed dt: 1.7.2005
" P-6 Cc of Sale Deed dt: 1.7.2005
" P-7 Cc of Sale Deed dt: 1.7.2005
" P-8 Cc of Sale Deed dt: 1.7.2005
" P-9 Cc of Sale Deed dt: 1.7.2005
" P-10 Cc of Sale Deed dt: 1.7.2005
" P-11 Cc of Sale Deed dt: 1.7.2005
" P-12 to 19 Eight encumbrance certificates.
" P-20 to 22 3 letters.
" P-23 & 24 Letters of Vijaya Bank.
" P-25 Receipt.
" P-26 to 31 Six photographs
26(a) to Negatives.
31(a)
" P-32 to 38 Khatha certificates.
" P-39 to 45 Khatha extracts
" P-46 o/c legal notice.
LIST OF WITNESSES EXAMINED FOR
DEFENDANTS:-
DW.1 Smt. M. Rajamma
40 O.S.252/2006
LIST OF DOCUMENTS MARKED FOR
DEFENDANTS:-
Ex.D-1 Cc of deposition in CC 17755/08
" D-2 & 3 Photographs
" D-4 & 5 Photographs (D-1 to 5 marked through PW.1 in his cross-examination).
" D-6 Cc of Sale Deed " D-7 Khatha extract " D-8 Khatha certificate " D-9 Provisional order " D-10 Final order " D-11 Attested copy of plan " D-12 Copy of set back area details. " D-13 Order passed u/s 321(3) of KMC Act. " D-14 Order passed under Sec.462 of KMC Act. (SHUKLAKSHA PALAN) Presiding Officer, FTC-XV and C/C of XVI ACC & SJ, BANGALORE. 41 O.S.252/2006
Judgment pronounced in open Court vide separate judgment.
ORDER The suit of the plaintiffs is hereby dismissed with the costs of the defendants.
However, plaintiffs are granted 30 days time to approach the concerned Karnataka Appellate Tribunal for redressal of their remedy from today.
Draw decree accordingly.
(SHUKLAKSHA PALAN) Presiding Officer, FTC-XV and C/C of XVI ACC & SJ, BANGALORE.42 O.S.252/2006