Bangalore District Court
Dr. C.M.Balakrishnan vs Mr.G.Narayan S/O Not Known To The ... on 12 February, 2015
IN THE COURT OF THE XXVII ADDITIONAL CITY
Form No.9
(Civil)
CIVIL JUDGE, BANGALORE
Title sheet
for
Judgment
Dated this the 11th day of March 2014
in Suits
R.P.91) Present:- Sri Sudheer H. Koraddi, B.Sc.,LL.B.,(Spl)
XXVII Addl.City Civil Judge, Bangalore
O.S.No. 8120/2012
Plaintiff: 1. Dr. C.M.Balakrishnan
S/o C.R.Mohan Ram,
Age: About 63 years,
No.21/1, Gover Road,
Cox Town, Sarvagnanagar,
Bangalore-560 005.
By Sri KBSM, Advocate
/Vs/
Defendants 1. Mr.G.Narayan s/o not known to the plaintiff
: Major by Age, No.22, Gover Road,
Cox Town, Sarvagnanagar,
Bangalore-53.
2. The Commissioner,
Bangalore Mahangara Palike,
Bangalore.
D1 - By APP, Advocate
D2 - By Sri SK, Advocate
Date of Institution of the suit 16/11/2012
Nature of the suit For injunction
Date of commencement of
Recording of the evidence 1/7/2013
Date on which the judgment 11/3/2014
Was pronounced
Total duration Day/s Month/s Year/s
26 2 1
2
CT0028_O.S._8120_2012_Judgment_
(Sudheer H. Koraddi),
XXVII Addl.City Civil Judge,
Bangalore
JUDGMENT
This is a suit filed by the plaintiff against defendants 1 and 2 for permanent injunction restraining defendant no.1 from putting unauthorized construction on Schedule 'A' property and for mandatory injunction to remove the unauthorized construction put up in Schedule 'A' property by defendant no.1 and to award costs of the suit.
2. In the plaint it is contended that, plaintiff - Dr. C.M.Balakrishnan is the absolute owner in possession of Schedule 'B' property bearing No. 21 (21/1), Gover Road, Cox Town, Sarvagnanagar, Bangalore-560 005 measuring east to west 50 feet; north to south 80 feet, bounded by private property on eastern side; defendant no.1's property on western 3 CT0028_O.S._8120_2012_Judgment_ side; Gover road on northern side; and conservancy lane on southern side. Schedule 'A' property bearing No. 22 of defendant no.1-G.Narayana is situated on the western side of Schedule 'B' property of the plaintiff and Schedule 'A' property is bounded by property of plaintiff on eastern side; property of Late Kuppaswamy Mudaliar on western side; Gover Road on northern side and conservancy lane on the southern side.
The plaintiff has succeeded to the Schedule 'B' property by way of inheritance from his mother Smt.Thirupura Sundari Aamal in whose favour her husband had executed Gift Deed on 25/6/1962 with respect to Schedule 'B' property. Katha of Schedule 'B' property is entered in the name of plaintiff and he is paying taxes of the Schedule 'B' property. He is also paying electric and water charges to the concerned Revenue Department.
4 CT0028_O.S._8120_2012_Judgment_ That being so, defendant no.1 - G.Narayan the owner of Schedule 'A' property started construction without leaving setback as per the sanction plan of BBMP and he has started constructing Balcony and has put up staircase abutting Schedule 'B' property of plaintiff above his compound wall without leaving 5 feet space as per the byelaws on the left side of Schedule 'A' property. Thus, flow of air and light towards Schedule 'B' property of plaintiff is blocked and Schedule 'B' property has become dark. Plaintiff requested defendant no.1 to stop unauthorized construction and also intimated defendant no.2 Commissioner, Mahanagara Palike and given objections before Corporation Engineer, Assistant Executive Engineer of Mahanagara Palike for unauthorized construction of ground, first and second floor of Schedule 'A' property by defendant no.1. But, said officials have not taken any action against 5 CT0028_O.S._8120_2012_Judgment_ defendant no.1. Defendant No.1 has also not left setback on other sides as per the Town and Country Planning Act as well as Karnataka Municipal Corporation Act and thereby violated the byelaws in collusion with BBMP officials and went on with the unauthorized construction. Defendant No.1 has also not obtained sanction plan for construction of Schedule 'A' property from BBMP and plaintiff has issued notice to defendant no.2 on 9/11/2012 for the said violations and deviations made by defendant no.1 and to stop unauthorized construction and to remove the Balcony, staircase put up on the western side of Schedule 'B' property. Further, on 7/11/2012 and 9/11/2012 the plaintiff came to know about the unauthorized and illegal construction of Schedule 'A' property by defendant no.1 and defendant no.1 threatened the plaintiff to continue with the unauthorized construction with the help of rowdies. 6 CT0028_O.S._8120_2012_Judgment_ Thus, having accrued with the cause of action, plaintiff was constrained to file the suit and prayed to decree the suit.
3. After registration of the suit, notice of IAs 1 & 2 filed for dispensation of notice to defendants and for ad interim temporary injunction order against the defendants have been issued and served upon the defendants and defendants have put their appearance through Advocates and my predecessor in office has issued an order of status quo with respect to Schedule 'A' property and subsequently the application at IA No.2 is dismissed on 15/12/2012 by vacating the said status quo order. Plaintiff had also preferred MFA No. 523/2013 before the Hon'ble High Court of Karnataka and a Court Commissioner was appointed to inspect Schedule 'A' property and ascertain completion of construction work and the said MFA is disposed off on 13/3/2013 by restraining the defendant no.1 from 7 CT0028_O.S._8120_2012_Judgment_ continuing with further construction over Schedule 'A' property. Thereafter, defendant no.1 had preferred Special Leave Petition No. 18523/2013 before the Apex Court and the Apex Court by confirming the order or Hon'ble High Court of Karnataka has directed to dispose of the suit on or before 11/3/2014.
4. Defendant No.1 has filed written statement by denying the averments of the plaint as false and contended that this suit is not maintainable in law or on facts and plaintiff cannot seek negative relief with respect to Schedule 'A' property of defendant no.1 in law, and he has given wrong measurements and filed the suit with misconception alleging that defendant no.1 has to leave 5 feet of setback on the eastern side of his property. Defendant No.1 is the owner of eastern half portion of Schedule 'A' property bearing No.22, Gover Road, Cox Town, Bangalore measuring east to west 25 feet, north to south 80 feet and the 8 CT0028_O.S._8120_2012_Judgment_ said property is bequeathed in his favour under the Will dated 30/7/2001 executed by Smt. Saraswathi the sister of his father and said Saraswathi had inherited the property from her father-in-law Sri Kuppuswamy Mudaliar. Schedule 'A' property is bounded by property no.21 of Gover Road on eastern side; property no.22/1, Gover Road on western side; Gover Road on northern side and Conservancy Lane on southern side. It measures east to west 25 feet and north to south 80 feet, and it was comprising of old house. The executant Saraswathi died on 29/3/2005 and the name of defendant no.1 is entered to the property bequeathed in his favour after her death and he is paying taxes of the property regularly, and katha is also effected in his name. He has taken permission for construction of residential house in place of old house from defendant no.2 BBMP and defendant no.2 after considering his 9 CT0028_O.S._8120_2012_Judgment_ request, approved construction plan on 13/6/2011. He started construction work in 2011 and civil work was almost completed in October 2012 and the suit is filed thereafter to harass him. He has constructed building as per the sanction plan obtained by defendant no.2 by leaving setback etc., and he has left setback of 1 meter on the eastern side of Schedule 'A' property towards the property of plaintiff as per the byelaws and approved plan. He has also left setback as per the approved plan on other sides, and plaintiff has misutilised his house by running hospital and number of vehicles will be parked infront of his house also and thereby plaintiff has caused nuisance to his house as well. He is also causing inconvenience to enter into his house, due to parking of the vehicles and in October 2011, his relatives objected plaintiff for parking of the vehicles infront of the house and plaintiff being unhappy with the said 10 CT0028_O.S._8120_2012_Judgment_ development has filed false suit and in collusion with BBMP officials he started to harass him. Plaintiff has constructed his house without leaving any setback and encroached upon compound wall of defendant no.1 and put up grill and closed his side long back and there is no any blockage of air and light towards the property of plaintiff by construction of Schedule 'A' property of defendant no.1. Defendant No.2's officials at the instigation of plaintiff have issued notice on 9/11/2012 and this suit is not maintainable in law as it is hit under Section 9 of CPC. Defendant no.1 has raised loan from Supraja Co-operative Society Ltd., Bangalore and he has constructed the house with his hardened money without any deviations and plaintiff himself has encroached upon the portions of Schedule 'A' property on rear side while constructing kitchen and he has not left any setback. Further, there was no cause of action to file 11 CT0028_O.S._8120_2012_Judgment_ the suit and suit is hit under Order VII Rule 11 of CPC, and the suit in the absence of issuance of statutory notice to defendant no.2 is not maintainable, and the suit be dismissed with costs in the interest of justice.
5. Defendant no.2 has not filed written statement inspite of sufficient opportunity given to it.
6. On the basis of above said pleadings of the parties, the following issues have been framed for disposal of the suit:
1. Whether plaintiff proves that he is the absolute owner of the suit property?
2. Whether he further proves that the defendant no.1 has started illegal construction without leaving setback on the western side of the suit property and started construction of balcony and stair case above his compound wall without leaving 5 feet space in collusion with defendant no.2 BBMP officials?
3. Whether defendant no.1 proves that plaintiff has misutilised the residential house to run the clinic?
12 CT0028_O.S._8120_2012_Judgment_
4. Whether the suit is maintainable in law?
5. What decree or order?
7. The plaintiff along with 4 witnesses have been examined as PWs. 1 to 5 and the documents at Ex.P1 to Ex.P35 have been marked. Defendant No.1 along with 4 witnesses are examined as DWs. 1 to 5 and the documents at Ex.D1 to Ex.D52 have been marked.
8. I have heard arguments of both the sides and perused the records and synopsis of defendant no.1 and citations reported in ILR 1999 KAR 3506; (2001) 1 Kar.L.J. 468; ILR 1996 KAR 465 relied upon by the advocate for the plaintiff; and also citations reported in ILR 1982 KAR 579; AIR 1966 MYS 74; AIR 1990 KAR 236; 2001(1) Kar.LJ 468; 2012 (6) Kar.L.J. 353; AIR 1966 SC 1089; (1993) 3 SCC 161; 2008 (1) KCCR 16; 2011 SAR (Civil) 897 relied upon by the advocate for defendant no.1. 13 CT0028_O.S._8120_2012_Judgment_
9. My findings on the above issues are as under:
Issue No.1: In the negative;
Issue No.2: In the negative;
Issue No.3: In the affirmative;
Issue No.4: In the negative;
Issue No.5: As per final order;
for the following:
REASONS
10. ISSUE NO.1: It is the case of the plaintiff - Dr.C.M.Balakrishnan that, he is the absolute owner in possession of Schedule 'B' property bearing No. 21 (21/1), Gover Road, Cox Town, Sarvagnanagar, Bangalore-560 005 measuring east to west 50 feet; north to south 80 feet, bounded by private property on eastern side; defendant no.1's property on western side; Gover road on northern side; and conservancy lane on southern side. Schedule 'A' property bearing No. 22 of defendant no.1-G.Narayana is situated on the western side of Schedule 'B' property of the 14 CT0028_O.S._8120_2012_Judgment_ plaintiff and Schedule 'A' property is bounded by property of plaintiff on eastern side; property of Late Kuppaswamy Mudaliar on western side; Gover Road on northern side and conservancy lane on the southern side.
11. The plaintiff has succeeded to the Schedule 'B' property by way of inheritance from his mother Smt.Thirupura Sundari Aamal in whose favour her husband had executed Gift Deed on 25/6/1962 with respect to Schedule 'B' property. Katha of Schedule 'B' property is entered in the name of plaintiff and he is paying taxes of the Schedule 'B' property. He is also paying electric and water charges to the concerned Revenue Department.
12. On the other hand defendant No.1 has contended that this suit is not maintainable in law or on facts and plaintiff cannot seek negative relief with respect to Schedule 'A' property of defendant no.1 in 15 CT0028_O.S._8120_2012_Judgment_ law, and he has given wrong measurements and filed the suit with misconception alleging that defendant no.1 has to leave 5 feet of setback on the eastern side of his property. Defendant No.1 is the owner of eastern half portion of Schedule 'A' property bearing No.22, Gover Road, Cox Town, Bangalore measuring east to west 25 feet, north to south 80 feet and the said property is bequeathed in his favour under the Will dated 30/7/2001 executed by Smt. Saraswathi the sister of his father and said Saraswathi had inherited the property from her father-in-law Sri Kuppuswamy Mudaliar. Schedule 'A' property is bounded by property no.21 of Gover Road on eastern side; property no.22/1, Gover Road on western side; Gover Road on northern side and Conservancy Lane on southern side. It measures east to west 25 feet and north to south 80 feet, and it was comprising of old house. The executant Saraswathi died on 16 CT0028_O.S._8120_2012_Judgment_ 29/3/2005 and the name of defendant no.1 is entered to the property bequeathed in his favour after her death and he is paying taxes of the property regularly, and katha is also effected in his name.
13. Plaintiff PW.1 Dr. C.M.Balakrishnan in his evidence has reiterated the averments of the plaint and he has produced Ex.P1 Gift Deed; Ex.P2 Khata certificate; Ex.P3 tax paid receipt; Ex.P4 and Ex.P5 complaints dated 7/11/2012; Ex.P6 Encumbrance Certificate; Ex.P7 sanction plan; Ex.P8 notice dated 8/11/2012; Ex.P9notice dated 20/11/2012; Ex.P10 notice dated 29/9/2011; Ex.P11 complaint dated 24/11/2012; Ex.P12 sketch prepared by defendant no.2; Ex.P13 copy of Court Commissioner Report in MFA 523/2013; Ex.P14 to Ex.P21 photographs; Ex.P22 CD with receipts; Ex.P23 handsketch map; Ex.P25 Driving license; Ex.P26 to Ex.P31 17 CT0028_O.S._8120_2012_Judgment_ Photographs; Ex.P32 copy of Special Leave Petition No. 18523/2013; Ex.P33 letter dated 19/11/2012.
14. He has also identified the documents produced by defendant no.1 in the cross-examination i.e., Ex.D1 katha certificate; Ex.D2 to Ex.D4 photographs; Ex.D5 plan of old house; Ex.D5(a) plan showing proposed ground floor partly renovated and additions; Ex.D5(b) plan showing side view of kitchen and grill portions of property of plaintiff over the compound wall of defendant no.1. Ex.D6 plan; Ex.D7 plan showing completion of construction of first floor in October 2012; Ex.D8 to Ex.D14 photographs; Ex.D15 notice dated 30/1/2013; Ex.D16 notice dated 17/12/2012; Ex.D17 and Ex.D18 postal acknowledgements.
15. His witnesses PW.2 Chakravarthy, owner of property no.30/2, PW.3 Sunil Kumar, family friend of plaintiff; PW.4 Vijaya Kumar, the vicinity person, 18 CT0028_O.S._8120_2012_Judgment_ PW.5 Basavaraj, Assistant Engineer, BBMP, Bangalore have also stated in support of the plaintiff and PW.2 Chakravarthy has produced Ex.P24 katha certificate and DW.3 Immanuel has identified the photographs at Ex.P34 and Ex.P35.
16. On the other hand, defendant no.1 DW.1 G.Narayana has stated as per the contents of the written statement filed by him and he has produced Ex.D19 and Ex.D20 Will dated 30/7/2001; Ex.D21 and Ex.D22 katha certificates; Ex.D23 tax paid receipt; Ex.D24 Encumbrance Certificate; Ex.D25 Deposit of title deed; Ex.D26 list of title deed; Ex.D27 certificate; Ex.D28 statement of accounts; Ex.D29 Death certificate of V.Saraswathy; Ex.D30 and Ex.D31 copy of order in W.P.47916/2012; Ex.D32 Permission of BBMP dated 9/2/2012; Ex.D33 tax paid receipt Ex.D34 endorsement of Bruhath Bangalore Mahanagara Palike Ex.D35 RTI application; Ex.D36 19 CT0028_O.S._8120_2012_Judgment_ letter of District Health Officer; Ex.D37 to Ex.D40 BESCOM bills; Ex.D41 ordersheet and Ex.D42 order on IA No.1/2013 passed in MFA No.523/2013; Ex.D43 BESCOM Bills Details Report; Ex.D44 complaint dated 31/1/2013; Ex.D45 to Ex.D48 photographs; Ex.D49 Cancellation Deed Ex.D50 prescription of doctor; Ex.D51 copy of the plaint in Appeal No.1373/2012 of KAT; Ex.D52 case and discharge record of Mr.Madhavan.G.
17. He has also adduced the evidence of DW.2 Divyanadhan, his family friend and colleague; DW.3 Immanuel, bar bender; DW.4 M.K.Munikrishna, his colleague in BESCOM; and DW.5 Smt.Veena, earlier neighbour.
18. The plaintiff in para no.3 of the plaint and Schedule B of the plant has shown that his property bears no.21/1 and 21 and he has also amended east to west length of Schedule 'A' property of defendant 20 CT0028_O.S._8120_2012_Judgment_ no.1 from 50 feet to 25 feet subsequently. Further, in the complaint at Ex.P5 dated 7/11/2012 he has mentioned about the unauthorized construction of House no.23 of defendant no.1. So also, in plaint para no.3, he has contended that, property bearing no.21/1 has been inherited from his mother Thirupura Sundari Aamal, but Gift Deed at Ex.P1 shows that only half share is gifted in favour of his mother. Although letter at Ex.P2 shows that katha is transferred in the name of plaintiff on the basis of Gift Deed, there is no clear mention of particular portion of the property gifted to his mother. Further, the plaintiff has not produced the katha of his property and sanction plan obtained while constructing the house.
19. So also, the katha extract at Ex.D1 of schedule 'B' property of plaintiff shows that the area of property of plaintiff is 1600 square feet and built up 21 CT0028_O.S._8120_2012_Judgment_ area is 2800 square feet. The certified copy and typed copy of Will Deed dated 30/7/2001 at Ex.D19 and Ex.D20 shows that the eastern half portion of site no.22 is bequeathed in favour of defendant no.1 by Saraswathi and the katha extract at Ex.D22 shows that the area of site of defendant no.1 is 2000 square feet and built up area is 600 square feet.
20. Further, plaintiff in his cross-examination has stated that, Schedule 'B' property belongs to him measures east to west 25 feet, north to south 80 feet and those are correct measurements and again he has stated that those are not correct measurements. Further, he has stated that, suit property belongs to his father and he has gifted the property in favour of his mother and his father was not exclusive owner of the property and he was owner to the extent of 25 feet x 80 feet area. So also, he has stated that, it was purchased by his maternal grandfather and his father 22 CT0028_O.S._8120_2012_Judgment_ from one L.R.Subramanya and half share of the property is not shown in the schedule of the Gift Deed and Gift Deed is executed without bifurcating the property and his sister Durga has received some amount in lieu of her share in the property, and there is no document to show the bifurcation of property and denied his katha extract Ex.D1 shows area of 1600 square feet and his father has executed Gift Deed by bifurcating the property. Further, he has stated that, Ex.P2 is not the katha and it is a notice and he is not the owner of area shown in schedule B of the plaint, and earlier area of Schedule 'A' property was wrongly mentioned and Ex.P1 to Ex.P6 does not disclose the measurement of his property.
21. PW.2 J.Chakravarthy the owner of property no.30/2. In his cross-examination, he has stated that he has not seen the approved plan of defendant no.1 and he does not know when defendant no.1 started 23 CT0028_O.S._8120_2012_Judgment_ completion and when he completed construction and he has not seen inside the location of his house as well as staircase of old house. He has also not seen sanction plan of plaintiff and compound wall which bifurcates the properties and not enquired about the compound wall and not seen the house of defendants after completion of construction by entering inside the house and not measured the setback on western side, and not seen the fiber sheet, tin sheet put up by the plaintiff and he cannot say the measurement of the house, blockage of air and light.
22. PW.3 Sunil Kumar, the family friend of plaintiff has also stated in his cross-examination that, his house is situated in Jeevanahalli and he does business in Devanahalli and house of plaintiff is at a distance of about 2 KMs from his house, and he has not seen the house of defendant no.1 from inside and he does not know when he has constructed the house 24 CT0028_O.S._8120_2012_Judgment_ and when the construction was completed, and not measured the setback left by him and he cannot say the particulars of old house and he has not seen the staircase and he does not know to whom the compound wall belongs, and he does not know the area of fiber sheet put up by plaintiff and plaintiff has constructed the house about 10-15 years back and air and light will be blocked by putting up fiber sheet, and he does not know whether plaintiff has obtained sanction plan or not.
23. PW.4 Vijayakumar has also stated in his cross-examination that, his house is at a distance of 2 KMs from the house of plaintiff and he does not know location of compound wall in the particular area and air and light is blocked towards house of defendant no.1 by putting up fiber sheet by the plaintiff and he does not know when defendant no.1 has constructed the house and he cannot say the particulars of house 25 CT0028_O.S._8120_2012_Judgment_ of defendant no.1 from inside and he has not seen the approved plan of plaintiff's house.
24. PW.5 Basavaraju, Assistant Engineer, BBMP has also stated that, he has not measured the houses and not shown the measurements of the houses and he does not know who have signed the notice and he does not know construction of building by the defendant no.1 leaving setback area as shown in the sketch at Ex.P12, and he does not remember whether compound wall is put up and he has not seen the tiled sheet put up by the plaintiff at the compound wall of defendant no.1, and he has not entered inside the compound wall and not seen the setbacks left by the defendant no.1.
25. The copies of Will Deed at Ex.D19 and Ex.D20 dated 30/7/2001 shows that defendant no.1 has got his schedule 'A' property under the Will executed by sister of his father i.e., Saraswathi and 26 CT0028_O.S._8120_2012_Judgment_ that his property measures east to west 25 feet, north to south 80 feet bounded by property bearing no.21 on eastern side; property bearing no.22/1 on western side; Gover road on northern side; and conservancy lane on southern side. Further, the Death Certificate at Ex.D29 shows that said Saraswathi died on 18/3/2005 and thereafter defendant no.1 has become absolute owner of the bequeathed property. The sanction plan at Ex.D6 (Ex.P7) dated 13/6/2011 shows that defendant no.1 has obtained sanction plan for construction of schedule 'A' property from Assistant Director of Town Planning, Bruhat Bengaluru Mahanagara Palike and it was in force till 12/6/2013 and he has constructed the red colour portion and existing structure of blue colour has remained as it is. Thus, the above evidence of plaintiff and his witnesses shows that they are not aware about schedule 'B' property of plaintiff as well as 27 CT0028_O.S._8120_2012_Judgment_ schedule 'A' property of defendant no.1 and they does not know their measurements, dimensions and boundaries and the plaintiff went on seeking the amendment of those aspects even at the stage of arguments. Thus, the plaintiff has failed to establish that he is the absolute owner of schedule 'B' property. Accordingly, I answer Issue No.1 in negative.
26. ISSUES 2 TO 4: All these issues are taken together for discussion to avoid the repetition of facts and confusion.
27. The plaintiff has contended that, defendant no.1 - G.Narayan the owner of Schedule 'A' property started construction without leaving setback as per the sanction plan of BBMP and he has started constructing Balcony and has put up staircase abutting Schedule 'B' property of plaintiff above his compound wall without leaving 5 feet space as per the byelaws on the left side of Schedule 'A' property. 28 CT0028_O.S._8120_2012_Judgment_ Thus, flow of air and light towards Schedule 'B' property of plaintiff is blocked and Schedule 'B' property has become dark. Plaintiff requested defendant no.1 to stop unauthorized construction and also intimated defendant no.2 Commissioner, Mahanagara Palike and given objections before Corporation Engineer, Assistant Executive Engineer of Mahanagara Palike for unauthorized construction of ground, first and second floor of Schedule 'A' property by defendant no.1. But, said officials have not taken any action against defendant no.1. Defendant No.1 has also not left setback on other sides as per the Town and Country Planning Act as well as Karnataka Municipal Corporation Act and thereby violated the byelaws in collusion with BBMP officials and went on with the unauthorized construction. Defendant No.1 has also not obtained sanction plan for construction of Schedule 'A' property from BBMP and plaintiff has 29 CT0028_O.S._8120_2012_Judgment_ issued notice to defendant no.2 on 9/11/2012 for the said violations and deviations made by defendant no.1 and to stop unauthorized construction and to remove the Balcony, staircase put up on the western side of Schedule 'B' property. Further, on 7/11/2012 and 9/11/2012 the plaintiff came to know about the unauthorized and illegal construction of Schedule 'A' property by defendant no.1 and defendant no.1 threatened the plaintiff to continue with the unauthorized construction with the help of rowdies. Thus, having accrued with the cause of action, plaintiff was constrained to file the suit and prayed to decree the suit.
28. On the other hand, defendant has contended that he has taken permission for construction of residential house in place of old house from defendant no.2 BBMP and defendant no.2 after considering his request, approved construction plan 30 CT0028_O.S._8120_2012_Judgment_ on 13/6/2011. He started construction work in 2011 and civil work was almost completed in October 2012 and the suit is filed thereafter to harass him. He has constructed building as per the sanction plan obtained by defendant no.2 by leaving setback etc., and he has left setback of 1 meter on the eastern side of Schedule 'A' property towards the property of plaintiff as per the byelaws and approved plan. He has also left setback as per the approved plan on other sides, and plaintiff has misutilised his house by running hospital and number of vehicles will be parked infront of his house also and thereby plaintiff has caused nuisance to his house as well. He is also causing inconvenience to enter into his house, due to parking of the vehicles and in October 2011, his relatives objected plaintiff for parking of the vehicles infront of the house and plaintiff being unhappy with the said development has filed false suit and in 31 CT0028_O.S._8120_2012_Judgment_ collusion with BBMP officials he started to harass him. Plaintiff has constructed his house without leaving any setback and encroached upon compound wall of defendant no.1 and put up grill and closed his side long back and there is no any blockage of air and light towards the property of plaintiff by construction of Schedule 'A' property of defendant no.1. Defendant No.2's officials at the instigation of plaintiff have issued notice on 9/11/2012 and this suit is not maintainable in law as it is hit under Section 9 of CPC. Defendant no.1 has raised loan from Supraja Co-operative Society Ltd., Bangalore and he has constructed the house with his hardened money without any deviations and plaintiff himself has encroached upon the portions of Schedule 'A' property on rear side while constructing kitchen and he has not left any setback. Further, there was no cause of action to file the suit and suit is hit under 32 CT0028_O.S._8120_2012_Judgment_ Order VII Rule 11 of CPC, and the suit in the absence of issuance of statutory notice to defendant no.2 is not maintainable, and the suit be dismissed with costs in the interest of justice.
29. The learned Advocate for the plaintiff by relying upon the above said oral and documentary evidence and the citation reported in ILR 1999 KAR 3506, Fakirappa Vs. Basalingappa, submitted that the construction made by defendant no.1 has blocked flow of air and light towards the property of plaintiff and suit is very much maintainable under Section 34 of Specific Relief Act. Further by relying upon citation reported in (2001) 1 Kar.L.J. 468, S.Sundar Raj Vs. Vijayendra Kumar and others, submitted that the construction made by defendant no.1 is not in accordance with the sanction plan, and defendant no.1 has not left the setback on the eastern side of his house as per the sanction plan. 33 CT0028_O.S._8120_2012_Judgment_ Further by relying upon the citation reported in ILR 1996 KAR 465, Puttegowda @ Ajjegowda Vs. Ramegowda, submitted that suit for bare injunction is also maintainable in the absence of declaratory relief and by relying upon Table 3A and 3B of Building Bye-Laws, 1983, he submitted that required setbacks are not left by defendant no.1 and prayed to decree the suit for permanent injunction as well as mandatory injunction for removal of unauthorized construction of defendant no.1.
30. I have gone through the said citations and their lordships in the citation reported in ILR 1999 KAR 3506, Fakirappa Vs. Basalingappa, has discussed about the provisions of Karnataka Municipal Corporation Act 1976 and Karnataka Town and Country Planning Act, 1961 in the light of the facts of the case. So also, their lordships in (2001) 1 Kar.L.J. 468 has discussed about the provisions of 34 CT0028_O.S._8120_2012_Judgment_ Section 321 of Karnataka Municipal Corporation Act, 1976 in the light of the facts of the case, and in ILR 1996 KAR 465 their lordships has discussed about the provisions of Sections 34 and 41 of Specific Relief Act and Sections 13 and 15 of Easements Act in the light of the facts of the case.
31. Further, plaintiff has not produced sanction plan and there is a compound wall between the property of defendant no.1 and his property in north to south direction and the said compound wall belongs to defendant no.1, and he has put up grill, fiber sheet towards the compound wall to avoid the monkeys. Further, he has identified the photographs at Ex.D2 and Ex.D3 showing gate grill, compound wall and sheets and stated that he has put up wash basin below the fiber sheet and he has not left setback on the southern side as shown in photograph at Ex.D4. Further, he has stated that the location of property of 35 CT0028_O.S._8120_2012_Judgment_ defendant no.1 in the sketch at Ex.D5 is correct and the kitchen portion belongs to him and Mangalore tiled house of defendant no.1 is abutting the kitchen, and defendant no.1 has also obtained sanction plan for construction of house as per Ex.D6, with respect to first floor and he has put up grills shown in the portion with black ink at Ex.D7 sketch and compound wall as shown in the photographs at Ex.D8 and he has put up board in the setback as shown in the photo at Ex.D9. Further, he has stated that, he has constructed building abutting kitchen in southern portion and he has modified building constructed by his father, and the earlier building with staircase of defendant no.1 was in existence at the time of his construction, and defendant no.1 has not encroached upon his property and he has disputed for putting up staircase and balcony by defendant no.1 and he has not measured the property of defendant no.1 with the 36 CT0028_O.S._8120_2012_Judgment_ setback, and defendant no.1 has constructed ground and first floor as per the sanction plan and started construction of first floor in middle of 2011 and used to see the patients in his house till late hours who will be brought on vehicles and those vehicles will be parked in front of the house of defendant no.1 as well as shown in the photograph at Ex.P9, and Ex.P10 to Ex.P14 and the notice issued by defendant BBMP has been challenged by defendant no.1 before KAT and that proceedings have been stayed.
32. The learned advocate for plaintiff by relying upon the provisional order Ex.P8 confirmation order at Ex.P9, the notice at Ex.P10, complaint at Ex.P11, map at Ex.P12 and Court Commissioner Report at Ex.P13 and the photographs at Ex.P14 to Ex.P21 and Ex.P26 to Ex.P31 submitted that defendant no.1 has violated the byelaws and sanction plan and constructed the building by encroaching upon his 37 CT0028_O.S._8120_2012_Judgment_ property and blocked the flow of air and light towards his property and thereby affected the easementary rights of the plaintiff. On the other hand, the advocate for defendant no.1 by relying upon the photographs at Ex.D2, Ex.D3, Ex.D5, Ex.D8 to Ex.D14, Ex.D45 to Ex.D48; and the sketch at Ex.D5, Ex.D5(a) and Ex.D5(b), Ex.D7; and sanction plan at Ex.D6 submitted that, defendant no.1 has constructed the building as per the plan without any deviations and plaintiff himself has encroached upon the property of defendant no.1 in the southern side in constructing the kitchen without leaving setback and blocked the air and light towards the house of defendant no.1 by fixing grill and putting fiber sheets on the compound wall of defendant no.1. So also, he submitted that plaintiff is running the clinic or hospital without due permission and the vehicles of the patients will be parked before their houses and it creates nuisance 38 CT0028_O.S._8120_2012_Judgment_ and the suit is not maintainable in law since the appeal has been preferred before the Karnataka Appellate Tribunal against the orders and notice issued by Bruhat Bengaluru Mahanagara Palike.
33. Further, by relying upon the citation reported in ILR 1982 KAR 579 G.R.Krishnamurthy vs. S.Razak submitted that the suit without seeking the declaratory relief of easementary right is not maintainable in law. Further, by relying upon AIR 1966 MYS 74, Mathew Philips vs. Koshi submitted that, there is no infringements of civil rights of the plaintiff and injunction cannot be granted in his favour. By relying upon AIR 1990 KAR 236, Dr. Panduranganaik Vs. Jayashree submitted that, there is no injury sustained by plaintiff by the alleged deviations and the suit for injunction is not maintainable. Further, by relying upon 2001 (1) Kar.L.J. 468, Sundarraj Vs. Vijayankumar 39 CT0028_O.S._8120_2012_Judgment_ submitted that the plaintiff is entitled to approach Karnataka Appellate Tribunal for the alleged deviations and construction without setback and this Court has no jurisdiction. Further, by relying upon 2012 (6) Kar.L.J. 353, Yashodarao Vs. Bruhat Bengaluru Mahanagara Palike, submitted that the appropriate course left for the plaintiff to agitate before Karnataka Appellate Tribunal for the said allegations of deviation and encroachment. Further, by relying upon AIR 1966 SC 1089 K.S.Venkataramana Company Ltd., Vs. State of Madras submitted that jurisdiction of this court is excluded since the statute contains adequate and effective machinery of Karnataka Appellate Tribunal to ascertain the deviations and encroachments. Further, by relying upon 1993 (3) SCC 161 Shivakumarchand Vs. Delhi Municipal Corporation and 2008 (1) KCCR 16, State of 40 CT0028_O.S._8120_2012_Judgment_ Karnataka Vs. H.J.Shakunthalamma submitted that jurisdiction of this court is barred under Section 9 of C.P.C. Further, by relying upon 2011 SAR Civil 897 National Textiles Corporation Vs. Naresh Kumar submitted that specific contention is taken by defendant no.1 as required under order 8 Rule 2 C.P.C in his written statement regarding non-maintainability of the suit and prayed to dismiss the suit.
34. The permission at Ex.D32 dated 9/2/2012 shows that a letter was issued to him by the Assistant Executive Engineer, Bruhat Bengaluru Mahanagara Palike allowing him to cut the road for replacement of electric cable, and defendant has also contended about the completion of civil and structure work on 31/10/2012 as per the approved plan at Ex.D6. The complaints at Ex.P4 and Ex.P5 dated 7/11/2012 filed by the plaintiff before Commissioner, Bruhat 41 CT0028_O.S._8120_2012_Judgment_ Bengaluru Mahanagara Palike and Assistant Executive Engineer, Bruhat Bengaluru Mahanagara Palike shows that he has alleged the unauthorised construction of house no.23 by defendant no.1, but not house bearing no.22. The copy of notice at Ex.P8 dated 8/11/2012 does not disclose the measurements of the building and description of setback and it shows that the provisional order is passed without measurements on the basis of complaints at Ex.P4 and Ex.P5. It is also served upon defendant no.1 on 18/11/2012 and he has replied to the said notice on 19/11/2012 stating that the construction work is done as per the approved plan without violations, and it was submitted to the Engineer on 20/11/2012.
35. The plaintiff has alleged that defendant no.1 has not left 5 feet setback area and sought negative relief in bare injunction suit with respect to 42 CT0028_O.S._8120_2012_Judgment_ schedule 'A' property of defendant no.1 who has completed the construction work on 31/10/2012 itself. The measurements of property of defendant no.1 are also wrongly shown and plaintiff has sought amendment of boundaries also, and defendant no.1 has approached the Hon'ble High Court of Karnataka in W.P.47916/2012 against the provisional order passed by defendant Bruhat Bengaluru Mahanagara Palike and the Hon'ble High Court of Karnataka has also granted stay order. Further, this Court has vacated the status quo order passed in this case on 15/12/2012 and it appears that defendant Bruhat Bengaluru Mahanagara Palike has put the anti-date on the notice at Ex.P9 i.e., 20/11/2012. Defendant no.1 has also filed his objection to the provisional order dated 20/11/2012 and issuance of confirmation order on the same day without considering his objections by defendant Bruhat Bengaluru 43 CT0028_O.S._8120_2012_Judgment_ Mahanagara Palike shows the violation of Rules of Natural Justice.
36. The Hon'ble High Court of Karnataka has also allowed the writ petition filed by defendant no.1 by continuing the interim order and the Karnataka Appellate Tribunal has also granted stay order against the provisional order of defendant Bruhat Bengaluru Mahanagara Palike, and it is extended further and the matter is posted for arguments on 8/7/2014. The Court Commissioner Report at Ex.P13 produced in MFA 523/2013 shows that defendant no.1 was not constructing the building at the time of execution of commission and the Court Commissioner has also not measured the setback area and failed to note the thickness of compound wall.
37. The endorsement dated 23/8/2013 at Ex.D34 shows that the plaintiff himself has not obtained the sanction plan for construction of his 44 CT0028_O.S._8120_2012_Judgment_ house. Further, the construction of building in more area than the one available in his site without leaving setback on the western side and encroaching on the southern side shows that the plaintiff has not approached the court with clean hands. So also, the iron grills, fiber sheets put up by the plaintiff itself has blocked the air and light towards the house of defendant no.1 and the construction of kitchen by the plaintiff by encroaching upon the area of defendant no.1 is rather blameworthy. So also, the letter at Ex.D35 of Bruhat Bengaluru Mahanagara Palike and Ex.D36 of District Heath Officer shows that plaintiff has not obtained permission for running the clinic or hospital from Bruhat Bengaluru Mahanagara Palike or from District Health Officer and the running of clinic or hospital in the residential house by the plaintiff shows the violation of byelaws, rules in the residential locality. The katha extract at Ex.D1 shows that he has 45 CT0028_O.S._8120_2012_Judgment_ built up the structure in an area 2800 square feet though he has got area of 1600 square feet only and probably his property is measuring east to west 20 feet, north to south 80 feet. Further, Bruhat Bengaluru Mahanagara Palike has not inspected the spot after commencement of construction work under Section 307 of Karnataka Municipal Corporation Act before issuing the notice under Section 308 of the Act for violation etc., So also, there is no supporting document to show the service of notice at Ex.P10 upon defendant no.1 and notice issued by Bruhat Bengaluru Mahanagara Palike does not disclose the violation of byelaws by defendant no.1 in constructing the building, and it has only sought the approved plan from defendant no.1.
38. It is needless to say that, the violation, if any, noticed by Bruhat Bengaluru Mahanagara Palike leads to issue provisional order under Section 321(1) 46 CT0028_O.S._8120_2012_Judgment_ of Karnataka Municipal Corporation Act, and thereafter it will issue the confirmation order under Section 321 (3) of Karnataka Municipal Corporation Act, and an appeal provision is made under Section 443-A of Karnataka Municipal Corporation Act to challenge such orders before Karnataka Appellate Tribunal. Accordingly, defendant no.1 has preferred appeal under Appeal No.1373/2012 against the orders of Bruhat Bengaluru Mahanagara Palike and this Court is not having jurisdiction to try such suit to ascertain the deviation etc., under Section 9 of C.P.C. Under Section 321-A of Karnataka Municipal Corporation Act, the Karnataka Appellate Tribunal can very well consider the aspect of setback, and even it can be regularized through screening committee regulation, and the present plaintiff can very well agitate these aspects before the Karnataka Appellate Tribunal. Thus, the plaintiff has failed to establish the 47 CT0028_O.S._8120_2012_Judgment_ alleged unauthorised construction by defendant no.1 without leaving setback and putting up balcony, staircase on his compound wall without leaving 5 feet space in collusion with defendant no.2 BBMP officials. The above said oral and documentary evidence also shows that he is running clinic or hospital in his residential house without due permission of defendant BBMP or District Health Officer. So also, this Court lacks with the jurisdiction and suit is not maintainable.
39. The title of the plaintiff over the schedule 'B' property is under cloud and he has not sought for declaratory relief and the bare injunction suit without seeking easementary right is not maintainable in law as held by their lordships in ILR 1982 KAR 579; AIR 1966 MYS 74; AIR 1990 KAR 236. Moreover the appeal is pending before Karnataka Appellate Tribunal and both the parties are at liberty to agitate 48 CT0028_O.S._8120_2012_Judgment_ before Karnataka Appellate Tribunal in the said appeal which is having jurisdiction to ascertain about violations as held in 2012 (6) Kar.L.J. 353 and 2001 (1) Kar.L.J. 468; (1993) 3 SCC 161; 2008 (1) KCCR 16. Under the circumstances, the above said citations relied upon by the advocate for the plaintiff are not of much assistance to the plaintiff. Hence, I answer Issue No.2 in negative; Issue no.3 in affirmative; and Issue no.4 in negative.
40. ISSUE No.5: From the discussion made in issues No.1 to 4, it is very much clear that, suit of the plaintiff fails and it is liable to be dismissed. In the result, I pass the following:
ORDER The suit of the plaintiff is dismissed. No order as to costs.
*** (Dictated to the Judgment-Writer, transcribed and computerized by her, 'Script' corrected and then pronounced by me in the open court on this the 11th day of March 2014.) 49 CT0028_O.S._8120_2012_Judgment_ [Sudheer H. Koraddi], XXVII Addl. City Civil Judge, Bangalore ANNEXURE List of the witnesses examined for the plaintiff P.W.1 Dr.C.M.Balakrishnan P.W.2 J.Chakravarthy P.W.3 Sunil Kumar.J. P.W.4 Vijaya Kumar.K. P.W.5 Basavaraju List of the documents marked for the plaintiff Ex.P 1 Original Gift Deed Ex.P2 Khata certificate Ex.P3 Tax paid receipt Ex.P4 Copy of complaint dated 7/11/2012 Ex.P5 Copy of complaint dated 7/11/2012 Ex.P6 Encumbrance certificate Ex.P7 Sanction plan Ex.P8 Copy of notice dated 8/11/2012 Ex.P9 Copy of notice dated 20/11/2012 Ex.P10 Copy of notice issued to defendant no.1 dated 29/9/2011 Ex.P11 Copy of complaint dated 24/11/2012 Ex.P12 Sketch drawn by defendant no.2 Ex.P13 Copy of Court Commissioner Report in MFA No. 523/2013 Ex.P14 To Photographs 8 Ex.P21 Ex.P22 CDs (2) with receipts Ex.P23 Handsketch map 50 CT0028_O.S._8120_2012_Judgment_ Ex.P24 Khata certificate Ex.P25 Driving license Ex.P26 To Photographs Ex.P31 Ex.P32 Certified copy of the Special Leave petition No. 18523/2013 Ex.P33 Letter dated 19/11/2012 Ex.P34 A n d Photographs Ex.P35 List of the witnesses examined for the defendants:
DW.1 G.Narayana DW.2 Divyanadhan DW.3 Immanuel DW.4 M.K.Munikrishna DW.5 Smt.Veena
List of the documents marked for the defendants:
Ex.D1 Khata certificate
Ex.D2 Photograph
Ex.D3 Photograph
Ex.D4 Photographs
Ex.D5 Plan showing old house belongs to
Property of defendant no.1
Ex.D5(a) Plan showing the proposed ground
floor partly renovated and additions Ex.D5(b) Plan showing the side view of kitchen and grill portions of property no.21/1 over the compound wall of property no.22 Ex.D6 Plan Ex.D7 Plan showing construction of 1st floor completed by October 2012 Ex.D8 Photograph 51 CT0028_O.S._8120_2012_Judgment_ Ex.D9 Photograph Ex.D10 To Photographs Ex.D14 Ex.D15 Notice dated 30/1/2013 Ex.D16 Notice dated 17/12/2012 Ex.D17 Two postal acknowledgements Ex.D18 Two postal acknowledgements Ex.D19 Certified copy the Will dated 30/7/2001 Ex.D20 Typed copy of the Will dated 30/7/2001 Ex.D21 Khata certificate Ex.D22 Khata extract Ex.D23 Tax paid receipt Ex.D24 Encumbrance certificate Ex.D25 Deposit of title deeds Ex.D26 List of title deeds with schedule Ex.D27 Certificate Ex.D28 Statement of Accounts Ex.D29 Death Certificate of V.Saraswathy Ex.D30 Certified copy of the order in W.P.No.47916/2012 Ex.D31 Certified copy of the order in W.P.No.47916/2012 Ex.D32 Permission of BBMP dated 9/2/2012 Ex.D33 Tax paid receipt Ex.D34 Endorsement issued by Bruhat Bengaluru Mahanagara Palike Ex.D35 Application made under RTI Act Ex.D36 Letter of District Health Officer Ex.D37 To BESCOM bills Ex.D40 Ex.D41 Ordersheet in MFA No.523/2013 Ex.D42 Order on IA No.1/2013 passed in MFA 523/2013 52 CT0028_O.S._8120_2012_Judgment_ Ex.D43 BESCOM Bills details report Ex.D44 Complaint dated 31/1/2013 Ex.D45 To Photographs Ex.D48 Ex.D49 CD Ex.D50 Prescription given by Dr. P.G.Dhamankar Ex.D51 Copy of the plaint in Appeal No.1373/2012 (LB) preferred before Karnataka Appellate Tribunal Ex.D52 Case summary and Discharge Record of Mr.Madhavan.G. [Sudheer H. Koraddi], XXVII Addl. City Civil Judge, Bangalore 53 CT0028_O.S._8120_2012_Judgment_ Judgment pronounced in the open court (Vide separate detailed judgment) The suit of the plaintiff is dismissed.
No order as to costs.
(Sudheer H. Koraddi), XXVII Addl.City Civil Judge, Bangalore 54 CT0028_O.S._8120_2012_Judgment_ fffp