Bangalore District Court
Sri. Prakash Appaji vs Sri. S. M. Rajashekar on 24 February, 2021
Form No.9 (Civil)
Title Sheet for Judgment in suit
(R.P. 91)
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH73)
Present:
Sri.AbdulRahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 24th day of February, 2021.
O.S.No.25702/2015
Plaintiff: Sri. Prakash Appaji,
S/o Sri. Appaji. G,
Aged about 33 years,
R/at No.26,
Nandanavanam 'G' Street,
Jogupalya, Halasuru,
Bangalore560 008.
[By Sri. Vellanki Ravi - Adv.]
V/s
Defendants: 1. Sri. S. M. Rajashekar,
Aged about 63 years,
S/o Sri. Munianjaneya,
R/at No.24, Old No.1,
2 OS No.25702/2015
Nandanavanam 'G' Street,
Jogupalya, Ulsoor,
Bangalore560 008.
2. The Commissioner,
Bruhat Bangalore Mahanhanagara
Palike, N.R Square,
Bangalore560 002.
[By Sri. M. Prabhakar Adv]
Date of Institution of the suit 04.08.2015
Nature of the (Suit or pronote,
suit for declaration and
Permanent Injunction Suit
possession, suit for injunction,
etc.)
Date of the commencement of
04.01.2018
recording of the Evidence.
Date on which the Judgment was 24.02.2021
pronounced.
Year/s Month/s Day/s
Total duration 05 06 20
LXXII ADDL.CITY CIVIL AND SESSIONS
JUDGE,
Mayohall Unit: Bengaluru.
3 OS No.25702/2015
JUDGMENT
Present suit is filed by the Plaintiff for the relief of Permanent Injunction, restraining the Defendant No.1 or any other person claiming under him from interfering with the peaceful use and enjoyment of the Plaintiff over the common passage for ingress and egress to the Suit Schedule A Property; and for the relief of Mandatory Injunction directing the Defendant Nos. 1 to remove the illegal encroachments being put up by him in the Suit Schedule B Property and bring the construction in accordance with the sanctioned plan by leaving necessary setbacks on the Northernside of the Suit Schedule B Property i.e., to the Southernside of the common passage and also to remove all the Sajjas/Balconies and close all the openings towards the common passage; as well as to issue Mandatory Injunction directing the Defendant No 2 to take necessary action against the Defendant No 1 and to remove/demolish all the deviations done by the Defendant No 1 in the Suit Schedule B Property in accordance with the sanctioned plan.
4 OS No.25702/20152. Facts of the Plaintiff's case are as under:
It is the case of the Plaintiff that, he is the true and the absolute owner of the property bearing Corporation Khata No 26, situate at Nandanavanam 'G' Street, Jogapalya, Ulsoor, Bangalore, measuring East to West: 20 feet and North to South: 47 feet 6 inches, which is referred to as Suit Schedule A Property. The said property is received by the Plaintiff from his father under the Gift Deed dtd. 23.10.2010. His father had acquired the said property under the Registered Partition Deed dated 08.10.1986.
It is further contended by the Plaintiff that, to the East of his property, there is 4 feet Common Passage running from East to West till his property and the said common passage abuts 2 properties on the Northernside i.e., property of one Smt P S Lakshmi and the property of the DefendantSri Rajashekar and thereafter there is Nandanavanam 'G' Street. The access to the Plaintiff's property from the Nandanavanam 'G' Street Road is by way of the said 4 feet common passage. The said passage is 5 OS No.25702/2015 shown in the Rough sketch appended to the Suit Plaint.
Further to the easternside of the Plaintiff's property, is the portion of the property belonging to the Defendant which is abutting to the Plaintiff's common passage on its Northernside. The Defendant No 1 is his uncle being cousin brother of his father. The larger extent of the Property was originally owned by Sri Appajappa, the said property was partitioned into three parts, the front portion being allotted to the Defendant's share; middle portion went to another uncle Sri A Krishnappa; and the rear portion to the Plaintiff's family. The Plaintiff and Sri A Krishnappa had been provided an access through the common passage, as their shares/properties were at the rear side and it is the only way for their access and for the ingress and egress to their properties from the Main Road, known as Nandanavanam 'G' Street.
The Defendant No 1 has recently started construction on his property, after demolishing the old building and has obtained sanctioned plan from 6 OS No.25702/2015 the Defendant No 2 on 28.02.2015. Prior to obtaining the said sanction, he has takenup the constructional works, without leaving any setbacks. The said constructional activities are carried out in violation of BBMP building sanction plan and the byelaws. The Defendant No 1 in violation of the said sanction plan has made encroachments into the Public Road and also the common passage by fixing Sajjas and Balconies and keeping the balconies and windows openings towards the common passage, thereby the entire common passage was rendered to without natural sunlight and air and further the common passage was exposed to rain water and the common passage became hazardous for the use of the Plaintiff. Even they have asked the Defendant No 1 to stop such illegal constructions, but he did not heed to their requests.
He has filed complaints and representations to the Asst Executive Engineer, BBMP and the Commissioner BBMP, attached to the office of the Defendant No 2, through his father , about the illegal constructions carried out by the Defendant No 1. But 7 OS No.25702/2015 they have not taken any action against the Defendant No 1. The Defendant No 1 incollusion with the authorities of the Defendant No 2, has carried out such illegal constructions over his property, which is referred to as the Suit Schedule B Property.
Hence the Plaintiff is constrained to file the present suit for the relief of Permanent Injunction and the Mandatory Injunction.
3. Suit Summon and Notice of IA No.1/2015 was issued to the Defendants. Defendant Nos.1 and 2 have setin their appearance through their respective counsels on 21.08.2015.
Defendant No.1 has filed his Written Statement alongwith an application seeking permission to permit her to file his Written Statement, on 21.09.2015. On allowing the said application, he was permitted to file his Written Statement and same was taken on record.
The Defendant No.2 has failed to file its Written Statement.
8 OS No.25702/20154. The Defendant No.1 in his Written Statement has denied all the allegations made by the Plaintiff in the Suit Plaint, but has specifically contended that, he is the absolute owner of the property bearing Corporation Old No 1, New No 24, situate at Nandanavanam 'G' Street, Jogupalya, Halasuru, Bangalore, having PID no 755724, measuring East to West: 47 feet 10 inches and North to South: 20 feet2 inches and bounded to the East by Road; to the West by Private Property; to the North by Private Property and to the South by Private Property. The said property was acquired by him under the Gift Deed dated 09.05.2007, executed by his father in his favour. His father had acquired the said property under the Registered Partition Deed dated 14.08.2002. He is in possession and enjoyment of the said property, since from the day of Gift. On the basis of the said Gift Deed, Khata pertaining to the said property, is got transferred in his name. He on obtaining the sanction plan from 9 OS No.25702/2015 the BBMP Authorities has constructed a New building in place of the Old building.
Plaintiff is not fair. Plaintiff is his distant relative. The present suit is filed by the Plaintiff with a malafide intention and for wrongful gains, on making false allegations against him.
Further the description of the Suit Schedule A Property given by the Plaintiff is different than the schedule of the property shown under the Gift Deed dated 23.12.2010, which the Plaintiff claims to have acquired from his father. So also the description of the Suit Schedule B Property given by the Plaintiff is different than the schedule of the property belonging to him. The Plaintiff contends that he had filed complaints before the BBMP authorities, but the said complaints do not disclose, as to who is the real owner of the Suit Schedule A Property. Further the contentions of the Plaintiff that, the property of this defendant is located towards easternside of his property, is incorrect, but inbetween the property of the Plaintiff shown as Suit Schedule A Property and the Property of this defendant, shown as Suit 10 OS No.25702/2015 Schedule B Property, property of Smt P S Lakshmi is located. Thus the Plaintiff is not definite about his case. He has not properly valued the suit plaint and has not correctly paid the Court fees. Thus Plaintiff is not entitled for the reliefs, as claimed by him in the suit. Hence prayed to dismiss the suit.
5. On the basis of the pleadings of the parties, predecessor in office has framed the following Issues on 16.09.2017, as under:
ISSUES
1. Whether the Plaintiff proves that he has been in lawful Possession of the Suit Property, as absolute owner as on the date of the suit?
2. Whether Plaintiff further proves that the Defendant has attempted to interfere in the Suit Property?
3. Whether the Plaintiff proves that, the first Defendant has put up illegal encroachments in the suit schedule B property without leaving setback on the northernside of the suit schedule B property as per the sanction plan?11 OS No.25702/2015
4. Whether the Plaintiff is entitled for mandatory injunction against the first and second defendant, as prayed for?
5. Whether the Plaintiff is entitled for the relief of Permanent Injunction, as prayed and other relief's?
6. What order or decree?
6. Initially the case was madeover to CCH
20. The same was transferred to this Court on 25.08.2018 by virtue of the notification No ADM I(A)413/2018 dated 31.07.2018.
7. The Plaintiff has got examined his Power of Attorney holder as PW1 and has got marked 24 documents as Ex.P.1 to Ex.P24. PW.1. was cross examined on behalf of the Defendant Nos.1 & 2 on 21.08.2019.
Defendant No. 1 has led his evidence as DW.1 and got marked 05documents as Ex.D1 to Ex.D5. DW.1 was cross examined on behalf of the Plaintiff on 05.02.2021. ExP25 was got marked on confrontation to DW1.
12 OS No.25702/20158. The matter was posted for Arguments. Heard the arguments of the Learned Counsel for the Plaintiff. The Learned Counsel for the Plaintiff has placed his reliance on the decision of the Hon'ble High Court of Kerala, reported in AIR 1984 Kerala
170. Inspite of affording sufficient opportunity, Defendants have failed to advance their arguments. Hence, arguments of the Defendants was taken as "Not Addressed" on 16.02.2021. However the Defendants were given liberty to file their Written Arguments on or before 20.02.2021, with due notice to the learned Counsel for the Plaintiff. But none of the Defendants have filed their Written Arguments.
9. My findings on the above said issues are as under:
Issue No 1 : In the Affirmative; Issue No 2 : In the Affirmative; Issue No 3 : In the Affirmative; Issue No 4 : Partly in the Affirmative; Issue No 5 : In the Affirmative;13 OS No.25702/2015
Issue No 6 : As per final order for the following;
:R E A S O N S:
10. ISSUE No.1:
The Plaintiff contends that, he is the owner in Possession and enjoyment of the Suit Schedule A Property, as he has received the said property from his father under the Registered Gift Deed dated 23.12.2010. Inorder to approach the said property, there is a 4 feet width passage, running East to West from the Nandanavanam G Street till his property.
The said passage is situated towards the Northernside of the property of the Defendant No.1 and the Smt P S Lakshmi.
10.01. The Defendant No 1 contends that the description of the Suit Schedule A Property given by the Plaintiff is different than the schedule of the property shown under the Gift Deed dated 23.12.2010, which the Plaintiff claims to have acquired from his father. So also the description of the Suit Schedule B Property given by the Plaintiff is 14 OS No.25702/2015 different than the schedule of the property belonging to him. So also it is contend that Plaintiff is not the owner of the Suit Schedule A Property.
10.02. The Learned Counsel for the Plaintiff would contend that Originally main property bearing Old No 1, measuring East to West: 60 feet 04 inches and North to South: 47 feet 10 inches, was belonging to Appajappa. There were partitions in the said property inbetween five sons of Appajappa and the said property has fallen to the share of his three sons viz., ChickSiddappa; Krishnappa; and Gundappa. Further in the partition, ChickSiddappa received front portion, abutting Nandanavanam G Street. The said front portion is shown as Suit Schedule B Property; Krishnappa received the middle portion; and Gundappa received hind portion, the said hind portion is shown as the Suit Schedule A Property.
Further as per the Partition inbetween the children of ChickSiddappa dated 14.08.2002, the father of the Defendant received the front portionSuit 15 OS No.25702/2015 Schedule B Property and thereafter he gifted the said property to the Defendant, under the Registered Gift Deed dated 09.05.2007.
Further as per the Partition dated 08.10.1986, the father of the Plaintiff/PW1 received the hind portionSuit Schedule A Property and thereafter he gifted the said property to the Plaintiff, under the Registered Gift Deed dated 23.12.2010.
There is a passage measuring North to South: 4 feet running from the Nandanvanam G street till the property of the Plaintiff. The said passage is the only passage for the ingress and egress to the property of the Plaintiff from the said Nandanvanam G Street.
10.03. The Plaintiff has produced the General Power of Attorney dated 18.10.2014 at ExP1. As per this document it is seen that, he has authorized his father G Appaji to manage, maintain and look after all the affairs of the Suit Schedule A Property. Even he has authorized his father to depose on his behalf 16 OS No.25702/2015 inorder to safeguard his interest in the Suit Schedule A Property, before the Courts of law, etc. Further the Plaintiff has produced Partition Deed dated 08.10.1986 at ExP24. As per this document it is seen that, there is partition inbetween the heirs of Gundappa and the Suit Schedule A Property has fallen to the share of Appaji/PW1 the father of the Plaintiff. Further this document also evidences that Shri Appaji has been put into possession of the propertySuit Schedule A Property, fallen to his share.
Further the Plaintiff has produced the Uttar Patra Issued by the Bangalore Mahanagar Palike dated 25.02.1997 at ExP4. As per this document it is seen that the name of PW1/the father of the Plaintiff is shown to be the Khatedar of the property bearing No 75 and the said name is entered, as per the application dated 23.12.2006.
Further the Plaintiff has produced Property Tax receipt for the years 201516 at ExP5. As per this document it is seen that, the name of PW1/the father of the Plaintiff is shown to be the owner of the 17 OS No.25702/2015 property bearing PID No 755726, situate at Nandanavanam G Street, Jogupalya.
Further the Plaintiff has produced certified copy of the Registered Gift Deed dated 23.12.2010 at ExP2. As per this document it is seen that PW1 the father of the Plaintiff has Gifted the Suit Schedule A Property to the Plaintiff. Further this document also evidences that the donor has put the donee in possession of the property under gift.
Further the Plaintiff has produced Encumbrance Certificate dated 23.12.2010 at ExP3. This document evidences about the transaction of Gift taken place inbetween the father of the Plaintiff and the Plaintiff on 23.12.2010 and the said transaction is registered at Document No HLS1 01487201011 with the office of the Sub Registrar, Halasur Bangalore.
Further the Plaintiff has got marked the certified copy of the Partition Deed dated 14.08.2002, on confrontation to DW1, in his cross examination as ExP25. As per this document it is seen that, there is Partition inbetween the heirs of 18 OS No.25702/2015 ChickSiddappa and in the said partition, the properties shown as Schedule C Properties are fallen to the share of the father of the Defendant No 1. Present Suit Schedule B Property is shown as Property No 1 under the Schedule C Properties, in the said Partition Deed dated 14.08.2002.
10.04. The Defendant No 1 has produced Original Gift Deed dated 09.05.2007 at ExD1. As per this document is it seen that the father of the Defendant No 1 has Gifted the Suit Schedule B Property to the Defendant. Further this document also evidences that the donor has put the donee in possession of the property under gift.
Further the Defendant No 1 has produced the Khata Certificate and Khata Extract at ExD2 & ExD3. As per these documents it is seen that the name of the Defendant No 1 is shown as the Khatedar of the Property bearing PID No 755724, which is also known as Municipal No 24, Old No 1/2, situate at Nandanavanam G Street, Bangalore.
19 OS No.25702/2015Further the Defendant No 1 has produced Property Tax receipt for the years 201920 at ExD4. As per this document it is seen that, the name of Defendant No 1 is shown to be the owner of the property bearing PID No 755724, situate at Nandanavanam G Street.
10.05. Coming to the ocular evidence, on this point more specifically, cross examination of DW1, Page No 5, para Nos 1, 2, 3 and Page No 6, Para No 1, which read as under:
"My property bearing Corporation Old No. 1 and New No. 24, measures East to West : 20 feet 2 inches and North to South : 47 feet 10 inches. I can tell the boundaries of the said property, towards East by :
Road,known as Nandanavana GBT Street and to the West : property of P.S.Lakshmi, to the North and to the South by private properties.
Property of P.S.Lakshmi which is located the west side of my property also measures East to West : 20 feet 2 inches and North to South 47 feet 10 inches.
It is true to suggest that towards the west of the property of 20 OS No.25702/2015 P.S.Lakshmi, the property of the Plaintiff is located. It is true to suggest that property of the Plaintiff also measures East to West : 20 feet and North to South : 47 feet 6 inches.
My property, the property of P.S.Lakshmi and the property of Plaintiff was earlier belonging to Appajappa and the said property was measuring East to West :60 feet 4 inches and North to South : 47 feet 10 inches.
It is true to suggest that after the death of Appajappa there was partition among his children, inrespect of his property measuring East to West :60 feet 4 inches and North to South :47 feet 10 inches.
But I do not know whether the said partition was taken place by virtue of Registered Partition Deed dt.
11.06.1941. It is true to suggest that the said partition has taken place inbetween Doddasiddappa;
Chikkasiddappa; Gundappa;
Narayanappa; and Krishnappa. It is true to suggest that the property measuring East to West : 60 feet 4 inches and North to South : 47 feet 10 inches have fallen to the shares of Chikkasiddappa; Gundappa and Krishnappa. The front portion which I am owning has fallen to the share of 21 OS No.25702/2015 Chikkasiddappa; the middle portion was fallen to Krishnappa, which is now purchased by P.S.Lakshmi; and the hind portion has fallen to the share of Gundappa, which is now owned by the Plaintiff.
As per this evidence the Defendant/DW1 admits that, Property which he has received from his father under the Gift Deed dated 09.0.2007; the property purchased by P S Lakshmi; and the property belonging to the Plaintiff, are adjoining to eachother, as his property is situate towards west of Nandanavanam G Street; thereafter towards the west of his property, Property purchased by P S Lakshmi is situated and towards west of her property, property of the Plaintiff is situated. Further admits that all the three properties are the parts of one property belonging to Appajappa and on his death, his children got the said property divided into three parts. The main property was measuring East to West 60 feet 4 Inches and North to South: 47 feet 10 inches.
22 OS No.25702/2015As per this evidence, firstly both the parties have identified the Suit Schedule A & B Properties; and Secondly, the Defendant No 1 admits the ownership and possession of the Plaintiff, over the Suit Schedule A Property.
11. Withregard to existence of Common Passage:
The Plaintiff contends that there exists a Common Passage of 4 feet width running from Nandanvanam G Street till his property and the said Passage is located towards the Northernside of the Properties of the Defendant No 1 and Smt P S Lakshmi. The said passage is the only passage for ingress and egress for the Plaintiff and Smt P S Lakshmi to approach their respective properties from the Nandanvanam G Street.
The Defendant No 1 has denied the existence of the said Passage in his Written Statement.
11.01. Coming to the ocular evidence on this point, more specifically, cross examination of DW1 at Page No 6, Para No 3, which reads as under:23 OS No.25702/2015
"It is true to suggest that a passage measuring North to South : 4 feet is left by Chikkasiddappa and by Krishnappa, in their respective properties, for the ingress and outgress to the property fallen to the share Gundappa, from the road, which is situated towards eastern side of the property purchased by me."
As per this evidence, Defendant No 1/DW1 admits that a Passage measuring North to South: 4 feet is left by Chikkasiddappa and by Krishnappa for the ingress and egress to the property fallen to the share of Gundappa, from the road.
Further as per the cross examination of DW1 at Page No 7, Para No 5, and at Page No 8, para No 2, which read as under:
"I do not know whether existence of the passage situated towards the northern side of my property measuring North to South : 4 feet is mentioned in Ex.P25 -
Partition Deed dt. 14.08.2002 and Ex.D1 - Gift Deed dt. 09.05.2007."
"It is true to suggest that apart from the passage located on the 24 OS No.25702/2015 northern side of my property measuring North to South : 4 feet, P.S.Lakshmi and the Plaintiff is not having any other road to approach the main road, situated towards the East of my property."
As per this evidence, Defendant No 1/DW1 pleads his ignorance about recital as to the passage in ExP25Partition Deed and ExD1Gift Deed dated 09.05.2007. But admits that Plaintiff and Smt P S Lakshmi are not having any other road to approach the main road, situated towards easternside of his property.
Further as per the cross examination of DW1, at Page No 11, Para No 1, which reads as under:
"It is false to suggest that I have contended that there is no 4 feet passage towards the northern side of my property."
As per this evidence, the Defendant No 1/DW1 denies the suggestion made to him, that he has denied existence of 4 feet passage located towards northern side of his property.
25 OS No.25702/201511.02. Thus, as per the above evidence, it is clear that the Defendant No 1 admits the existence of 4 feet passage, situate towards the Northernside of his property, which runs from the Nandanvanam G Street till the property of the Plaintiff and the said passage is used by the Plaintiff and Smt P S Lakshmi as the ingress and egress to their properties from the said Nandanvanam G Street. And the said passage is the only passage for them to approach the Nandanvanam G Street from their respective properties.
12. Thus, the Plaintiff has proved that he is the owner in possession of the Suit Schedule A Property; and he is in possession, use and enjoyment of the 4 feet width passage, situate on the easternside of his property, which is also located on the Northernside of the property of the Defendant No 1 and Smt P S Lakshmi, running from Nandanvanam G Street, to his property.
Hence, I answer ISSUE NO.1 IN THE
AFFIRMATIVE.
26 OS No.25702/2015
13. ISSUE No.3:
The Learned Counsel for the Plaintiff contends that the Defendant No 1 has putup constructions in the Suit Schedule B Property, in the form of opening of doors and windows; projections and balconies on the first, second and third floors and has illegal encroached upon the 4 feet passage, without leaving setback, on the northernside of the Suit Schedule B Property.
The Defendant No 1 has denied that he has made the encroachments over the 4 feet passage located towards the northernside of his property and further contended that he has constructed the building, in adherence to the approved blue print map, sanctioned by the BBMP Authorities.
13.01. The Plaintiff has produced the Photographs at ExP8 toExP21, contending that the said photographs pertain to the building of the Defendant No 1, which is constructed in violation of the building byelaws and the sanctioned plan.
Further the Plaintiff has produced the complaints and representations given to the BBMP 27 OS No.25702/2015 authorities at ExP6 to ExP8. As per this documents, it is seen that the father of the Plaintiff has intimated and informed the officials of the Defendant No 2 about the alleged encroachments and constructions takenup by the Defendant No 1, inviolation of the building byelaws and the sanction plan approved by them.
13.02. The Defendant No 1 has produced the Approved Blue Print Map, sanctioned by the BBMP for construction of his building, at ExD5. As per this document, it is seen that, the BBMP authorities have sanctioned the building construction plan of the Defendant No 1, by keeping 1.5 mtrs setback, each on both the sides i.e., towards the Northernside and towards the Southernside of the said building. Further as per the said approved plan, no any openings, like doors windows or balcony or any projections are shown towards the Northernside of the building, to be constructed by the Defendant No 1, under the said sanction.
28 OS No.25702/201513.03. Coming to the ocular evidence, more specifically, cross examination of DW1, at Page No 8, Para Nos 3 to 5, which read as under:
"It is true to suggest that there was a old building in the property received by me from my father. Inorder to construct a new building, I have obtained a building construction permission as per Ex.D5.
It is true to suggest that as per Ex.D5, building construction plan was sanctioned, with the setback of 1.5 meters, to be left on the northern side and southern side of my property, and setback of 1 meter towards the eastern side, i.e. towards the road.
I have not left setback of 1 meter towards the eastern side of my property i.e. towards the road side. I have also not left setback towards the south of my property. It is true to suggest that I have not left setback of 1.5 meters, towards the northern side of my property."
As per this evidence, Defendant No 1/DW1 admits that he has obtained building construction permission as per ExD5 and the said plan was 29 OS No.25702/2015 sanctioned with the setback of 1.5 mtrs each to be left on the Northernside and the southernside of his property and setback of 1 mtr towards the road. Again he admits that he has not left such setbacks, more specifically towards the Northernside of his property.
13.04. Coming to the ocular evidence, more specifically, cross examination of DW1, at Page No 9, Para Nos 1 to 4, which read as under:
"Now I see, the positive
Photograph marked at Ex.P9,
wherein the unplastered wall and balcony on the 1st floor and 2nd floor belongs to my building.
I have constructed building in the property received by me from my father, consisting of ground floor, 1st floor, 2nd floor and 3rd floor. I have left the balconies, measuring 1½ feet NorthSouth, towards the northern side of my building, on the 1st floor, 2nd floor and 3rd floor.
It is false to suggest that the length of the said balconies is 20 feet East to West. Witness volunteers that it might be about 8 10 feet East to West.
30 OS No.25702/2015The said balconies, situated towards the northern side of my building located on the 1st floor, 2nd floor and 3rd floor measures East to West : 10 feet and North to South :
2 feet."
As per this evidence, Defendant No 1/DW1 admits that the unplastered wall and balcony of the building seen in ExP9, belongs to him. He has left the balconies measuring East to West: 10 feet and North to South: 2 feet on the first, second and the third floors of his building.
13.05. Coming to the ocular evidence, more specifically, cross examination of DW1, at Page No 10, Para No 1, which reads as under:
"It is true to suggest that the un plastered and un finished balcony seen in the positive Photograph - Ex.P15, belongs to me and the same is part of my property. It is true to suggest that the position of my building with unplastered and unfinished balcony seen in the positive Photograph Ex.P15 was prevailing at the time of filing of this suit by the Plaintiff."31 OS No.25702/2015
As per this evidence, the Defendant No 1/DW1 admits that the unplastered and unfinished balcony seen in the positive photograph at ExP15, belongs to his building and the said position, was prevailing at the time of filing this suit.
13.06. Coming to the ocular evidence, more specifically, cross examination of DW1, at Page No 11, Para No 4, which reads as under:
"Court question : Whether you have shown balconies in the approved construction plan - Ex.D5?
Witness replies in the negative."
As per this evidence, the Defendant No 1/DW1 admits that he has not shown balconies in the approved construction planExD5.
13.07. Thus the Plaintiff has proved that the Defendant No 1 has constructed his building, quite in violation of the sanctioned building construction plan ExD5 approved by the BBMP Authorities, more specially, with regard to leaving of setback area as 32 OS No.25702/2015 approved, more importantly towards the northernside of his property.
Hence, I answer ISSUE No 3 IN THE
AFFIRMATIVE.
14. ISSUE NO 2:
On the basis of the admissions given by the Defendant No 1 in his cross examination, referred to supra, under Issue No 3, which suggest the acts and intention of the Defendant No 1 of violating the building construction permission and byelaws prescribed under the KMC Act.
This aspect shows that Plaintiff has apprehension coupled with acts of the Defendant No 1, amounting to attempts of trespass made by him. Thus apprehension of injury or belief on the part of the Plaintiff, coupled with the acts and Intention of the defendant No 1, to do certain act, which harms the Plaintiff, amounts to interference by the defendant No 1, since the act apprehended by the Plaintiff and intended by the defendant No 1, is such that, if completed, give a ground for action. There is a 33 OS No.25702/2015 foundation for the exercise of jurisdiction. Thus it amounts to interference. Hence, I am of the firm opinion that Plaintiff has proved that, the prospect or apprehension and belief coupled with intention of the defendant No 1 exhibited, if completed, will give rise to a cause of inflicting injury or receiving injury, to the Plaintiff. I find support to my above view as per the decision of the Hon'ble High Court of Karnataka reported in ILR 1978 Page 1560; in the case of Gopal M Hegde & Ors Vs U F M Narasimha Ganap Bhat & Ors, wherein it is held that, "When the Plaintiff proves the intention on the part of the defendants, to do an act or existence of the act, which in the opinion of the Court, if completed, give ground of action, there is foundation for the exercise of jurisdiction".
For the above said reasons, I answer Issue No. 2in the AFFIRMATIVE.
15. ISSUE NO 5:
The Plaintiff contends that the illegal construction of balconies and projections takenup by 34 OS No.25702/2015 the Defendant No 1, towards the northernside of his property, will deprive the free light and air to the Plaintiff, which is available in the passage, proved to be used by him. The learned Counsel for the Plaintiff has placed his reliance on the decision of the Hon'ble High Court of Kerala, in the case of P Saina and others Vs Konderi and Others, reported in AIR 1984 KER 170, wherein it is held that, "A clear violation of the building Rules entitles the adjoining owner of the building to institute a suit even though such violation has not resulted in any invasion of the Plaintiff's right to light, air or privacy causing material injury to him. This is so because a citizen has a right to institute a suit with a view to ensure effective implementation of the Municipal regulations, such as the Building Rules in the present case, even in the absence of a specific personal injury to the person suing."
15.01. As per the decision of the Hon'ble High Court of Karnataka in the case of Dr K 35 OS No.25702/2015 Panduranga Nayak Vs Smt Jayashree, reported in ILR 1989 Kar 3104, wherein it is observed in Para Nos 6 & 9 as under:
"As far as natural right to the flow of light and air is concerned every owner or occupier of a land has a natural right to receive and enjoy so much light and air as come vertically thereto and to open doors and windows in his own wall which adjoins another's land, unless he is under a legal obligation not to do so. Every man is free, in the lawful enjoyment of his own property, to take and use so much light and air as come thereto. And his neighbour's right is the same as his own, but these rights of enjoyment are naturally qualified, for neither can prevent the other from making such lawful use of his land as he pleases. A man who is deprived of light and air by an act of his neighbours, as by the erection of a building, has still the right to so much light and air as come to him and he cannot complain of the obstruction however serious, unless he can establish his title to an easement of light and air. "
15.02. As per the decision of the Hon'ble High Court of Karnataka in the case of Mathew Phillips Vs P. O Koshy, reported in AIR 1966 36 OS No.25702/2015 Mys 74, wherein it is observed in Para No 4 as under:
"The party, seeking the aid of the Court for an injunction must show that the act complained of is in violation of his right or is at least an act which, if carried into effect, will necessarily result in a violation of the right.
15.03. As per the decision of the Hon'ble High Court of Karnataka in the case of S Sunder Raj Vs Vijayendra Kumar and Others, reported in 2001 SCC Online Kar 39, wherein it is observed in Para No 9 as under:
"9. The learned Counsel appearing for the respondent has relied on a judgment of this Court in Fakirappa v Basalingappa, to contend that an injunction can be granted at the instance of the neighbour. That was a case clearly distinguishable on facts. In that case the Court found on evidence that there was factually violation by the party in the matter of construction. It further found that the permission granted by the Corporation was quashed by the High Court. It was in those set of facts the Court ruled that an injunction can be granted. That was not a case like the present one. Therefore, the said judgment cannot be relied upon by the defendant to seek an injunction. In the 37 OS No.25702/2015 circumstances, I am of the view that no temporary injunction can be granted at the instance of the neighbour on the sole ground of violation of the sanctioned plan or the Building Byelaws. As rightly held by this Court in Dr. K. Panduranga Nayak's case, supra, that when there is a violation of bye law the appropriate Court can direct the Commissioner to take action or on complaint to him in this behalf. The Act itself has provided a machinery to enquire into such grievances. At the same time I clarify that in the event of any inaction on a complaint by the neighbour of violation on the part of the Municipal Commissioner the party is at liberty to seek a remedy to take action against an erring party. Merely on a complaint to the Commissioner or merely on the ground of violation of byelaws as rightly held by this Court in Dr. K. Panduranga Nayak's case, supra, no injunction can be granted since a comprehensive machinery is available under the Municipal laws for an action against an erring party. The judgment of the Supreme Court in M/s. Rajatha Enterprises v S.K. Sharma, relied on by the respondents of no use since that was a case dealing with the breach of statutory duty. Similarly, on the other hand the Supreme Court has itself noticed in that judgment that if any such duty is cast on the Municipality to take action against the erring party. Similarly, decision in Onkar Nath v Ram Nath Gupta, is also not available to the respondents since that was a case where an unauthorised construction was put up 38 OS No.25702/2015 without obtaining sanction from the authority. A construction without sanctioned plan and a construction in contravention of sanctioned plan stands on two different footings and therefore Onkar Nath's case, supra, is not available to the respondents. No doubt judgment of Calcutta High Court in Krishna Kali Mallik v Babulal Shaw and Others, provide for an injunction in the event of construction in violation of statutory rules but that relief has to be given as I mentioned earlier in the earlier paragraph only in the event of violation of a plan or a licence resulting in an injury or a violation of right in favour of neighbouring owner. Therefore, the Counsel for the appellant is right in his submission with regard to a right of the party in the matter of injunction in the light of these two judgments of this Court. Moreover in the case on hand, the Trial Judge in my opinion has committed a patent error in granting an injunction even on merits. It is the case of the plaintiff that the free air and light is affected on account of the said construction. The learned Judge himself in para 10 notices that no construction is put up in the sites owned by the plaintiff. There is no record to show that flow of air and light is prevented. Having come to this conclusion the Trial Court ought not to have granted an injunction. An interim order is granted to arrest an imminent danger or injury to the contesting party. Any interim order has to be an aid to the main relief but when there is no imminent danger or injury, no temporary injunction can be 39 OS No.25702/2015 granted by the Court. Therefore the Court even on merits has committed a legal error which require my interference in this order".
Apply the preposition of law to the instant case at hand, it can be seen that, the Plaintiff has proved that the Defendant No 1 has constructed 2 nd, 3rd and 4th floor of his building in violation of the building byelaws and inviolation of the sanction plan and approval of the license by the BBMP authorities, by keeping the openings of doors, windows, balconies and protections towards the Northernside of his building; So also the Plaintiff has shown that such violation of a plan or a license has resulted in an injury to him or the same has violated his right to enjoy passage of free air and light to him. Thus, I am of the considered opinion that, the Plaintiff will be entitled for the relief of Injunction.
Hence I answer ISSUE NO 5 IN THE
AFFIRMATIVE.
16. ISSUE NO 4:
The Learned Counsel for the Plaintiff would contend that since there is deviation and violation of 40 OS No.25702/2015 construction plan by the Defendant No 1, so he is required to be directed to remove the illegal encroachments being put up by him in the Suit Schedule B Property and to bring the construction in accordance with the sanctioned plan by leaving necessary setbacks on the Northerside of the Suit Schedule B Property i.e., to the Southernside of the common passage and also to remove all the Sajjas/Balconies and close all the openings towards the common passage, in the form of Mandatory Injunction.
So also to issue directions to the Defendant No 2 directing it to take necessary action against the Defendant No 1 and to remove/demolish all the deviations done by the Defendant No 1 in the Suit Schedule B Property, in accordance with the sanctioned plan, in the form of mandatory Injunction.
17. The Plaintiff has shown that the Defendant No 1 has kept the openings in his building towards its northerside, such as doors, windows, projections and balconies, which are quite in violation to the approved building sanction plan 41 OS No.25702/2015 ExD5, which are required to be removed by closing the said openings, inorder to bring the same in consonance with the approved building plan as well as to overcome the infringement of right of the Plaintiff to use of free flow of air and light, inorder to have free enjoyment of 4 feet passage, located at the northernside of the building of the Defendant No 1. Thus Mandatory Injunction against the Defendant No 1 is required to be issued, in this regard. Hence Plaintiff is entitled for the relief of Mandatory Injunction for closing of openings like doors, windows; and removal of balconies and projections by the Defendant No 1, available in the Northernside wall of his house.
18. Further with regard to issuing of directions to the Defendant No 2 is concerned.
18.01. The Karnataka Municipal Corporation Act, is itself a Self contained Code, which provides a remedy for any contravention of its provisions or the byelaws made thereunder. It is for the appropriate authority constituted under the Act to determine whether or not a licensee of a building has 42 OS No.25702/2015 contravened the terms and conditions of license. And when Section 321 of the KMC Act gives power to the Commissioner for demolition or alteration of buildings unlawfully commenced, carried or completed. Thus Act itself has provided for a machinery to inquire into such grievance and if the Commissioner doesnot decide to compound, then he may take such action as he deems fit and proper.
19. The Corporation of City of Bangalore has framed Building Byelaws called City of Municipal Corporation Building Byelaws of 1983. Byelaw 5.6.1 read as follows:
"Whenever any construction is in violation/deviation of the sanctioned plan, the Commissioner may, if he considers that the violation/deviations are minor, viz., only when the deviations/violations is within 5% of (1) the minimum setback to be left around the building;
(2) the maximum plot coverage; (3) permissible floor area ratio (FAR) and the maximum height of the building and that the demolition under Chapter XV of the Act is not feasible without 43 OS No.25702/2015 affecting the structural stability, then he may regularize such violation/deviations by sanctioning of a modified plan with a levy of a suitable fee to be prescribed. The Commissioner shall come to such conclusion only after recording detailed reasons for the same. Violations/deviations under the provision shall not include the buildings which are constructed without obtaining any sanctioned plan, whatsoever and also the violations/deviations which are made inspite of the same being specifically deleted or rejected in the sanction plan."
These Byelaws are framed under the powers given to the Corporation U/Sec 295 of the KMC Act 1976. Section 321 of the said Act gives power to the Commissioner for demolition or alteration of buildings unlawfully commenced, carried on or completed. Sec 321(1)(i)(b) empowers the Commissioner that if he is satisfied that the construction or reconstruction of any building is being carried on or has been completed otherwise than in accordance with the plans or particulars of which such permission or order was based; or under subclause (c) is being carried on, or has been 44 OS No.25702/2015 completed in breach of any of the provisions of this Act or of any Rule or Byelaws made under this Act or of any direction or requisition lawfully given or made under this Act, he may make a Provisional Order requiring the owner of the building to demolish the work done, or so much of it as, in the opinion of the Commissioner, has been unlawfully executed, or make such alterations as may, in the opinion of the Commissioner, be necessary to bring the work into conformity with the Act, Rules, Byelaws, directions or requisitions as aforesaid, or with the plan or particulars on which such permission or order was based and may also direct that until the said order is complied with the owner or builder shall refrain from proceeding with the building.
Under Subsection (2) a copy of the provisional order made under subsection (1) is required to be served on the owner or builder of the building.
19.01. In the present case, the Plaintiff has produced the complaints and representations given by him to the Defendant No 2, at ExP6 to ExP8.
45 OS No.25702/201520. Thus I am of the firm opinion that, when a Statute or Byelaw gives discretionary powers/Powers to a Competent Authority, that authority has to exercise that Power Judiciously and the Court cannot compel any authority who had been conferred with the powers to exercise it in any particular way. The Karnataka Municipal Corporation Act the Statute and Byelaws confer such powers on the Defendant No 2. And therefore, no Injunction much the less of the nature of Mandatory can be granted infavour of the Plaintiff, against the Defendant No 2.
21. If the Plaintiff has any grievance with regard to violation of the building byelaws, etc., then he has to appear before the Commissioner and putforth his grievance, against such use of the Powers, in any way, known to law.
22. Though the Defendant No 1 contends that it was essential for him to have the openings in the form of Doors and Windows and balconies and projections, in the Northern portion of the first, 46 OS No.25702/2015 second and third floors of his building, but the Defendant No 1 has not made it clear, as to what was the essentialness or necessity for him to leave the same.
Firstly, on comparing the necessity of the Plaintiff to enjoy the free air and light in the passage, with the alleged necessity of the Defendant No 1, then the necessity of the Plaintiff over rules the alleged necessity of the Defendant No 1.
If atall there was any necessity to the Defendant No 1 to have such openings and balconies, then the Defendant No 1 would have left the setback towards the northernside of his building, as approved by the BBMP Authorities and would have left the openings and balconies, as left, but the same is not done by the Defendant No 1. So it appears that there is no any necessity of essentiality for leaving the openings in the form of doors and windows and balconies and projections.
23. Though the Defendant No 1 has not taken the plea of limitation with regard to the claim of the Plaintiff, for the relief of Mandatory Injunction. But 47 OS No.25702/2015 even then, inorder to grant such relief, it is the duty of the Court to consider it.
Considering the ocular evidence of the Defendant No 1, more specifically, cross examination of DW1, at Page No 10, Para No 1, which reads as under:
"It is true to suggest that the un plastered and un finished balcony seen in the positive Photograph - Ex.P15, belongs to me and the same is part of my property. It is true to suggest that the position of my building with unplastered and unfinished balcony seen in the positive Photograph Ex.P15 was prevailing at the time of filing of this suit by the Plaintiff."
As per this evidence, the Defendant No 1/DW1 admits that the unplastered and unfinished balcony seen in the positive photograph at ExP15, belongs to his building and the said position, was prevailing at the time of filing this suit.
So this will suffice to hold that the relief of Mandatory Injunction claimed by the Plaintiff, is well within time and the same is not hit by the provisions of Limitation Act.
48 OS No.25702/201524. When this Court has come to the conclusion that the Plaintiff is entitle for the relief of Mandatory Injunction, against the Defendant No 1, then certain directions will be required to be given to the Defendant No 1, in the form of Mandatory Injunction, to be fulfilled. For that some time period should be required to be given to the Defendant No 1, to full fill the said directions.
Since this judgment is passed under the Original Jurisdiction, so the time permitted by law, to prefer an appeal, as the Regular First appeal, will be 90 days. So in my opinion, the time period of 4 months, will be feasible to be granted to the Defendant No 1 to full fill the directions, given to him in the form of Mandatory Injunction.
25. Thus, having observed so, the Plaintiff will be entitle for the relief of Mandatory Injunction, as claimed by him, as against the Defendant No 1, but the Plaintiff will not be entitled for the relief of Mandatory Injunction, as claimed by him, as against the Defendant No 2.
49 OS No.25702/2015Hence, I am constrained to answer ISSUE NO.4 PARTLY IN THE AFFIRMATIVE.
26. ISSUE NO 5:
For having answered Issue Nos 1 to 3 and 5 in the Affirmative and Issue No 4 Partly in the Affirmative, Thus, I proceed to pass the following:
ORDER Suit of the Plaintiff is hereby Decreed, inpart.
The Defendant No 1, or anybody acting on his behalf or claiming under him, are hereby restrained by an order of Permanent Injunction, from causing interference/obstructions to the Plaintiff in using the four feet width passage located towards the Northernside of the building of the Defendant No 1, running east to west, from Nandanavanam G Street to the property of the Plaintiff.50 OS No.25702/2015
Further the Defendant No 1 is hereby directed, in the form of Mandatory Injunction, to close the openings which are in the form of doors and windows; and to remove the balconies and projections available in the Northernside wall of the first, second and third floors of his building, within a period of 4 months from the date of this order, so that the Plaintiff can exercise his right of using free air and light in the four feet width passage located towards the Northernside of the building of the Defendant No 1, running east to west, from Nandanavanam G Street to the property of the Plaintiff, without any obstructions or interference.
Incase, if the Defendant No 1 fails to close the openings or remove the balconies and projections, as directed supra, then the Plaintiff is at liberty to get executed the said work, through the process of the Court. The costs and the expenses incurred for the same, will be borne by the Defendant No 1, or the Plaintiff 51 OS No.25702/2015 can recover the same from the Defendant No 1.
Further the Mandatory Injunction claimed by the Plaintiff against the Defendant No 2 is hereby rejected.
It is needless to mention that the Plaintiff can approach the Competent Authorities prescribed under the Karnataka Municipal Corporation Act, 1976 for his redressal, withregard to violation of building byelaws by the Defendant No 1, pertaining to leaving of setback by the Defendant No 1. And in such an event, it is believed that the said authorities will performed their statutory duties, as prescribed under the law.
Looking to the special facts of the case, the Defendant No 1 shall bear all the costs.
Draw Decree Accordingly.
- (Dictated to the Judgment Writer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 24th day of February, 2021.) 52 OS No.25702/2015 [AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) :Schedule 'A' Property:
(Plaintiff's Property) All that piece and parcel of the Immovable Property bearing Corporation Khatha Number 26, situated at Nandanavanam 'G' Street, Joguplaya, Ulsoor, Bangalore560 008, measuring East to West: 20 feet and North to South:47 feet 6 inches, totally measuring 950 Square Feet, and being bounded on the:
East by: Property of P. S Lakshmi;
West by: Nagappa's property; North by: Subedhar & Ghouse Khan's 53 OS No.25702/2015 properties; and South by: Shambasiva Mudaliar's property and passage 4' width North to South running East to West.
:Schedule 'B' Property:
(Defendant's Property) All that piece and parcel of the Immovable Property bearing Corporation Khatha Number 24, situated at Nandanavanam 'G' Street, Joguplaya, Ulsoor, Bangalore560 008, measuring East to West: 6.09 Meters and North to South:14.32 Meters, totally measuring 87.20 Square Meters, and being bounded on the:
East by: Nandanavanam 'C' Street; West by: Property of P. S Lakshmi;54 OS No.25702/2015
North by: Subedhar & Ghouse Khan's Properties; and South by: Shambasiva Mudaliar's property and passage 4' width North to South running East to West.
[AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) 55 OS No.25702/2015 ANNEXURES: LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1: Sri. Prakash Appaji.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFF: Ex.P1: GPA.
Ex.P2: Certified copy of Gift Deed dtd.23.12.2010. Ex.P3: E. C. Ex.P4: Uttar Patra dtd.26.02.1997. Ex.P5: Tax paid receipt.
Ex.P6: Copy of Complaint letter dtd.20.01.2015. Ex.P7: Copy of letter dtd.26.06.2015. Ex.P8: Copy of Complaint letter dtd.09.07.2015. Ex.P9 to 21: Photographs.
Ex.P22 & 23: Two CD's of photographs at Ex.P921. Ex.P24: Certified copy of Partition Deed dtd.08.10.1986.
Ex.P25: Certified copy of Partition Deed dtd.14.08.2002.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANTS:
DW.1: S. M. Rajashekar.
LIST OF EXHIBITS MARKED FOR THE DEFENDANTS: Ex.D1: Original Registered Gift Deed dd.09.05 2007.
Ex.D2 & 3: Khatha Certificates. Ex.D4: Tax paid receipt.
Ex.D5: Blue print approved plan.
[AbdulRahiman. A.Nandgadi] 56 OS No.25702/2015 LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73)