Bangalore District Court
Sri.Siddalingaiah vs The Commissioner on 2 August, 2021
IN THE COURT OF THE LII ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-53)
Dated this the 2nd day of August, 2021
PRESENT
Sri.B.G.Pramoda, B.A.L., LL.B.,
LII Addl. City Civil & Sessions Judge,
Bangalore.
O.S.No. 5605/2014
Plaintiffs : Sri.Siddalingaiah
S/o Duggalaiah,
Aged about 62 years,
Since dead by his Lrs.
1 (a) Smt.Venkatalakshmamma,
W/o Late Siddalingaiah,
Aged about 55 years,
(b) Prasanna S.,
S/o Late Siddalingaiah,
Aged about 35 years,
(c) Arun Kumar S.,
S/o Late Siddalingaiah,
Aged about 30 years,
All are residing at
No.1552, Nagarabhavi Circle,
ISEC Post, Jnanabharathi Main Road,
Bengaluru - 560072.
(By Sri.Seenappa V., Advocate)
-V/S-
Defendants : 1. The Commissioner,
Bruhath Bengaluru Mahanagara
Palike, Hudson Circle, Bengaluru.
2. The Executive Engineer,
Bruhath Bengaluru Mahanagara
2 O.S.No.5605/2014
Palike, Hudson Circle,
Bengaluru.
3. The Asst. Executive Engineer,
Bruhath Bengaluru Mahanagara
Palike, Hudson Circle,
Bengaluru.
4. Sri. Anand V Rao,
Father name not known,
Major, No.7/1,
Muttaiah Compound,
Nagarabhavi Circle,
Bengaluru.
5. Smt.Bhavana Praveen
W/o Sri. Praveen Mohan,
Aged about 27 years,
6. Sri.Praveen Mohan
S/o Sri.R.Mohan,
Aged about 35 years,
Both are residing at
No.326, 5th Main, 10th Cross,
4th Stage, Nagarbhavi,
Bengaluru- 560072.
(D-1 to 3 by Sri.H.D.,
D-4 by Sri.S.K.M.,
D-5 and 6 by Sri.K.P.N., Advocates)
Date of institution of the suit: 22.07.2014
Nature of the suit: Injunction
Date of commencement of 26.02.2018
recording of evidence:
Date on which Judgment was 02.08.2021
pronounced:
Duration: Day Months Years
07 05 02
3 O.S.No.5605/2014
JUDGMENT
The plaintiff has filed the present suit praying for mandatory injunction and permanent injunction against the defendants.
2. The brief facts of the case of the plaintiff as averred in the suit plaint are as follows:-
The plaintiff is the absolute owner of the suit schedule 'A' property. Plaintiff has been in peaceful possession and enjoyment of the suit schedule 'A' property since the date of purchase. The plaintiff has been paying taxes with respect to the suit property to the concerned authority. The Katha of the suit schedule 'A' property is standing in the name of plaintiff. The plaintiff had put up construction on the suit schedule 'A' property as per the sanction plan. The defendant No.4 is the owner of the property bearing No.7/1, which is situated adjacent opposite to the suit schedule 'A' property. The said property described as suit schedule 'B' property in the suit plaint. The defendant No.4 is putting up construction in suit schedule 'B' property without leaving any set back by 4 O.S.No.5605/2014 violating the building bye laws. He has not obtained NOC from any neighboring land owners. The defendant No.3 had issued notice to defendant No.4 on 06.08.2013 about his illegal construction in suit schedule 'B' property. The plaintiff and the residents of the same locality have lodged complaint to the B.B.M.P. on 02.08.2013 and on 27.08.2013, about the illegal construction of defendant No.4. B.B.M.P. after conducting spot inspection passed order under Sec.321(1) (2) of K.M.C. Act 1976 by holding that the defendant No.4 is constructing building by violating the building plan and bye laws of B.B.M.P. The defendants No.1 to 3 by colluding with defendant No.4 have kept silent and allowed defendant No.4 to put up construction. Now the defendant No.4 is hurriedly trying to complete the construction by blocking the road to the plaintiff and others property. The defendant No.4 is putting up construction abutting 10 feet road. The plaintiff and public at large are openly and continuously enjoying the road for more than 45 years. The defendant No.4 is trying to obstruct the said road with intention to harass the 5 O.S.No.5605/2014 plaintiff and publics. The said illegal construction by defendant No.4 is causing great hardship to the plaintiff and his family members and public and it amounts to nuisance. Hence, the plaintiff has stated that cause of action arose for him to file the suit and hence, prayed to decree the suit.
3. After service of suit summons, the defendants No.1 to 3 have appeared through one counsel. Defendant No.4 has appeared through another counsel. Defendant No.5 and 6 have appeared though one counsel. Defendants No.1 to 3, defendant No.4, 5 and 6 have filed their separate written statement.
4. Defendant No.1 to 3 in their written statement have contended that plaintiff has to prove his ownership possession over suit schedule 'A' property. They have further contended that upon inspection of the premises of property of defendant No.4, defendants No.1 to 3 have noticed deviations in the building constructed by the defendant No.4. Hence, they have issued preliminary notice u/Sec.321 (1) (2) of KMC Act on 06.08.2013 to the 6 O.S.No.5605/2014 defendant No.4 directing him to set right the deviations in the building. Since the defendant No.4 has not set right the deviations. It is contended by defendants No.1 to 3 that the they have issued confirmation notice dated 13.08.2013. Defendants No.1 to 3 have further contended that, the defendant No.4 has put up construction of third floor illegally. Defendants No.1 to 3 have further contended that they have initiated action against him u/Sec.462 of KMC Act for demolition of deviated portion and same has been submitted before Commissioner for approval. It is further contended by defendants No.1 to 3 that after approval from Commissioner, they will initiate action as per the law and as provided under the KMC Act. The defendants No.1 to 3 have further contended that they being a statutory authority will initiate action as per law and they will abide by the decisions of this court and will initiate action to demolish the deviated portions of the construction undertaken by the defendant No.4. The defendants No.1 to 3 have specifically denied all other averments made in the 7 O.S.No.5605/2014 suit plaint. Hence, defendant No.1 to 3 have prayed to dismiss the suit filed by the plaintiffs.
5. Defendant No.4 in his written statement has specifically denied the averments of the plaint that he is putting up construction in suit schedule 'B' property illegally by violating the building bye-laws and by violating the sanction plan. He has also specifically denied the allegations made by the plaintiff that he has not left any set backs and he is trying to close the road. He has also specifically denied the allegations made by the plaintiff that the plaintiff and other publics have been using the road in order to go to other property. The defendant No.4 has contended that he had put up construction in accordance with laws and rules and bye-laws and the construction had been done purely in accordance with sanction plan. The defendant No.4 has contended in his written statement that the plaintiff or any other public have not given any complaint against him to the B.B.M.P. authority about his construction and no order is passed by the concern authority under Sec.321 (1) (2) of KMC Act. The defendant 8 O.S.No.5605/2014 No.4 has further contended in his written statement that plaintiff has not raised any objections at any stage of construction. The defendant No.4 has constructed RCC building with ground floor and first floor investing Rs.40,00,000/-. The plaintiff has no locus-standi to file the present suit. The plaintiff is not claiming any proprietary right or interest in the suit schedule 'B' property. The defendant No.4 has further contended that the suit is barred under Sec.41 (j) of the Specific Relief Act. It is further contended in the objection that suit schedule 'A' property is situated diagonally opposite to the 'B' schedule property. Both 'A' and 'B' properties are separated by a 10 feet road. The defendants No.1 to 3 have no power to demolish the 'B' schedule building. Such relief claimed by the plaintiff is not maintainable. The defendant No.4 has further contended that he had put up construction within his own property and as such, plaintiff has no right to seek the relief of mandatory injunction. Defendant No.4 has further contended in his written statement that Civil Courts have no jurisdiction to direct the defendants No.1 to 3 to 9 O.S.No.5605/2014 act in a particular manner. The Civil Court cannot be interfere in the matter of discharging the duties by defendants No.1 to 3 and such a jurisdiction is not vested with the Civil Courts. The defendant No.4 further contended in his written statement that the suit schedule property has been constructed in the year 2012. Hence, the suit is barred by law of limitation. The defendant No.4 has denied the allegations made against him that he has blocked the 10 feet road and caused obstruction to the public. The defendant No.4 has denied the allegations made against him and also contended that the suit is not maintainable for non-issuance of statutory notice u/Sec.482 of the KMC Act. Hence, the defendant No.4 has contended that the plaintiff is not entitled for mandatory injunction and permanent injunction as prayed for. Hence, prayed to dismiss the suit filed by the plaintiff.
6. Defendants No.5 and 6 in their written statement have also taken the similar contentions as taken by defendant No.4 in his written statement. As such, entire averments of the written statement of defendants No.5 and 10 O.S.No.5605/2014 6 are nor reproduce herein to avoid the repetition of facts. Defendants No.5 and 6 have contended that valuation of the suit claim made by the plaintiff is incorrect and court fee paid by the plaintiff is not proper. Defendants No.5 and 6 also contended that the suit is barred by law of limitation. Hence, the defendants No.5 and 6 have prayed to dismiss the suit filed by the plaintiff.
7. Based upon the pleadings of both the parties, following 4 issues and one additional issue came to be framed by my learned predecessor and the matter was posted for evidence.
ISSUES
1. Whether plaintiff proves that 4th defendant is putting up construction in suit schedule 'B' property without leaving set back and not followed the building bylaws as pleaded?
2. Does he prove that defendants 1 to 3 are not taking proper action against 4 th defendant?
3. Does plaintiff entitled for the relief of mandatory injunction as prayed against 4 th defendant for demolishing building constructed on schedule 'B' property to an extent of illegal construction as shown in the order dated 06.08.2013?
4. What order and decree?
11 O.S.No.5605/2014
ADDITIONAL ISSUE
1. Whether the Plaintiff is entitle for the relief of Mandatory injunction against the Defendant nos.5 and 6 as they have steps in the shoes of the 4th Defendant for demolishing building constructed on schedule 'B' property to an extent of illegal construction as shown in the order dated 06-08-2013?
8. It is to be noted here that during the pendency of the suit the original plaintiff was dead. His Lrs, plaintiffs 1(a) to (c) in order to prove their case, have adduced the oral evidence of plaintiff No.1(a) as P.W.1. They have produced 17 documents on their behalf and got them marked as Ex.P.1 to P.17 and closed their side. The defendant No.6 has adduced his oral evidence as D.W.1. He has produced 4 documents on his behalf and got them marked as Ex.D.1 to D.4. The other defendants have not adduced any evidence on their behalf. Thereafter, the matter was posted for arguments.
9. Heard the arguments. Perused the pleadings, oral and documentary evidence, written arguments and other materials on record.
12 O.S.No.5605/2014
10. Having done so, my answer to the aforesaid issues are as follows:
Issue No.1 : In the Affirmative
Issue No.2 : In the Negative
Issue No.3 &
Additional Issue No.1 In the Negative
Issue No.4 : As per final order,
for the following :
REASONS
11. ISSUE NO.1: According to the deceased
plaintiff, he is the absolute owner in possession of suit schedule 'A' property bearing property No.1552 of Nagarbhavi Circle, ISEC Post, Jnanabharathi Main Road, Bengaluru, measuring 30 x 40 feet. Further according to the deceased plaintiff, the property of defendant No.4 bearing No.7/1 is situated adjacent opposite side of the suit schedule 'A' property and it is measuring 30 x 30 feet. The plaintiff has described the said property as suit schedule 'B' property in the suit plaint. Further according to the deceased plaintiff, the defendant No.4 is putting up construction on his property without leaving any set backs and by violating the building bye laws. Further according to the deceased plaintiff, the defendant No.4 is constructing 13 O.S.No.5605/2014 his building by violating the sanction plan of competent authority. In view of the aforesaid contentions of the plaintiff, issue No.1 came to be framed by my learned predecessor. The burden of issue No.1 is upon the plaintiff.
12. Since original plaintiff was dead, the legal heirs of deceased plaintiff in order to prove issue No.1, have adduced the oral evidence of plaintiff No.1(a) as P.W.1. P.W.1 in her examination in chief filed by way of affidavit has deposed that, her deceased husband was the absolute owner of suit schedule 'A' property and he was in peaceful possession and enjoyment of the suit schedule 'A' property since the date of purchase of said property. After the death of her husband she and her children have been in peaceful possession and enjoyment of suit schedule 'A' property. She has also stated in her chief examination that her husband was put up construction in suit schedule 'A' property after pertaining permission from the competent authority and as per the sanction plan and by leaving necessary set back as per law. P.W.1 in her examination in chief stated that, the defendant No.4 being the owner of the property bearing 14 O.S.No.5605/2014 No.7/1, situated adjacent opposite side of suit schedule 'A' property had put up construction in the said property without leaving any set backs and by violating the building bye-laws and without obtaining any NOC from neighbor and by violating the sanctioned plan.
13. P.W.1 has also deposed in her examination in chief that she and other residents of the same locality have given complaint against defendant No.4 to the Commissioner of B.B.M.P. and other departments about illegal construction of building by defendant No.4. She has also deposed in her examination in chief that the defendant No.4 is extending the building towards road without leaving any set back on front side of his house. She has also deposed that the defendant No.4 has put up stair case on the space let for frontal set backs. P.W.1 in her examination in chief deposed that, the B.B.M.P. authority have conducted inspection of the property of defendant No.4 and they have passed a confirmation order u/Sec.321(3) of KMC Act, 1976 on 13.08.2013 and directed the defendant No.4 to remove the illegally constructed area.
15 O.S.No.5605/2014
14. P.W.1, apart from adducing her oral evidence also produced certain documents in support of her case. Ex.P.1, is the death certificate of original plaintiff Siddalingaiah. Ex.P.2, is the Katha certificate of suit schedule 'A' property standing in the name of deceased plaintiff. Ex.P.3, is the Katha extract standing in the name of deceased plaintiff. Ex.P.4, is the property tax receipt of the suit schedule 'A' property for the year 2014 - 2015 in the name of deceased plaintiff. Ex.P.5, is the preliminary notice issued by B.B.M.P., Bengaluru on 06.08.2013 u/Sec.321 (1) (2) of KMC Act 1976. In the said order it is mentioned that on spot inspection of property No.7/1 they have found that construction in the said property was done by violating the rules of KMC Act 1976 and by violating building bye-laws. It is also mentioned in the said order that stilt building was converted as ground floor and third floor was illegally constructed. Ex.P.6, is confirmation notice dated 13.08.2013 passed by defendant No.3 u/Sec 321 (3) of KMC Act 1976. In the said confirmation notice it is stated that defendant No.4 has constructed his building 16 O.S.No.5605/2014 in property No.7/1 illegally by violating the building bye- laws and hence, he was directed to remove the illegally construction portion of his building and to give his explanation for illegal construction.
15. Ex.P.7, is the order passed by the Assistant Executive Engineer of B.B.M.P of Govindarajnagar Section, u/Sec.462 of KMC Act 1976. In the said order it is stated that the defendant No.4 has not demolished the illegally constructed area. As such, the power was given to Assistant Executive Engineer, Chandra Layout, Sub- devision to remove the illegally constructed portion of building of defendant No.4 u/Sec.462 of KMC act and to recover the expenses incurred for removal of illegal portion of the building from defendant No.4. Ex.P.14, is the temporary order passed by Assistant Executive Engineer, Chandra Layout, Sub-devision to defendant No.4 directing him to remove the illegally constructed building and if he failed to remove the illegally constructed building and if he failed to give satisfactory explanation, the said temporary order will be teated as final order. Ex.P.16, is the Tippani 17 O.S.No.5605/2014 sheets of B.B.M.P., Bengaluru. In the said tippani sheets there is reference about request made by Assistant Executive Engineer, Chandra Layout, Sub-division for preparation of list of approximate expenditures for demolish of illegally constructed building of defendant No.4 and to get administrative and technical approval for said expenses. Further it is also mentioned in it that approximately Rs.3,00,000/- is required for demolition of illegally constructed building of defendant No.4. Ex.P.7 is the estimation list containing list of expenses of incurred removal of illegally constructed portion of defendant No.4.
16. The oral evidence of P.W.1 as well as the documents produced on behalf of the plaintiff clearly proves the fact that, the defendant No.4 had put up illegal construction in his property bearing No.7/1 by violating building bye-laws and sanction plan. Further the documents pertaining to suit schedule 'A' property produced by the plaintiff issued by B.B.M.P., Bengaluru clearly goes to show that, the deceased plaintiff was the owner of suit schedule 'A' property and after his death the 18 O.S.No.5605/2014 name of plaintiff No.1 is mutated with the said property. Even though the defendant No.4 has appeared before court through his counsel and even though he has filed his written statement, defendant No.4 has not adduced any oral evidence on his behalf by denying the allegations made by the plaintiff against him regarding illegal construction in his property. The defendant No.4 has filed his written statement by denying the allegations of the plaintiff that he had put up construction in suit schedule 'B' property illegally by violating building bye-laws and without leaving any set backs. Further, the defendant No.4 in his written statement has also contended that the deceased plaintiff himself has constructed the building in suit schedule 'A' property without leaving any set backs and by violating the sanctioned plan and rules of KMC Act 1976. But the defendant No.4 has failed to adduced any oral evidence to prove the said contentions taken in his written statement. The averments made in written statement of defendant No.4 are not proved by him by adducing his oral evidence. Further, defendant No.4 has also not cross-examined P.W.1. 19 O.S.No.5605/2014 The plaint averments, oral evidence of P.W.1 and documentary evidence adduced on behalf of the plaintiff remained unchallenged by the defendant No.4.
17. The defendants No.1 to 3 have also contested the suit by filing the written statement. Defendants No.1 to 3 in their written statement have admitted the ownership of plaintiff over the suit schedule 'A' property and the ownership of defendant No.4 over the suit schedule 'B' property. Defendants No.1 to 3 in their written statement have contended that they have inspected the premises of defendant No.4 on the basis of the complaint lodged by plaintiff and others and found that there were deviation in the building constructed by defendant No.4. Defendants No.1 to 3 have also stated that they have issued preliminary notice u/Sec.321 (1) (2) of KMC Act to set right the deviation in the building. Defendants No.1 to 3 have also stated that the have issued confirmation notice u/Sec.321(3) of KMC Act on 13.08.2013. Defendants No.1 to 3 have stated in their written statement that the defendant No.4 had illegally put up construction of third floor. It is also stated by them 20 O.S.No.5605/2014 that as per the sanction plan, approval was obtained for stilt floor. But the defendant No.4 has converted the same as ground floor and thereby violating the sanctioned plan. Defendants No.1 to 3 have further stated about initiation of action under Sec.462 of KMC Act against defendant No.4.
They have also stated about issuance of temporary/Prohibitory order dated 06.08.2013
u/Sec.321(1) (2) of KMC Act. They have also stated about issuance of confirmatory order passed on 13.08.2013 u/Sec.321 (3) of KMC Act. Thus from the contention of defendants No.1 to 3 in their written statement and from preliminary notice, confirmation notice temporary/ prohibitory order and from confirmation order dated 13.08.2014 issued by defendant No.1 to 3, under various prvisions of KMC Act to defendant No.4, it is clear that defendant No.4 has put up construction in his property bearing No.7/1 by violating the building bye-laws and violating sanction plan. It is also clear that the defendant No.4 has put up construction in his building by deviating from the approved sanction plan.
21 O.S.No.5605/2014
18. The defendants No.5 and 6 are the purchasers of the suit schedule 'B' property from defendant No.4. The plaintiffs have filed the certified copy of sale deed dated 13.02.2014 at Ex.P.8. Said sale deed was executed by defendant No.4 in favour of defendants No.5 and 6 with respect to suit schedule 'B' property. The said sale deed was executed during the pendency of the suit. Defendant No.6 has adduced his oral evidence as D.W.1. D.W.1 in his examination in chief has stated that when they have purchased the suit schedule 'B' property, they have no information about the suit. D.W.1 in his cross-examination has stated that he has not verified at the time of purchase of suit schedule 'B' property regarding whether the building in suit schedule 'B' property was constructed as per B.B.M.P. plan or not. The building in suit schedule 'B' property was constructed by defendant No.4. Defendants No.5 and 6 have not adduced any sufficient materials to show that the building was constructed by defendant No.4 in accordance with sanction plan and by leaving necessary set backs and as per building bye-laws. D.W.1 has also not 22 O.S.No.5605/2014 produced the sanction plan and other documents pertaining to the building constructed in suit schedule 'b' property. Ex.D.1 is the Structural Stability Certificate issued by authorized person of Design Consortium. The said document is not helpful to defendants No.5 to 6 to prove that the defendant No.4 has constructed the building as per sanction plan and he has not violating any building bye- laws. Further in order to prove Ex.D.1 document, defendants No.5 and 6 have not examined the person who have issued the said certificate. Further defendants No.5 and 6 in their written statement, as well as D.W.1 in his examination in chief has contended that the plaintiff has constructed the building in suit 'A' schedule property by violating bye-laws, plan and without leaving any necessary set backs. The defendants No.5 and 6 have contended that since plaintiff himself has violated the building bye-laws and since he has not constructed his house in violation of sanction plan, plaintiff is not entitled to seek relief against the defendant No.4 and others. But in order to prove that the plaintiff had constructed the building in suit schedule 23 O.S.No.5605/2014 'A' property by violating building bye-laws and without leaving any set backs and violating the sanction plan, neither defendant No.4 nor defendants No.5 and 6 have not produced any substantial materials. They have also not given any complaint to the B.B.M.P. about the same. Further the defendants No.1 to 3 have also not stated anything about the construction of building by plaintiff by violating the building bye-laws. Under these facts and circumstances, I am of the opinion that the contention of the defendants No.5 and 6 that the plaintiff has constructed the building in suit schedule 'A' property by violating building bye-laws and by violating the sanction plan and without leaving any set backs cannot be acceptable one. On the other hand, the plaintiff has adduced sufficient oral and documentary evidence to prove that the defendant No.4 had put up construction in suit schedule 'B' property without leaving set back and by not following the building bye-laws. The plaintiff has proved issued No.1. Accordingly, I answer issued No.1 in the Affirmative.
24 O.S.No.5605/2014
19. ISSUE NO.2: It is the contention of the plaintiff that he and other publics have given representation to defendants No.1 to 3 about illegal construction by defendant No.4 and to take legal action against the defendant No.4. Defendants No.1 to 3 have kept silent and allowed defendant No.4 to put up construction. P.W.1 in her examination in chief has also stated about the said facts. It is stated by P.W.1 in her examination in chief that she has reliably learnt that defendants No.1 to 3 might have colluded with defendant No.4 and kept silent without implementing the order passed by them and they have neither executed the order nor demolish the illegal construction made by the defendant No.4.
20. On the other hand, defendants No.1 to 3 have filed the written statement stating that they have issued preliminary notice to defendant No.4 on 06.08.2013 about construction of building by him by deviating from the sanction plan and to set right deviations in the building. It is also contended by the defendants No.1 to 3 that they have also issued confirmation notice u/Sec.321(3) of KMC 25 O.S.No.5605/2014 Act on 13.08.2013. Defendants No.1 to 3 have also contended that they have passed temporary/prohibitory order on 06.08.2013 to defendant No.4 u/Sec.321 (1) and (2) of KMC Act. It is also contended by defendants No.1 to 3 that they have issued confirmatory order dated 13.08.2014 u/Sec.321(3) of KMC Act. The plaintiff has also produced all the aforesaid orders passed by defendant No.1 to 3 which are already referred above. The plaintiff has also produced the notice issued to defendant No.4 u/Sec. 462 of KMC Act and along with estimation report. From the contention of defendants No.1 to 3 in their written statement and from the documents produce by the plaintiff at Ex.P.5, Ex.P.6 Ex.P.7, Ex.P.14, Ex.P.16 and 17, it is clear that the defendants No.1 to 3 have taking proper steps for demolition of illegal construction of building by defendant No.4 in accordance KMC Act. The learned counsel for the defendants No.1 to 3 has argued that since the present suit is pending, the defendants No.1 to 3 have not taken any further steps in view of order passed by them for demolition of illegal construction by the defendant No.4 and defendants 26 O.S.No.5605/2014 No.1 to 3 will definately take necessary steps to demolish the illegal constructed portion by defendant No.4 after disposal of the suit. Under these facts and circumstances, I am of the opinion that the contention of the plaintiff that the defendants No.1 to 3 are not taking any proper action against defendant No.4 cannot be acceptable one. The plaintiff has failed to prove issue No.2. Accordingly, I answer issued No.2 in the Negative.
21. ISSUE NO.3 & ADDITIONAL ISSUE NO.1:
In this suit plaintiff is seeking the relief of mandatory injunction order with respect to suit schedule 'B' property against all the defendants. The plaintiff has prayed to issue direction to the defendants to demolish the building constructed on suit schedule 'B' property to the extent of illegal construction. Admittedly 'B' schedule property is not belonging to the plaintiff. Plaintiff himself has admitted that 'B' schedule property is belonging to the defendant No.4. Plaintiff is not claiming any right or interest over the suit schedule 'B' property. The plaintiff is only alleging that defendant No.4 by violating the building bye-laws and by 27 O.S.No.5605/2014 violating sanction plan and without leaving any set backs had illegally constructed building in the 'B' schedule property. As such, it is for the competent authority or B.B.M.P. to take necessary steps against the defendant No.4 for demolition of illegally constructed area by holding property enquiry and by confirming about the illegal construction by defendant No.4. It is already discussed and observed that defendants No.1 to 3 have conducted the spot inspection and found that defendant No.4 has violated the building bye-laws and sanction plan and there is a deviation in the construction by defendant No.4. Defendants No.1 to 3 have also initiated proceedings against defendant No.4 for demolishing of illegal constructed area in accordance with proceedings of KMC Act, 1976. Defendants No.1 to 3 are statutory bodies and public servants governed under KMC Act. Any order passed by defendants No.1 to 3 and failure on their part to act in accordance with such order are to be questioned by filing revision or appeal as provided under KMC Act. If the defendants No.1 to 3 have failed to take action against defendant No.4 as alleged in the suit plaint, 28 O.S.No.5605/2014 on the basis of complaint filed by the plaintiff, the plaintiff has to challenge the same before competent appellate authority as provided under the said act. Civil court has not jurisdiction to direct the defendants No.1 to 3 by way of mandatory injunction to do any particular act in a particular manner. Civil court has no jurisdiction to direct the defendants No.1 to 3 to enforce their order passed under KMC Act. Separate alternative remedy is provided under KMC Act for the same order dated 13.08.2013 is not passed to protect the any of the rights of the plaintiff. The said order is also not passed as per the diversion of this court. It is passed an account of illegal construction of building by defendant No.4 by violating KMC rules. As such the said order has to be enforced only as per the provisions provided under KMC Act and this court has no jurisdiction to do so.
If the plaintiff is aggrieved by any action of defendants No.1 to 3, he has to challenge the same in appeal or revision under KMC Act.
22. Further, plaintiff is seeking the relief of mandatory injunction against defendant No.4 by alleging 29 O.S.No.5605/2014 that defendant No.4 is putting up construction without taking any precaution and safety measures. It is further alleged by the plaintiff that the defendant No.4 is not using good materials to put up construction and it may at any point of time fall on the road and endanger human beings. It is further alleged by the plaintiff that there is no pillar to the building and only on support of small iron item, the building is being constructed and hence, there is strong apprehension that the building may fall and cause great danger to the lives. It is further alleged by plaintiff that the plaintiff and due to the construction by defendant No.4, there is blockage of road to public and other property and there is 10 feet road. It is also alleged that the plaintiff and public at large are openly and continuously enjoying the road for more than 45 years and now defendant No.4 is obstructed the same with an intention to harass the plaintiff and public for illegal gain. The aforesaid allegation made by the plaintiff in the suit plaint goes to show that no individual or independent right of the plaintiff is violated by the illegal construction of defendant No.4. The plaintiff is 30 O.S.No.5605/2014 alleging that his own right as well as right of public act large is violated by illegal construction of defendant No.4. But the plaintiff has not filed the present suit in representative capacity. The plaintiff has not produced any document to show that the local public have given complaint against defendant No.4 about his illegal construction and about infringement of their right if any. Further the plaintiff is not claiming the right of easement regarding any way, light or air against the defendant No.4 to 6. The plaintiff has sought for the relief of mandatory injunction only without seeking the relief of declaration of his easementary right over the 10 feet road or about any other rights.
23. The relief of mandatory injunction can be granted when an unlawful act of the defendants obstructed the proper enjoyment of the plaintiffs of the property. The allegations made in the suit plaint or in the examination in chief of P.W.1 are not sufficient to show that the alleged unlawful act of the defendant No.4 has affected right of lawful enjoyment of 'A' schedule property by the plaintiff or 31 O.S.No.5605/2014 infringed any easementary right for enjoyment of 'A' schedule property.
24. Under Sec.39 of Specific Act, mandatory injunction can be granted "when, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance". In this case the plaintiff has not pleaded anything about any obligations on the part of defendants towards him. The plaintiffs have also not pleaded anything about breach of such obligations by the defendants. Further the plaintiff has also not sought for mandatory injunction against the defendants to prevent such breach of obligations by the defendants against him. The defendant No.4 has not violated any independent right of the plaintiff and he has not obstructed the use and enjoyment of suit schedule 'A' property by the defendant No.4 in any manner by constructed building in suit schedule 'B' property. As such, I am of the opinion that, the relief of mandatory injunction 32 O.S.No.5605/2014 as prayed for by the plaintiff against defendant No.4 cannot be granted. Further the relief of mandatory injunction as prayed for by the plaintiff against defendants No.1 to 3 also cannot be granted. The plaintiff has got other alternative and efficacious remedy under KMC Act, 1976, against defendants No.1 to 3 to compel them to take necessary action against defendants No.4 to 6 to demolish the illegal construction in the 'B' schedule property.
25. Further defendants No.5 and 6 are the purchasers of the suit schedule property. No specific allegations is made against them regarding any illegal construction in the 'B' schedule property. Construction in 'B' schedule property was done only by defendant No.4. When the defendants No.5 and 6 have purchased the suit schedule property from the defendant No.4 during the pendency of the suit, they will step into the shoe of defendant No.4. It is for them to make proper enquiry at the time of purchase of building in suit schedule 'B' property regarding whether the said building was constructed in accordance with sanction plan or not and 33 O.S.No.5605/2014 whether it is in accordance with building bye-laws or not etc. If there is any deviation in the construction, the defendants No.5 and 6 are bound by the necessary action initiated by the competent authority. As it is discussed earlier no mandatory injunction can be granted against defendant No.4 and as such no mandatory injunction against defendants No.5 and 6 also. Under these facts and circumstances, I am of the opinion that the plaintiff is not entitled for mandatory injunction against all the defendants as prayed for.
26. Further the plaintiff has sought for relief of permanent injunction order against defendant No.4 restraining him from constructing further in suit schedule 'B' property in any manner. Now the defendant No.4 had already sold the suit schedule 'B' property to defendants No.5 and 6. Defendant No.4 is not in peaceful possession and enjoyment of the suit schedule 'B' property. Now the defendants No.5 and 6 are in peaceful possession and enjoyment of suit schedule 'B' property. Further, in suit schedule 'B' property construction is already completed. As 34 O.S.No.5605/2014 it is discussed earlier, the plaintiff has failed to prove that due to construction of building in suit schedule 'B' property by defendant No.4, his right of enjoyment of suit schedule 'A' property is affected. Under these facts and circumstances, I am of the opinion that the plaintiff is not entitled for the relief of permanent injunction order against defendant No.4 as prayed for. As it is discussed earlier if there is any illegal construction as shown in order by defendants No.1 to 3 dated 06.08.2013 and if the defendant No.4 has deviated his construction and caused obstruction to the use and enjoyment of road by public including the plaintiff or caused public nuisance, the plaintiff can approach the competent authority provided under KMC Act. Further as it is discussed above, defendants No.1 to 3 have already initiated action against defendant No.4 for demolition of the illegally constructed area by defendant No.4. Defendants No.1 to 3 have also stated in their written statement that they have initiated action against defendant No.4 as per KMC Act and undertaken that they will remove the said illegal construction of defendant No.4. Even, if 35 O.S.No.5605/2014 defendants No.1 to 3 fails to do, the plaintiff has got efficacious alternative remedy against defendants No.1 to 3 under KMC Act to compel them to act in accordance with their order. Since the defendants No.1 to 3 in their written statement have stated that they are bound by the order of this court, I am of the view that the they may be instructed to take necessary steps for demolition of illegal construction of defendant No.4 at the earlier as per KMC Act as undertaken by them without passing any order of mandatory injunction. Accordingly such instruction is given to them. Even of the defendants No.1 to 3 failed to do so, the plaintiff is having alternative remedy under KMC Act as stated above to compel the defendants No.1 to 3 to do the same. Hence, I am of the opinion that the plaintiff has failed to prove Issue No.3 and additional issue No.1. As such, I am of the opinion that the legal heirs of deceased plaintiff are not entitled for the reliefs as prayed for. Hence, the suit filed by the plaintiff is liable to be dismissed. Accordingly, I answer Issued No.3 and Additional Issue No.1 in the Negative.
36 O.S.No.5605/2014
27. Issue No.4: In view of my findings on Issue No.1 to 3 and Additional Issue No.1, I proceed to pass the following:
OR D E R The suit filed by the plaintiffs u/o.VII Rules 1 r/w. S.26 of C.P.C. is hereby dismissed.
Having regard to the facts and circumstances of the case, both the parties to the suit are hereby directed to bear their own cost.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her, corrected and then pronounced by me in the open court on this the 2 nd day of August, 2021).
(B.G.Pramoda) LII Addl. City Civil & Sessions Judge, Bangalore.
A N NE X U R E List of the witnesses examined for the plaintiff:
P.W.1 Smt.Venkatalakshmamma List of the documents marked for the plaintiffs :
Ex.P.1 Death certificate of plaintiff
Ex.P.2 Katha Certificate
Ex.P.3 Khatha Extract
Ex.P.4 Property tax paid receipt
Ex.P.5 Temporary order dated 06.08.2013
Ex.P.6 Final confirmation order dated 13.08.2013
37 O.S.No.5605/2014
Ex.P.7 Order passed by Assistant Executive
Engineer of BBMP.
Ex.P.8 Sale deed.
Ex.P.9 Khatha Certificate
Ex.P.10 Khatha Extract
Ex.P.11 CD
Ex.P.12 & 13 Photographs
Ex.P.14 Temporary order
Ex.P.15 Khatha extract
Ex.P.16 Certified copy of BBMP office note and
orders
Ex.P.17 Estimate list.
List of the witnesses examined for the defendants:
D.W.1 Sri.Praveen Mohan List of the documents marked for the defendants:
Ex.D.1 Structural Stability Certificate Ex.D.2 & 3 Photographs Ex.D.4 CD (B.G.Pramoda) LII Addl. City Civil & Sessions Judge, Bangalore.