Bangalore District Court
Bhagwan Singh Samar vs Manoharlal G M on 15 October, 2024
1 O.S. No.6112/2010
KABC010170592010
C.R.P.67 Govt. of Karnataka
Form No.9
(Civil)
Title Sheet for
Judgments in
Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XL ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY : (CCH-41)
::Present::
Smt. Veena N., B.A.L., L.L.B.,
XL Addl. City Civil & Sessions Judge,
Bengaluru City.
Dated this 15th day of October, 2024.
O.S. No.6112/2010
PLAINTIFFS :: 1. Mr. Bhagwan Singh Samar, Aged 59
Years, S/o. Bijay Singh Ji Samar,
R/at: Flat No.A-304, 2nd Floor, Mehta
Ambience, No.91, Kempapura Agrahara,
Magadi Road, Bengaluru.
:: 2. Mrs. Seema Mehta, Aged 38 Years,
W/o. Vivek Mehta, Flat No.C-302, 2nd
Floor, Mehta Ambience, No.91,
2 O.S. No.6112/2010
Kempapura Agrahara, Magadi Road,
Bengaluru.
:: 3. Mr. Dinesh J Bagrecha, Aged 42
Years, S/o. Jayanthilal Bagrecha, Flat
No.C-303, 2nd Floor, Mehta Ambience,
No.91, Kempapura Agrahara, Magadi
Road, Bengaluru.
:: 4. Mr. Azad S. Jain, Aged 27 Years, S/o.
Shankarlal Ji Bohra, Flat No.C-304, 2 nd
Floor, Mehta Ambience, No.91,
Kempapura Agrahara, Magadi Road,
Bengaluru.
:: 5. Mr. Surendra Kumar, Aged 32 Years,
S/o. Amolak Chand Ji Gundecha, Flat
No.A-105, Ground Floor, Mehta
Ambience, No.91, Kempapura Agrahara,
Magadi Road, Bengaluru.
The plaintiffs No.2 to 5 are Represented
by their General Power of Attorney
holder Mr. Bhagwan Singh Smar, Aged
59 Years, S/o. Bijay Singh Ji Samar,
R/at: Flat No.A-304, 2nd Floor, Mehta
Ambience, No.91, Kempapura Agrahara,
Magadi Road, Bengaluru.
(By Sri. D.Prabhakar, Advocate)
V/s.
DEFENDANTS :: 1. Sri. G.M.Manoharlal, Aged about 56
years, S/o. Sri. Modiramji, R/at: No. 113-
B, Magadi Road, Bengaluru -23.
3 O.S. No.6112/2010
:: 2. Smt. Shantha Devi, Aged about 53
years, W/o. Sri. Manoharlal, R/at: No.
115-4, Magadi Road, Bengaluru -23.
:: 3. Sri. G.M.Nenalal, Aged about 53
years, S/o. Sri. Modiramji, R/at: No.11,
First Floor, PUB M.G.Road, Bengaluru -
01.
:: 4. Smt. Seeta Devi, Aged about 51
years, W/o. Sri. G.M.Nenalal, R/at: No.
G-64, 1st Cross, B Street, KPA Magadi
Road, Bengaluru -23.
:: 5. Sri. Ashok Kumar, Aged about 45
years, S/o. Sri. Modiramji, R/at: No.
113/B, Magadi Road, Bengaluru -23.
:: 6. Smt. Meera Bai, Aged about 43 years,
W/o. Sri. M.Ashok Kumar,
R/at: No.G-64, 1st Cross, B Street, KPA
Magadi Road, Bengaluru -23.
:: 7. Sri. M.Dileep Kumar Mehta, Aged
about 38 years, S/o. Sri. Modiramji, R/at:
No.115/4, Magadi Road, 2nd Cross,
Goplpuram, Bengaluru -23.
:: 8. Smt. Vimala Kumari, Aged about 37
years, W/o. Sri. Dileep Kumar,
R/at: No.G-64, 1st Cross, B Street, KPA
Magadi Road, Bengaluru - 23.
:: 9. Sri. M.Anil Kumar, Aged about 33
years, S/o. Sri. G.M.Manoharlal,
R/at: No.113-B, Magadi Road, Bengaluru
- 23.
4 O.S. No.6112/2010
:: 10. Smt. Hema, Aged about 31 years,
W/o. Sri. M.Anilkumar, R/at: No.113-B,
Magadi Road, Bengaluru -23.
:: 11. Sri. M.Goutham Kumar, Aged about
27 years, S/o. Sri. G.M.Manoharlal, R/at:
No.113-B, Magadi Road, Bengaluru -23.
:: 12. Sri. M.Arun Kumar, Aged about 26
years, S/o. Sri. G.M.Manoharlal,
R/at: No.113-B, Magadi Road, Bengaluru
-23.
:: 13. The Commissioner, Bruhath
Bengaluru Mahanagara Palike, Hudson
Circle, Bengaluru.
(By Sri. C.M.Venkata Reddy, Adv. for D.1
to 12)
(By Smt. N.Sudha, Adv. for D.13)
Date of Institution of the :: 28-08-2010
Suit
Nature of the Suit :: INJUNCTION
Date of commencement of :: 16-12-2011
recording of evidence
Date on which the :: 15-10-2024
Judgment was pronounced
:: Year/s Month/s Day/s
Total Duration 14 01 17
(VEENA N.)
XL Addl. City Civil & Sessions Judge,
Bengaluru City.
5 O.S. No.6112/2010
JUDGMENT
Suit is one for Permanent Injunction and for Mandatory Injunction.
2. Case of the plaintiffs in brief is as hereunder:-
The plaintiffs are the purchasers of 5 flats from the defendants. The defendants are the absolute owners of suit schedule property measuring 25000 sq. ft., which is suit 'A' schedule property. The defendants obtained sanction plan and license from B.B.M.P. on 19.07.2005 for putting up multi storied residential apartments on the suit 'A' schedule property. The plaintiffs purchased flats under 5 registered Sale Deeds dated 18.03.2010, 18.03.2010, 31.03.2010, 26.03.2010 and 31.03.2010 and they are the absolute owners in possession of the flats purchased by them. Pursuant to the sale deed, khata is effected to the name of the plaintiffs and thus, the plaintiffs are the lawful owners in possession and enjoyment of the 'B' schedule property. 6 O.S. No.6112/2010
It is stated that the defendants at the time of offering the flats for sale issued broachers regarding the project by highlighting the amenities, the quality of materials and the plaintiffs being impressed with the broacher without any second thought purchased the flats. At the time of entering into agreement, the defendants No.1 to 12 claiming that only 18% to 20% of the built up area will be added to arrive at the super built area of the building which is the saleable area. But at the time of executing sale deed, they have raised the differential area between built up area and the super built up area to 30% and the plaintiffs were constrained to shell out the extra cost towards the cost of the apartment. The defendants have used inferior quality materials and fittings which was contrary to the broacher and that apart the building has vast deviations and there is illegal construction in respect of 3rd and 5th floors and also the construction is in utter violation of the sanction plan. The defendants have put up constructions even 7 O.S. No.6112/2010 on the set-backs of the building and have failed to provide amenities as stated in the broacher. The plaintiffs requested the defendants to make good the deficiencies and replace the fittings and fixtures, but the defendants refused to heed to any of the demands. It is stated that as per the sanction plan the defendants were supposed put up construction in the extent of 3681.10 sq. meters i.e. allowable floor area with a coverage of 60%. But the defendants have put up illegal construction over 75000 sq. ft. plus stilt floor for parking, apart from what is sanctioned under the plan. The parking slots available as per sanctioned plan is only 52, but the defendants are claiming it to be 76 and trying to encroach upon the parking slots of the plaintiffs. Further, the sanction is for only 42 apartments, but the defendants have constructed 76 apartments and 5 upper floors after the stilt and ground floor. The plaintiffs upon noticing such gross violation of the building bye-laws and illegal constructions, have 8 O.S. No.6112/2010 called upon the defendants to remove the illegal construction and the defendants failed to stop the illegal construction and hence, the plaintiffs lodged complaint before the Commissioner and the Asst. Executive Engineer of B.B.M.P., but they did not take any legal action. The defendants have sold undivided share in the 'A' schedule property along with the super built up area in favour of the plaintiffs and as such, they have right right, title or interest over 'A' schedule property and the defendants have sold about 35 to 40 apartments to individual owners along with their undivided share in the 'A' schedule property and as such, they have lost their right and cannot put up any further construction without the concurrence of the plaintiffs and other owners. The defendants upon coming to know about the complaint filed before defendant No.13 have illegally disconnected the power and water connection to the building and the plaintiffs were constrained to file complaint before the 9 O.S. No.6112/2010 jurisdictional police and the defendants were summoned by the police and were warned not to discontinue the essential supplies to the building, but inspite of it, the defendants tried to disconnect the supplies. Since the interference of the defendants is illegal and contrary to law and since the defendant No.13 has failed to take any action, left with no option, the present suit is filed.
3. In pursuance to the summons issued, the defendants No.1 to 13 caused appearance and filed their written statement.
4. The defendants No.1 to 12 in their written statement have categorically denied the averments made in the plaint and it is contended that the defendants have used high quality materials and if at all any inferior quality and deficiency of service they have to approach the appropriate forum and this Court has no jurisdiction to try the suit. It is stated that these defendants being the owners of 'A' schedule property 10 O.S. No.6112/2010 have paid taxes and khata has been changed to their name and they have not violated any sanctioned plan and license and the plaintiffs have no right or authority to question the defendants and the plaintiffs have purchased the flats after inspection and if at all there was any unauthorized construction they could have refused to purchase the flats and now with an intention to harass the defendants they have filed the present suit. The constructions were completed two years back and the plaintiffs having knowledge about the construction have advanced the amount for booking during construction of apartment and every week they visited the property and watched the construction and if there is any inconvenience to the plaintiffs they are at liberty to get the sale deeds canceled and this defendant is ready to execute registered cancellation of deed. Thus, there is no cause of action to file the suit and the suit is not maintainable and sought for dismissal of suit.
11 O.S. No.6112/2010
5. The defendant No.13 which is the B.B.M.P. in his written statement has admitted that the defendant No.1 as a G.P.A. holder obtained sanction plan to construct multi storied residential apartments in the suit 'A' schedule property and the plan is obtained vide order dated 19.07.2005 for construction of stilt, ground, first and second floors. It is stated that the jurisdictional Asst. Executive Engineer has noticed deviations in construction of the apartment. The AEE after inspection of constructed building has issued a provisional order under Section 321(1) of the KMC Act, dated 18.03.2009 thereby informing the defendant No.1 of the deviations in all the floors . Further it was also noticed that the 3 rd floor is constructed unauthorizedly without sanctioned plan. The defendant No.1 was directed to bring the building in conformity of sanctioned plan and also to remove the unauthorized floor and defendant No.1 also called up on to show cause as to why the provisional order should not be confirmed. It is submitted that the 12 O.S. No.6112/2010 defendant No.1 has not responded to the provisional order and the said provisional order under Section 321(3) of the KMC Act, dated 20.09.2008 is confirmed and this order has been served on defendant No.1. Hence, there is no cause of action against the defendant No.13 and the suit against this defendant No.13 is liable to be dismissed and no Mandatory Injunction can be issued to this defendant to remove illegal construction since it is the statutory duty of the B.B.M.P. to Act under Section 321 of the KMC Act whenever unauthorized or deviated constructions are noticed. Thus, contending these facts sought for dismissal of suit.
6. The aforesaid pleadings have occasioned following:-
ISSUES
1. Whether the plffs. prove their lawful possession over 'A' schedule properties as on the date of suit ?13 O.S. No.6112/2010
2. Whether the plffs. further prove that defts. No.1 to 12 have illegally put up construction in 'A' schedule property as alleged ?
3. Whether the plffs. further prove that defts. No.1 to 12 are illegally interfering with the plffs. lawful possession over 'B' schedule property as alleged ?
4. Whether the plffs. further prove that defts. No.1 to 12 are illegally attempting to alienate 'A' schedule property and flats situated on 3 rd, 4th and 5th floors & attempted to create third party rights & interest as alleged ?
5. Whether the defts. No.1 to 12
prove that this Court has no jurisdiction to try the suit as alleged in para No.15 of the written statement ?
6. Whether the plffs. are entitled to the relief of permanent injunction 14 O.S. No.6112/2010 & mandatory injunction against defts. as prayed ?
7. To what relief, if any, the parties are entitled ?
7. The plaintiff No.1 is examined as P.W.1 and he has relied upon 17 documents marked at Ex.P.1 to Ex.P.17 and close the evidence.
8. The defendant No.1 is examined as D.W.1 and relied upon two documents marked at Ex.D.1 to Ex.D.2 and close the evidence.
9. Heard learned counsel for the plaintiffs and perused records.
10. My answers to the above issues are as follows:
ISSUE NO.1 :: In the Affirmative
ISSUE NO.2 :: In the Affirmative
ISSUE NO.3 :: In the Affirmative
ISSUE NO.4 :: In the Affirmative
15 O.S. No.6112/2010
ISSUE NO.5 :: In the Negative
ISSUE NO.6 :: In the Negative
ISSUE NO.7 :: As per final order for the
following;
REASONS
11. ISSUES NO.1 TO 4 :: All these issues are taken up collectively for common discussion to avoid repetition of facts and also for convenience of the Court.
The present suit is one for Permanent Injunction to restrain the defendants from alienating the flats situated on 3rd, 4th and 5th floors built on suit 'A' schedule property by way of sale agreement, sale, hypothecation, mortgage and any 3rd party rights over the same and to restrain the defendants from interfering with the plaintiffs possession over suit 'B' schedule property and the common area of the property and for Mandatory Injunction directing the defendant No.13 to remove the illegal construction by demolishing the unauthorized construction put up by the defendants which is contrary to the sanctioned plan, license and 16 O.S. No.6112/2010 building bye-laws. It is not in dispute that the plaintiffs are the owners of the flat described in suit 'B' schedule property having purchased the same under sale deeds dated 18.03.2010, 18.03.2010, 31.03.2010, 26.03.2010 and 31.03.2010 respectively and they are in possession and enjoyment of the 'B' schedule flats as absolute owners thereof and the defendants No.1 to 12 being the owners of the said property have sold the property in favour of these plaintiffs. The possession and enjoyment of the plaintiffs over 'B' schedule flat is also not in dispute. The dispute involved in the present suit is that according to the plaintiffs the defendants have put up illegal construction in respect of 3 rd and 5th floors and also the construction is in utter violation of the sanction plan and the defendants have put up constructions even on the set-backs of the building and have failed to provide amenities and the construction is contrary to the sanction plan and hence, the suit is filed.
17 O.S. No.6112/2010
12. In order to establish the same, the plaintiff No.1 got examined himself as P.W.1 and he has in his evidence deposed that at the time of offering the flats for sale, the defendants issued broachers regarding the amenities quality of materials that will be used and induced the plaintiffs to purchase the flats and the plaintiffs agreed to purchase the flats and entered into agreement of sale and subsequently got registered the sale deeds. Upon occupying the flats it was noticed that the defendants have not put up construction in accordance with the sanctioned plan and license, but the building has vast deviation and there is illegal construction in respect of 3rd to 5th floors and also the construction is in utter violation of the sanction plan and they have also put up construction on the set backs of the building and these plaintiffs along with other occupants requested the defendant No.1 to bring back the building as per the sanction plan but they refused it. The defendants instead of bringing back the building as 18 O.S. No.6112/2010 per the sanctioned plan, started putting up commercial building on the set backs contrary to the building bye- laws of B.B.M.P. and encroached the common areas of 'A' schedule property and illegal construction is put up without sanctioned plan and license. As per the sanctioned plan the defendants were to put up construction only to the extent of 3681.10 sq. mtrs. i.e., allowable floor area ration of 1, with a coverage of 60%, but the defendants have put up illegal construction over 75000 sq. ft. approximately plus stilt floor for parking. As per the sanction it is only for 42 apartments, but the defendants have constructed 76 apartments and upon noticing such gross violation of building bye-laws the defendants were called upon to remove the illegal construction and provide amenities and to stop the proposed commercial building, but the defendants did not heed to their request and hence, the plaintiffs filed complaint before the Commissioner of B.B.M.P. and also filed complaint before the jurisdictional police. The 19 O.S. No.6112/2010 jurisdictional police warned the defendants provide basic amenities to the plaintiffs. It is contended that the defendants have sold undivided share in the 'A' schedule property along with super built up area and as such, the plaintiffs have valid right over the 'A' schedule property and having sold 35 to 40 apartments, the defendants have lost their absolute right over 'A' schedule property and cannot put up further construction and the defendants are unnecessarily interfering with the possession of the plaintiffs over their apartment which is illegal and contrary to law and though complaint was filed before defendant No.13, they failed to take any action against the defendants to prevent the illegal construction and to remove the unauthorized construction and hence, the present suit is filed.
13. In support of his evidence he has relied upon Ex.P.1 which is the G.P.A. executed by the other plaintiffs in favour of plaintiff No.1 to prosecute the suit. 20 O.S. No.6112/2010 Ex.P.2 is the complaint filed by the plaintiffs to the Commissioner of B.B.M.P. on 24.08.2010 wherein which they have complained about the illegal construction under taken by the defendants contrary to the sanctioned plan and requested to take immediate action to demolish the illegal construction and to prevent further construction of commercial building. Ex.P.3 is the acknowledgment issued by B.B.M.P. for having received notice under Section 482 of KMC Act, 1976. Ex.P.4 is the complaint filed before the jurisdictional police station wherein which it is alleged that the defendants have not paid electricity bill of common utility area from past 3 months inspite of taking advance maintenance charges and the power has been disconnected and hence, sought to issue necessary direction to provide fundamental necessities to the owners of the apartment. Ex.P.5 is the copy of the complaint dated 28.08.2010 to the B.B.M.P. alleging the illegal acts of unauthorized construction under 21 O.S. No.6112/2010 taken by the defendants. Ex.P.8 and Ex.P.9 are the electricity bills. Ex.P.10 is the registered Sale Deed dated 18.03.2010 which shows the purchase of one of the flats by the plaintiff. Ex.P.11 and Ex.P.12 are the attested copies of approved plan. The photographs are marked as Ex.P.13 to Ex.P.16 which shows the construction under taken by the defendants.
14. During cross-examination of P.W.1, he admits that among the 76 flats owners only 5 of the flat owners have filed the present suit and he says he did not find necessity to ask other flat owners to join the plaintiffs to file the suit. It is admitted that at the time of purchase the construction work was substantially completed and he has not produced any document to show he has issued legal notice to the apartment owner for not providing basic necessities and also admits he has not filed complaint before consumer forum and he says he was advised to file the present suit. 22 O.S. No.6112/2010
15. It is necessary to note that though the plaintiff claims that the construction work was of substandard and has not provided the basic amenities as advertised in the broachers, these are the facts that requires to be adjudicated before the consumer forum and if the plaintiffs are deprived of their basic amenities they have to exhaust their remedy before the appropriate forum. So the suggestion putforth during cross-examination of P.W.1 to elicit that the plaintiffs having knowledge of the quality of construction put up and the basic amenities provided have purchased the flats and now they are estopped from disputing the quality of construction has no relevance to the facts of the case on issue, since the issue is only pertaining to the illegal construction put up over the common area and that apart there is no suggestions putforth to elicit that the alleged construction put up by the defendants is in accordance with the sanctioned plan. So from the evidence of P.W.1 and the documents placed on record 23 O.S. No.6112/2010 it shows he has clearly deposed as to the illegal construction under taken by the defendant over the common area contrary to the sanction plan and during his cross-examination except suggesting that the plaintiffs having knowledge of the poor construction have ventured to purchase the flats and now they are estopped from denying the same, nothing worth is elicited. On the contrary, further the documents relied upon P.W.1 also establishes that they have issued notice to the B.B.M.P. under Section 482 of KMC Act and have also filed complaint before the jurisdictional police alleging encroachment and the illegal stoppage of the supply of basic amenities to the flat owners by the defendants.
16. On the contrary, the defendant No.1 got examined himself as D.W.1 and he has in his evidence deposed that they are the owners of 'A' schedule property and there is no violation or unauthorized construction and the entire building is according to the 24 O.S. No.6112/2010 plan approved by the Corporation and if there is any violation, the Corporation would have taken action against them and since there is no illegal construction, no action is under taken by the Corporation. The plaintiffs have no right or interest over the entire building as they are only 5 individual flat owners and there are 76 flat owners and remaining flat owners are not questioning the alleged construction put up by the defendants and the plaintiffs after completion of constructions have inspected the flats and having knowledge about the construction have purchased the flats and hence, the allegations made against these defendants are false. It is further stated that if there is any deficiencies of service they can approach appropriate authority to seek remedy against these defendants regarding poor quality of construction, but till today they have not filed any complaint regarding deficiencies of service against defendants and hence, this Court has no jurisdiction to entertain such matters. 25 O.S. No.6112/2010 Since there is no violation or unauthorized construction and the entire building is according to the Corporation bye-laws and according to sanction plan approved by the authority. The plaintiffs are not entitled for the relief claimed and sought for dismissal of suit.
17. In support of his evidence he has relied upon Ex.D.1 which is the Special Power of Attorney which is executed on behalf of defendant No.1 to contest the suit. Ex.D.2 is the Special Notification issued by the B.B.M.P. on 03.09.2010 under Section 147 of KMC Act which shows the details of the khatedars and the extent of flats owned by them and the extent of area reserved for car parking and tax to be paid by the flat owners.
18. At this point of time, it is necessary to note that the plaintiffs have not chosen to cross examine D.W.1. At this point of time, it is necessary to note that the defendants apart from claiming that the plan is in accordance with the sanction plan and there is no 26 O.S. No.6112/2010 violation or deviation contrary to the building bye-laws and KMC rules, they have not produced any document to prove the alleged construction under taken by them is in accordance with the sanction plan. On the contrary, the documents produced by the plaintiffs more particularly the complaint lodged before the B.B.M.P. and the jurisdictional police by various flat owners shows the construction is under taken in the common area over which the flat owners have right to use the same. Another important aspect to be taken note of is that, the defendant No.13 which is the B.B.M.P. has in its written statement given a clear admission as to the illegal construction under taken by the defendants and it is clearly stated that the jurisdictional AEE has noticed deviation in the construction of apartment and hence issued provisional order under Section 321(1) of KMC Act and the defendant No.1 was directed to bring the building in conformity with the sanction plan and to remove the unauthorized floor. The AEE has issued a 27 O.S. No.6112/2010 provisional order under Section 321(1) of the KMC Act, dated 18.03.2009 thereby informing the defendant No.1 of the deviations in all the floors and further it was also noticed that the 3rd floor is constructed unauthorizedly without sanctioned plan. The defendant No.1 has not responded to the provisional order and the said provisional order under Section 321(3) of the KMC Act, dated 20.09.2008 is confirmed. So this admission of the defendant No.13 in his written statement holds more evidentiary value and there is a clear admission that there has been deviations in the construction and the defendant No.1 has put up unauthorized construction and the B.B.M.P. has initiated action to bring back the building in conformity with the sanctioned plan. So just because the D.W.1 has not been cross-examined it cannot be held that whatever the evidence he has adduced before the Court holds significant value. It is necessary to note that the plaintiffs have made allegations as to the use of inferior quality materials 28 O.S. No.6112/2010 and as to the deficiency of services. But if there is any deficiency of services they can approach appropriate authority to seek remedy against these defendants regarding poor quality of construction and hence, this Court has no jurisdiction to entertain such matters. So thus, the plaintiffs have established that they are in possession and enjoyment of suit 'B' schedule property and have rights over the common area in suit 'A' schedule property and have also established that the defendants have illegally put up construction in suit 'A' schedule property and also there is illegal construction put up on 3rd to 5th floors. Thus in view of the reasons assigned so far, this Court proceeds to answer the aforesaid issues No.1 to 4 in the Affirmative.
19. ISSUES NO.5 AND 6 :: As per the findings on issues No.1 to 4, the plaintiffs have succeeded in proving they are in lawful possession and as to the illegal construction under taken by the defendants No.1 to 12. Now the question that needs to be considered is 29 O.S. No.6112/2010 as to whether the plaintiffs are entitled for the relief of Permanent Injunction and Mandatory Injunction as claimed. The present suit is one for Permanent Injunction to restrain the defendants from alienating the flats situated on 3rd, 4th and 5th floors built on suit 'A' schedule property by way of sale agreement, sale, hypothecation, mortgage and any 3rd party rights over the same and to restrain the defendants from interfering with the plaintiffs possession over suit 'B' schedule property and the common area of the property and for Mandatory Injunction directing the defendant No.13 to remove the illegal construction by demolishing the unauthorized construction put up by the defendants which is contrary to the sanctioned plan, license and building bye-laws.
20. As per the findings on aforesaid issues, the plaintiffs have succeeded in establishing that they are in possession and enjoyment of suit 'B' schedule property and have rights over the common area in suit 30 O.S. No.6112/2010 'A' schedule property and have also established that the defendants have illegally put up construction in suit 'A' schedule property and also there is illegal construction put up on 3rd to 5th floors. So under such circumstances they are entitled for the relief of Permanent injunction as claimed.
21. Now so far the relief of Mandatory injunction is concerned, as stated earlier, the defendant No.13 has initiated proceedings against the defendant No.1 and provisional order is issued and the same is confirmed by issuing conformation order.
22. At this juncture, it is considered worth to refer to Section 443(A) of the KMC Act, 1976 which reads thus:
1
[443-A. Appeal to Karnataka Appellate Tribunal or District Court.- (1) any person Aggrieved by any notice issued, action taken or proposed to be taken by the Commissioner under Section 308, 309 and 321(3) may appeal.-
31 O.S. No.6112/2010
(i) to the Karnataka Appellate Tribunal in 2 case of the [Bruhat Bengaluru Mahanagara Palike];
(ii) to the District Court having jurisdiction in case of other corporation.
(2) The decision of the Karnataka Appellate Tribunal or as the case may be the District Court shall be final.]
23. So as per Section 443(a) of the KMC Act an alternative and efficacious remedy is available to the plaintiffs to exhaust their remedy and it is for the defendant No. 13 to determine as to whether the construction is illegal or not and these are all statutory functions, which have to be done in accordance with law. Further the defendant No.13 has already exercised its statutory duty, by issuing provisional order and confirmation order and hence this Court cannot issue direction to defendant No.13 as claimed. Accordingly, this Court proceeds to answer the aforesaid issues No.5 and 6 Partly in the Affirmative.
32 O.S. No.6112/2010
24. ISSUE NO.7 :: In view of findings on issues No.1 to 6, this Court proceeds to pass the following;
ORDER Suit of the plaintiffs is decreed in part.
The defendants No. 1 to 12 are hereby restrained from alienating the flats situated on 3rd, 4th and 5th floors built on suit 'A' schedule property by way of sale agreement, sale, hypothecation, mortgage and from creating any 3rd party rights over the same and from interfering with the plaintiffs possession over suit 'B' schedule property and the common area of the property, by way of permanent injunction.
The relief of mandatory injunction as against defendant No.13 is dismissed.
Both parties shall bear the cost of the suit.
33 O.S. No.6112/2010
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her, transcription corrected and then pronounced by me in the open Court on this the 15th day of October, 2024).
(VEENA N.) XL Addl. City Civil & Sessions Judge, Bengaluru City.
ANNEXURE I. LIST OF WITNESSES EXAMINED ON BEHALF OF :
(A) PLAINTIFFS SIDE ::
P.W.1 :: Bhagwan Singh Samar
(B) DEFENDANTS SIDE ::
D.W.1 :: Sri. Manohar Lal
II. LIST OF DOCUMENTS EXHIBITED ON BEHALF OF:
(A) PLAINTIFFS SIDE ::
Ex.P.1 :: General Power of Attorney
Ex.P.2 :: Copy of notice dated 24.08.2010
Ex.P.3 :: Acknowledgment
Ex.P.4 :: Copy of complaint
Ex.P.5 :: Copy of one more notice
34 O.S. No.6112/2010
Ex.P.6 to :: Electricity bills
Ex.P.9
Ex.P.10 :: Certified copy of sale deed dated 18.03.2010
Ex.P.11 & :: Attested copy of approved plans
Ex.P.12
Ex.P.13 to :: Photographs
Ex.P.16
Ex.P.17 :: C.D. of the said photographs
(B) DEFENDANTS SIDE ::
Ex.D.1 :: Power of Attorney executed by defendant
No.2
Ex.D.2 :: Notice sent by B.B.M.P.
(VEENA N.)
XL Addl. City Civil & Sessions Judge,
Bengaluru City.
Digitally
signed by
VEENA N
VEENA Date:
N 2024.10.25
13:43:34
+0530