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6. Heard the arguments of both sides.

Counsel for defendant has filed written arguments.

7. My findings on the above Issues are:-

Issue No.1: In the negative Issue No.2: In the negative Issue No.3: In the negative Addl. Issue No.1: In the negative Addl. Issue No.2: In the negative Issue No.4: As per final order for the following :-

REASONS

8. Issue No.1 and Addl. Issue No.1:- The suit of the plaintiff is for permanent injunction to restrain the defendant from putting up any construction abutting to the plaintiff's property without leaving setback area measuring 3x25 feet on the western side by erecting pillars and thereby blocking free flow of air and light and also putting up projection of chajjas and laying of any sewerage pipes, etc., in the property. The suit is also amended and a direction is sought against defendant to remove the unauthorized construction constructed on the setback area of 3x25 feet on the western side including pillars and chajjas which were constructed during pendency of the suit.

14. Learned Counsel for plaintiff has argued that BBMP has issued notice to the defendant and this itself will reveal that there is violation of byelaw in not leaving setback area. Learned Counsel has further pointed out at the document and argued that defendant has proceeded with illegal construction and therefore she is liable to demolish those illegal constructions.

15. Counsel for the defendant has argued that suit itself is not maintainable, because the dispute is in respect of violation of byelaw in not leaving setback area and that matter is covered under Section 321 and 444 of the Karnataka Municipal Corporation Act. Learned Counsel further placed reliance upon the decisions reported in AIR 1990 Kant236 (Dr.K.Panduranga Nayak vs. Smt. Jayashree and others), AIR 1966 Kant74 (Mathew Philips vs. P.O. Koshy) and 2001 (1) Kar.L.J. 468 (S.Sundar Raj vs. Vijayendra Kumar and others) and submitted that this Court has no jurisdiction to grant any relief. Apart from that, counsel for defendant has pointed out at the evidence of P.W.1 where he has admitted that defendant has put up construction well within her own property and the chejjas and other construction are not protruding into plaintiff's property. It is also argued that plaintiff's site is open site and therefore there is no question of infringement of air and light.

19. Plaintiff has cross-examined D.W.1 and in the cross-examination D.W.1 has stated that he has constructed ground, first and second floor. He admits that a notice was issued by BMP to him and three others. He also states that he has left 3 feet setback area. He has denied the suggestion that he has illegally constructed by encroaching the property measuring 3 x 25 feet.

20. Admittedly, plaintiff's property is vacant property consisting of small shed. In that case question of construction by defendant obstructing free flow of air and light will not arise. Even if it is presumed that said construction will infringe the rights of plaintiff in future, then also the documents produced and admission made by P.W.1 will reveal that construction is made within defendant's property and there is also setback area. When plaintiff himself admits that there is no encroachment in his property, the only fact to be determined in this case will be whether defendant has left setback area or not. The setback area is visible in the photograph-Ex.P.13 photograph No.7 and 8.

23. The documents produced by the plaintiff and defendant will reveal that defendant has left setback area. On the other hand, plaintiff has failed to prove that defendant has put up construction including the setback area. Defendant has taken sanctioned plan as per Ex.D.1 on 30/04/2012 and therefore it cannot be held that defendant has started construction without any sanctioned plan. The encroachment if any could have been tried to prove by getting a report from an expert. The plaintiff has not resorted to such act. Even otherwise plaintiff's own admission reveals that defendant has constructed her building within her own property. Therefore looked from any angle, plaintiff has not made out a case of encroachment of suit property and illegal construction by not leaving setback area. Therefore issue No.1 and additional issue No.1 are held in the 'negative'.