Bangalore District Court
Mr. Mohammed Abdullah vs The Commissioner on 10 November, 2021
KABC010064272017
Form
No.9
(Civil)
Title
Sheet
for
Judgme
PRESENT: SMT. PRASHANTHI.G.
B.A (Law) LL.B.,
XXVII Additional City Civil Judge.
Dated this the 10 th day of November 2021
PLAINTIFF: Mr. Mohammed Abdullah,
S/o Mr. Abudul Hammed Sait,
Aged about 54 years,
Residing at No.5,
'D' Costa Square,
3rd Cross, Cooke Town,
Bengaluru-560 084.
[By Sri Nagaraj.S.K. Advocate]
/v e r s u s/
DEFENDANTS: 1. The Commissioner,
Bruhat Bengaluru Mahanagara
Palike, N.R.Square, Hudson Circle,
Bengaluru-560 002.
2. The Assistant Executive Engineer,
Mathikere Sub-division,
Bruhat Bengaluru Mahanagara
Palike, Near Netaji Circle,
Mathikere, Bengaluru-560 054.
[By Sri SNP, Advocate]
2 O.S.1818/2017
Date of institution of the : 13/03/2017
suit
Nature of the suit : For declaration and injunction
Date of commencement of : 2/3/2021
recording of the evidence
Date on which the : 10/11/2021
Judgment was
pronounced.
: Year/s Month/s Day/s
Total duration
4 7 27
(Prashanthi. G)
XXVII ACCJ: B'LORE.
Plaintiff filed this suit against the defendants to
declare that the alleged notice issued under Section
321(1) and (2) of the Karnataka Municipal
Corporations Act, 1976 as illegal and consequently
declare the alleged confirmation order dated
28/02/2017 passed under Section 321(3) of the
Karnataaka Municipal Corporations Act, 1976 as
illegal and not passed in accordance with law; and for
permanent injunction restraining the defendants,
their officials, representatives, agents or anybody
claiming through or under them from demolishing any
3 O.S.1818/2017
portion of the suit schedule property, thereby
interfering with the possession and enjoyment of the
plaintiff of the suit schedule property; and for cost of
the suit.
2. The brief facts of the plaintiff's case are as
under:
Plaintiff is the absolute owner of immovable
property bearing Old Municipal Nos. 2054 and
2087/1, presently bearing New Municipal No.279, II
Main Road, Malleshwaram, Bangalore-560 003 within
Bruhath Bengaluru Mahanagara Palike Ward No.5,
PID No.5-4-279, measuring east to west 60 feet and
north to south 16 feet, totally measuring 960 square
feet together with building thereon which is under
construction, herein after referred to as schedule
property, having acquired valid right, title and interest
in respect of the same, under the registered sale deed
dated 9/12/2015 executed by Smt. Sharada w/o Late
Narasimhamurthy and others and the said sale deed
is registered as Document No. MLS-1-03058-2015-16
4 O.S.1818/2017
of Book-I and stored in CD No.MLSD 113 in the office
of the Sub - Registrar, Malleshwaram, Bangalore.
Originally, the suit schedule property belonged to
one Sri G.S.Krishna Rao, who had purchased the
same from Sri Sheshappa under a registered sale deed
dated 14/7/1956, which is registered as Document
No.2015/1956-57 of Book-I, Volume: 515, Pages 235
to 237 in the office of the Sub Registrar, Bangalore.
Said Sri G.S.Krishna Rao died intestate leaving behind
5 children namely G.K. Puttaramu,
G.K.Ramachandra, K.Subbaraya, G.K.Anand and
Smt. Sharadha as the surviving legal representatives
entitled to succeed to the estate left behind by him
including the suit schedule property. A partition suit
in O.S.No.8547/2006 came to be filed between the
children of Sri.G.S.Krishna Rao which ended in
compromise allotting 1/5th share each to each of the
aforementioned children. As the said property was
indivisible, as per the terms of the Final Decree, the
said property was agreed to be sold and to share the
5 O.S.1818/2017
sale proceeds thus realised among the aforementioned
children by selling the suit schedule property.
Further, pursuant to acquiring valid, right, title
and interest, the plaintiff had got the katha in respect
of the schedule property in his name in the revenue
registers of the Bruhath Bengaluru Mahanagara
Palike and the schedule property is assessed for
property tax by Bruhath Bengaluru Mahanagara
Palike and he has paid the upto date property tax in
respect of the schedule property to Bruhath
Bengaluru Mahanagara Palike.
Subsequently, the plaintiff applied for sanction
of building plan for construction of a commercial
building and accordingly building plan was
sanctioned vide LP No.Ad.Com/West/0070/2016-17
dated 14/9/2016 and the plaintiff commenced
construction of commercial building on the suit
schedule property by investing his hard earned money
and the construction of the building is in progress in
accordance with the sanctioned plan.
6 O.S.1818/2017
The defendant no.2 at the instigation and false
complaints of some vested interests issued a notice
dated 9/2/2017 to the plaintiff calling upon him to
produce the sanctioned plan and in compliance with
the said notice, the plaintiff had produced the copy of
the sanctioned plan to the defendant no.2 for
verification and inspite of the same, and being fully
aware of the fact that the plaintiff is carrying on
construction activities in accordance ith the
sanctioned plan, the defendant no.2 and his staff
members, at the behest of some vested interests and
in active collusion and connivance with them, are
trying to interfere and stop the work carried on by the
plaintiff on the suit schedule property.
Plaintiff is continuing with the construction of
the building as per the sanctioned plan and the
building is almost nearing completion. This being the
fact, the officials of defendant no.1 & 2 had come near
the suit schedule property on 9/3/2017 and again on
10/3/2017 and are threatening to demolish a portion
of the building constructed on the suit schedule
7 O.S.1818/2017
property. The plaintiff has no other alternative and
efficacious remedy but to approach this Court for the
relief of permanent injunction.
The cause of action for the suit arose on
14/9/2016, the date on which the building plan was
sanctioned by BBMP and subsequently when plaintiff
commenced construction of the building and on
9/2/2017 when the defendant no.2 issued an
Intimation Letter to produce a copy of the sanctioned
plan and on 9/3/2017 and 10/3/2017, the dates on
which the officials of defendants tried to interfere and
threatened to demolish a portion of the building and
subsequently within the jurisdiction of this Court.
Accordingly, prayed to decree the suit.
3. After the service of the summons, the
defendants 1 and 2 appeared through their counsel
and filed written statement.
4. The main contentions of the written
statement filed by the defendants 1 and 2 are as
under:
8 O.S.1818/2017
The suit itself is not maintainable either in law or
facts of the case. The plaintiff has approached the
Court suppressing the material facts of the case and
therefore the suit is liable to be dismissed.
The plaintiff has constructed the building in the
schedule property bearing no. 279, 2 nd main road,
Malleshwaram, Bengaluru. When the defendant
officials inspected the building, they observed that
there were certain violations in the building
constructions. On 9/2/2017, the officials issued the
notice to the plaintiff to produce the sanctioned plan
of the building and same was duly served. On perusal
of the sanction plan, it was observed that, the plaintiff
has obtained the sanction plan to construct a hostel
and commercial building on the schedule property.
During the construction, the plaintiff has violated the
sanction plan and building byelaws of KMC Act.
Therefore, a provisional notice under Section 321 (1)
and (2) of Karnataka Municipal Corporation Act was
issued to the plaintiff specifying the extent of
deviation and giving the plaintiff an opportunity to
9 O.S.1818/2017
remove the same. Since the plaintiff refused to receive
the notice, the second defendant has affixed the
notices on the wall of the schedule property and
having taken photographs and a mahazar was also
drawn by the officials in this regard. The plaintiff has
not given any reply to the said provisional notice.
Even after the receipt of the notice, the plaintiff
did not remove the deviated portions, rather than he
continued with the construction. Therefore, the
officials of the BBMP passed a confirmation order
under Section 321(3) of the Karnataka Municipal
Corporation Act confirming the earlier orders.
From the notice issued by the defendant, it is
clear that the plaintiff has constructed the building
deviating from the sanction plan. The averments made
in para no.4 and 5 of the plaint stating that the
plaintiff has not received any notice from the BBMP is
false.
At the outset itself, the suit is not maintainable
and barred under Section 9 of the CPC. The BBMP
has initiated action against the plaintiff for building
10 O.S.1818/2017
violation. The remedy available to the plaintiff is to
approach the Karnataka Appellate Tribunal as
provided under Section 443 -A of the Karnataka
Municipal Corporation Act. In other words, the reliefs
sought in the nature of injunction which ought to
have been taken up under an appeal before KAT.
Instead of exhausting the said relief which is expressly
provided under the Karnataka Municipal Corporation
Act, the plaintiff has sought this relief. Therefore, the
plaint is to be rejected under Order VII Rule 11 (d) of
the CPC.
As contended in para no.7 of the plaint the
defendant no.2 at the instigation and false complaints
of some vested interests is denied. The constructed
commercial building is violative of building byelaws as
well as KMC Act. The averments made in para no. 6 to
8 are false.
Therefore, prays to dismiss the suit with
exemplary costs.
11 O.S.1818/2017
5. On the basis of the pleadings of the parties,
my predecessor in office has framed the following
issues and additional issue for consideration:
(1) Whether the plaintiff proves
that he is in lawful possession
and enjoyment of the suit
schedule property as on the
date of the suit?
(2) Whether the plaintiff proves the
alleged interference by the
defendants?
(3) Whether plaintiff is entitled for
the reliefs as sought for?
(4) What order or decree?
ADDITIONAL ISSUE:
(1) Whether the plaintiff proves
that the alleged notice issued
by the defendants under
Section 321(1) and (2) (3) of
Karnataka Municipal
Corporation Act, 1976 are bad
in law?
6. In order to prove the case, the power of
attorney of the plaintiff is examined as PW.1 and got
marked Ex.P1 to Ex.P11 and closed his side of
evidence. On behalf of the defendants, they neither
examined any witness nor produced any documents
in their behalf and closed their side of evidence.
12 O.S.1818/2017
7. Heard both sides and perused the entire
records of the case. The learned advocate for the
plaintiff produced list of authority in support of his
case.
8. My findings on the above issues are as
under:
Issue No. 1) ............In the affirmative;
Issue No. 2) ............In the affirmative;
Issue No. 3) ............Partly in the affirmative;
Issue No. 4) ............As per final order; for
the following:
Addl.Issue No.1)........In the negative;
9. ISSUE NO.1: It is the contention of the
plaintiff that, the suit schedule property measuring to
the extent of 960 square feet together with the
building are in possession of the plaintiff by virtue of
the registered sale deed dated 9/12/2015. Ex.P2 is
the sale deed executed by Smt. Sharada and others in
favour of the plaintiff Mr. Mohammed Abdullah. As
per the contentions of the plaintiff from the date of the
sale deed, he is in possession of the schedule
13 O.S.1818/2017
premises and he has obtained the katha in respect of
the same and paying taxes to BBMP. Ex.P3 is the
katha certificate standing in the name of the plaintiff,
Ex.P4 is the katha extract, Ex.P5 to Ex.P8 are the tax
paid receipts which clearly shows that the plaintiff is
paying the taxes to the suit schedule property.
10. It is pertinent to note here that, with
respect to the ownership and possession of the suit
schedule property, there is no dispute from the side of
the defendants also. In other words, even the
defendant also admits that plaintiff is in possession of
the suit schedule property. No where in the written
statement as well as in the cross-examination of the
PW.1, the title and ownership of the plaintiff is
questioned by the defendant. Therefore, without
much discussions and on perusal of all the
documents, it is clear that, the plaintiff is in
possession of the schedule property as on the date of
filing of the suit. Thereby, I answer Issue No.1 in the
affirmative.
14 O.S.1818/2017
11, ISSUE NO.2: In the plaint averments
itself, the plaintiff has contended that, when the
plaintiff commenced the construction of the
commerical building after obtaining the sanction plan,
the defendants started to interfere upon the same. As
per the contentions of the plaintiff, the defendant
no.2, at the instigation and false complaints of some
vested interest issued notice to the plaintiff calling
upon the plaintiff to produce the sanction plan and
even after the verification of the same, and
knowingfully well that the plaintiff is constructing in
accordance with the sanction plan, they interfere into
the suit schedule property on 9/3/2017 as well as on
10/3/2017 and threatened to demolish the portion of
the building constructed on the suit schedule
property.
12. In the written statement itself, the
defendant contended that, since the construction from
the side of the plaintiff is not in pursuance with the
sanction plan, a notice was issued under Section
321(1) and 321(2) of the Karnataka Municipal
15 O.S.1818/2017
Corporation Act. Further, the level of deviation is also
mentioned along with the notice. The defendant
specifically contends that, since the plaintiff refused
to receive the notice, the same was served by affixture.
It is important to note here that, even at the time of
filing of the written statement and also at the time of
cross-examination of PW.1, the defendant specifically
contended that the plaintiff has violated the sanction
plan and therefore he has issued the legal notice and
a confirmation order was also passed in that regard.
However, no such documents are produced by the
defendant in support of his case, nor the defendant
has tendered the evidence in order to support his
contentions in the written statement. Though the
defendant contended that, the plaintiff has violated
the sanction plan, notice under Section 321(1),
provisional order under Section 321 (2) and
confirmation order under Section 321(3) is not
produced by the defendant, nor the same are
confronted to the plaintiff at the time of the cross-
examination. On the other hand, Ex.P10 which is the
16 O.S.1818/2017
intimation letter dated 9/2/2017 clearly shows that,
as per a complaint of one Ravichandra, the BBMP
officials are required to produce the sanction plan to
the office of the BBMP to the plaintiff. However, as per
this intimation letter, the plaintiff has produced the
sanction plan before the BBMP which is very clear in
the written statement itself. However, whether the
defendant has taken any action against the plaintiff
under the provisions of Karnataka Municipal
Corporation Act is not proved by the defendant. The
contentions of the defendant with regard to the service
of the notice under Karnataka Municipal Corporation
Act is denied by the PW1. On the other hand, since
the defendant has not led any evidence in support of
his contentions nor produced any documents, the
Court is of the opinion that, whatever the contentions
taken by the defendant with regard to the violation of
the building byelaws of the plaintiff is not correct.
13. However, the defendants themselves clearly
admitted that they have visited the schedule property
and requested the plaintiff to remove the deviated
17 O.S.1818/2017
portions and even from the production of Ex.P10, it is
clear that, the defendants have clearly interfered into
the possession of the suit schedule property.
14. Nothing much has been elucidated from the
mouth of PW.1, in order to prove the contentions of
the defendants. Therefore, the Court is of the opinion
that, the plaintiff has proved Issue No.2 in his favour.
Accordingly, I answer Issue No.2 in the affirmative.
15. ADDITIONAL ISSUE NO.1: In the suit
itself, the plaintiff sought for the relief that, the
alleged notice issued under Section 321(1) and (2) of
Karnataka Municipal Corporation Act is illegal and
alleged confirmation order as illegal and not passed in
accordance with the law. However, in the plaint
avermets, no such allegations with regard to the
issuance of the notices as well as confirmation order
is pleaded by the plaintiff. Even in the cross-
examination of the PW.1, PW.1 specifically denies the
issuance of the notices under Section 321(1) (2) and
also the confirmation order under Section 321(3) of
18 O.S.1818/2017
Karnataka Municipal Corporation Act. When the
plaintiff specifically denies the issuances of the
notices and passing of the confirmation order, on
what basis he is seeking the relief (a) in the plaint is
not clear. Merely because the defendant has stated in
the written statement that the plaintiff has violated
the sanction plan and BBMP has issued the notices,
the plaintiff sought for the amendment to declare that
the alleged notices are bad under law. Even no
attempt is made by the defendant in order to produce
the documents to show that the plaintiff has violated
the sanction plan nor he has passed the orders under
the Karnataka Municipal Corporation Act. Therefore,
without much discussion, this Court is of the opinion
that, since the PW.1 specifically denied the issuances
of the notice and also passing of the confirmation
order and more than that there is no pleadings to that
effect in the plaint, the Court is of the opinion that, it
is not necessary to discuss in detail with regard to the
issue. Actually, the burden is upon the defendant to
prove that he has issued the notices under Section
19 O.S.1818/2017
321(1) and (2) and passed the confirmation orders
under Section 321(3) of the Karnataka Municipal
Corporation Act.
16. Even after that, even the defendant also did
not produce the documents in support of his
contentions in the written statement. Nothing much is
elucidated from the mouth of PW.1 in order to contend
that the plaintiff has violated building byelaws.
Therefore, I answer Additional Issue No.1 in the
negative.
17. ISSUE NO.3: The suit is one for
declaration and permanent injunction. No doubt, the
plaintiff is contending that the defendant officals are
interfering into the possession of the plaintiff and
attempting to demolish portion of the schedule
property. The alleged interference from the side of
defendant is proved in issue no.2. Therefore, no
doubt, the plaintiff is entitled for the permanent
injunction.
20 O.S.1818/2017
18. With regard to relief (a) to obtain the relief
of declaration, I have already discussed with regard to
the same in additional issue no.1. In view of the above
discussions in additional issue no.1, granting of
prayer (a) to the plaintiff does not arise. Therefore, I
answer Issue No.3 partly in the affirmative.
19. ISSUE NO.4: From my above discussions
and reasoning, the suit of the plaintiff deserves to be
decreed in part. In the result, I pass the following:
The suit of plaintiff is hereby decreed in
part.
The defendants, their officials,
representatives, agents or any persons
claiming through the defendants are
hereby restrained by way of permanent
injunction from interfering with the
possession of the plaintiff's suit
schedule property and also from
demolishing any portion of the suit
schedule property.
In view of the discussions in Additional
Issue No.1, granting of relief (a) does not
arise.
21 O.S.1818/2017
Under the facts and circumstances of
the case, there is no order as to costs.
Draw decree accordingly.
***
[Dictated to the Judgment Writer directly on computer, Script corrected, signed and then pronounced by me, in the Open Court on this the 10 th day of November 2021.] [PRASHANTHI.G] XXVII Additional City Civil Judge. BANGALORE.
1. List of witnesses examined on behalf of the Plaintiff/s:
PW.1 Mohammed Siraj
2. List of witnesses examined on behalf of the Defendant/s:
NIL.
3. List of documents marked on behalf of the Plaintiff/s:
Ex.P1 Special power of attorney dated 19/3/2020 Ex.P2 Certified copy of the sale deed dated 9/12/2015 Ex.P3 Katha certificate Ex.P4 Katha extract Ex.P5 to Tax paid receipts Ex.P8 Ex.P9 Sanction plan Ex.P10 Notice issued by the BBMP dated 9/2/2017 Ex.P11 Tax paid receipt 22 O.S.1818/2017
4. List of the documents marked for the defendants:
NIL.
[PRASHANTHI.G] XXVII Additional City Civil Judge.
BANGALORE.
10/11/2021 P-MSK D1, D2 - SNP For Judgment..
............Judgement pronounced in the Open Court....
(Vide separate detailed judgment) The suit of plaintiff is hereby decreed in part.
The defendants, their officials, representatives, agents or any persons claiming through the defendants are hereby restrained by way of permanent injunction from interfering with the possession of the plaintiff's suit schedule property and also from demolishing any portion of the suit schedule property. In view of the discussions in Additional Issue No.1, granting of relief (a) does not arise. Under the facts and circumstances of the case, there is no order as to costs.
Draw decree accordingly.
[PRASHANTHI.G] XXVII Additional City Civil Judge.
BANGALORE.
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