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This suit is filed for permanent injunction restraining the defendant from constructing or putting up any further construction on the said suit schedule property without leaving the setback area and mandatory injunction to demolish the construction which is already put up without leaving the setback area, and for costs and such other reliefs.

2. It is averred in the plaint that, the plaintiff is the absolute owner of the property bearing No.42, Gopalappa Layout. She has constructed the said house at site No.42, in the year 2004. Mr. Mahesh Kumar who has got a site bearing No.36, is situated backside of the plaintiff's house in the same Hebbal, Kempapura, Bengaluru. He has constructed the 1 st & 2nd floors on the top of the existing house. He has not left setback area as stipulated by the Karnataka Municipalities Act. Without leaving setback area, he has constructed so close to the compound wall of the plaintiff and proper air and ventilation is blocked. Because of the 1st & 2nd floors he has put up, the O.S.No.4247/2011 entire light and air is blocked totally. In this regard, the plaintiff has lodged complaint with the 2 nd defendant dated 17.05.2011, and the 2nd defendant has acknowledged the receipt of the same. In the said complaint, the plaintiff has narrated each and everything about not leaving the setback area by the 1st defendant. When asked about such illegal construction, virtually he has shouted at the plaintiff. Annoyed by action of the 1st defendant, she has lodged a complaint with the 2 nd defendant dated 17.05.2011. As soon as the plaintiff is lodged the complaint, the Officers of the 2nd defendant came to the spot and summoned the 1st defendant as well as workers and made enquiries about not leaving the setback area. After making an enquiry, they left the place. Afterwards, the Officers of the 2 nd defendant did not initiate any action for not leaving the setback area and 2nd defendant did not cause any show cause notice for violation of the building bye­laws. In such an event the construction of the 1st defendant has done, is totally illegal and opposed to the building bye­laws. Hence, the construction which was done by the 1st defendant, has to be demolished by leaving proper setback area. If the 1 st defendant did not leave the setback area, the light and air will not smoothly pass into the house of the plaintiff's house. Hence, the practice of O.S.No.4247/2011 causing such nuisance has to be strictly deprecated and further directions should be given tof the defendant No's.2 & 3 to initiate proper action against the 1st defendant for not leaving the setback area. The 1st defendant without leaving the setback area and constructing his toilets and entrance to toilet attached to the compound wall towards South side of the plaintiff's house. The plaintiff had purchased the said property with an old compound wall existing on the schedule property. The plaintiff demolished the old one and built a new compound wall during the construction of the house. The plaintiff has no privacy because of the said construction. When the Officers of the 2nd defendant told the 1st defendant to bring the sanctioned plan, he said that he does not have one at home. They told him to bring documents to BBMP's Office and left. The plaintiff is under the impression that he will stop construction till further orders. But, the plaintiff found the construction was taking place and no action was initiated neither by the 2 nd defendant and 3rd defendant. The inaction on the part of the defendant No's.2 & 3 are strictly deprecated by this court and proper directions are necessary to remove the portion of the building where no setback area was left by the 1 st defendant. On 04.06.2011, the BBMP Officers said that, Mr. Mahesh expected O.S.No.4247/2011 to come on that day and also promised the plaintiff that, 3 feet setback will be ensured at the backside and the plaintiff visited BBMP on 7th June, the Officers said that they will come for measuring the deviations as per the approved plan and issue notice for demolition. But, it is 1.5 feet, which can be demolished and not 3 feet as they promised. In such an event, strict directions are necessary against the defendant No's.2 & 3 to demolish the construction which was done by the 1st defendant without leaving the setback area. Hence, files this suit.

Issue No.5 : In the Negative.

Issue No.6 : As per final order for the following:

REASONS

9. Issue No.1:­ It is a suit for permanent injunction restraining the defendant from putting up further construction in the suit schedule property and mandatory injunction to demolish the construction, which is already put up without leaving the setback area. The suit schedule site bearing No's.41 & 42 is plaintiff's ownership property. To the Southern side of it, the defendant's schedule house bearing No.36 is existing. It is alleged that, at Southern side when defendant started construction for the 1st and 2nd floors to his house, he has not left the setback area, as stipulated in the Karmataka Municipalities Act. Because of this construction work, the entire light and air to the plaintiff's house, is blocked. Initially, the plaintiff has submitted the complaint to the Municipality Authority, who came and visited the schedule property. But, thereafter, they have not taken any steps against the defendants. It is also alleged that, the defendant's further construction of toilet is attached to the compound wall to the Souther side of the plaintiff's house.

14. Issue No.3:­ Admittedly, the compound wall exists in between plaintiff and defendant's property. The plaintiff claims only defendant has not left the setback area in the construction of 2nd and 3rd floors building. So, she has not alleged the interference. Her allegation of interference is in respect of light and air. But, to that aspect, absolutely nil evidence from plaintiff's side. Accordingly, I hold Issue No.3 in the 'Negative'.

15. Issue No.2:­ The defendant contends that, his house No.36 is built, as per building plan. He has produced Ex.D.1/plan. It is also admitted that, the BBMP authority visited the spot and verified his construction work. It is also admitted that, thereafter the BBMP authority have not taken any action against the defendant. The plaintiff has not approached the higher authority of the BBMP officials. The plaintiff contends that, the officials of BBMP told her the defendant violated the plan. But not produced any material to O.S.No.4247/2011 corroborate the same. The defendant has not gave any evidence to corroborate his construction is legal. Whereas, in the cross­ examination he himself admitted that, he put up 2 nd floor as per the building plan. But, in fact, in Ex.D.1, there is no provision for 2nd floor. In fact, the defendant has not sought any approved plan for the 2nd floor. Whereas, the approved plan/Ex.D.1 also shows, it is not specific on reserving of setback of 3 feet at Southern side. The commissioner report does not speaks on violation of his building plan. Accordingly, appreciating Ex.D.1 and cross­examination of DW.1, I hold Issue No.2 in the 'Negative'.

17. As truly contended by the defendant, when plaintiff approached the court, 90% of building, is already completed. So, the question of injunction from restraining the further construction, does not arises. Now, in respect of mandatory injunction on demolishing the structure, the plaintiff has to prove her existence of right. So, without the same, the plaintiff cannot seek mandatory injunction. At present, she stresses on setback area. Whereas, it is the BBMP is the authority to setback area and to take action on that aspect. Prior to the purchase of site bearing No's.41 & 42, the defendant is already occupied the site bearing No.36, and house building also constructed. So, now she cannot raise objection in respect of ground floor of defendant's building.