Indian Kanoon - Search engine for Indian Law

Such being the fact, the officials of the defendant strangely appeared near the suit schedule property in third week of September 2014 gave threat to demolish portion of the schedule property, threat to interfering with the further construction work, hence, plaintiff got issued notice u/S 482(1) of KMC Act, same was served on defendant. In view of repeated threats, the plaintiff has filed this suit for necessary relief.

4. In pursuance of the summons, issued by this court, the defendant appeared through its counsel, filed written statement, contending that Joint Development Agreement said to have been entered in between the plaintiff, S.Madhava, S.Prabhakar and S. Krishnakanth with Omer Khalid, its terms and conditions, are not within the knowledge of the defendant, hence, denied as false. It is the specific case of the defendant that the plaintiff has constructed the Residential Apartment by obtaining the necessary sanction plan, but, plaintiff deviated the sanction plan while constructing the building. When defendant authority came to know about the deviation, had visited the spot, found deviation, issued notice u/s 321 of KMC Act to the plaintiff to submit necessary plan and remove the deviated portion. But, plaintiff did not responded to the notice, and filed this suit, suppressing the material facts, the plaintiff obtained the status quo order from this court. Hence, suit is liable to be dismissed on the ground of suppressing of the material facts. There is no cause action to file this suit, the plaintiff constructed the building by deviating the sanction plan, the defendant has given sufficient opportunity to the plaintiff for removal of deviated portion, but, plaintiff failed to comply with the notice. Hence, the defendant is constrained to issue notice and passed necessary orders u/S 321 (1), (2) and (3) of the KMC Act and initiated the action against the plaintiff and passed the provisional order and confirmation order u/S 321 of KMC Act against the plaintiff. Hence, suit is liable to be dismissed.

11. ISSUE No.2 & 3: These two issues are interconnected to each other, hence, I propose to answer these two issues commonly. It is the case of the plaintiff that he is the owner and in possession of the suit schedule property by virtue of registered release deed marked at Ex.P.1 and obtained sanctioned plan from the defendant authority for construction of residential building over the suit property and he has constructed residential building in accordance with the sanctioned plan without any deviation. But, on the other hand, the defence of the defendant is that the plaintiff has obtained sanctioned plan for construction of residential building over the suit schedule property, but, plaintiff has not constructed residential building over the suit schedule property in accordance with sanctioned plan and constructed building deviating the sanctioned plan. When defendant authority came to know about the deviation, has visited the spot and found deviation in construction of residential building over the suit property. Hence, the defendant authority has issued notice to the plaintiff calling upon him to produce the documents and to remove the deviated portion of the building and plaintiff not responded the notice issued by the defendant authority. After compliance of the provisions of Section 321 of KMC Act, the defendant authority has passed provisional and confirmation order as per Section 321 of KMC Act. After receiving the notice u/S 321 of KMC Act, the plaintiff has challenged the order of defendant as per Ex.D.1, which is memorandum of appeal No.757/2017, preferred by the Omer Khalid and M/s.Shanmukha Builders. The present plaintiff is one of the party of the said joint development agreement. When defendant being a statutory authority and under the obligation and duty as a public servant has visited the spot for inspection. Such a lawful act which confirmed under the provisions of law is not amounts to interference in the possession of the suit schedule property. Further it is clear from the Ex.D.1 that the present plaintiff has challenged the order passed by the defendant before the Tribunal, under such circumstances, it can be safely held that suit filed by the plaintiff is not maintainable under the law.

14.06.2012) measuring to an extent of 0­ 10.79 Guntas out of 0­14.08 Guntas situated at Valagerehalli Village, Kengeri Hobli, Bengaluru South Taluk, and bounded on the:

           East by:      Private Road;
           West by:      Dubasipalya Main Road;
           North by:     Private property; and on
           South by:     Private road."

14. It is the defence taken by the defendant in the written statement that the plaintiff has constructed the residential apartment by obtaining the necessary sanctioned plan. But, plaintiff has deviated the sanctioned plan while constructing the building over the suit schedule property. When the defendant authority came to know about the deviation, had visited the spot and found the deviation, issued notice to the plaintiff u/S 321 of KMC Act, when plaintiff failed to reply and failed to remove the deviated portion the defendant authority has passed the provisional order and thereafter the defendant has passed the confirmation order u/S 321 of KMC Act. Such being the fact though the defence taken by the defendant in the written statement, but he did not lead his evidence. But, plaintiff was cross­examined by the learned counsel for the defendant and got marked documents on confrontation during the cross­ examination of P.W.1, which have been marked at Ex.D.1 and D.1 (a). Now it is relevant to appreciate the cross­ examination of P.W.1 and Ex.D.1 and D.1 (a). Ex.D.1 is the memorandum of appeal preferred before the Karnataka Appellate Tribunal, Bengaluru. And further during the cross­ examination it is elicited and confirmed that the present plaintiff has put his signature on Ex.D.1 which is marked at Ex.D.1 (a) on confrontation.

15. I have gone through the oral and documentary evidence placed before the court, it is clear that the plaintiff is the developer along with S.Madhava, S.Prabhakar, and S.Krishnakanth and entered the joint development agreement and undertaken under the registered release deed, dated 18.8.2012 and constructed residential apartment over the suit schedule property after taking sanctioned plan from the defendant company. This fact is not disputed fact in between the parties. The disputed fact is that the plaintiff has constructed residential apartment over the property by deviating the sanctioned plan. When defendant authority came to know about the deviation, has visited the spot and inspected the suit schedule property, found deviation and issued the notice to the plaintiff calling upon him to produce the necessary documents and remove the deviated portion of the building, but, plaintiff did not replied it and defendant authority passed the provisional and confirmation order u/S 321 of KMC Act.