IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF DECEMBER 2019 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH REGULAR FIRST APPEAL No.166 OF 2012 BETWEEN:
Shri B.N.Gopalakrishna S/o. late Nagabhushana Rao Aged about 69 years Residing at No.42 in S.No.60/1 Eshwar Nagara Jaraganahalli village Banashankari II Stage Bangalore – 560 070 (By Sri.Vignesha B.S., Advocate for Sri. Y.Hariprasad, Advocate) AND:
1. Kailasagiri Dharma Samsthe (Regd.) Reg. Office No.33-A, II cross Eshwar Nagar, Banashankari II Stage Bangalore – 560 070 Represented by its Secretary 2. Shri S.P.Gajendra S/o. not known to the plaintiff Major 3. Shri B.S.Devaraj S/o. not known to the plaintiff Major …Appellant 4. Shri. Ravishankar S/o. now known to the plaintiff Major Respondents 2 to 4 are the Trustees and Office Bearers of the 1st Defendant Trust having common Address at No.33-A, II cross Eshwar Nagar Banashankari II stage Bangalore – 560070 5. The Commissioner Bangalore Mahanagara Palike Head Office, Corporation Circle Bangalore – 560 002 6. The Executive Engineer Bangalore Mahanagara Palike Ward No.56, Ganesh Mandir Ganesh Mandir, Padmanabhanagar Bangalore ...Respondents (By Sri. S.B.Mukkannappa, Advocate for R2 to R4; Sri. N.R.Jagadeeshwara, Advocate for R5 and R6; R1 served) This Regular First Appeal is filed under section 96 of CPC against the judgment and decree dated 28.11.11 passed in O.S.No.7033/2003 on the file of XL. Additional City Civil Judge, Bangalore (CCH-41), dismissing the suit for permanent injunction and for mandatory injunction.
This Appeal coming on for further arguments, this day, the Court delivered the following:-
J U D G M E N T This appeal is filed challenging the judgment and decree of dismissal of suit passed in O.S.No.7033/2003 on the file XL Additional City Civil Judge, Bengaluru (CCH-41).
2. The parties are referred to as per their original ranking before the trial Court for the purpose of convenience of the Court and to avoid confusion.
3. The plaintiff has filed the suit seeking the reliefs of permanent injunction and also mandatory injunction in respect of suit schedule property making the allegations against the defendants that the plaintiff is the absolute owner in possession and enjoyment of the property bearing No.42, which is more fully described in the schedule. It is contended by the plaintiff/appellant that he has purchased the suit schedule property on 26.11.1984. At the time of purchase of suit schedule property, the same was under the jurisdiction of Sarakki Village Panchayath. He obtained the building licence in the year 1995 and constructed the building after obtaining the sanction plan from the concerned authority. The plaintiff also left the necessary setbacks in his property while constructing the building. Subsequently, the schedule property came under the jurisdiction of Bangalore Mahanagara Palike. The first respondent is a trust and it has constructed the temple towards the northern side of the suit schedule property. The plaintiff has left three feet passage towards northern side of his property. At the time of construction of temple, the first defendant has agreed to use that passage as a common passage and a gate was put with an understanding that the keys of the gate should be with both of them. This understanding was continued for several years. The defendant not at all left any setbacks and constructed the temple and when this being the state of affairs, on 30.09.2003, the first defendant along with defendant Nos.2 to 4, all of a sudden, without any license or sanctioned plan, started the construction of first floor and while constructing first floor building, the first defendant has violated the Municipal Bye-laws and has encroached upon the passage left by plaintiff towards northern side of his property by covering a sajja and abutting the wall of the plaintiff’s property on the northern side, the first defendant was tried to put up the wall and roof. The above act of the defendants had affected the fundamental right of the plaintiff for getting natural air and light into his property. The plaintiff protested the illegal acts of the defendant and the first defendant has temporarily stopped the work at that time. It is further contended that on the northern side, the plaintiff’s water pipes connection, kitchen’s exhaust fan and windows are situated and because of the illegal construction of temple, the air and light which are the basic amenities required for the plaintiff’s property was blocked. On 30.09.2003, the plaintiff gave a representation to defendant Nos.5 and 6 highlighting the illegal acts of the first defendant and contravention of Municipal Bye-laws and requested defendant Nos.5 and 6 to stop the illegal construction by the first defendant. But they failed to take any steps to prevent the same. Hence, a complaint was lodged by the plaintiff with the jurisdictional police on 01.10.2003, against the first defendant. The police also did not take any action against them and inturn instructed the plaintiff to approach the Competent Civil Court since the dispute is civil in nature. As the first defendant is highly influential and powerful trust in the locality, the plaintiff unable to resist the illegal acts of the first defendant and its office bearers and their workman. Further, first defendant continued the construction work without leaving the space as required under law and constructed the building illegally abutting the wall of the plaintiff’s property and now trying to put up roof. Hence, the plaintiff was constrained to approach the Civil Court seeking permanent injunction and also mandatory injunction to demolish the sajja which was put up by the first defendant towards the northern side by encroaching the schedule property.
4. In response to the suit summons, defendant Nos.1 to 6 had appeared by engaging their counsels and defendant Nos.1 to 4 filed written statement denying the averments made in the plaint by contending that one K.Chickkappa has formed a private layout in the year 1980 in his land bearing Sy.No.60/1 of Jarganahally Village now called as Eshwar Layout. The said Chickkappa has sold all the sites formed in the said land except site No.40 measuring East to West – 80 feet and North to South – 30 feet. The said land owner K.Chickkappa is also one of the office bearer of the first defendant – Trust and he has donated the aforesaid site No.40 to the Trust for construction of temple during the month of December, 1993. Thereafter, defendants being the office bearers of the Trust have constructed a temple with due approval from the Administrator of Sarakki Panchayath in the year 1994-95. Much prior to construction of the temple, the plaintiff had already constructed the building without leaving the setback in his property. However, when the defendants have constructed the temple, they have left three feet passage respectively towards northern and southern side of their property. In the year 1997, the entire layout was included in the jurisdiction of Bangalore Mahanagara Palike from Sarakki Grama Panchayat. The plaintiff himself has not left the setback and on the other hand, he has put a window in the ground floor and two windows in the first floor of his building and he has also put waterline and the entire rainwater is to pass through that passage and some times the water get into temple. To avoid the rainwater and also to avoid inconvenience to the devotees of the defendants’ temple, they have covered the passage by putting sajja without touching the wall of the plaintiff’s property. The plaintiff with some oblique motive has filed the present suit and as such, he is not entitled for any relief as sought for in the plaint.
5. Based on the pleadings of the plaintiff and defendants, the trial Court has framed the following issues:
“1. Whether the plaintiff proves his lawful possession over the suit schedule property as on the date of suit?
2. Whether the plaintiff further proves that the defendants No. 1 to 4 have illegally interfered with his lawful possession?
3. Whether plaintiff proves that defendants No.1 to 4 have illegally put up sajja and roof abutting his northern side wall as alleged?
4. Whether defendants No.1 to 4 proves that plaintiff has constructed his building in the suit schedule property without leaving set back as alleged in Para No.3 of the Written Statement?
5. Whether plaintiff is entitled for the relief of permanent injunction and mandatory injunction against the defendants as prayed?
6. To what relief’s, if any, the parties are entitled?”
6. The plaintiff in order to substantiate his claim, examined himself as PW.1 and got marked the documents at Exs.P1 to P23 on his behalf. The second defendant has been examined as DW.1 and got marked documents as Exs.D1 to D8. Trial Court after considering both oral and documentary evidence dismissed the suit of the plaintiff. Hence, the plaintiff is before this Court in this appeal.
7. The main ground urged in the appeal is that the Court below did not consider the oral and documentary evidence in right perspective. The Court below wrongly dismissed the suit of the plaintiff inspite of defendants had not produced any single document to show that they have constructed the temple as per sanctioned plan and they have not followed the law while constructing the temple. The trial Court has wrongly held that the plaintiff has not left three feet setback. The above observations of the trial Court are merely based upon the assumptions and presumptions and when the trial Court itself clearly held that the appellant has proved his lawful possession over the suit schedule property as on the date of the suit, it ought not to have dismissed the suit in granting the relief of permanent injunction. The court below also failed to take note of the admitted fact which has been narrated in the written statement in paragraph Nos.1 to 4 filed by the defendants with regard to conveying the property by one Chickkappa to the respective parties in the site bearing No.40. In the cross-examination of DW.1, he categorically admitted that site bearing No.40 measuring North to South 30 feet which is on the northern side of the Suit Schedule property and they have constructed the temple. This clearly goes to show that defendant Nos.1 to 4 have encroached the plaintiffs property. Further, the trial Court also failed to take note that respondent Nos.1 to 4 failed to produce the sanctioned plan issued either from Sarakki Panchayath or from Bangalore Municipal Corporation and inspite of no such document placed before the Court to show that their site measures north to south 32½ feet, the trial court erroneously dismissed the suit based on assumptions and presumptions.
8. The learned counsel appearing for the appellant in his arguments, he vehemently contended that the Court below has committed an error in not appreciating both oral and documentary evidence and the very admission of defendant No.2, i.e., DW.1 that the temple was constructed to an extent of 32½ feet, even though the defendants’ site measures East to West 80 feet and North to South 30 feet and the trial Court did not discuss about the said admission by DW.1, while dismissing the suit. Hence, the impugned judgment and decree requires interference by this Court. In support of his contention, he has also relied upon the decision rendered in the case of Fakirappa Vs. Basalingappa - ILR 1999 KAR 3506 and brought to my notice the observations made in the appeal that the High Court set aside the order of First Appellate Court since First Appellate Court made an observation that it is the matter between defendant and Corporation and hence, the plaintiff has no legal right to question the grant or non-grant of the permission or even illegal construction. Learned counsel for the plaintiff referring to the above decision contends that the plaintiff can question illegal construction and instant matter is not between the Corporation and between, but the dispute is between the private parties. He also relied on the decision in the case of K.Ramadas Shenoy Vs. The Chief Officers, Town Municipal Council Udupi and others – AIR 1974 SC 2177 and brought to my notice paragraph No.28 of the said judgment and contended that an illegal construction of a cinema building materially affects the right to or enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential area is not spoilt by unauthorized construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in a residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the courts will quash orders passed by Municipalities in such cases. The counsel referring to the above judgments would contend that neighbours are having right to seek for an order of mandatory injunction and other equal reliefs from the court to demolish the same when their rights are affected.
9. Per contra, the learned counsel appearing for the defendants in his arguments, he vehemently contended that from paragraph No.5 of the plaint itself, the plaintiff stated that there was an understanding between both plaintiff and defendants to make use of the three feet passage as common passage and a gate was put up with an understanding that one key should be with plaintiff and other with defendant and the said understanding has been continued for several years. When such being the case, question of seeking permanent injunction does not arise. It is also the contention of learned counsel that the court below has rightly appreciated both oral and documentary evidence and dismissed the suit of the plaintiff as the plaintiff is not entitled for the relief of either permanent injunction or mandatory injunction and hence, there is no reason to interfere with the impugned judgment and decree of the trial Court. In support of his contention, he has relied on the judgment rendered in the case of Moolchand and others Vs. Chhoga and other - AIR 1963 RAJASTHAN 25 and drawn my attention to paragraph No.33 of the judgment to contend that while considering the relief of mandatory injunction which is a discretionary relief and delay is a factor which has to be taken into account while granting it where a case for grant of this relief is otherwise made out. Such delay, however, to be a disqualifying circumstance, must amount to waiver or abandonment of the rights sought to be enforced or acquiescence in the act complained of or laches, after the act is done. He also relied on the judgment rendered in the case of Sankar Kumar and another Vs. Mohanlal Sharma - AIR 1998 ORISSA 117 and brought to my notice paragraph No.5 of the judgment and contended that plaintiff must succeed on his own case and not on the weakness of defendants.
10. Having heard the arguments of learned counsel for both the parties and keeping in mind the rival contentions of both the parties, the point that arise for consideration of this Court are:
“1. Whether the Court below has committed an error in dismissing the suit of the plaintiff seeking relief of permanent injunction and mandatory injunction and whether it requires interference of this Court?
2. What order?
11. Having considered the factual aspects of the case, there is no dispute with regard to the fact that both plaintiff and defendants had purchased their respective sites from the very same vendor. It is also not in dispute that both are neighbours. The contention of the plaintiff before the Court is that the defendants are interfering in exercising his rights on the northern side of the suit schedule property and sought for an order of permanent injunction. The plaintiff also sought for mandatory injunction in respect of encroachment by defendants by putting up construction of Sajja abutting the property of plaintiff and also with regard to the gate which has been put up on the northern side of the plaintiff’s property and southern side of the defendants’ property. Therefore, the plaintiff in order to substantiate his contention, he examined himself as PW.1 and he narrated the averments of the plaint by way of an affidavit and in the cross-examination, he admits that in the construction license at Ex.P2, there is no reference with regard to setback to be left by me. It is also elicited that a gate was put up to that three feet passage found in the photograph at Ex.P20 and the same was put up by the temple authorities. He further admits that one can enter through the said gate to reach 1st and 2nd floor portion of temple building. He was also confronted to the photograph at Ex.D1 and admits that in the top portion of the Ex.D1, a Sajja was put up by the temple authorities on their building is found. He also admits rainwater pipe of my property is also seen in Ex.D1- photograph, since he complained about falling of water from the terrace, the temple authorities have put water pipe to discharge the water falling on the terrace. He also admits on the southern side of the property, temple authorities have put up iron mesh to protect their top. It is suggested that he has not put up construction as per Ex.P22 and the same was denied.
12. DW.1 who is defendant No.2 was examined and in his further examination, DW.1 has produced Exs.D2 to D8 documents. In the cross-examination, he says that they got the approved plan and license and sanction plan from the Sarakki Gram Panchayath to construct the temple and the same is not produced. The sanction plan and license is issued in the name of the trust. The measurements of temple property are 40 x 60 feet and again he volunteers and admitted that at present the measurement is 30½ x 61 feet. He also admits that there are residential houses in the North and South side. He admits for the first time and deposed before the Court that their site north to south it measures 30½ feet. He also admits that in the written statement they have mentioned the measurement of their site as East to West – 80 feet and North to South – 30 feet. He further admits that as per the approved layout plan – Ex.D8 produced by them to show that to the south side of plaintiff’s suit schedule property, 30 feet road is shown. He admits in the cross-examination that they have put up construction of temple in the front side towards North of the suit property and it measures North – South 32½ feet. He further admits that photographs at Ex.P23 also shown to him and he also further admits that measurement of the front view of the temple building from left corner where the gate is put up till the end of right corner it measurers 32½ feet. It is elicited from his mouth that site owner situated on the Northern side of the temple has put up a compound wall. He also admits that in the year 2003, the said area was included in the jurisdiction of Bangaluru Mahanagara Palike and they have not taken construction license or permission from the Corporation or from the BMP. Photographs at Exs.P16 and 17 also confronted to him and he says that some are taken in the year 2003 when the construction was in progress on the first and second floor of the temple building. He further admits that they have not obtained the completion certificate from corporation for having completed the construction of temple. It is suggested that towards northern side of the plaintiff’s property they have illegally put up sajja by touching the suit property without leaving setback and the same was denied by him. Ex.D1 was confronted to him and it is elicited from his mouth that as per the Ex.D1, left side building is of the plaintiff and right side building is temple property. He further admits that in our reply at Ex.P12, we have informed Corporation that they have not taken construction license and permission from the corporation and further we have informed that we are not having the license and approved plan issued by Sarakki Gram Panchayath.
13. Having considered the oral defence and also evidence of the parties, it is rightly pointed out by the respondent counsel that in the plaint itself at paragraph No.5, it is pleaded by the plaintiff that the passage which both the parties were using was in terms of the understanding between them and a gate was put up in the three feet passage and one key of the said gate key shall be with plaintiff and other with defendant. The said understanding was continued for several years. Having pleaded in the plaint itself that the plaintiff has left three feet passage towards northern side of the property at the time of constructing his house and there was an understanding that three feet passage should be used as a common passage and a gate was put on the consent of plaintiff himself and as both of them had enjoyed the same for several years, now the plaintiff cannot maintain a suit claiming the prayer for mandatory injunction directing defendant Nos.1 to 4 to remove the gate put on the northern side of the suit schedule property. Hence, plaintiff is not entitled for mandatory injunction in respect of removal of gate.
14. However, it is the specific case of the plaintiff that the defendants are interfering with the right of the plaintiff and meddling with the aforesaid peaceful possession and enjoyment of the suit schedule property on the northern side and hence, he sought for mandatory injunction directing defendant Nos.5 and 6 to demolish sajja and roof already constructed by defendant Nos.1 to 4 abutting the wall of the plaintiff’s property from the northern side. The principles laid down in the judgments referred by the appellant’s counsel is clear that neighbour can seek the relief of permanent injunction and also mandatory injunction when the rights of an individual are affected and there is no dispute with regard to the principles laid down in the said judgment. There is no dispute with regard to the principles contained in the judgment referred by the respondents that the plaintiff must succeed on his own case and not on the weakness of the defendants. The other judgment quoted by the respondent is when seeking the relief of mandatory injunction there cannot be any laches. In the case on hand, it is to be noted that there is specific pleading in the plaint that when defendants had started the construction, at that time itself, the same was obstructed and also brought to the notice of the police and BMP and when they did not take any action, the plaintiff was constrained to file the suit seeking relief of permanent injunction and mandatory injunction and the defendants are interfering with his peaceful enjoyment of the suit schedule property on the northern side.
15. Having considered the evidence of DW.1 and pleading of the defendant, they did not dispute the fact of construction of sajja and roof and in order to protect the property of temple they put up the same. It is important to note that in the cross-examination of DW.1, he categorically admits that they put up the construction on the first floor of temple to the extent of 32½ feet. There is no dispute with regard to the fact that measurement of the defendant’s property is 32½ feet on the southern side. It is specifically averred from the mouth of defendant No.2 in his cross-examination that they have put up construction in front side towards north of the suit property and it measures north to south 32½ feet. It is also further admitted in the cross-
examination of DW.1 that photograph at Ex.P23 was confronted to him and it was categorically admitted by him that measurement from the front view of the temple building from left corner where the gate is put up till the end of right corner, the same measures 32½ feet. The said admission cannot be the stray admission. It is elicited from the mouth of DW.1 that construction of the temple on the first floor was made to the extent of 32½ feet. When such admission is given by the DW.1 and it was elicited from his mouth that construction was made to the extent of 32½ and hence, the only observation of trial Court that the plaintiff has not left three feet setback when the specific evidence is available before the Court that there was construction of temple to an extent of 32½ feet, when defendant had admitted that Site No.40 measuring north to South – 30 feet. Hence, said aspect of the matter requires to be interfered. It is evident from the photographs which were exhibited and the same clearly discloses that sajja is put almost abutting to the plaintiff’s property and these are all the material facts which are ought to have been considered by the trial Court instead of discussing the other aspects.
16 The plaintiff sought for mandatory injunction stating that construction made by the temple is abutting his northern side of the property and it is also elicited in the cross-examination of DW.1 that for the construction of temple no sanction plan is obtained and there is no license from the concerned authority, when such being the case, the trial court ought to have looked into these aspects. Hence, I am of the opinion that the trial court has committed an error in ignoring the material admission on the record and the same amounts to miscarriage of justice.
17. Further, I am of the opinion that the court below was justified in not considering the prayer No.3 seeking mandatory injunction with regard to removal of gate and has rightly dismissed the suit in respect of the above prayer.
18. The trial Court was not justified in dismissing the suit of the plaintiff insofar his claim for permanent injunction and also mandatory injunction directing the defendant Nos.5 and 6 to demolish the Sajja and Roof already constructed abutting the wall of the plaintiff’s property. Hence, the judgment and decree of the trial Court dismissing the suit in respect of aforesaid two reliefs require to be interfered and liable to be set aside. In view of the discussion made above, I pass the following:
ORDER 1. The Regular First Appeal filed by the plaintiff is allowed-in-part. The judgment and decree passed by the trial Court in O.S.No.7033/2003 dated 28.11.2011 is hereby set aside and the plaintiff is entitled for the relief of permanent injunction as sought in the plaint and also mandatory injunction as sought in respect of prayer No.2 i.e., defendant Nos.5 and 6 are hereby directed to demolish the Sajja and roof already constructed by defendant Nos.1 to 4 abutting the wall of the plaintiff’s property on the northern side.
2. The judgment and decree passed in aforesaid suit dismissing the prayer for mandatory injunction sought by the plaintiff in respect of removal of gate put up by the defendants on the northern side of the plaintiff’s property is hereby confirmed.
Sd/- JUDGE HJ