IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR.JUSTICE H.P.SANDESH REGULAR FIRST APPEAL No.322 OF 2012 BETWEEN:
Sri. S.Rudraradhya, Son of Late N.Shivappa, Aged about 79 years, Residing at 1st Floor in premises No.39, 7th ‘B’ Main Road, 4th Block West, Jayanagar, Bengaluru-560011.
(By Sri. C.Shankar Reddy, Advocate) AND:
Sri. S.Chennaveera Devaru, Son of Late N.Shivappa, Aged about 64 years, Residing at Ground Floor in Premises no.39, 7th ‘B’ Main Road, 4th Block West, Jayanagar, Bengaluru-560011.
(By Sri. M.B.Chandra Chooda, Advocate) ...Appellant …Respondent This Regular First Appeal is filed under Section 96 read with Order 41 Rule 1 of CPC, against the judgment and decree dated 25.01.2012 passed in O.S.5285/2003 on the file of the XI Additional City Civil Judge, Bengaluru City, decreeing the suit for injunction.
This Regular First Appeal coming on for hearing this day, the Court delivered the following:
JUDGMENT This appeal is filed challenging the judgment and decree passed in O.S.No. 5285/2003 dated 25.1.2012 on the file of the XI Additional City Civil Judge, Bengaluru City (CCH No.8), questioning granting of permanent injunction and also the mandatory injunction in favour of the plaintiff.
2. The parties are referred to as per their original rankings before the trial Court as plaintiff and defendant for convenience of the Court and in order to avoid confusion.
3. The brief facts of the case:-
It is the case of the plaintiff before the court below that plaintiff is the younger brother of the defendant and he sought for an order of permanent injunction restraining the defendant from raising staircase from first floor to second floor in the suit property and also for mandatory injunction to demolish the illegal and unauthorized construction on the second floor on the ground that he has become the owner of the ground floor of the suit property and the defendant has become the owner of the first floor of the suit property under a registered Will executed by their father N.Shivappa. The defendant had no right, title or interest whatsoever over the second floor and the said entire building is 45 years old and has become weak and the defendant has no right to construct staircase from first floor to second floor or the construction of the second floor.
4. The defendant had filed caveat before the court below contending that he intended to repair the terrace since there is seepage and subsequently the defendant has constructed the staircase and also a building over the terrace of the first floor. The defendant who appeared before the court below in pursuance of the summons did not deny the execution of the Will dated 4.1.1980, but denied the contention of the plaintiff that defendant has no right, title over the second floor of the suit property. He also denied that the suit building is 45 years old and the walls and foundation of the same are weak and do not bear the further weight if construction is put up. He contended that all the vacant space was to be enjoyed commonly by the plaintiff and the defendant as per the terms of the Will. The illegal act of the plaintiff in blocking the vacant space has created a mess in the matter of using the vacant space by the defendant and other occupants. The roof of the first floor was leaking and it required urgent repairs. The defendant’s family consists of his wife, 5 sons, a daughter, a daughter-in-law and two grand children and all are living in an area measuring about 6 squares in the first floor. As the said building required immediate repairs, the same was conveyed to the plaintiff for which the plaintiff gave his consent reluctantly. The defendant removed a portion of the roof, erected a staircase from first floor to the second floor over which he has constructed a hall. The said constructions were all within the knowledge and consent of the plaintiff. The plaintiff has come up with the suit only to harass the defendant and prayed the court to dismiss the suit.
5. Based on the pleadings, the court below has framed the following issues: -
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4. rQæ CxÀªÁ DzÉñÀªÉãÀÄ?
1. Whether the plaintiff proves that during the pendency of the suit, the defendant has illegally and unauthorisedly constructed the 2nd floor over the property?
2. Whether the plaintiff is entitled for the Mandatory Injunction for the demolition of the illegal and unauthorized construction put up by the defendant?
6. Plaintiff in order to substantiate his case examined himself as PW1 and got marked Exs. P1 to P12. Defendant in support of his contention examined himself as DW1 and got marked Exs.D1 to D5.
7. The court below having heard the arguments of both the counsel, after the completion of the evidence and considering the material on record, decreed the suit answering issues No. 1 and 2 in the affirmative. Hence, the present appeal is filed by the defendant.
8. The main grounds urged in the appeal are that ground floor was constructed in the year 1964 and in those days quality material was used. The trial court, even though there was no direct evidence regarding the construction, jumped into wrong conclusion on mere oral evidence of the plaintiff. The court below has wrongly relied on the evidence of the plaintiff only on the ground that the defendant has not produced licence and sanction plan, though the said matter could be considered only by a qualified civil engineer and as such the finding of the trial court is erroneous. The trial court erred in law in not calling upon for expert’s opinion or drawing adverse inference for non-examination of the independent witnesses by the plaintiff in this behalf. There is no material that the building is very weak and the same is in a dilapidated condition and hence the judgment and decree of the trial court is erroneous.
9. Counsel for the appellant in his arguments vehemently contended that there is no stipulation in the Will that the parties should not use the terrace of the first floor and further contended that before making the construction he has taken the consent of the plaintiff. The court below failed to consider the material on record and erroneously decreed the suit and ordered for mandatory injunction to demolish the construction made on the terrace of the first floor. Counsel also would contend that he is ready to give half of the portion which the appellant has constructed without expecting any money from his brother and plaintiff can also make use of the staircase and half of the portion and hence he prayed this court to set aside the judgment and decree of the trial court.
10. Per contra, learned counsel for the plaintiff in his arguments contends that there is no dispute with regard to execution of the Will by the father allotting the ground floor in favour of the plaintiff and first floor in favour of the defendant. The defendant himself has filed caveat in terms of Ex.P5 that he intended to only carry out the repairs and renovation in respect of the portion where seepage was noticed and the plaintiff intend to obtain an interim order behind him and hence he filed the caveat. Though the defendant in the caveat has mentioned that he intend only to undertake repairs and renovation, during the pendency of the suit he constructed second floor without any licence or sanction plan and the same is also admitted in the written statement and hence the court below rightly has considered the material on record and passed the judgment and decree for the relief of permanent injunction and also for mandatory injunction and the court below has not committed any error in passing the judgment and decree and hence it does not require interference. With regard to the proposal of the learned counsel for the appellant that the defendant is ready to give half of the portion he has constructed without expecting any money, learned counsel for the plaintiff submits the same has to be consulted with his client.
11. Having heard the arguments of learned counsel appearing for the appellant/defendant and respondent/plaintiff, the points that arise for consideration of this Court are as follows:
(i) Whether the court below has committed an error in granting the relief of permanent injunction and also mandatory injunction as sought for in plaint and it requires interference by this Court?
(ii) What order?
Point Nos. (i) & (ii) 12. It is the contention of the plaintiff before the court below that father has executed a Will in favour of the plaintiff and the defendant. Ground floor premises was given to the plaintiff and first floor premises was given to the defendant. It is also his contention that there is no recital with regard to further construction and the defendant without obtaining sanction plan and licence put up the staircase to the second floor and also constructed the building over the terrace of first floor. It is also his contention that the building is 45 years old and the same is weak and the further construction cannot be carried out by the defendant. The defendant also in the written statement did not dispute the fact of execution of the Will and also did not dispute the fact that ground floor was allotted in favour of the plaintiff and the first floor was allotted in favour of the defendant in terms of the said Will. But, his contention is that before proceeding with further construction over the terrace of the first floor, he has taken the consent of the plaintiff and he gave the consent reluctantly and only to harass the defendant he has filed the suit. There is no dispute with regard to the fact that defendant has also taken up the further construction over the terrace of the first floor and he has categorically admitted in the written statement that he has constructed a hall. It has to be noted that in terms of the Will there is no recital with regard to further construction or making use by either of the parties. It is also the case of the defendant that in terms of Ex.P5/caveat which he has filed before the Court below he has stated that he intends only to make the repairs in respect of the seepage and also intend to do the renovation and has not stated anything about the construction to be taken up by him over the terrace of the first floor, but in the written statement he categorically contended that he has taken the consent of the plaintiff and in order to substantiate his contention that he took the consent of the plaintiff nothing is on record. It is also the contention of the plaintiff that the defendant proceeded with the construction without obtaining any licence or permission. In order to counter the contention of the plaintiff, defendant has not produced licence and sanction plan in order to construct the second floor. When such being the case, when there is no recital in the Will and also there is no exclusive right to the defendant, the defendant ought not to have proceeded with the construction. The material on record is clear that defendant interfered with the right of the plaintiff which has been conferred on him under the Will and also proceeded with the construction and hence the court below has considered the material on record, both oral and documentary evidence and rightly come to the conclusion that there was interference by the defendant and also the defendant has taken up construction over the terrace of the first floor and rightly granted judgment and decree for mandatory injunction to demolish the same. I do not find any merit in the appeal to reverse the finding of the trial court. Trial court has given the reasoning in coming to the conclusion for granting the relief of permanent injunction and also for mandatory injunction and hence the appeal fails.
13. Counsel appearing for the appellant during the course of arguments gives an offer that the plaintiff can make use of the staircase which he has constructed and also he is ready to give half portion of the constructed building to the plaintiff and the plaintiff is not coming forward to accept the same. Instead of ordering demolition, the same could be made use of by both the parties. Counsel for the respondent would submit that he would put the same to his client. Having considered these developments, an option is given to both parties to work out the settlement among themselves.
14. In view of the discussion made above, I pass the following order : -
Appeal is dismissed.
The offer of settlement given by the defendant to the plaintiff is left to the parties to consider the same.
Sd/- JUDGE ckl