IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE H.P.SANDESH REGULAR FIRST APPEAL NO.394 OF 2012 (DEC/INJ) BETWEEN:
SRI SUBBA RAO, SON OF LATE K.R.NAGENDRA RAO, AGED 81 YEARS, NO.1312, 6TH CROSS, 11TH MAIN ROAD, HAL III STAGE, BENGALURU-560 008.
(BY SRI IAN LEWIS, ADVOCATE) AND:
1. SRI. A.CHANDRAPPA, SON OF APPAJAPPA, MAJOR IN AGE, NO.1311, 6TH CROSS, 11TH MAIN ROAD, HAL III STAGE, BENGALURU-560 008.
2. THE COMMISSIONER, BANGALORE CITY CORPORATION, N.R.SQUARE, BENGALURU.
... APPELLANT ... RESPONDENTS (BY SRI.BATHE GOWDA K.V., ADVOCATE FOR R2 R1 - SERVED) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 15.12.2011 PASSED IN O.S.4857/1996 ON THE FILE OF THE XXXIII-ADDL. CITY CIVIL JUDGE, BENGALURU CITY, PARTLY DECREEING THE SUIT FOR THE DECLARATION AND PERMANENT INJUCTION.
THIS RFA IS COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed challenging the judgment and decree passed in OS No.4857/1996 dated 15th day of December, 2011 on the file of XXXIII Additional City Civil and Sessions Judge at Bengaluru City, questioning the decree granted in the said suit.
2. The parties are referred to as per their original rankings before the Court below to avoid confusion and for the convenience of the Court.
3. The plaintiff has filed the suit seeking the relief of declaration, declaring that the construction put up by the first defendant on the schedule property (set back area) as null and void and for mandatory injunction against the second defendant to demolish the unauthorized and illegal construction put up by the second defendant in the set back area for permanent injunction restraining the first defendant, his henchmen, servants or any other persons acting through or under him from putting up any type of construction in the set back area and for other reliefs.
4. It is the case of the case of the plaintiff that he is the absolute owner in possession and enjoyment of the property bearing No.1311 and pursuant to the allotment order, he had put up construction in the said site and from the date of construction he has been in possession and enjoyment of the suit schedule property without any obstruction. It is his case that in the year 1989 he has put up construction by obtaining the sanction plan and the plan was sanctioned in the year 1989. His construction was strictly in accordance with the plan by the Bengaluru Development Authority and he has not violated any of the terms and conditions imposed by the competent authority.
5. The first defendant is the owner of the property adjacent to the property bearing No.1312 and the said property was allotted to the first defendant by the second defendant - BDA. The defendant has also took up construction of building on his site and earlier he had put up construction only on the ground floor. The property of the plaintiff and the defendant is divided by a compound wall. In between the house of the plaintiff and the first defendant there is a set back left by the plaintiff measuring 3.6 ft. x 40 ft. The first defendant had left 4.9 ft set back from the compound wall upto his house property. The set back left by either of the parties was not in dispute at any point of time. Subsequently, the first defendant started putting up construction of the first floor. At that time, the first defendant has not obtained any sanctioned plan. But he got obtained the sanctioned plan only after commencement of the construction. Towards Eastern side of the plaintiff’s property, ie., in the ground floor, the plaintiff has put up two windows towards Eastern side of his property and through the said windows the plaintiff is getting free flow of air and light. The plaintiff has left necessary set back as directed by the competent authorities.
6. When the first defendant started construction of the first floor, he started putting up wall on the compound wall blocking the entire set back and he has extended 3 ft. wall upto roof level on the compound wall in the ground floor extended the same upto 3 ft. x 4.9 ft. The first defendant has also started putting up construction of wall upto 3 ft. height and extending the same upto 4.9 ft. x 3 ft. width. The said construction is in the set back area, which the first defendant is bound to keep vacant. The first defendant is not entitled to put up any construction in the set back area and therefore any construction taken up by the first defendant on the first floor of his premises is against the bye-laws and Corporation Laws.
7. When the plaintiff questioned the act of the first defendant not to put up construction on the set back area, so as to prevent him from using air and light, the first defendant was very adamant and declined to show the plan and refused to stop construction work. Now, the first defendant is taking undue advantage and proceeding and proceeding briskly to complete the construction. The first defendant was allowed to complete the construction as sought to be done by him, the plaintiff would be put to substantial loss and injury. The main contention of the plaintiff is that he is totally deprived of his right to get free flow of air and light as the first defendant’s construction over the set back area and the second defendant did not take any action against the first defendant.
8. In pursuance of the suit summons the first defendant appeared and filed written statement and denied all the averments made in the complaint. But he contended that he has put up construction in accordance with the sanctioned plan. He contended that to his knowledge, the plaintiff has not violated the rules and directions, however, admitted that the plaintiff is the owner of property No.1311. The first defendant has denied the allegations made in the complaint that the first defendant has not left any set back and taken up construction in the set back area. The first defendant also denied that he is getting air and light only through the said windows put up on the Eastern side of the plaintiff’s property. It is contended that the plaintiff has left only about 2½ ft. space including sajja, whereas the defendant has left about 4.9 ft. space on the Western side of his property upto the garage portion. The defendant has not blocked any set back area. The defendant has already put up RCC roof and it was that stage, the plaintiff was making some demand to the plaintiff for some extraneous grounds that he would be paid something or else he would create problem by approaching the authorities. Though, the second defendant was made as party subsequently he has been deleted.
9. Based on the pleadings, the Court below has framed the following issues.
1. Whether the plaintiff proves that the construction put up by the 1st defendant in suit schedule property is unauthorised and illegal?
2. Whether the plaintiff proves that such construction affects his easementary right to light and air?
3. Whether the plaintiff is entitled to a declaratory decree as prayed for?
4. Whether the plaintiff is entitled to a decree of mandatory injunction and permanent injunction as prayed for?
5. To what decree or order?
10. The plaintiff in support of his claim got examined himself as PW1 and got marked Exs.P1 to P17. The first defendant examined his Power of Attorney Holder as DW1 and got marked Exs.D1 to D10. The Court below after considering both the oral and documentary evidence has decreed the suit as claimed in the plaint and further directed the defendant to remove or pull down the construction made on the suit schedule property within three months from the date of judgment, failing which the plaintiff is at liberty to get the said construction demolished for which the defendant will have to pay costs. Being aggrieved by the judgment and decree granting the relief as sought in the plaint, the present appeal is filed.
11. The main contention of the defendant in this appeal is that the Court below has committed an error in coming to the conclusion that the defendant has put up construction in the set back area. It is further contended that the trial Court has failed to appreciate that the alleged construction in the set back area is infact a scooter garage and the staircase has been constructed according to the sanctioned plan issued by the BDA. There was no any deviation from the sanction plan and the trial Court failed to appreciate that the scooter garage and the staircase had been put up much earlier to the first respondent putting up his construction. The trial Court has failed to appreciate that the plaintiff himself has not come to the Court with clean hands and infact he has suppressed the fact that he has put up construction covering his entire site. The trial Court also failed to appreciate that admittedly the construction of the first floor in the appellant’s site is upon the extending ground floor and no other area was taken up for construction of the first floor and there is no any violation of building bye-laws.
12. It is contended that the second respondent has inspected the spot and only when the second respondent was satisfied with the validity and legality of construction, he had put up the construction. The plaintiff has given the complaint in terms of Ex.P9. Acting on the complaint, the second respondent has found that there is no deviation and hence, no action was taken place. The Court below has failed to appreciate that the plaintiff has sought relief of mandatory injunction against the second respondent Bengaluru City Corporation to demolish the unauthorized and illegal construction put up by the first defendant and the trial Court has rejected the plaint against the second respondent as well as no relief could have been granted against the second respondent in the impugned judgment. That the trial Court has instead granted relief of mandatory injunction against the first defendant without such a prayer. Hence, it requires interference of this Court.
13. Learned counsel appearing for the appellant in his argument vehemently contended that the defendant has obtained the sanctioned plan at Ex.D10 and in accordance with Ex.D10, the construction was put up. The Court below has committed an error in taking the stray sentence of DW1 given in the cross examination and the Court below ought to have perused the documentary evidence placed before the Court and the same has not been considered and hence, the trial Court has committed an error in not appreciating both the oral and documentary evidence in right perspective.
14. Learned counsel for the appellant in support of his argument relied upon the judgment in the case of Dr.K.Panduranga Nayak Vs. Jayashree reported in ILR 1989 KAR 3104 and brought to my notice Paragraph No.8 of the judgment that, if any deviation of the sanctioned plan, it is for the appropriate authority to take action if any construction is done against the building bye-laws by exercising power under Section 321 of the Karnataka Municipal Corporation Act, 1976.
15. Though the first respondent – plaintiff was served with the notice, he did not choose to appear before this Court. The counsel appearing for the second respondent contended that the Court below has rightly appreciated the admission given by DW1 and rightly given the direction to demolish the same which was constructed in violation of the building bye-laws. Hence, there are no grounds to set-aside the judgment and decree of the trial Court.
16. Having heard the arguments of the appellant – first defendant’s counsel and also counsel appearing for the second respondent i.e., the second defendant, the points that arise for consideration of this Court are:
i. Whether Court below has committed an error in granting the decree and directing the first defendant to remove the construction made violating the set back and further directing if the defendant fails to remove the same, then opportunity is given to the plaintiff to remove. Whether it requires interference of this Court?
ii. What order?
17. Having considered the contentions raised in the appeal memo and also the arguments canvassed by the appellant’s counsel so also counsel appearing for the second respondent, this Court has to re-appreciate the evidence available on record. Since, this is the First Appellate Court it has power to consider the question of fact and question of law and the powers of this Court is unlimited.
18. In a nutshell, case of the plaintiff is that the first defendant while putting up construction of first floor, violated the plan and put up construction in the set back area which resulted in blocking of free air and light and hence plaintiff has approached the Court by filing the present suit. It is also the contention of the plaintiff that the complaint was given to the second defendant Bengaluru City Corporation, they did not take any action. Hence, the suit was filed. The defendant in the written statement contended that he has not violated any building bye-laws and also not put up any construction in the set back area.
19. The plaintiff in order to substantiate the contention of the first defendant, got marked the documents Ex.P1 to P17 including the photographs. The plaintiff in his affidavit in lieu of chief evidence reiterated the averments in the plaint and he was subjected to cross examination.
20. It is elicited that he cannot say how many windows the Western side the owner is having, but he has said that he has left 6½ ft. on the Western side. There is also a room on the Northern side of the first defendant. Thereafter he has left the set back of 6½ ft. x 34 ft. The staircase to his house is at the place of the room which is in front of the house. Again he says that stair case is outside the room measuring 8 ft. x 3 ft. He had obtained licence for construction of the building. It was suggested that stair case of the defendant is built in the ground floor when the defendant completed his house originally. The set back which is left is open to the sky. The said suggestion was denied.
21. It is suggested that on the room in the ground floor another room is built and witness volunteers that it is beyond the room on the ground floor. On the Eastern side of his property a set back of 3½ ft. is left. Sajja of his house are facing the first defendant’s property. It is suggested that he has not left 3½ ft. set back and the said suggestion was denied.
It is suggested that the defendant has completed construction as per the building plan and that with a view to harass the first defendant he has filed the false suit and the same was denied. It is suggested that he himself has violated the Municipal Rules and Regulations and the same was denied. He admits Ex.P8 Photograph was taken two days prior to the filing of the suit and he has brought the receipt that the said photograph was taken two days prior to the suit.
22. The defendant examined Power of Attorney Holder as DW1 and also got marked documents Exs.D1 to D10. He was subjected to cross examination. He admits in the cross examination that the compound wall to his property and the plaintiff’s property was of the height of 3 ft. from the ground level and the said compound wall was constructed to the full length of the site. He also admits that in his property there is a garage on the North-Western corner. He further admits that in front of that garage there is a staircase leading to his first floor and the said staircase was above his Western wall. The passage which lies in front of the said garage is of the width of 4.9 ft. He also admits that dispute between him and the plaintiff was with regard to construction of the first floor. The Western wall of the said garage is in alignment with the compound wall. The first floor was built on top of the said garage, raising wall on all the four walls of the said garage.
23. He further admits that he constructed the room above the said garage making use of the said four walls. The first floor which is constructed by him is of the same height with the first floor of the plaintiff. No set back is left towards the plaintiff’s property by him while constructing the said property. He further admits that he constructed the first floor without leaving the set back towards the plaintiff’s property, above the garage portion. The windows in the Eastern wall of the plaintiff’s house are existing beyond his garage portion. Ex.P13 was confronted to him. The distance between the Eastern wall in the first floor and the plaintiff’s window in the Eastern wall of the first floor is above 2½ ft. according to him.
24. He was also subjected to further cross examination. It is suggested that there are two windows in the Eastern wall of the plaintiff’s house and those windows face the staircase and the same was denied by him. It is suggested that he has raised wall on all the four sides on the roof of his garage and the same was denied. He was confronted with Ex.P15-Photograph and he admits that it indicates to him that the construction made by him above garage portion. He also admits that Exs.P16 and 17 also pertains to his building. He further admits that his property does not extend beyond the said garage and the wall built on the said garage. It is suggested that in the Eastern wall of the plaintiff, there are windows facing his property and the same was denied. He admits that he has raised a wall of width of 3 ft. above the compound wall between his property and the plaintiff’s property but he has done the same as per the approved plan.
25. It is suggested that the Corporation has not granted permission for putting up such a wall of 3 ft. width above the compound wall but the same was denied. It is suggested that on account of the first floor construction made by him, there is an obstruction for fresh flow of air and light to the plaintiff’s house and the same was denied.
26. Having considered both the oral and documentary evidence and also the judgment relied upon by the plaintiff’s counsel, there is no dispute with regard to the principle of law laid down in the judgment that there is any violation of the sanctioned plan, the competent Authority has to take action against the person who violates the building bye-laws.
27. Now the question is as to whether Court below has committed an error in granting the decree by not considering the oral and documentary evidence. The Court below in detailed discussion had considered the grounds urged by both the plaintiff and also the defendant. The Court below extracted the admission elicited from the mouth of the plaintiff who has been examined as PW1 and also answer elicited from the mouth of DW1. It is emerged that the dispute was started when the defendant started putting up construction of the first floor. The crux of the matter is that whether the defendant started putting up construction in violation of the building bye-laws and started encroachment of the set back area or whether the construction of the defendant is extended to the set back area. The Court below while appreciating both his and defendant’s evidence, in Paragraph No.18 of the judgment extracted the admission given by DW1. DW1 in the cross examination categorically admits that “no set back is left towards the plaintiff’s property by him while constructing the said property”.
28. The contention of the counsel that it is only a stray sentence that the Court below ought not to have given much importance to that stray sentence. The DW.1 in his further cross examination also admits that he has constructed the first floor without leaving set back to the plaintiff’s property above the garage portion. He further admits “he has raised the wall of the width of 3 ft. above the compound wall between his property and the plaintiff’s property, but he says that it was done as per the approved plan”. He also admits that “he did not obtain any certificate from the Corporation to the effect that the said first floor construction was done by him and the construction of 3 ft. width wall above the compound is in accordance with the Corporation bye- laws and the sanctioned plan”.
29. It is further observed by the trial Court that Ex.P10 which is the sanctioned plan shows that no construction of the property taken up on the Northern, Western and Eastern side of the property belonging to the first defendant. The Court below also taken note of Ex.P8 and also Ex.P12 to 17 the photographs which are marked at the instance of the defendant when the cross examination was done by confronting those documents and the defendant did not deny those photographs and same are got marked.
30. Having considered the categorical admission given by DW1 that he has not given any set back towards the property of the plaintiff and it is also the case of the plaintiff that he has put up two windows towards Eastern side of the defendant’s property and due to the construction made by the defendant, it blocks free flow of air and light to the plaintiff’s property. The admission clearly discloses that it is nothing but blocking of air and light to the plaintiff’s property and taking up construction of the first floor in violation of the building bye-laws and not left any set back towards the property of the plaintiff and construction was extended up to the roof level of the compound wall in the ground floor.
31. Hence, I do not find any reason to interfere with the order of the trial Court to come to the other conclusion and the material discloses that the construction was done in violating the building bye-laws and he has not left any set back towards the property of the plaintiff. This Court can interfere with the findings of the trial Court only if the trial Court did not consider the oral and documentary evidence in proper perspective. Having considered both oral and documentary evidence and particular admissions of the DW.1, the Court below did not commit any error in appreciating the same and while reversing the finding of the trial Court the Appellant Court should find non- consideration of material and then only can reverse the same. Otherwise, the Appellate Court should be very slow in reversing the same. Hence, I do not find any merit in this appeal. Therefore, I proceed to pass the following:
ORDER The appeal is dismissed.
Sd/- JUDGE GH