1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 18 TH DAY OF JANUARY 2014 BEFORE THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI R.F.A.No.1767 OF 2012 (INJ) BETWEEN: Smt.Sarvamangala L.M., D/o late L.Mahadevaiah, Aged about 48 years, R/o Flat No.118, Janahavi Clusters, 6 th Main, P & T Colony, Sanjayanagar, Bangalore 560 094. Appellant AND: (By Sri Shanmukhappa and Smt.Shamala, Advocates for Kesvy and Co.,) 1. Dr.Vidya Desai Mohan, W/o Sri Gopal Ranjit Mohan, Aged about 55 years, No.631, 5 th Main, II Stage, Indiranagar, Bangalore 560 038. 2. The Commissioner, Bruhat Bangalore Mahanagara Palike, N.R.Square, Bangalore 560 002.
2 3. Sri P.Vijaya Kumar, S/o P.Ramaswamy Raju, Aged about 43 years, R/o No.77/B, 6 th Main, Between 17 th and 18 th Cross, Malleswaram, Bangalore -55. 4. Smt.Y.Manjula, W/o P.Vijaya Kumar, Aged about 38 years, R/o No.77/B, 6 th Main, Between 17 th and 18 th Cross, Malleswaram, Bangalore -55. Respondents (By Sri M.K.Shivaraj, Advocate for Sri V.Vishwanatha, Advocate for R-2, Sri B.C.Chethan, Advocate for R-3 and R-4, R-1 - served) This RFA is filed under Section 96 of CPC, against the judgment and decree dated 12.7.2012 passed in O.S.No.16742/2004 on the file of the XIII Additional City Civil Judge, Mayo Hall Unit, Bangalore, dismissing the suit for permanent injunction. This RFA coming on for hearing this day, the Court delivered the following: J U D G M E N T This appeal is directed against the judgment and decree, dated 12.07.2012 passed by the Court of the XIII Additional City Civil Judge, Mayohall, Bangalore in O.S.No.16742/2004.
3 2. The facts of the case in brief are that the appellant plaintiff is the owner of Flat No.F-2 on the second floor of Janhavi Clusters Apartment erected on site No.118 of Sanjay Nagar, Bangalore. She has purchased it by a registered sale deed, dated 29.11.1997. On the eastern side of the plaintiff s apartment lies site No.117. The building on the adjoining site No.117 was erected without leaving proper setback, which was also obstructing the free flow of air and light to the appellant s flat. She filed a complaint against the defendant No.1 before the Commissioner, Bruhat Bangalore Mahanagara Palike ( B.B.M.P. for short) (defendant No.2). She also filed a complaint with the police. The defendant No.2 demolished the structure standing in deviation of the sanctioned plan but the defendant No.1 re-erected the same. The appellant plaintiff therefore filed the suit seeking the relief of permanent injunction against the defendant No.1. She also sought the mandatory injunction to the defendant No.2 to demolish the deviated portions of the building.
4 3. The defendant No.1 filed the written statement averring that he is neither the owner nor the purchaser of the suit schedule property. She denied the existence of any cause of action as against her. 4. On knowing that the defendant Nos.3 and 4 (the respondent Nos.3 and 4 herein) have become the subsequent owners of the suit schedule property, the plaintiff got them impleaded. The defendant Nos. 3 and 4 filed the written statement denying that they put up any building in violation of the Karnataka Municipal Corporations Act, 1976. They submitted that they purchased the suit schedule property at Sy.No.117 from the defendant No.1 on 22.03.2004 by a registered sale deed. They became the owners of the suit schedule property even before the appellant plaintiff filed the suit. They contended that they have constructed the building as per the modified plan issued by the second defendant B.B.M.P. They contended, inter alia, that they have left the setback area of 217.28 square meters, although they were required to leave 177 square meters as per the
5 plan. The permitted F.A.R. is 1.25, whereas the F.A.R. utilized is less than 1.20. They stated that they have neither made any encroachment nor violated any law. They denied that they have done anything affecting the appellant plaintiff s easementary rights. 5. Based on the rival pleadings, the Trial Court formulated the following issues and additional issues: 1) Whether the plaintiff proves that, she enjoys getting free flow of air and light to the property, as alleged? 2) Whether suit against D2 is not maintainable in view of D2 being a statutory authority exercising its power in accordance with law? 3) Whether plaintiff proves alleged obstructions from defendant? 4) Whether plaintiff is entitled to the relief claimed? 5) What decree or order?
6 Addl. Issues: 1) Whether the relief claimed by the plaintiff is barred by limitation, as contended by the defendant Nos. 3 and 4? 2) Whether there is a cause of action for the suit? 6. The appellant got herself examined as PW1 marking the documents as Exs.P1 to P521. The defendant Nos.3 and 4 did not enter the witness box. The Trial Court answered the contentious issues against the appellant and dismissed the suit. 7. Sri Shanmukhappa, the learned counsel for the appellant submits that the respondent defendant Nos.3 and 4 have not entered the witness box. The second respondent defendant B.B.M.P. has also not produced any document, has not filed the written statement and has not adduced any evidence on the ground that the concerned file is misplaced. In this context, he brings to my notice the letter, dated 05.10.2010 issued by the B.B.M.P. (Ex.P1). The first paragraph of the said letter reads as follows:
7 It is found that the file of Mrs.Vidhya Desai Mohan, No.118, 6 th Main Road, P & T Colony, Sanjay Nagar, Bangalore 560 094, has not been handed over to us from the previous AE Mattikere Sub Division. 8. Sri M.K.Shivaraj, the learned counsel for the respondent No.2 (defendant No.2) submits that the building on site No.117 erected in violation of the building plan is already demolished on 04.09.2004. 9. Sri B.C.Chethan, the learned counsel for the respondent Nos.3 and 4 submits that after 04.09.2004, the existing building is strictly in conformity with the sanctioned building plan. 10. Ms.Shamala, the learned counsel appearing for the appellant quickly joins issue with the learned counsel for the respondents and submits that after 04.09.2004, the defendant Nos.3 and 4 have re-built the portions again in violation of the sanctioned building plan.
8 11. The submissions of the learned counsel have received my thoughtful consideration. I have browsed through the L.C.Rs. 12. I find that the very framing of the issues by the Trial Court is unsound. The first and foremost issue ought to have been whether the plaintiff proves that the construction put up by the defendant Nos.1, 3 and 4 is in violation of the sanctioned building plan. If the building is erected in violation of the sanctioned plan, then also the plaintiff has to show that the same is obstructing the free flow of light and air. The question that is required to be examined is whether the appellant plaintiff has discharged her burden of showing that the building erected on site No.117 is in violation of the sanctioned building plan and that the violations have resulted in the stoppage of free flow of light and air to the appellant plaintiff s flat. The appellant plaintiff has not produced any clinching evidence in this regard.
9 13. The appellant plaintiff has not produced the sanctioned plan for Janhavi Clusters Apartment, in which her flat is situated. She has not lead the evidence of any independent witness, much less of an expert like a surveyor. She has not made any application for the appointment of the Court Commissioner for holding the spot-inspection and submitting a report thereon. She has not examined the owner, developer or builder of her apartment. She has not even lead the evidence of the occupants of the neighbouring flats in her apartment. Whether the defendant Nos.1, 3 and 4 have committed any deviation in the construction of the building and whether the same is affecting her legal right in some way is not at all shown. 14. Even her deposition is of non-committal nature. The relevant portions of the cross-examination read as follows: My flat has got plan map. I have not produced it. I do not know how much setback is kept at the time of constructing our building..i do not know how much setback is required site No.117. Witness states
10 that as per sanction plan 40% to be kept setback. I do not know how much they have constructed now... 15. Such being the scanty oral and documentary evidence of the appellant plaintiff, her suit cannot be decreed. 16. But then, the conduct and lapses of the defendants also cannot go unnoticed. If the second defendant B.B.M.P. were to file the written statement and produce all the documents, the matter could have been effectually adjudicated. For inexplicable reasons, the second defendant B.B.M.P. did not file the written statement and did not enter the witness box. The letter at Ex.P1 produced by the appellant plaintiff states that the first defendant s file is not handed over to the B.B.M.P. from its previous Assistant Engineer. The non-handing over of the file or the non-retrieval of the file or the misplacement of the file cannot be permitted to lead to a situation where some parties suffer and where some parties are benefited. The B.B.M.P., an instrumentality
11 of the State, is expected to act fairly and responsibly and assist the courts in the adjudication of the civil dispute. 17. At this juncture, the learned counsel for the defendant No.2 offers to file the written statement, if an opportunity is given. 18. The order sheet maintained by the Trial Court reveals that the matter was adjourned several times for the evidence of the defendant Nos.3 and 4. But they have not chosen to enter the witness box. The L.C.R.s reveal that the defendant Nos.3 and 4 have also filed I.A.No.9 seeking leave of the Trial Court to recall the order, dated 7.1.2012 and for the purpose of leading their evidence. The Trial Court dismissed the said I.A., by its order, dated 14.3.2012 and posted the matter for arguments. This order has not been challenged by the defendant Nos.3 and 4. It is not that the defendant Nos.3 and 4 maintained from the beginning that they had no evidence at all. They wanted to lead the evidence, but did not lead the evidence.
12 19. The Trial Court has drawn the inference in favour of the defendant Nos.3 and 4 because the defendant No.2 has not appeared. The Trial Court has observed as follows: Defendant No.2 has not appeared before the court and not disputed the stand taken by defendants-3 and 4 in their written-statement. So, inference would be raised that, only after realizing that, building put up by defendants-3 and 4 is in accordance with the approved plan.subsequently, defendant No.2 has not issued any notice to defendants-3 and 4 complaining that, they are violating the building plan. Presumption is that, it is satisfied by defendant No.2 that, defendants- 3 and 4 have proceeded to construct the building in accordance with the approved plan.. 20. I am afraid such inferences are not tenable. The possibility of the defendant No.2 not filing the version, not producing the documents, not entering the witness box could be bonafide or deliberate or even to acquiesce what the defendant Nos.3 and 4 have done. On the permissibility of the civil court giving the mandamus to the B.B.M.P. to demolish the structures raised in violation of the sanctioned building
13 plan, the issue is no more res integra. It is covered by this Court s decision in the case of FAKIRAPPA v. BASALINGAPPA reported in 2000(4) Kar.L.J. Sh.N.29. It is extracted hereinbelow: KARNATAKA MUNICIPAL CORPORATIONS ACT, 1976, Section 321 Illegal construction Permission given by Corporation in excess of its power or in abuse of its power, to construct building in violation of Building Bye-laws Suit by owner of adjacent property for injunction to restrain further construction and for demolition of construction already made, on ground building, if constructed, would block flow of light and air to his property Suit decreed by Trial Court, reversed by First Appellate Court on ground that party has no locus standi or legal right to question grant of permission by Corporation and that it is matter between Corporation and grantee of permission Approach of First Appellate Court, held, is not correct and is bad in law and its order is liable to be set aside and suit merits to be decreed. 20. On the maintainability of the suit, this Court, in its decision in the case of AMEER BAIG v. STATE OF
14 KARNATAKA AND OTHERS, reported in 2010 (3) Kar.L.J. 404, has this to say: 8. Learned Counsel for the petitioner further submits that the 6 th respondent is proceeding with illegal construction in the very same premises. If that is so, it is open for the petitioner to approach the Civil Court or pursue the matter before the Competent Authorities. Reserving such liberty, this writ petition is disposed of. 22. In the result, (a) for not framing the proper issues (b) for the appellant plaintiff s evidence being sketchy and scanty (c) for the second defendant not filing the written statement and (d) for the defendant Nos.1, 3 and 4 not entering the witness box, the matter requires reconsideration. I therefore pass the following order: (i) The judgment and decree under appeal is set aside. The matter is remanded to the Trial Court for fresh enquiry in accordance with law. (ii) The submission that the defendant No.2 would file the written statement is placed on record. The
15 Trial Court shall consider allowing it after hearing all the parties and on such terms, as it deems fit. (iii) Liberty is reserved to the parties to file the draft issues. (iv) Needless to observe that all the contentions are left open. (v) The Trial Court shall dispose of the remanded matter as expeditiously as possible and in any case within an outer limit of one year from the date of the production of the certified copy of today s judgment. 23. The office is directed to send back the L.C.Rs to the Trial Court forthwith. This appeal is allowed accordingly. No order as to costs. Sd/- JUDGE Cm/-MD