Dismissed

Mr a Soloman v. Mr Ronald Ramamurthy

Karnataka HC9 Feb 2022RSA/2183/2012

Case brief

AI extract

What is this about?

Two regular second appeals were dismissed against the regular appeal and decree of the First Appellate Court in an old applicant suit between A.Solomon vs Ronald Ramamurthy. First Appellate Court held that the construction in the suit was in compliance with the modified sanctioned plan after regularization by the 2nd respondent-Mysore City Corporation. Therefore, no infirmity was found in the reas

What did the court decide?

The first appellate court dismissed the suit, the appeal filed by the appellant, and the regular second appeals were dismissed against the common judgment and order.

Mr a Soloman Vs Mr Ronald Ramamurthy — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9TH DAY OF FEBRUARY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S.KAMAL

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R.S.A No.2183 OF 2012 C/W

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R.S.A.No.2184 OF 2012

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IN R.S.A NO.2183 OF 2012

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BETWEEN:

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MR. A. SOLOMON S/O A. ANTHONY AGED ABOUT 70 YEARS R/AT 4554, VI CROSS ST. MARY'S ROAD N.R. MOHALLA MYSORE - 570 007.

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… APPELLANT (BY SRI. DATTA PRASAD, ADVOCATE SRI. MANMOHAN P.N. FOR ADVOCATE)

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AND:

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MR. RONALD RAMAMURTHY S/O LATE DR. RAMAMURTHY AGED ABOUT 61 YEARS R/AT NO.4553/1, VI CROSS, ST. MARY'S ROAD N.R. MOHALLA MYSORE - 570 007.

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THE MYSORE CITY CORPORATION NEW SAYYAJI RAO ROAD MYSORE - 570 007. REPRESENTED BY ITS COMMISSIONER.

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… RESPONDENTS

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(BY SRI. G.BALAKRISHNA SHASTRY, ADVOCATE FOR R1; SRI. MOHAN BHAT, ADVOCATE FOR R2)

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THE REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 13.07.2012 PASSED IN R.A. NO. 185/2003 ON THE FILE OF THE JUDGE, COURT OF SMALL CAUSES, MYSORE, ALLOWINGTHE THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED:22.03.2003 PASSED IN O.S.NO.1021/97 ON THE FILE OF III ADDITIONAL I-CIVIL JUDGE (JR-DN), MYSORE.

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IN R.S.A NO.2184 OF 2012

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BETWEEN:

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MR. A. SOLOMON S/O A. ANTHONY AGED ABOUT 70 YEARS R/AT 4554, VI CROSS ST. MARY'S ROAD N.R. MOHALLA MYSORE - 570 007.

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… APPELLANT

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(BY SRI. DATTA PRASAD, ADVOCATE SRI. MANMOHAN P.N. FOR ADVOCATE)

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AND:

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MR. RONALD RAMAMURTHY S/O LATE DR. RAMAMURTHY AGED ABOUT 61 YEARS R/AT NO.4553/1, VI CROSS, ST. MARY'S ROAD N.R. MOHALLA MYSORE - 570 007.

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THE MYSORE CITY CORPORATION NEW SAYYAJI RAO ROAD MYSORE - 570 001. REPRESENTED BY ITS COMMISSIONER.

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… RESPONDENTS

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(BY SRI. G.BALAKRISHNA SHASTRY, ADVOCATE FOR R1; SRI. MOHAN BHAT, ADVOCATE FOR R2)

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THE REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 13.07.2012 PASSED IN R.A. NO. 158/2003 ON THE FILE

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OF THE JUDGE, COURT OF SMALL CAUSES, MYSORE, ALLOWINGTHE THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED:22.03.2003 PASSED IN O.S.NO.1021/97 ON THE FILE OF III ADDITIONAL I-CIVIL JUDGE (JR-DN), MYSORE.

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THESE APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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ORDER

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R.S.A.No.2183/2012 and R.S.A.No.2184/2012 are filed by the appellant/plaintiff aggrieved by the common judgment and order passed in R.A.No.185/2003 and R.A.No.198/2003 respectively, on the file of the Principal Judge, Small Causes and Senior Civil Judge, Mysore (hereinafter referred to as the First Appellate Court') in and by which, the first appellate court dismissed the suit filed by the appellant/plaintiff in O.S.No.1021/1997 on the file III Additional -I Civil Judge, Mysore (hereinafter referred to as the 'Trial Court').

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Parties are referred by their ranking in the Trial Court.

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The above suit in O.S.No.1021/1997 is filed by the plaintiff seeking declaration and consequential relief of permanent injunction restraining the 2nd defendant from

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granting approval and for a mandatory injunction directing the 1st defendant to demolish the unauthorised construction.

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It is the case of the plaintiff that he is the owner of the property bearing Door No.4554 measuring 50 feet x 70 feet. That there was a residential house of the plaintiff existed on the said property. That in the year 1997, plaintiff obtained licence from the 2nd defendant to change the roof of the said house. That upon the advice of the Engineer, plaintiff had applied for modified licence and intended to demolish the northern wall of the said house and put up a new construction with a distance of 4.3 feet away from the northern compound wall of the plaintiff. At that time, the 1st defendant had filed a suit in O.S.No.590/1997 and had obtained an interim order of injunction against the plaintiff. The 2nd defendant had issued modified plan and licence directing the plaintiff to put up construction leaving set back of 5.3' feet from the northern compound wall of the plaintiff. Accordingly, the plaintiff had filed a memo in the aforesaid suit in O.S.No.590/1997 undertaking to leave the set back of 5.3 feet and pursuant to the said memo, the interim order of

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injunction was modified. Subsequently, the plaintiff learnt that the defendant under the guise of re-roofing his residential building, had removed the roof of his ground floor premises and without sanctioned plan, unauthorisedly had put up first floor premises. The defendant had erected huge door and two large windows facing the proposed construction of the plaintiff disturbing his right to privacy. That the said doors and widows are at a distance of 2 1/2 feet from the northern compound of the plaintiff. That fixing of the said doors and windows are in violation of the building rules and regulation. Construction of a balcony within the setback area amounts to unauthorised construction. Installation of metal staircase, shaded projection in the setback area, has encroached upon the territory of the plaintiff to the extent preventing the plaintiff from rising his northern compound wall. The situation of doors and windows has threatened privacy of the plaintiff. Hence, sought for the aforesaid relief.

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In response to the summons issued, the 1st and 2nd defendant appeared and 1st defendant filed written statement. 1st defendant, in his written

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statement, denied the case of the plaintiff and contended that the construction put up by the 1st defendant on his property is within the permissible limit of deviation which is not in excess of 25% of F.A.R. The issuance of provisional order and confirmation by the 2nd defendant was at the instance of the plaintiff which constrained the 1st defendant to institute a suit in O.S.No.693/1996 and had obtained order of status-quo. That since the plaintiff intended to put up construction on the setback area in violation of the building bye-laws, touching the property of the 1st defendant and intended to open the door towards the construction of the 1st defendant, he was constrained to file suit in O.S.No.590/1997 and had obtained an order of interim injunction. That the 1st defendant has put up the doors and windows in his own building leaving necessary setback. In fact, it is the plaintiff who had violated the building bye-laws while rising his building wall. The balcony put up by the 1st defendant is as per the sanctioned plan. The erection of the staircase and the shaded projection was with the permission the 2nd defendant. There is no violation of right of privacy of the plaintiff. The 1st defendant has completed the building

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and a report in this regard has been submitted to the 2nd

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defendant who have accepted the same. The first floor construction has been assessed by the City Corporation and as such, it is in compliance of the building bye-laws. Hence, sought for dismissal of the suit. Based on the aforesaid pleadings, the trial court framed the following issues and recorded the evidence:

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1. Whether the plaintiff proves that the 1st defendant has constructed the 1st floor portion unauthorisedly?

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2. Whether the plaintiff proves that the 1st defendant encroached upon the territory of the plaintiff to the extent of plaintiff from raising his northern compound?

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3. Whether the plaintiff is entitled for the relief claimed?

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4. What order or decree the parties are entitled to?

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Plaintiff examined himself as P.W.1 and

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exhibited 13 documents as Exs.P1 to P13. Defendant examined himself as D.W.1 and exhibited 16 documents as Exs.D1 to D16.

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On appreciation of evidence, the trial Court, by

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its Judgment and Decree dated 22.03.2003, partly decreed the suit holding that installation of door on the southern wall of the first floor building of the 1st

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defendant facing towards the construction of the plaintiff, balcony in the first floor facing East as unauthorized construction. However, the reliefs of perpetual injunction and mandatory injunction as sought for by the plaintiff were declined.

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Aggrieved by the aforesaid Judgment and Decree to the extent of declining reliefs of permanent and mandatory injunction, the plaintiff filed Regular Appeal in R.A.No.185/2003 before the First Appellate Court while aggrieved by the declaration to the extent of holding installation of door on the southern wall of the first floor building, balcony in the first floor, which had projection in the first floor, as unauthorised construction, the 1st defendant filed a Regular Appeal in R.A.No.158/2003.

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The First Appellate Court clubbed the aforesaid R.A.No.158/2003 and 185/2003 for common disposal and by its common Judgment and Order dated 13.07.2012, allowed R.A.No.158/2003 filed by the 1st defendant and setting aside the decree passed in O.S.No.1021/1997. Consequently, dismissed the suit of the plaintiff and also dismissed the appeal of the plaintiff in R.A.No.185/2003.

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Aggrieved by the dismissal of regular appeal, the Plaintiff has filed the R.S.A.No.2183/2012 against R.A.No.185/2003 and RSA No.2184/2012 against R.A.No.158/2003.

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Sri. Datta Prasad, learned counsel for Sri. P.N.Manmohan for the appellant/plaintiff reiterating the grounds urged in the aforesaid appeals contended;

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(a) That the modification of the sanctioned plan issued by the 2nd defendant -Mysore City Corporation was subsequent to completion of construction by the 1st defendant and as there is no provision under the Karnataka Municipal Corporation Act, 1976 for such modification, there is no question of regularization of construction by levy of Kandayam and therefore, the judgment and decree passed by the First Appellate Court is illegal.

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(b) That the order passed by the lower appellate court on the assumption of 2nd defendant having the power to condone compound deviation is erroneous as there is no such power contemplated under the law.

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mandatory injunction despite having arrived at a conclusion that the construction by the 1st defendant is illegal, is perverse and has resulted in miscarriage of justice.

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(d) That the case of the appellant/plaintiff, shaded projection having encroached upon the property by the appellant preventing him from raising northern compound and effecting his privacy not having been considered, has resulted in miscarriage of justice.

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Thus, he submits the substantial question of law is involved in the matter requiring consideration.

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Per contra Sri. G. Balakrishna Shastry, learned counsel for the first respondent drawing attention of this court to paragraphs 36 and 37 of the judgment of First Appellate Court pointed out;

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(a) That the construction carried on by 1st defendant herein was in accordance with the modified sanctioned plan and a completion certificate has been issued by the competent authority. Genuineness of which has not been disputed.

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(b) That the modified sanctioned plan has been issued to the 1st defendant to put up

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staircase on the southern side of the set back area of his property abutting property of the plaintiff. 1st defendant has also been permitted to put up balcony in the landing portion of the staircase.

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(c) That the completion report has been submitted by the 1st defendant to the 2nd defendant- Mysore City corporation and same has been accepted. Hence, there is a regularization of the construction by the Mysore City Corporation.

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Therefore, no substantial question of law would arise for consideration in the matter.

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Sri. Mohan Bhat, learned counsel for the 2nd defendant - Mysore city corporation justifying the order passed by the first appellate court submits that:

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It is within the competence of the Mysore City corporation under the Karnataka Municipal Corporation Act, 1976 to assess the extent of deviation in construction and if it is found, the same to be within the permissible limit, it is within the competence of the second respondent to compound/regularize such deviation which has been done in the present case. Therefore, the plaintiff cannot have any grievance on the same.

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Heard learned counsel for the parties. Perused the records.

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It is the case of the appellant/plaintiff that the 1st defendant has constructed and installed door and two windows on the southern wall of his first floor of premises facing the proposed construction by the appellant/plaintiff. The balcony of the first floor, the shade projection of the first floor and porch of the first floor facing east and entire first floor is unauthorized construction, devoid of sanction plan and that the same threatened his privacy. Hence, sought for declaration, injunction and mandatory injunction.

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The trial Court had partly decreed the suit declaring installation of door and windows on southern wall of the first floor building by the first defendant facing towards construction of the plaintiff balcony in the first floor, shade projection of the first floor, porch of the first floor facing east to be unauthorized construction. However, taking into consideration of statutory powers vested with second defendant with regard to regulating the process of construction including its power to demolish

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any unauthorized construction declined to grant injunction

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and mandatory injunction as sought for by the plaintiff.

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The Trial Court has also taken note of the fact that the plaintiff has failed to prove the actual injury and how the installation of the door and windows would affect his privacy as the plaitniff himself has not constructed his residential house. The trial Court at Paragraphs 33 to 43 of its Judgment has elaborately dealt with factual and legal aspect of the matter.

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The first appellate court while dismissing the appeals further taking into consideration of the fact that the 2nd respondent-Mysore City Corporation had issued modified sanctioned plan in favour of the first defendant and had also regularized all deviations as noted in paragraphs 36 and 37 set aside the judgment and decree of the trial Court. In view of plaintiff failure to prove and establish invasion to his right to privacy by the construction carried on by the 1st defendant, and inview of 2nd defendant statutory authority having regularized the permissible deviation in the process of construction by the 1st defendant, no infirmity or illegality can be found in

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the reasoning of the Trial Court and the First Appellate Court.

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In the circumstances, no substantial question of

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law would arise for consideration in the matter. Hence, the aforesaid appeals in R.S.A.No.2183/2012 and 2184/2012 are dismissed.

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Sd/JUDGE

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bnv/RU*

Mr a Soloman v. Mr Ronald Ramamurthy

Case brief

What is this about?

What did the court decide?

Mr a Soloman v. Mr Ronald Ramamurthy

Case brief

What is this about?

What did the court decide?

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