Dismissed

Sri Anantha Padmanabha v. Sri a Murugesha

Karnataka HC3 Aug 2023RFA/1158/2017

Case brief

AI extract

What is this about?

This regular first appeal challenged a trial court judgment dismissing a suit for injunction regarding alleged illegal construction blocking light and air. The High Court upheld the dismissal, finding that since the plaintiff only sought a bare injunction without proposing demolition or declaring easementry rights, the effective remedy lay with the BBMP, not the civil court under Section 41(h) of

What did the court decide?

The appeal is dismissed; the appellant is at liberty to approach the BBMP.

Sri Anantha Padmanabha Vs Sri a Murugesha — Partition | Karnataka HC (2023)

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NC: 2023:KHC:27210 RFA No. 1158 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE K.NATARAJAN REGULAR FIRST APPEAL NO. 1158 OF 2017

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Between:

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Sri Anantha Padmanabha Aged about 67 years, S/o. Sri N.Krishnamurthy, R/at No.6/1, 2^nd Cross, Kumara Park West, Bengaluru-560020

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…Appellant

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(By Sri C.Prakash, Advocate)

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And:

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Digitally signed by SRIDEVI S Location: HIGH COURT OF KARNATAKA

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Sri A.Murugesha Since dead, Represented by his Legal Representatives,

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Sri M.Ramalingam, Aged about 54 years,

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Sri M.Gopinath Aged about 51 years, Both sons of Late A.Murugesha, R/at No.11, Srikantan Layout, Crescent Road, High Grounds, Bengaluru-560001 …Respondents (By Smt. Jyothi Kempegowder, Advocate for Sri M.Vinaya Keerthy, Advocate for R1 & R2)

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2 - NC: 2023:KHC:27210 RFA No. 1158 of 2017

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The RFA filed under Order 41 Rule 1 r/w section 96 of CPC., against the judgment and decree dated 18.03.2017 passed in O.S.No.25409/2013 on the file of the XXVIII Additional City Civil and Sessions Judge, Mayohall Unit (CCH29), Bengaluru City and etc.

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This RFA, coming on for final hearing , this day, the court delivered the following:

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JUDGMENT

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This appeal is filed by the appellant for setting aside

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the judgment and decree passed by the trial court in O.S.No.25409/2013 dated 18.3.2017 for having dismissed the suit filed by the plaintiff.

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Heard the arguments of the learned counsel for the appellant and the learned counsel for the respondent. The rank of the parties before the trial court is retained for the sake of convenience.

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The case of the plaintiff before the trial court is that his father purchased an immovable property bearing No.7, 1^st Main Road, Srikantan Layout, Sampangiramanagar, Bangalore, measuring East to West on the Northern side 75 ft. On the Southern side 77 ft. and

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North to South 34 ft, in all measuring 2584 sq. ft. under a registered sale deed dated 06.05.1965 (hereinafter referred to as ‘suit schedule property’). The khata is also registered in the name of his father and the taxes are also paid upto date. The further case of the plaintiff is that after the death of his father N. Krishna Murthy, the mother

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of the plaintiff and the legal representatives became owners of the suit schedule property. The plaintiff is the elder son of the said N. Krishna Murthy, who is managing the suit schedule property. The defendant is the adjacent owner of the suit schedule property on the Southern side and has put up construction by blocking the air and light to the suit schedule property without following the prescribed rules and regulations of the Karnataka Municipal Act and further contended that the defendant has already started the construction by blocking the air and light towards the plaintiff’s portion of the property. The further case of the plaintiff is that the plaintiff approached the defendant and requested him to stop the illegal construction by violating the building bye-laws of

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the Karnataka Municipal Act, but the defendant went on constructing the building by violating the rules and deviating the sanctioned plan. The plaintiff also approached the Bruhath Bangalore Mahanagara Palike (‘BBMP’ for short) and the BBMP also has not taken any action and hence the plaintiff has filed the suit for injunction restraining the defendant from not putting up any further construction by blocking the air and light. In pursuance of the notice, the defendant appeared through his counsel and filed the written statement by denying all the averments made in the plaint as false and contended that the remedy claimed by the plaintiff lies elsewhere and not by filing the suit. As such the suit is not maintainable and is liable to be dismissed as per section 41(h) of the Specific Relief Act and also contended that the defendant has already constructed the building by obtaining the sanction plan way back in the year 1958-1959 and now the plaintiff is making false allegation against the defendant and also contended that the Northern side of his property was not fully constructed nor occupied by any

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person. As such the stand taken by the plaintiff does not arise. He also contended that the statement made by the plaintiff amounts to defamation against the defendant. By denying all the averments, he prays for dismissing the suit.

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Based on the rival pleadings the trial court framed

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five issues as under:

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i. Whether the plaintiff proves that he is the owner and is in possession and enjoyment of the suit schedule property?

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ii. Whether the plaintiff proves that the defendant is putting up construction so as to block the light and air to the plaint schedule property?

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iii. Whether the defendant proves that the suit of the plaintiff is bad in view of section 41(h) of the Specific Relief Act?

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iv. Whether the plaintiff is entitled to the relief as sought?

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v. What decree or order?

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In order to prove the case of the plaintiff, the plaintiff examined himself as PW.1 and got marked 15 documents. The defendant neither cross-examined PW.1 nor led any defence evidence and after hearing the arguments, the trial court gave the findings by answering issues no.1 to 3 in the affirmative, issue no.4 in the negative and ultimately dismissed the suit by impugned judgment dated 18.3.2017, which is under challenge.

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Learned counsel for the appellant has contended that the judgment of the trial court is not correct and illegal since the defendant has not at all chosen to crossexamine PW.1 nor lead any evidence on his behalf or relied on any documents, especially Ex.P.14 and P.15, where the Corporation authorities has issued the information that the defendant has not at all obtained any licence for constructing the building. The same is not properly considered by the trial court and in spite of not contesting the matter, the trial court dismissed the suit, which is not correct. The plaintiff though not constructed the building

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on his premises, but his right should be protected by filing the suit and preventing the defendant from putting construction by violating the building bye-laws and even without production of any building licence as claimed by him in para 10 of the written statement. Therefore he prays for allowing the appeal and also alternatively if this court feels it right can remit the case back to the trial court for fresh consideration.

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Per Contra, learned counsel for the respondent has supported the judgment of the trial court and contended that the building was constructed way back in the year 1958-59 and in the year 1974, the second and third floors have been constructed. The plaintiff has not at all constructed any building in order to show the light and air was obstructed by the defendant. The site is still vacant. The suit is not filed for declaration to declare the easementary right to the plaintiff. This being the case, the efficacious remedy is available before the corporation authorities by filing complaint and they have to take

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action, and not the plaintiff by filing a suit for bare

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injunction. Hence he prayed for dismissing the appeal.

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Having heard the arguments and perusing the records, in respect of issue no.1 and 2, which was answered in favour of the plaintiff and the same is not challenged by the defendant by filing the appeal. Such being the case, issue no.3 and 4 is required to be answered by this court. In view of the same, the points that arise for my consideration are 1) Whether the plaintiff is entitled for the relief claimed in the plaint for restraining the defendant from putting up any further construction by violation of the building bye-law? 2) Whether the plaintiff is entitled for any relief sought in the plaint and 3) Whether judgment and decree call for interference by this court?

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Having heard the arguments of both sides, the plaintiff being the owner of the suit schedule property which was purchased by his father is not in dispute, which is evident from the documents along with his evidence in

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the trial court. Ex.P.14 and P.15 are the crucial documents obtained under the RTI produced by the plaintiff to show whether the respondent obtained any building licence for construction of the building on the Southern side of the suit schedule premises and Ex.P.15 is the information given by the BBMP which clearly reveals that there is no such building plan or licence obtained for the purpose of construction by the defendant. The photographs at Ex.P.4 to P.7 is produced by the plaintiff, which reveals the respondent was putting up construction as on 28.3.2013 as per the date available on the photograph. Therefore the plaintiff is able to show that the building was not constructed in the year 1958-59 as stated by the defendant in para 10 of the written statement. On the other hand, the defendant in order to contradict the evidence of the plaintiff by cross-examining PW.1 in the court and also disputed the photographs produced at Ex.P.4 to P.7. On the other hand, the defendant totally failed to lead any evidence in his behalf, except stating that the building was constructed in the year 1958-59.

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The defendant utterly failed to prove the building was constructed in the year 1958-59. However the trial court had held in the finding that the plaintiff has not filed any suit for declaration to declare his easementary right over the suit schedule property and it is only to restrain the defendant from putting up construction. The plaintiff though has stated that he has filed a complaint to the BBMP and that BBMP has not taken any action, no such document is produced before the court and ultimately the plaintiff’s suit was only for bare injunction and not for declaration of his easementary right. Such being the case, the question of declaration for easementary right by the trial court, the question of granting the consequential reliefs or demolition of the construction put up by the defendant does not arise.

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Of course, it is the duty of the BBMP to issue notice to the respondent / defendant for taking action for violating the building bye-law and also putting up construction without any licence or plan. The trial court has rightly held that the efficacy remedy is before the

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BBMP and not before the civil court under section 41(h) of the Specific Relief Act. I am of the view that plaintiff is not entitled for the relief as prayed for by him. Therefore the judgment of the trial court calls for no interference for having dismissed the suit.

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Though the learned counsel for the appellant submits that liberty be granted to approach the BBMP in this regard if he is having any right available before any authority, he is at liberty to approach the said authority in accordance with law.

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In view of the same, appeal stands dismissed.

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Records be sent to the trial court along with the copy

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of this judgment.

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Sd/JUDGE

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sd List No.: 1 Sl No.: 48

Sri Anantha Padmanabha v. Sri a Murugesha

Case brief

What is this about?

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Sri Anantha Padmanabha v. Sri a Murugesha

Case brief

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