Sri. Nagaraja a Vs Progressive People Trust

PROGRESSIVE PEOPLE TRUST NO.1 HUTTING COLONY 3^RD MAIN DOMALUR LAYOUT BENGALURU - 560071 REP. BY JAMEEL AHMED KHAN S/O LATE MR. ABDUL HAFEEZ KHAN AGED ABOUT 69 YEARS.

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SRI JAMEEL AHMED KHAN S/O LATE MR. ABDUL HAFEEZ KHAN AGED ABOUT 69 YEARS NO.261, 6^TH CROSS 1^ST MAIN, DOMALUR LAYOUT BENGALURU – 560071.

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SRI MOHMED VAZEER S/O FAQRUDDIN AGED ABOUT 68 YEARS NO.744, 1^ST MAIN 3^RD CROSS, DOMALUR LAYOUT BENGALURU – 560071.

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SRI MOHMED KHALEEL S/O LATE MOHMED IQBAL AGED ABOUT 38 YEARS NO.3, 1^ST MAIN ROAD YELLAMMA TEMPLE STREET A K COLONY, DOMALUR LAYOUT BENGALURU – 560071.

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SRI N A HARIS S/O MOHAMED AGED ABOUT 54 YEARS MAGRATH ROAD, 1^ST CROSS BEHIND GARUDA MALL BENGALURU – 560025.

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THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE BENGALURU – 560001.

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EXECUTIVE ENGINEER SHANTHINAGAR DIVISION BRUHAT BANGALORE MAHANAGARA PALIKE BENGALURU – 560001.

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…RESPONDENTS

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(BY SRI. ANIRUDH ANAND, ADV. FOR R1 TO R4 V/O DATED 07.04.2025 NOTICE TO R5 IS D/W SRI B.S. KARTHIKEYAN, ADV. FOR R6 & 7)

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THIS APPEAL IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.09.2023 PASSED ON IA NO. IX IN OS NO.8695/2016 ON THE FILE OF XLII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, ALLOWING THE IA NO. IX FILED U/O VII RULE 11(A) AND (D) OF CPC FOR REJECTION OF PLAINT.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

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ORAL JUDGMENT

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This appeal by the plaintiffs in O.S.No.8695/2016 is

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directed against the impugned order dated 30^th

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September, 2023 passed by the XLII Additional City Civil and Sessions Judge, Bengaluru, whereby the application I.A.No.9 filed by the respondents No.1 to 4 for rejection of plaint was allowed by the trial Court and rejected the plaint, consequently passed the impugned judgment and decree dismissing the suit filed by the appellants/ plaintiffs.

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Heard learned counsel for the appellants and learned

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counsel for respondents No.1 to 4 and perused the

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material on record. For the order proposed, notice to respondent No.5 is dispensed with. I have also heard learned counsel Sri.B.S.Karthikeyan for respondents No.6 and 7/BBMP.

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A perusal of the material on record will indicate that

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the appellants/plaintiffs instituted the aforesaid suit against the respondents/defendants seeking for following reliefs:

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(a) Grant mandatory injunction and direct the Defendant No.6 and 7 to demolish the illegal building which is constructed without sanction plan, in the Schedule-“A” property;

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(b) Restraining the defendants No.1 to 5, their men servants or anybody claiming under or through them from in any manner from putting up construction in the “B” Schedule property, by granting an order of permanent injunction.”

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A perusal of the material on record will indicate that

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the appellants/plaintiffs instituted the aforesaid suit for mandatory injunction, permanent injunction and for other

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reliefs in relation to suit “A” schedule and suit “B” schedule properties. Defendants No.1 to 4/respondents No.1 to 4 as well as respondent No.5/defendant No.5 are private parties while respondents No.6 and 7 are BBMP.

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In addition to filing of written statement, respondents No.1 to 4/defendants No.1 to 4 filed the instant application I.A.No.9 under Order VII Rule 11(a) and (d) of CPC seeking rejection of the plaint. The said application having been opposed by the appellants/plaintiffs, the trial Court proceeded to pass the impugned order, allowing I.A.No.9 and proceeding to reject the plaint and consequently dismissed the suit by passing the impugned judgment and decree, which is assailed in the present appeal.

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A perusal of the impugned order would indicate that

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the trial Court came to the conclusion that the suit filed by the appellant was not maintainable in the absence of relief of declaration and that the appellants/plaintiffs had not explained as to how the construction put up by the respondents No.1 to 4/ defendants No.1 to 4 infringes

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their civil right. In this context, the trial Court failed to consider and appreciate the specific averments made in the plaint which had to be considered for the purpose of an application under Order VII Rule 11 of CPC wherein the appellants/plaintiffs have specifically stated that they are adjoining owners and that their rights are infringed by the alleged illegal and unauthorized construction being put up by respondents No.1 to 4/defendants No.1 to 4. It is therefore clear that the said finding recorded by the trial Court is contrary to the plaint averments and the same deserves to be set aside.

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The trial Court also comes to the conclusion that in the event, the appellants are aggrieved by any illegal construction, their remedy would be to approach the BBMP authorities under the Karnataka Municipal Corporation Act/ BBMP Act and not by way of a separate suit. In this context, the trial Court placed reliance upon Section 41(h) of the Specific Relief Act, which is clearly not applicable in the facts and circumstances of the instant case, having

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regard to the plaint averments, wherein the plaintiffs have not only alleged that the defendants have put up illegal and unauthorized construction, but have also sought for mandatory injunction not only against the defendants No.1 to 4 but also against the defendants No.6 and 7/BBMP by stating as under:

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“ MEMORANDUM OF PLAINT UNDER ORDER VII RULE I OF THE CODE OF CIVIL PROCEDURE, 1908

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The plaintiff above named submits as follows:

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1. The address of the plaintiff for the purpose of issue of notices, summons, processes, etc., from this Hon'ble Court is as stated in the cause title and also that of his advocates Sri. V.S.Hegde and Ravichandra. C.O., Advocates, No.14/3, Maharshi Aravinda Bhavan Annexe, Opp: RBI, 4^th floor, Nrupatunga Road. Bangalore-560001.

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2. The addresses of the defendants for the similar purpose are as stated in the cause title.

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3. Plaintiff No 1 and 2 are permanent resident of Hutting Colony at the address mentioned in the cause title above. They are residing peaceably without any hindrance whatsoever. They have own village culture and belong to their religion. All through there is a communal Harmony in their village irrespective of caste and creed. They jointly

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perform religious functions, temple festivals and other community celebrations without any scope for any disturbance on the basis of race, caste and way of worship. They have common and continuous cultural heritage which is being transmitted from one generation to another generation. The Such being the case, owner of the portion of Property No.1, one Smt. Shanu had sold her property measuring 391 Sq.Ft Which is hereinafter referred to as Schedule "B" property to the persons of Muslim trust called Progressive People Trust which is arraigned as defendant No.1 herein and in turn the trustees of Progressive People Trust Started Using the Said property for the Purpose of Namaz and also using the adjoining building which is constructed without sanction plan. The present unauthorized building is also used by the defendant No.1, which is more fully described hereinafter as Schedule "A" property. Presently the said building is being used as masjid and outside people belonging to Muslims community are also coming and offering their Namaz in the said building No.1 of Hutting Colony, Domulur, thereby causing inconvenience, nuisance and communal tension in the area. Because of their religious activity in the said building. Plaintiffs who are adjoining owners of the house are suffering from the sound pollution, inconvenience and irritations. Some of the members in the neighboring house are suffering from cardiac problem, hypertension and other related ailments which are being

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aggravated by the nuisance caused by Muslim community members who comes from outside also. There is a reading Room next to the suit schedule Properties on the Southern side, and many public people are also coming to the said reading room for study. The public who are coming for reading also unconvinced by the activities of the Defendant No.1. The said building in "A" Schedule property is unauthorized one and no sanction plan was obtained by the owners of the said building to construct masjid. There is a vacant land measuring 391 Sq.ft after demolition of the earlier structure as per schedule "B" to the western side of schedule "A" property. Not only, the construction in the "A" schedule property is illegal but also the activities being conducted in the said premises are also opposed to the bylaws of the Bruhath Bangalore Maha Nagar Palike. It is highly improper on the part of the owners of the said building to have religious activities without there being any permission for the same by the competent authorities. The alleged building is in the midst of residential area as per the scheme of the Bangalore Development Authority. The building and the activities in the said building is opposed to the bylaws of Bangalore Development Authority also. It is also just and necessary to prevent unlawful Namaz in the said building so as to protect plaintiffs, neighbors and villagers from nuisance and health problems. In this regard, the plaintiff have already represented to the Defendant

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No.6 and 7 to take necessary legal action against the Defendant No.1 trust and also sought to remove the illegal construction in the "A" Schedule Property. Plaintiffs also given police complaint in that regard.

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4. That such being the case the plaintiff recently came to know that the Defendant No.1 got the unlawful sanction plan by managing the defendant No 6 and 7 to construct the Dharma Shala in the Schedule "B" property abutting the schedule "A" property with the active connivance of the Defendant No.5, who is the local Member of Assembly and belongs to the same Community. The Defendant No.1 with the support of the Defendant No.5 has obtained the illegal sanction Plan to construct "Darmashala" in the residential locality which is illegal and impermissible, with an intention to facilitate the Members of the Defendant No.1 and other Muslim community people to offer Namaz and to carry out their religious activity in the said proposed construction there by causing nuisance, stoppage of light and air to the property of the Plaintiffs.

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5. That Plaintiffs have already served the notice to the Defendant No 6 and 7 as required under the Karnataka Municipal Corporation Act. However, in view of the pressure and influence of the Defendant No 5, authorities have not taken any

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action to demolish the unauthorised construction in the Schedule "A" Property.

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6. That such being the case, the Defendant No.1 with the active support and assistance of Defendant Nos.2 to 5 started digging the ground in the Schedule "B" property on 15-12-2016 to construct Dharmashala for the purpose of religious activity of the entire Muslim community including offering Namaz in the said Premises. Immediately, the plaintiffs objected for the same on the same day and the defendants No.1 to 4 started abusing the plaintiff and threatened them with dire consequences including threat to their life and limb. Police in order to control the eruption of disturbance came to the spot and instead of stopping the illegal construction at the instance of the Defendant No.5 threatened the plaintiffs and advised them to approach the Civil Court and other authorities for the redressal of their grievances.

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7. That on 15-12-2016 itself the Plaintiffs have filed detailed representations to the Defendant No 6 who is the commissioner of BBMP having control on the Defendant No 7. Both the Defendant No 6 and 7 till date have not taken any action against the Defendants No 1 to 4. Hence, the Defendant No 1 with the active support and aid of defendant No 2 to 5 continuing the earth work in order to construct illegal structure with an intention to carryout religious activity in the said proposed

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construction in the Schedule "B" property to the detriment of Plaintiffs.

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8. That the Plaintiffs have also given representation Dated 20-12-2016 to the Bengaluru Development Authority who have planed and allotted the housing scheme for residential purpose in the Hutting Lay-Out, in Domalur area. The BDA also have not yet taken any action against the Defendant No 1 to 4 for constructing Dharmashala in the Residential Lay out. Hence, this suit.

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9. The cause of action for the suit arose on 15.12.2016 the date on which the defendants tried to dig the land in Schedule B in order to construct illegal building and on subsequent dates, within the jurisdiction of this Hon'ble Court.

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10. The suit is valued as per the Valuation Slip annexed separately.

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11. The plaintiff has not filed any other suit or case before the any other court of law, against the defendants on the same cause of action and the suit is within the period of limitation.

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Wherefore, it is respectfully prayed that this Hon'ble Court be pleased to pass a judgment and decree against the defendants:

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(a) Grant mandatory injunction and direct the Defendant No 6 and 7 to demolish the illegal Building which is constructed without sanction Plan, in the Schedule "A" property.

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(b) Restraining the defendants No 1 to 5, their men, servants or anybody claiming under or through them from in any manner from putting up construction in the "B" schedule Property, by granting an order of permanent injunction;

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(c) For costs and

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(d) Such other relief or reliefs as this Hon'ble Court deems in the facts and circumstances of the case.

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Advocate for Plaintiffs. Plaintiffs.

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SCHEDULE-A

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All that piece and parcel of property bearing BDA No.1, Domalur, Hutting Colony Bangalore, measuring 1352.87 Sq.Ft, within the limits of BBMP bounded on:

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East by: Site No.2, West by: Road, North by: Road, South by: Corporation Reading Room.

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SCHEDULE-B

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All that pièce and parcel of property bearing No.1 Domalur, Hutting Colony Bangalore, ward No 7. PID No 72-11-1/2 measuring E-W 15.5 feet, N-S 25.3 feet totally measuring 391 Sq. Ft, within the limits of BBMP bounded on:

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East by: Portion of property belong to Jameel Ahmed Khan,

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West by: Road,

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North by: Road.

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South by: Portion of the house owned by Smt. Kheder Bi W/O Late P.Ameer.

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VERIFICATION

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We, the plaintiffs above named do hereby verify and declare that what is stated above is true and correct to the best of my knowledge, information and belief.

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Bangalore Dated: 23-12-16. Plaintiffs”

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A reading of the plaint averments in the facts and circumstances of the instant case it is sufficient to come to the conclusion that there exists several disputed questions of fact and law which would necessarily have to be decided only after full-fledged trial and plaint cannot be said to be manifestly vexatious or meritless without disclosing clear right to sue warranting rejection of the plaint without proceeding to conduct full-fledged trial. Under these circumstances, though several contentions have been urged by respondents No.1 to 4 including maintainability of the suit, without expressing any opinion on the

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merits/demerits of the rival contentions, I deem it just and appropriate to set aside the impugned order and dispose of I.A.No.9 filed by the respondents No.1 to 4 by directing the trial Court to decide all issues including maintainability at the time of final disposal of the suit, by conducting full-fledged trial.

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In the result, the appeal is hereby allowed. The impugned order dated 30.09.2023 in O.S.No.8695/2016 passed by the XLII Additional City Civil and Sessions Judge, Bengaluru is hereby set aside and I.A.No.9 filed by respondents No.1 to 4/defendants No.1 to 4 under Order VII Rule 11(a) and (d) of CPC is disposed of directing the trial Court to consider all rival contentions including the contentions urged in I.A.No.9 and the objections filed by the appellants/plaintiffs by conducting full-fledged trial and proceed further, in accordance with law.

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The trial Court is directed to dispose of the suit as expeditiously as possible.

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However, it is made clear that the present order is passed only in relation to the impugned order relating to rejection of plant and no opinion is expressed on the merits/demerits of the rival contentions.

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Sd/(S.R.KRISHNA KUMAR) JUDGE

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MPK CT:bms List No.: 1 Sl No.: 9

Sri. Nagaraja a v. Progressive People Trust

Case brief

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Sri. Nagaraja a v. Progressive People Trust

Case brief

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