Dr C Ramesh Vs the Commissioner

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DTD.4.1.2017, PASSED BY THE R-2 VIDE ANNEX-D AND ALLOW THE APPEAL FILED BY THE PETITIONER AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

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ORAL ORDER

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In the captioned petition, the petitioner has challenged the order dated 04.01.2017 passed by 2^nd respondent vide Annexure-D.

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HC-KAR

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Heard the learned counsel for the petitioner and

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learned counsel appearing for respondent Nos.1 to 3 and learned counsel appearing for caveator respondent No.4.

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This Court has carefully considered the submissions advanced by the learned counsel appearing for both parties and has bestowed its anxious consideration to the order passed by a Co-ordinate Bench of this Court in MFA No.5548/2015, which appears to have a direct bearing on the present controversy. The primary grievance of the petitioner is in relation to the issuance of a katha in respect of the property bearing Survey No.83/2, situated in Ward No.9, Vidyaranyapura Sub-Division, under the jurisdiction of BBMP. According to the petitioner, the said katha has been irregularly issued in favour of 4^th respondent who happens to be the petitioner’s sister despite the fact that the construction carried out by her is allegedly in violation of a registered partition deed dated 24.01.2002.

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HC-KAR

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The petitioner asserts that the 4^th respondent

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has unlawfully put up a residential apartment in the area earmarked as a common space in the said deed. It is the petitioner’s case that the area in which construction has been undertaken was specifically reserved as a common access area meant for ingress and egress of all family members, and hence could not have been subjected to any exclusive construction.

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Per contra, the 4^th respondent, while justifying

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the issuance of katha in her favour, contends that the construction in question has been raised only in the portion that was allotted to her under the very same registered partition deed dated 24.01.2002. She further contends that all requisite statutory approvals were obtained, including the conversion order as well as

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the building licence issued by the competent authorities, before initiating construction.

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HC-KAR

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The materials placed on record reveal that there

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exists a deeper intra-family dispute, inasmuch as one of the sisters of the petitioner has already instituted a comprehensive civil suit in O.S.No.7377/2015, which is pending adjudication before the jurisdictional Civil Court. In the said suit, the validity of the partition deed and the respective claims of the parties over common areas are under judicial scrutiny.

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The learned counsel for the petitioner, in all fairness, does not dispute the pendency of the aforementioned civil suit. He concedes that the sister who has instituted O.S.No.7377/2015 has sought

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a declaration to the effect that the disputed portion is a

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common area in terms of the registered partition deed. She has also prayed for consequential reliefs flowing from such a declaration. In view of the said developments, and in order to arrive at a just and equitable decision, this Court deems it appropriate to take judicial notice of the

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findings and observations recorded by the Co-ordinate Bench of this Court in MFA No.5548/2015, which was disposed of by a detailed order. Paragraphs 6 to 9 of the said judgment are particularly relevant and are therefore extracted herein below for ready reference:

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“6. The Court below has rejected the application recording a finding that the defendant has already constructed a compound wall enclosing her property fixing a gate on the western side and that she has been in possession and enjoyment of the property bearing Sy. No.83/2. It has also found that identity of the schedule property which the plaintiffs claim as a portion earmarked for road as per the partition deed, was itself in dispute and therefore, it was not a fit case where temporary injunction was required to be granted.

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7. The Court below has also taken note of the fact that except seeking a decree of permanent injunction, no other relief of declaration has been sought by the plaintiffs and that the suit had been instituted only with an intention to stall the construction of the residential apartments. The photographs produced by the defendant have been taken note of to prima facie come to the conclusion that compound wall had been constructed by the defendant around her property bearing Sy. No.83/2 and in the said photographs, existence of the suit schedule road measuring 30 feet was not forth coming. The Court below has also found that except the partition deed, no other

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document was produced by the plaintiffs to show the existence of road. Thus, the Court below has held that existence of 30 feet road and the alleged encroachment by the defendant were matters of trial and hence, no temporary injunction as prayed for could be granted.

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8. I have heard the learned counsel for both parties and perused the entire materials on record. It is true as per the findings recorded by the Court below the defendant has enclosed her property by erecting a compound wall. The existence of road itself has been disputed by the defendant. Photographs produced do not disclose the existence of road as on the date of filing of the suit. However, the fact remains that in the partition deed, parties have agreed that 30 feet road shall be left between their properties and indeed the boundaries mentioned in the partition deed in respect of respective shares of the parties show the existence of such road. Therefore, keeping in mind the nature of dispute and the fact that the defendant has already enclosed her property by erecting a compound wall and also of the fact that as on the date the order was passed, there was no road formed/used, ends of justice would be served if both parties are directed to leave 15 feet from the edge of their properties and proceed with the construction, if any undertaken by them. This order will be subject to result of the final adjudication.

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9. It is made clear that no opinion is expressed regarding the existence of the disputed road and observations made in this order shall not influence the final adjudication of the dispute.”

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HC-KAR

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On a close perusal of the findings recorded by

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the Co-ordinate Bench of this Court in the appeal filed under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908, in MFA No.5548/2015, it is evident that the Co-ordinate Bench has consciously refrained from rendering any conclusive opinion on the existence or legality of the disputed road or common access area . This Hon’ble Court, after considering the rival contentions and the material placed on record, has permitted respondent No.4 to proceed with construction in the disputed area, subject to the condition that a setback of 15 feet is maintained from the edge of her property. The said direction has been issued keeping in view the terms of the partition deed which envisages a 30 feet road between the properties, and taking into account the existing compound wall and the absence of a formed or used road as on the

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date of the impugned order. The permission granted is, however, subject to the outcome of the final adjudication of the matter. The Co-ordinate Bench has adopted a

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cautious approach by relegating both parties to

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substantiate their respective claims in the appropriate legal forum. The Appellate Court has categorically left all issues open, including the question as to whether the area allegedly encroached upon by the 4^th respondent was, in fact, a common area as per the registered partition deed. Thus, the said order cannot be interpreted as making any findings on the merits of the rival claims asserted by the parties concerning ownership or right of usage of the alleged common space.

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In view of the above observations made by the Co-ordinate Bench in MFA No.5548/2015, coupled with the admitted fact that one of the sisters of the petitioner has already instituted a comprehensive civil suit in O.S.No.7377/2015, seeking declaration and other consequential reliefs with respect to the very same property, this Court is of the considered view that it would not be appropriate to adjudicate upon the validity of the katha issued by the 3^rd respondent in the present writ

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petition. It is further relevant to note that the injunction suit filed by the present petitioner in O.S.No.3596/2015 against the 4^th respondent has since been dismissed as withdrawn, primarily on the ground that the 4^th respondent has already completed the construction of the residential apartment.

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In light of these circumstances and having regard to the fact that the dispute revolves around rival claims arising out of a registered partition deed, which involve complex questions of fact and title, this Court finds it prudent to refrain from entertaining the challenge to the katha in the writ jurisdiction under Article 226 of the Constitution of India.

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Accordingly, this Court is of the opinion that the appropriate course for the parties would be to work out their remedies in the pending civil proceedings in O.S.No.7377/2015, where all issues can be adjudicated

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HC-KAR

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upon after recording evidence and examining the

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respective claims in detail.

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It is needless to mention that the disputed katha, which is now issued by 3^rd respondent, would be subject to outcome of the pending suit in O.S.No.7377/2015.

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With these observations, writ petition stands

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disposed of .

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All contentions are kept open.

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Sd/(SACHIN SHANKAR MAGADUM) JUDGE

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PB

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List No.: 1 Sl No.: 30

Dr C Ramesh v. the Commissioner

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Dr C Ramesh v. the Commissioner

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