IN THE HIGH COURT OF KARNATAKA AT BANGALORiE*.[
DATED THIS THE 6TH DAY 01+" NOVEMBER ~
BEFORE
THE HON'BLE MR. JUSTICE A S'BO'§?AN'PJA" F"
NOOR MOHAMME
AGED ABOUT 53 YEARS. ' H
S,'O.LA'E'E ABDULNABI sAiAA3,. .
RESIDING AT No.27/15, OPPOSI_'FEf : , _.
l'v'IA1'<"IS'\r'v'Al"vi'I'MUTT,'-ALBERT'Vi~C"f'ORROf3!.)'_, A
KALASIPALYAM,:E%A!sJCvALORE7O2..' APPELLANT
(By Sri: MUsm'A'Q..AHr;¥1§3'D;IA.:§v;)'__ '
AND :
1' A BASHEER KHAN ' ..
AGED=.ABOU'T"---58"YEARS.
S/OABDUL KAREEMSAHAB,
RETIRED SUuB'-'INSPECTOR OF' POLICE
"QRESENTLY R','A_..Cj.'vO.MUNNA SHOCK ABSORBERS
- A REPAIRER SHOP No.27/3, OPP. MARlSWAMY MUT
» f -. _VALBER'i'.vvI~::ToR ROAD, KALASIPALYAM,
" V , B.A__mc3ALOR_Eg.560 002
2 ' , THE_COF€PORATION CITY OF' BANGALORE;
'"'--CORPORATION OFFICES,
J .C. ROAD ,
[ BANGALORE-O2 RESPONDENTS
« T: '(?13'y YOGA NARASIMHA, ADV. FOR' C/R1 85
Sri: T}_1AYAPRAK_A.-SH, ADV. FOR R2}
-1'!
'2.
THIS APPEAL IS FILED U/S.96 OF CFC AGAINST
JUDGI'v'{EN'I' AND DEGREE DT/$6.99 PASSED
O.S.NO.10757/86 BY THE XIII ADDL. CITY CIVIL *
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BANGALORE, DIS 188! G THE SUIT FOR ENJUNL "1"! " -5
This Appeal coming on for hea1*ing;""this; déay. '¢¢ur%.i'.
delivered the foilowing :
JuDoMEN*r1f
This appeai is fiied pi--'--.ea° in
O.S.No.10757/86. _"1'--h.¢ p1aihtiff::igvs1sA.I§e_fb1;e 'Court below
seeking for a dec;ee._«*of fieiifishent injlmction
mstrajningV_the '1ޤ'V"de:"e_:1dax1t_:e;}ofoaching or damaging
the 1" se11edu1eVVVj:irop»e1*ty"'of'vvintetferfing with the peaceful
possession seenjoyIfi.e nt»4't.I1e same and for grant of
Vmandatory i11ju11c'1:ir)_V_1Vi c1i1ve's:ting the 1" defendant to remove
?.t...e co11s.,.".1!:'iio1ia_fput up by hi... on tJ.-e fmt floor -f the 1"
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No.27/15, Opp. Mariswamy Mutt. Albert 'victor R{jT(V$._.'flJ]. :1
portion of the property bearing No.27/3 of Ranoji
Kalasipaylyam, Bangalore. The details
sale transaction under which it
purchased is also avened intlie 'I'heV..'17'--*?*.V L»
"J the owner of the adjacent bearing portion
,0!" 31.1 .5; Pnnopen. _
'i 1.4.'? iI1@E}No.27]3,h%vhich t11e§east._Vof"'t.1'ie property belonging
u\au.....s.-I-
Xpy ""' 'E d -="~_*'-'4'4=f;_ t'w1'ii_.1. ip'-V.fi";g.'npconstruction on his site
4...
had viela'-d.;'ti:.e sanctio'*a,e6;----r-1a.x= for such. construction and
as :;suoh"w.7rii._1e
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1 an.-
abutted into -- V.-'neiongmg to me plan ...... .
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farther oontended ithatithe placing of windows me 111
effect the privacy of the plaintiff and
V Vi "-"his family who are Paxdenashin and Pious
I 'dc' 'WW :5/='r°5 A V a . »
- Mm ' m we n1a_i_ti_fi'.V The @e§'rance_'niVad.-e.Vo'at~the plaint is that
i ' ,_1VIuslitn'1adies.
" = '2. "' e defendants on being notified *' me 5.1 h..v.
1. I4'
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ya .
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V "appeared and filed their separate written statements. The 1
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defendant has denied the case put fortil 'by the p1ainti1'?f. 1
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that was df:Vi'Ef!0I1'iiT)i11 e s
1" defendant contends that the construction is being putjnp
by him in accordance with the sanctioned plan "
regard, he has also contended with ' H
measurement of the property which is stated in theiiiwtritterie'
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statement Further, t..- 1*" d.e.end.a_..t_C:2n.en..s--.t1'1__.t'~ -
auegation of "ie p'i.m"it:iff th-t Wi';1i"v--'COI1$h"iJC"fiflg the 'irst
floor he had demolished a poxrtiont'of' whicheisto the
east of the suit schedule pI"e1ni_s'es feet X 15 feet
is not true. The _2r:-d:"s;i'uthot'ities have
also filed defendant has
contended that had,..b'een sanctioned a plan
for puttingup the inspection of the
A V N J '01 it was 13. t; ed.
";0fi"ic'ia1_Vs _V of 2'15 de"e11dant have issued notice with
portion of the building in order to
V .demo1ish It is further stated by them that the
is at the finishing stage. They also contend that
'_'_'c'thongh"'appIop1'iate action for deviation has been taken as
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per the provisions of the Karnataka Municipal Corporation
Act (for short the 'Act'), the further proeeedingst...isJ"V"'
completed in due course.
3. The Court below
contentions framed five issues'iVfo1j its j'eonside1':41;tio.ii,._, wfhiehi
reads as hereunder;
"i} Whether the ;45Iai;1tifie..;2§i'o:vee£&' "he is the
AAA--_ _ __ _ _._._.._' _;~ - " ..u
f. .
'Wt'1E1' ' 1d ifi in pO3fi.t:a:n:TIt1'U
E:
ii] V" "lithe 'hiprroves that the
defen_tianVt.VNo:'.1,.has _e'nci"cach_ed the suit property
and put up;'ooneVtrnctibn_' to the extent of 1 1"t.X15 ftf?
iii} 'whether "the i ""--n1aintiff proves that the
_defendant _No;1 is intending to put windows towards
_" '5'auit_LApropertjk "affecting privacy?
. it iv! the defendant proves that he has put
"up co-natfuction as per sanctioned plan in his
~-- property?
it Whether the plaintiff is entitled to relief of
"mandatory injunction and permanent injunction 'P
J!
4. In order to discharge the burden cast onjthe
parties by the said issues, the parties have let "
The plaintifi examined himself as P.W.1
witness Sri Ijahid Pasha as P.W.2 inaxked
P16. The de end!"-t evmmm-d 111""-self as 'D. N. 1 mar1'a*e<i.
\.rI.I.l. l\bL|.I.I.J..LJ.\.- J. .l.J-hhl
5. The Court the rival
contentions t11e evidence
tendered in issue No.1 in the
a1firmative.~--'vIss'ue been held in the negative.
Consequently'; "the plajntifl" is dismissed.
nd .4 F A + +
..owever, 11u$I"t.'y'.11aS,1'..'€f.11v'I'.F.S€I'JEd to the '2 ueienuant us
(I 1
_. _ take Ef?gp113pi'iatE actioll against the 1" de enaant regard
";_to _Vunv-tautholised constxuctionl deviation made by the 1"
defendant up construction of the ground floor,
it .f'1rst2n'1 floor in the property in question. The
n to be aggrieved by the said judgment dated
1'9§9 is before this Court in this appeal.
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6. I have heard Sri Musthaq Ahmed. learned counsel
for the appellant and the leamed counsel appeaIing.”Ib;t__’_ita*:e”
respondents.
7. Having heard the reepeetrive .<u,;Le
perused the judgment passed i_3:eiow.'– as
the oral and documentary evidenee' "before the
Court below and re-appreeietedt *vthe::Vsa'1ne§A_'.ew.ineofar as issue
No.1, which had ioelow, the same
is with s:1e;it.Ve.c11edule_t 1" property
to which"t11e.. fito"be"%owne1'. Insofar as the
pmpextpwvto own_.rs_ah_ip, 'r_h,ere is n-
1 1 "
A 4-
38110113 uififillfi. .
Iegaid”–Vto_____tfne same has been accepted by the
Vbe,1:_ow% the sale deed in zespect of the ownership
haveheexn by the Court below and the said issue
V –has »h’een”—-‘heid.;in the afiirmative rcgmdixlg the ownership of
2 t propefty.
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8. With negald to Issue Nos. 2 to 4, they are
issues, which arise for consideration. In this IegaId«,~-so toi”
notice the allegation of violation of sanctionedhplant
been
also a”po*’*1t”d during the pen of ‘vesuit the
Commissioner has tendered _ffAholi1igih”‘objections
have been filed to the report Qommissioner,
in fact the said to the fact
of Having said so,
what requires ‘to,he’:’1noticed’–insofar..as issue No.4 is that the
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burden had’– :1″ defendant to prom. as t
iiegative defendant No. 1. The finding on the said
issue.-has” finality insofar as the 1.” defendant not
_having questioned the same. Further, the 2″‘ defendant in
wu ‘tte11: statement itself has contended that there has
a.beeVn’–deviation from the sanctioned plan while putting up
,1 ‘gH””””””‘
construction and appiopriate action is also being initiated
the Corporation in that regard. Themfom, once ”
relating to the violation of the sanctioned plan T’ i
the lat defendant and the same 1:35
ne”a…ve, tli action m be taken against the 1″ _;*.iei°en…a.nt ,
naturaiiy wouid have to he done is
the authority which is re’quiIed,Al’to action as per the
provisions of the Act. Lot’-the judgment
of the Court below on the said
issue would theiicourt below has “left
liberty to with regard to the
unaauthoizisediconistiitctioniadeviation by the lat defendant.
“‘i”ne Ho-n.”o_ie Supreme Conn. in the case of
JAN snap swan -93-
reported in 2006(8) sec 590,
–whfleii.oonaide1ing the issue relating to the deviation of the
it ~44″‘aancftioned” and the consideration of the same by a Civil
had come to the conclusion that the authorities would
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–up Wifldovife On fi13,,____1f?fi00r facing the building of 1:’:
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have to take action in this regard. Hence, if these aspects
are kept in view, the Court below was justified
reserving liberty to the 2nd defendant to takd.
t- the eo11st11_1_._.i_i:_i, vv1;’:c.h*<.is ~:p11t 'tinin'
dev"'"ti"n to the sanctien-ed pian, and nc-__o'd1erjud'é'nem* :3-.nd' '
10. Having co11sideIed;_ matter and
having noticed heid come to the
conclusion that the liberty to take
action had”heenA”ieft. tt1e–2I*<1 'defendant, the question would
"'.p1aintifl'. ,As 'noticed, in the plaint as well as the evidence
tendered the grievance is that, the 1'"
— defendantfivhiie constructing the 1″ floor has demolished a
flpor-tion oifsthe Wall which is to the east of the 1″ schedule
and there is encroachment of 1 feet X 15 feet
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belonging to the plaintiff. If the issue relating to the action
to be taken by the 2″” defendant–Corporation is V”
such action to be taken by the 2nd defelltifitiiféfi. t?);fseek
d_em_h_Lo1; of the deviated porticitiiiii infotlld. revdi’e-E-s,dthe
u u – u ‘ ‘. J ‘.
19111131? 1nc:(1 of mg 15 1’|l’\ 1n_1l-1 €n_b1..fl_1*’I fa
the wail of the plaintiff aiso”‘-vesiiice arhiie the
construction by the 1″? wiefendafith in iiiie the
sanctioned plan, the ‘at all into the
plaintifi’s propeirtyi Hence,
keeping these’aspects_V_i3fl1 below was justified
in not exe1*cisi.t1:,t.’itsiiflivfljijutisdicticii to consider the matter
reg of sanctioned plan. As
u\.«J.1., Ml ii (‘curt behm was just-“ed m
_._- _ 1-1. _.4__ A. 1.1-
.v _ dismissing the aiid teseiving ulue – to e 2 – defe*”da11t
tojtalge atapmjoriate action in accordance with the provisions
‘A s ‘_ Having said so, one other aspect which requires to
ibefioticed and clarified at this stage itself is that the plaintiff
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before approaching the Court below by filing suit had made
complaints to the 2nd defendant-Corporation
1111-authorised construction being put up bf v'”’12’%*t’ —
defendant. Hence, keeping in view then
.1 -~—- –~.r -7′ – ~..~ —– ~-7~ — »
me p1aH1f:if’fii7OU1(‘1 be e’1″”ed to trs.ke part m ttr fJi”‘”C’:fidi1’1§’S
wherein the End defendant.e.action the
lat defendant for securing ot’dthe:.sancfioned
so that the before the
authorities of u11-autlmrised
construction of the plaintifl if the
same is din »ntv41i’epA_.§-sanctioned plan. Hence, while
a..1rm…ing t..;e._iud.g.r.r1-,.n-.of .t.’.:-3. C-1.I._rt belmv, 1eservi_n_9 libertv
‘ . – .. .~ :3 u
‘” th”§,2I’-‘–‘ defendant to take a”propr1ate steps, at 19. tarther
ditected _Vt.hat.:t.he 23¢’ defendant shall issue notice to the
pxovide opportunity in the proceedings that
V . would’be”–.taken against the 1″ defendant.
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With the above observations. the judgment da?4éd.T
4.6.1999 passed by the Court below is affirmed. ” V.
is disposed of in the above terms. No costs.
hrpl bms