D. Bhaktavatsala vs Mahadeva and Others

Hon''ble Mrs. Justice B.V. Nagarathna

In this petition, petitioner has assailed the order dated 23.9.2011 passed by the IX Addl. City Civil & Sessions Judge, Bangalore, in O.S. No. 8288/2003 on I.A. No. 11 (Annexure-''H''). The prayer in the said application was to implead respondents Nos. 3 to 5 herein as defendants in the said suit.

The petitioner who is the plaintiff in the said suit has sought for permanent injunction restraining the respondent Nos. 1 and 2 herein from interfering with the peaceful possession of the ''B'' Schedule property and to restrain the defendants/Respondent Nos. 1 and 2 herein from obstructing the repairs and construction put up as per the approved plan and such other reliefs. During the pendency of the said suit, petitioner filed I.A. No. 11 under order I Rule 10 of C.P.C. seeking for impleadment of respondents 3 to 5 herein viz., Bruhath Bangalore Mahanagara Palike, represented by its Commissioner, Corporation Office, Bangalore, Chief Engineer (West), Corporation Office and Assistant Executive Engineer, Corporation Office, as defendants. The said application has been dismissed by the trial Court. The said order is assailed in this writ petition.

I have heard the Learned Counsel for the petitioner. He submits that the respondents 1 and 2 herein, who are the defendants, are the persons who have constructed unauthorised sheds on the property bearing No. 591/A which is on the northern side of the suit schedule property bearing No. 146-A. The proposed defendants have not taken any action against defendants 1 and 2 despite the orders passed in the Public Interest Litigation filed by the petitioner herein and others before this Court, He also submits that the unauthorised sheds put up by the defendants in the suit has caused nuisance to the enjoyment of the suit schedule property bearing No. 146-A. He also submits that, even if a decree is obtained against defendants 1 and 2, the same cannot be executed in the absence of the proposed defendants 3 to 5. He concluded his arguments by stating that the trial Court was not right in rejecting the application for impleadment.

Having heard the Learned Counsel for the petitioner and on perusal of the material on record, I find that the suit has been filed in respect of site bearing No. 146-A. The suit schedule property is as follows :

SCHEDULE

A'' SCHEDULE

House build on site on 146-a with terraced roofing measuring East to West: 40 feet, North to South: 35 feet, bounded on :-

East by

:

Road

West by

:

No. 143/B

North by

:

Park and play ground and

South by

:

House No. 146/B

"B" SCHEDULE

The Portion of House No. 146-A new No. 594, terraced building with some portion built on first floor with asbestos roofing and some portion with terraced roof with water connection and drainage facility and electric connection measuring

North to South

:

10 feet

East to West

:

40 feet

Bounded on

East by

:

Road

West by

Conservancy and house No. 143-B

North by

Park and play ground and vacant land

South by : The property of Yathiraj his brother No, 146-A, with common stair case and passage to the shares in the first floor, situated at 5th Main, 4th Block, Ramamandir Division, Rajajinagar, Bangalore-10

When the relief sought for by the petitioner is in respect of site No. 146-A and the petitioner has also stated that property No. 591/A which is to the northern portion of the suit schedule property does not belong to the petitioner, but it belongs to the proposed defendants, and when it is also an admitted fact that it is only defendants 1 and 2 who have been arrayed as parties have constructed the unauthorised sheds, there is no reason as to why the owners of the property bearing No. 591/A have to be impleaded in the said suit. It is suit schedule property bearing No. 146-A belonging to the plaintiff which is the subject matter of the suit. If any unauthorised construction is put up by the defendants 1 and 2 in the property bearing s 591/A, in that case, action could be initiated against the said persons by the owners of the said property. In so far as suit schedule property belonging to the petitioner is concerned, the petitioner is entitled to maintain his suit. In that view of the matter, the trial Court was justified in rejecting the application for impleadment. The said order does not call for any interference in the writ petition.

In the result, the writ petition is rejected.