M.R. Sampath Kumar vs Ramachandra

B.S. Patil, J.—1. Petitioner is the defendant in O.S. No. 151/2014. Respondent has filed the said suit seeking a decree of permanent injunction restraining the defendant from putting up any construction or encroaching the plaintiff''s building towards its northern side. According to the plaintiff, he is the absolute owner of the suit schedule property bearing door No. 1314-C/1 (a) measuring East to West 55 ft. and North to South 30 ft with a constructed building measuring East to West 41 ft. and North to South 25 ft.

It is alleged that defendant laid foundation towards northern side of his property without leaving any set back; though defendant was required to leave atleast 2 ft. set back, disregarding the same, defendant laid foundation without leaving an inch of land towards the Northern wall of the plaintiff''s building. Plaintiff claims that it will result in irreparable loss and would affect the ventilation and light through the northern windows of the plaintiff''s building, if defendant is permitted to put up construction.

Along with the suit, an application was filed seeking temporary injunction to restrain the defendant from putting up construction. Suit and the application were resisted by the defendant.

Defendant mainly contended that plaintiff purchased the property from one B. Nagamma and constructed a lodge in his property without leaving any set back. He has asserted that foundation has been laid by him in his property. He has urged in paragraph No. 14 of the written statement that the suit schedule property originally belonged to one Chinnappa, who purchased it under the registered sale deed dated 05.04.1999 with the measurement mentioned as East to West 50 ft. and North to South 28 ft. Subsequently, plaintiff purchased it from B. Nagamma. In the sale deed of the plaintiff, suit property has been incorrectly mentioned as 55 ft x 30 ft. He has also contended that there was an old house belonging to the defendant in the property which measured 51 ft. x 20 ft and that the defendant got the old house which was in dilapidated condition demolished; he obtained license on 05.07.2014 from the town municipality and started laying foundation within his property where his old house was located to the southern side wall by erecting pillars. He has also stated that defendant has collected construction materials by incurring huge expenditure after demolishing his old house and the resultant position was that defendant and his family members had no other house. It is urged that the temporary injunction granted by the Appellate Court has resulted in serious and recurring loss to him. It is also contended by the defendant that in the license obtained by the plaintiff, there has been manipulation and overwriting inasmuch as permission to put up construction towards North to South was only for 18 ft. area but the same had been altered as 25 ft.

The trial Court vide its order dated 25.11.2014 dismissed the application filed by the plaintiff holding that plaintiff had failed to establish prima facie case in his favour. It is also found that there was suppression of material facts by the plaintiff to the effect that in the earlier suit filed by the very plaintiff, he had contended that he had put up construction over and above the sanctioned limit by utilising 2 ft. 4 1/2 inches area more than the foundation. The trial Court has also recorded a finding that there was no sufficient material to hold that plaintiff''s possession over the suit property was in any manner disturbed by the defendant and that materials placed on record disclosed that construction put up by the plaintiff exceeded the limits of his property in the first floor. Therefore, equitable and discretionary relief of injunction was not granted in favour of the plaintiff.

The Appellate Court has reversed these findings and has granted temporary injunction. The main reasons for the Appellate Court to come to a contrary conclusion are stated in paragraph Nos. 14 and 17 of the judgment. The main reasons as stated in paragraph Nos. 14 and 17 of the judgment are that plaintiff had sought for easementary right of air and necessity; if defendant was putting up construction, then the ventilators and widows of the plaintiff would be blocked; as there was a dispute between the parties, it was necessary that both parties maintained status quo till the dispute was resolved. The Appellate Court has also held that perusal of the photographs and the documents disclosed that there was dispute with regard to the southern portion of the property but as the Court was unable to come to any conclusion as to the encroachment over the property and as it was required to be ascertained after full pledged trial, pending such adjudication, it was just and appropriate to direct the defendant not to put up any sort of construction till the disposal of the suit.

I have heard the learned counsel for both parties. The main contentions urged by the learned counsel for the petitioner are that the license obtained by the plaintiff and produced at Annexure-K to the writ petition shows manipulation by altering the extent of permissible construction as 25 ft. instead of 18 ft. towards North-South direction; in the connected suit bearing O.S. No. 165/2007, plaintiff herein who was examined himself as P.W.1 had admitted that he had extended his foundation by 2 ft. 4 1/2 inches compared to the sanctioned plan; sewage pipes which the plaintiff had laid measured 5 inches in width inside the property of the defendant; that the conclusion reached by the court below was not supported by legally sustainable reasons inasmuch as no prima facie case had been made out by the plaintiff for grant of injunction; that the temporary injunction granted has caused serious and recurring loss to the petitioner; that as per the Court Commissioner''s report obtained by this Court although the license granted in favour of the plaintiff towards North South direction was to put up construction in an extent of 25 ft., plaintiff has put up construction in an extent of 25 ft. 8 inches.

Per contra, learned counsel for the respondent urges that even as per the Commissioner''s report, license granted in favour of the defendant -petitioner made it very clear that defendant was required to leave 2 ft. set back all around his property, but as found by the Commissioner, though he was permitted to put up construction in an area of 41 ft x 20 ft by leaving 2 ft. set back all around, he started construction by leaving only 19 ft 3.50 inches. Thus, he points out that defendant has apparently not left 2 ft. space towards southern side of his property.

It is his submission that plaintiff had put up construction earlier in point of time by following the rules leaving the required set back but it was the defendant who after demolition of the existing structure violated the building plan and started putting up construction without leaving any set back. If the set back is not left, counsel urges that it would result in depriving the plaintiff from enjoying his property inasmuch as in case of any repairs or maintenance, plaintiff would not be able to have access to the northern wall and also to carry out any repairs or attend to the sewage line laid abutting the northern wall of the plaintiff.

It is further urged that at the time when the plaintiff had put up construction and completed it, no objection was raised by the defendant and even as per his own showing, he was putting up construction on the entire area where the old building was located. Thus, he supported the order passed by the Appellate Court.

At this stage, learned counsel for both parties requested the Court to defer further dictation in the matter. They submitted that parties are willing to settle their dispute and report settlement by the next date of hearing. They sought for a week''s time. Accordingly, this matter was adjourned with a direction to re-list on 09.03.2016.

Today, when the matter is taken up for further dictation and also to hear with regard to the proposed settlement, learned counsel for both sides submit on instruction of the parties, who are present in the Court, that parties have settled their dispute. They submit that as per the understanding reached by the parties, petitioner shall leave a space of one-and-half (1 1/2'') feet/18 inches space between the two walls i.e., the wall of the plaintiff and defendant, throughout the length of both properties. In other words, both the parties have agreed that there shall be a space of 18 inches left between the edge of the two walls, that is to say the plaintiff''s and defendant''s walls.

In this view of the matter, learned counsel for both parties and the parties, who were present, submitted that writ petition may be accordingly disposed of, by modifying the order passed by the Court below. It is also submitted by them that in view of this understanding reached between the parties, the parties will appear before the trial court and file necessary petition seeking disposal of the suit itself in terms of the compromise reached.

Both the parties who are present before the Court have specifically stated that they are agreeable for such settlement and disposal of the writ petition on those terms.

This submission, in the facts and circumstances of the case, is just, fair and reasonable. In order to put an end to the long pending dispute between the parties and in order to enable them to use and enjoy their respective properties effectively, I am of the view that the settlement reached between the parties deserves to be accepted and the Writ Petition be disposed of in terms of thereof.

The Writ Petition is accordingly disposed of by modifying the order under challenge.

It is made clear that the petitioner will be entitled to put up construction by leaving the space as agreed and adverted to herein above.