Ravindra vs Liliyas Theresa Fernandes and Others

B. Veerappa, J.—This is an unsuccessful plaintiffs regular second appeal against the judgment and decree dated 18.07.2012 made in R.A. No. 79/2011 on the file of the I Addl. Senior Civil Judge & C.J.M., Dharwad, confirming the judgment and decree dated 07.07.2011 made in O.S. No. 311/2009 on the file of the Prl. Civil Judge & Prl. J.M.F.C., Dharwad, dismissing the suit filed by the plaintiff for declaration and mandatory injunction.

It is the case of the appellant - plaintiff that the suit property is the portion of the property bearing C.T.S. No. 7/5B measuring 15 feet with a letter shown ABCD in the hand sketch annexed to the plaint contending that the plaintiff is the owner of C.T.S. No. 7/5B and in possession and enjoyment of the suit property since several years. The defendant is the owner of the property bearing C.T.S. No. 7/3 measuring 405-97 square metres. Both the properties are adjacent to each other. The suit property is situated on north west corner of the plaintiffs property and the defendant started construction on the north western side of plaintiffs property, blocking the natural air, light and plaintiffs privacy. The plaintiff made request to the 1st defendant not to construct any building on the north west side of the property, as stated above. But the defendant had not heeded to the same. The plaintiff had objected the construction by filing complaints to the defendant No. 2. The defendant No. 1 has refused to remove the portion which had already constructed. 1st Defendant demolished some illegal construction in existence earlier making the plaintiff to believe that defendant No. 1 would not construct any wall or anything. Suddenly, on 31.05.2009, again defendant No. 1 started construction on the plaintiffs property without leaving proper set back and by violating the rules made by the Hubli Dharwad Municipal Corporation. If the 1st defendant continues the illegal construction over the suit property, the plaintiff will be put to loss and hardship etc. Therefore, plaintiff filed the suit.

The 1st defendant filed the written statement, denied the entire plaint averments and contended that defendant No. 1 has not violated the rules and regulations made by the Hubli Dharwad Municipal Corporation granting permission on 19.01.2009 with proposed plan commencing the construction in the plot. The competent authorities have not made any objections regarding 1st defendant''s the construction or about set back and the construction is a time bound construction entrusted to a contractor who had already received the advance money for the construction. The intimation of the plaintiffs counsel was received by the 1st defendant after completion of the construction. Therefore, defendant No. 1 sought for dismissal of the suit.

The 2nd defendant - Commissioner, Hubli Dharwad Municipal Corporation filed written statement and admits the ownership of the plaintiff in C.T.S. No. 7/5B and that of 1st defendant over C.T.S. No. 7/3 and denied the other contentions made in the plaint and submitted that there was no obstruction of natural light, air or privacy of the plaintiff and there is no illegal construction by the 1st defendant in the suit property and submitted that description made by the plaintiff of the suit property is vague. It does not disclose the C.T.S. number. It appears to be a garage. The cause of action shown by the plaintiff is false and imaginary. The defendant No. 2 had permitted the construction under permission No. HDMC C/51/11/BP/1439/09 dated 19.01.2009 to the defendant No. 1. The said permission includes two wheeler garage measuring 15.4 square metres i.e., 4.7 X 3.2 metres which is the suit property. The approved plan is in accordance with building bye laws. The spot inspection made on the basis of the complaint filed by the plaintiff made by 2nd defendant shows that the construction was as per approved plan and building bye laws. No set back was necessary for the construction of the garage as per the building bye laws. The permission was granted as per the norms of the building bye laws. The 2nd defendant had replied to the plaintiff after spot inspection of the suit property. The plaintiff had suppressed the material facts deliberately though he was present at the suit property at the time of spot inspection. The 2nd defendant would issue the completion certificate by making re-inspection of the spot after confirmation as to whether the construction was as per the approved permission or not. If the 1st defendant found violation of plan, then, appropriate action would have been taken against the 1st defendant under the provisions of Karnataka Municipal Corporation Act. Therefore, suit not maintainable and same has to be dismissed.

On the basis of the rival pleadings, the Trial Court framed the following issues:

"1. Whether the plaintiff proves that the defendant has made a illegal construction as described in the suit schedule with proper description?

Whether the plaintiff proves that the defendant is illegally trying to construction the building or structure without leaving proper set back on the western side of the plaintiffs property?

Whether the defendant proves that she has constructed the building after obtaining necessary permission from the concerned authorities?

Whether the plaintiff is entitled for the declaration and mandatory injunction as prayed for?

Whether the plaintiff is entitled for the permanent injunction as prayed for?

What order or decree?"

In order to establish his case, the plaintiff examined as P.W.1 and marked the documents Exs. P-1 to P-17. The defendant examined as D.W.1 and marked the documents as Exs. D-1 to D-3.

The Trial Court after considering the entire material on record, recorded a finding that plaintiff failed to prove that the defendant No. 1 has made illegal construction in the suit schedule property and also failed to prove that defendant No. 1 is trying to construct the building structure without leaving proper set back on the window side of the plaintiffs property and defendant proved that she has constructed the building after obtaining necessary permission from the concerned authorities. Therefore, the plaintiff is not entitled for declaration, mandatory injunction and permanent injunction. Accordingly, the suit came to be dismissed. Aggrieved by the said judgment and decree, the plaintiff filed R.A. No. 79/2011 on the file of the 1st Addl. Senior Civil Judge & CJM, Dharwad, who after hearing both the parties by his impugned judgment and decree has dismissed the appeal.

Aggrieved by the said judgment and decree of the Courts below, the present regular second appeal is filed.

I have heard the learned counsel for the parties to the lis.

Shri Shivsai M. Patil, learned counsel for the appellant has contended that both the Courts below have not considered the documents produced by the plaintiff before passing the impugned judgment and decree which has resulted miscarriage of justice. Both the Courts below have not considered the Commissioner''s report which clearly indicates that the 1st defendant has constructed kitchen katta in violation of permission granted by the 2nd defendant. Therefore, he sought to set aside the judgment and decree of the Courts below.

Per contra, Shri C.V. Angadi, learned counsel for the respondents sought to justify the impugned judgment and decree of the Trial Court and contended that the 1st defendant has constructed in terms of the permission granted by the 2nd defendant - Commissioner and he has not violated any conditions and no material is produced by the plaintiff before the Court to prove the violation. Therefore, he sought for dismissal of the regular second appeal with costs.

I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties to the lis and perused the entire material on record.

The only dispute is in respect of ABCD portion in the hand sketch which includes the two wheeler garage 15.4 square metres i.e., 4.7 X 3.2. According to the plaintiff, the defendant No. 1 has violated the permission granted by the 2nd defendant and the construction is in violation of the bye laws and it obstructs the plaintiffs natural light, air and privacy. It is the case of the defendant No. 1 that he has not violated any conditions of permission of plan dated 19.01.2009 which includes two wheelers garage. The 2nd respondent who is the jurisdictional competent authority also filed written statement and contended that the 1st defendant has constructed the property in accordance with the permission granted on 19.01.2009 and there is no illegal construction. The permission includes the construction of garage and if any violation he will take necessary action in accordance with law.

In order to prove his case, the plaintiff examined as P.W.1 and produced the documents Exs. P-1 to P-17. The defendant in order to disprove the case of the plaintiff, examined as D.W.1 and produced Exs. D-1 to D-3.

The Trial Court after considering the evidence of P.W.1 and D.W.1 has recorded a finding that it is pertinent to note that as per the contention of the plaintiff, it is a specific case that the construction is illegal as it is against the building bye laws and rules without leaving set back on his western side. The evidence shows that the compound wall of the 1st defendant is situated along with the compound wall of one Maro, against whom there is no claim made by the plaintiff At the same time, the construction as per the oral evidence of P.W.1 is within the boundaries of 1st defendant''s property. It is also brought on record that there is no window or open space left by the plaintiff towards the side of the defendant. Under these circumstances, it is difficult to hold as to on what basis the plaintiff is claiming that the construction in question is illegal and the ground shown for illegality is non leaving of set back as per the plan. P.W.1 deviates in her evidence against the said fact and having regard to the report of the Commissioner, documentary evidence and oral evidence on record, it cannot be said that the 1st defendant has made illegal construction. Moreover, description of property itself is vague which is an appreciation with the contention of the 2nd defendant. It is also pertinent to note that the suit property is established by the evidence on record is a garage for which leaving set back is not mandatory which fact is clear from the statement of 2nd defendant which is on record. There is no material placed on record by the plaintiff to prove his case.

The Trial Court after recording a finding that Ex. D-3 - approved plan and 1st defendant in her evidence has stated that she has not constructed kitchen room in her garage and nothing is produced by the plaintiff to prove the set back. Merely, because there is a wash basin and katta in the garage, it cannot be held that the said construction pertains to kitchen room. It is also pertinent to note that the 2nd defendant has not issued completion certificate yet to the 1st defendant. Therefore, the plaintiff will have a remedy before the 2nd defendant. Ex. D-3 permission itself shows that construction pertains to a two wheeler garage, as per the approved plan and plaintiff has not discharged his onus to show that the said construction pertains to a kitchen room. Exs. D-2 and D-3 - permission and approved plan respectively clearly indicates that construction in question pertains to a two wheeler garage which is in consistence with the evidence of D.W.1 and it is not the case of the plaintiff that the 1st defendant has not obtained permission. Therefore, the Trial Court held that the plaintiff failed to prove his case. Accordingly, suit came to be dismissed.

On re-appreciating the entire evidence on record, the lower Appellate Court concurred with the finding recorded by the Trial Court and held that it is evidenced from the records, particularly from Ex. P-2. Defendant No. 1 has taken building permission from construction of suit property i.e., two wheeler garage and residential building and there is no rule that while constructing garage there shall not be any katta or window present in the garage. Even in Ex. D-2 also no such condition was put on the defendant No. 1 stating that she shall not construct katta or wash basin. Therefore, the contention of the plaintiff that prima facie it is going to effect by using his property cannot be accepted and P.W.1 in the cross-examination has categorically admitted that defendant No. 1 constructed separate wall adjacent to compound wall and defendant No. 1 house is 15 to 16 feet away from compound wall. Further in the cross-examination, P.W.1 admits that towards west of their property C.T.S. No. 7/5A there is property of defendant No. 1 and also property of Maro and said Maro has constructed compound wall of 10 to 12 feet height and no any suit is filed against said Maro by the plaintiff and 1st defendant''s compound wall is abutting to Maro''s compound wall. Further both in the pleadings as well as evidence, nowhere stated that the plaintiff is having windows in his wall facing towards 1st defendant''s garage. Therefore, the plaintiff has not proved his case and no interference called by the impugned judgment and decree of the Trial Court. Accordingly, the lower Appellate Court dismissed the appeal.

The legal fight between the parties, only in respect of a garage. According to the plaintiff in the garage 1st defendant has constructed kitchen room. According to the defendant No. 1, he has not constructed any kitchen room except wash basin and he has not violated building bye laws, any permission or approved plan granted by the 2nd defendant. 2nd defendant filed written statement and categorically stated that the 1st defendant has constructed the building and garage in accordance with the permission granted by the 2nd defendant dated 19.01.2009 and in accordance with the approved plan and 1st defendant has not violated any conditions of the permission or approved plan. The plaintiff filed the false suit against the defendants. It is worthwhile to mention that as per the Hubli Dharwad Municipal Corporation, building bye laws, bye-law 9.2 at note No. 9 specifically mentions that: "for garages, no side or rear set back is to be insisted" and it is not the case of the plaintiff that the defendant No. 1 has violated set back of the said bye laws and the 2nd defendant filed the written statement and specifically stated that there is no provision to leave set back to the garages. In view of the same, the contention of the learned counsel for the appellant that both the Courts below have not properly considered both the oral and documentary evidence on record cannot be accepted.

Admittedly in the present case, except main allegations by the plaintiff against the 1st defendant about the violation, plaintiff has not produced any material document to prove that the 1st defendant has violated permission granted or bye laws and the case of the plaintiff has been negated by both the Courts below and concurrently held that the plaintiff has not proved that the defendant has made illegal construction as described in the suit schedule and also failed to prove that the defendant is illegally trying to construct the building or structure without leaving proper set back on the window side of the plaintiffs property and defendant No. 1 proved that the building constructed after obtaining necessary permission from the concerned authority and therefore, both the Courts below held that the plaintiff is not entitled for any declaration, mandatory injunction or permanent injunction in respect of ABCD portion mentioned in the hand sketch of the plaint. The plaintiff has not made out any illegality or irregularity in consideration of any of the documents by both the Courts below and no substantial question of law involved in the present appeal for interference by this Court exercising the power under Section 100 of the Code of Civil Procedure. Accordingly, the regular second appeal is dismissed with costs of Rs. 5,000/-.