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Judgment
A.S. Bopanna, J.—The Appellants herein are the Plaintiffs in O.S. No. 1205/2005. The suit in question was filed seeking for a judgment and decree of permanent injunction to restrain the Defendant from putting up any construction in the first floor portion of the suit schedule property. The trial Court, after considering the rival contentions has dismissed the suit by its judgment dated 28.09.2007. The Plaintiffs therefore are before this Court.
Heard the learned Counsel appearing for the parties and perused the appeal papers including the records received from the trial Court.
The Plaintiffs were before the trial Court contending that they are the owners of the property bearing No. 1245, II Cross, Ashoknagar, BSK I stage, Bangalore. The Defendant is the owner of the adjacent property bearing No. 1244, II Cross, Ashoknagar, BSK I Stage. The property belonging to the Defendant is indicated as the suit schedule property. The grievance of the Plaintiffs Is that the Defendant is putting up construction on the first floor of the said property which is without sanction of the plan and also contrary to the bye-laws of the Bruhat Bangalore Mahanagara Palike and if construction is put up contrary to the bye-laws without leaving appropriate set back, it would block the passage of free light and air to the property belonging to the plaintiffs. Therefore, the Plaintiffs contended that the Defendant is to be restrained by way of injunction from putting up construction in the first floor of the suit schedule property which belonged to the Defendant.
The Defendant, on being served with suit summons, opposed the claim of the plaintiff. It was contended that the Defendant has already put up ground floor construction and at that juncture, there was no plan of putting up any construction in the first floor except carrying out certain miner repairs on the terrace. It is therefore further contended that even at an earlier stage when there were disputes between the parties with regard to construction, they bad compromised the matter with the intervention of the well wishers and an agreement had also been entered into between them. In the said agreement, the first Plaintiff had agreed that she had no grievance whatsoever with regard to the ground floor portion which has already been constructed by the Defendant. In that context, the Defendant contended that the contention put forth is without basis. Therefore, the suit is liable to be dismissed.
The trial Court after taking note of the rival contentions has framed as many as 3 issues for its consideration. The said issues read as hereunder:
i) Do the Plaintiffs prove their lawful possession over the schedule property as on the date of the suit?
ii) Do the Plaintiffs prove interference caused by the Defendants?
iii) What order and decree?
The parties thereafter tendered evidence before the trial Court and the second Plaintiff examined himself as PW.1 and marked documents at Exhs.P1 to PH. The Defendant examined himself as DW.1 and marked Ex.D1. The trial Court after analysing the said evidence available before it has dismissed the suit.
Learned Counsel for the Appellant while assailing the judgment of the trial Court would contend that the trial Court in fact has proceeded on an erroneous presumption without even clearly understanding the nature in which the case has been pleaded by the Plaintiff before the trial Court. In this regard, it is contended that the issues framed itself are erroneous. Therefore, the conclusion reached by the trial Court is not justified and the same is liable to be set aside.
Learned Counsel for the Respondent however seeks to justify the judgment passed by the trial Court. It is contended that while narrating the case, there has been certain error committed by the Court below. However, while considering the case of the parties keeping in view issue No. 2 which had been framed by it, the Court below has proceeded on the correct assumption of* facts and therefore, the judgment has been rendered based on the evidence which was available on record. Therefore, the same does not call for interference.
In the light of what has been contended, it is no doubt true that the trial Court while looking into the farts at the outset, has assumed as if the suit schedule property belonged to the Plaintiff which in fact is not so and the grievance of the Plaintiff was that the Defendant is putting up construction on the suit schedule property which is affecting the right of the Plaintiff and therefore the trial Court was required to consider the case in that direction. If this is kept in view, it is also true that issue No. 1 is not appropriate. However, the final analysis of the trial Court would indicate that while considering issue No. 2, the trial Court has referred to the entire evidence available on record. In this regard, what requires to be noticed is that the grievance of the Plaintiff is that the Defendant is putting up construction of first floor in the suit schedule premises which also has a ground floor portion. The defence of the Defendant is that the ground floor portion has been constructed earlier and with regard to that, the parties had entered into an agreement by way of compromise which is marked as Ex.p1. In a suit of this nature, it is not necessary to consider as to whether the said document at Ex.D1 is a valid document in the eye of law since ultimately what is to be noticed is the fact that the Defendant has already constructed the ground floor cannot be disputed and the said construction is evident. The only issue is as to whether the Defendant is constructing the first floor without sanctioned plan and contrary to the bye laws and whether such construction is affecting the right of the plaintiff.
In this regard, the very nature of the evidence tendered by the Defendant and the document relied on by him being only Ex.D1, the fact that the Defendant has not obtained any sanctioned plan is evident on the face of the records. Further, the learned Counsel for the Appellant also points out that in the cross examination of DW. 1, he has admitted that no such sanctioned plan has been obtained. But, an application had been made for grant of plan and the same was not pursued in view of the present dispute. These aspects of the matter would clearly indicate that the Defendant has not obtained any sanctioned plan and therefore keeping in view the fact that the Defendant contends that he has no intention of putting up construction without obtaining approval, the grievance of the Plaintiffs at this juncture would not arise for consideration. In that view, when the construction itself has not been commenced and no approval has been obtained, the question of the suit being maintainable as one for protecting the easementary right of the Plaintiffs also would not arise. Therefore at this juncture, the grievance would have to be only looked into as if the Plaintiffs are complaining against the Defendant putting up construction without sanctioned plan and contrary to bye-law. On this aspect of the matter, the decision of the Hon''ble Supreme Court in the case of Muni Suvrat-Swami Jain S.M.P. Sangh Vs. Arun Nathuram Gaikwad and Others, has to be kept in view. The Hon''ble Supreme Court in the said decision has held that the construction without sanctioned plan or any violation of the approval granted is an issue to be looked into by the civic authority and not for the Civil Court.
Therefore, in the instant case, the right is reserved to the plaintiffs-Appellants to complain to the civic authority about the construction by the Defendant on the first floor if it is attempted to be put up without obtaining sanctioned plan or if it is contrary to the sanctioned plan, if such plan is obtained by the Defendant. If such complaint is made to the civic authority, the civic authority shall act in accordance with law notwithstanding the dismissal of the suit. Further, in such event, if any sanction of the plan is made contrary to the bye-law of the civic authority and if such sanctioned plan affects the easementary right of the plaintiff, only in such event, the Plaintiff would be entitled to approach the civil Court. In my view, at this juncture, the Plaintiff had no cause of action and therefore, keeping in view the above observation and reserving such right to the plaintiff; the appeal is to be disposed of accordingly.
Subject to the above observation, the present appeal stands disposed of. No order as to costs.
Registry to remit the LCR to the trial Court forthwith.