Sri Padmanabha S. Shettigar and Smt. Nipmala P. Shettigar vs The Commissioner, Udupi City Municipal Council

A.S. Bopanna, J.—The appellants herein were the plaintiffs in O.S. No. 158/98. The suit in question was Sled seeking for the relief of declaration, permanent injunction and mandatory injunction. The Trial Court after considering the rival contentions has dismissed the suit by its judgment dated 03.08.2000. The plaintiffs were therefore before the Lower Appellate Court in R.A. No. 120/2000. The Lower Appellate Court on re-appreciation of the evidence has affirmed the findings of the Trial Court and concurred with the judgment Against the concurrent findings and judgments and decree rendered by the Courts below, the plaintiffs are before this Court in this second appeal.

The parties are referred to in the same rank as assigned to them before the Trial Court for the purpose of convenience and clarity.

The learned Counsel for the appellants while assailing the judgments passed by the Courts below would contend that the question that arises for consideration is &s to whether the Courts below could have dismissed the .suit, despite having accepted the contention of the plaintiffs that the offending construction is in fact, put up on a road margin and in that circumstance, as to whether the Courts below were justified in holding that the plaintiffs knowing fully well with regard to the existing construction cannot complain at this stage, since they have acquiesced. It is therefore, contended that the Courts below have erred not only while appreciating the evidence on record, but also on the legal position and as such, the judgments call for interference.

The learned Counsel for the respondent however, sought to justify the judgments passed by the Courts below. The learned Counsel would contend that in a matter of this nature where a personal relief had been sought for by the plaintiffs, the Trial Court has appropriately appreciated the situation that the construction in question was existing even prior to the area coming within the jurisdiction of the defendant and more particularly, such a construction was existing even prior to the purchase of the adjacent premises by the plaintiffs and therefore, the Courts below are justified and the judgments do cot call for interference.

In the light of the contentions urged, the brief facts are that the plaintiff No. 1 is said to have purchased the property bearing Sy. No. 62/15 measuring 20 cents at Shivalli Village, Udupi taluk under a registered sale deed dated 11.10.1991. The facts relating to the nature of the enjoyment of the said property after putting up construction therein by the plaintiffs have been averred in detail and there is no need to refer to the same specifically. However, the grievance of the plaintiffs in the suit is that the offending construction which is in front of the building owned by the plaintiffs obstructs the frontage and also the passage of free air and light to the building owned by them and therefore, the judgment and decree of mandatory injunction was sought to remove the offending construction. It is further the case of the plaintiffs that in any event, the construction in question which was put up on the road margin is not permissible in law and therefore, the defendant is to be directed to remove the said construction.

The defendant though had disputed the claim put forth by the plaintiffs by filing their written statement, has thereafter not tendered any evidence before the Trial Court

However, in view of die contentions put forth, the Trial Court framed as many as eight issues for its consideration and intimately, on appreciating the evidence which had been tendered before it on behalf of the plaintiffs, was of the view that the relief prayed for cannot be granted.

In the light of what has been stated by the Trial Court, a perusal of the judgment would at the outset, indicate that insofar as the evidence tendered to indicate that the plaintiffs had purchased the ''A'' schedule property, there is no dispute. The only question is with regard to the alleged offending construction. In this regard, on referring to the evidence available on record, the Trial Court has noticed that even the plaintiffs have not disputed that the said construction which is being complained of by them was existing even prior to the purchase of the property by the plaintiffs and also prior to the plaintiffs had put up construction in the property purchased by them. Therefore, on the said aspect of the matter, the Trial Court did not have any difficulty in coming to the conclusion that the plaintiffs who had subsequently purchased the property were complaining of such a construction and that too nearby seven years after purchase of the property. However, the question which arises is as to whether in the light of the plaintiffs putting up a case that the said construction is on the road margin, whether the Trial Court should have granted the relief prayed for by the plaintiffs. In this regard, the fact that the construction is said to be existing on the road margin was sought to be proved by the plaintiffs by seeking for appointment of a Commissioner. The Commissioner has tendered his report and was also examined as CW-1. The report submitted by the Commissioner no doubt, indicated that the offending construction is on the road margin. However, the Trial Court on noticing the said report has also considered the contention of the defendant that the said construction was in fact, constructed in the year 3979 when the property was still within the jurisdiction of the Shivahalli Village Panchayat The said construction is said to have been made after obtaining permission from the Shivalli Village Panchayat and when the property came within the jurisdiction of the present defendant, the said construction was retained, since the same was for public utility. The said conclusion reached by the Trial Court would have to be viewed keeping in taking note of the contention raised before this Court and also the nature of the relief prayed in the suit. The grievance of the plaintiffs before the Trial Court was that the said construction was existing right in front of the building belonging to the plaintiffs and therefore, the right of the plaintiffs and their customers to enjoy free access was being obstructed. When such personal relief had been sought for by the plaintiffs and when the plaintiffs had purchased the property in question as far back as in the year 1991 and had thereafter constructed the building in the year 1997 knowing fully about the existence of the building, the Trial Court was justified in coming to the conclusion that the suit as filed by the plaintiffs cannot be decreed.

When the plaintiffs were before the Lower Appellate Court, in fact, die Lower Appellate Court has re-appreciated the evidence and the very same aspects as considered by the Trial Court have been noticed.

In the light of both the Courts below having come to such a conclusion and even in my considered view, I am of the opinion that considering the nature of the relief prayed for in the plaint, even assuming such a construction was on the marginal land and also keeping in view the fact that the construction existed even when the property was under the jurisdiction of Shivalli Village Panchayat and thereafter, when it was transferred to the jurisdiction of the defendant, the relief in any event, in the personal nature could not have been granted in the present suit and therefore, both the Courts were justified. It is needless to mention that if at all the plaintiffs as public interested citizens are aggrieved in the manner the construction is existing on the road margin being contrary to any bye-laws, it is always open to them to seek for appropriate relief which would be open to them before the appropriate for (sic) and in such an event, the present finding rendered against the personal relief sought for by the plaintiffs will not come in their way and all contentions will be available to them to be urged in such proceedings.

In that view of the matter, the appeal being devoid of merits is disposed of with the above observations. No order as to costs.