RFA/863/2016 of THE COMMISSIONER Vs DR ARSHAD HUSSAIN M on 31 December 2019

JUDGMENT

This is a defendant’s appeal. The present|

respondents as plaintiffs had instituted a suit against.the present appellant, arraigning it as a defendant in.

O.S.N0.4449/2014 in the Court of the learned XLAdaitional City Civil and Sessions Judge (CCH-41),Bengaluru (nereinafter for brevity referred to as the~Trial Court”) for the relief of perpetual injunction.

2. Tne summary of the case of the plaintiffs in.

the Trial Court was that, they had purcnased the suitschedule property which is property No.1-2, 3[rd]Cross R.F.A.No.863/2016

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Road,PuttaiahCompound,Geddalanhalli,Ashwatnnagar,Sanjayanagar,Bangalore,havingpurchased the same under a registered Sale Deeddated 02-03-2012, consisting of a residential Duliding|with stilt, ground floor, first floor and second floorincluding a terrace floor. The kKhata with respect to —the suit schedule property was made in the name ofthe plaintiffs. The building was constructed by thevendor under a sanctioned plan without any deviationwnatsoever and nad sold the same to the plaintiffs. —While the plaintiffs were effecting minor repairs to theschedule Duliding, such as, plastering and painting,the officials of the defendant authority approacnedthem in the first week of April 2014, and madevehement threats to demolish a portion of theschedule building and to interfere with the repairs,that too, without any prior notice as required under Section371.(1)oftheKarnatakaMunicipal|Corporations.Act,19/76(hereinafterfor.brevity referred to as the —KMC Act’). Tne plaintiffs caused alegal notice to the defendant autnority on 04-04-2014.as per Section 482(1) of the KMC Act. The defendant.autnority did not respond to the said notice. However,on 13-06-2014, once again they made a venementthreat of damage and interference to the suit building. ©Hence, the plaintiffs were constrained to institute the.present suit against the defendant authority.

3. In response to the suit summons, defendant.appeared through its counsel! and filed its WrittenStatement, wherein, it denied tnat the suit propertywas constructed in accordance with the sanctionedplan and without any deviation. It also denied that.the plaintiffs were effecting minor repairs to the suit.property and that there was any threat to demolish a portion of the building by the alleged interference ©from the defendant.However, the defendant.admitted that the plaintiffs were the purcnasers of the.suit property consisting of stilt, ground floor, first floor.and second floor only. It specifically contended that.tne terrace fioor Nas been constructed presently byviolating the building bye-laws and without any>sanctioned plan.

It contended that the sanctioned plan dated03-03-2005 was only to construct a_ residentialbuilding, consisting of a stilt, ground floor, first flooranaSECONC|floor.only,|whereas.theplaintiffs|constructed the building in violation of the Duliding—bye-laws and deviated from the sanctioned plan. It.also contended that the plaintiffs vendor had put up.the construction without leaving any set back and the.plaintiffs had constructed terrace floor without any R.F.A.No.863/2016

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Sanctioned plan. Hence, a notice under Section 308 ofthe KMC Act was issued to the plaintiffs to bring thework.In|conformitywiththe|Sanctionedplan. —However, the plaintiffs failed to comply the same. Assuch, the provisional order was passed and noticeunder Section 321(1) and (2) was issued to theplaintiffs. Sensing the future proceedings of thedefendant authority, the plaintiffs approached the TrialCourt.

5. Based on the pleadings of the parties, the)

Trial Court framed the following issues for_ itsconsideration:-.

"1] Whether the plaintiffs prove that their|vendorhas|constructed|theSulitSchedule|residentialDullaing|In|accordancewitn thesanctioned plan without any deviation?

2]|Whether the plaintiffs further prove|the alleged threat of damage or interference to thesuit building by the defendant?

3]Whether the plaintiffs are entitled for|the relief sought for?

4 |Wheat order or decree?’

6. In support of their case, the first plaintiff got.

examined himself as PW-1 and got marked documents at Exs.P-1 to P-9. The defendant neither adduced any.evidence nor marked any documents as exhibits fromits side.

7. After hearing both side, the Trial Court by its|impugned judgment and decree dated 29-02-2016,while answering all the three issues in the affirmative,proceeded to decree the suit of the plaintiffs. It is.against the said judgment and decree, the defendanthas filed this appeal.

8. The Lower Court records were called for and|the same are placed before this Court.

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9. Heard the arguments of the learned counsel for.appellant/defendant,learnedcounsel|for.

respondents/plaintiffs and perused the material placedbefore this Court including the memorandum of appealand the impugned judgment.

10. For the sake of convenience, the parties|would be henceforth referred to with the ranks theywere holding before the Trial Court respectively.

11. In the light of the materials placed before|

this Court and the arguments addressed by theparties, the following points arise for my consideration in this appeal:- /1]Whether the plaintiffs have proved|that the officials of the defendant have interfered in|their peaceful possession of the suit schedule|property as alleged in tne plaint?

[2] Whether tne plaintiffs are entitled forthe relief as sought for?

[3/ Wnetner the Judgment and decree under|appeal deserves any interference at the hands ofthis Court 2?

12. It is not in dispute that the plaintiffs are in|the possession of the suit schedule property aspurchasers of the same under a registered Sale Deeddated 02-03-2012 which Is marked at Ex.P-1. Thedefendant authority has admitted that the plaintiffsare the purchasers in possession of the suit schedule.property, in their Written Statement itself, still, the.evidence of PW-1 as well the certified copy of the Sale.Deed at Ex.P-1, the Khata Certificate at Ex.P-2 andthe Khata extract at Ex.P-3, the property tax paymentreceipt, for the year 2014-15 which is at Ex.P-14further|corroborate the said contention of the’plaintiffs. However, the dispute is with respect to the.

alleged construction of the terrace floor upon the suit.schedule building.

13. According to the plaint averment, as well|the evidence of PW-1, the suit schedule propertycomprises of a stilt, ground floor, first floor, secondfloor and a terrace floor. Tne same has peenconstructed in accordance with the sanctioned plan, as_such, there is no deviation of any sort. PW-1 whilereiterating the same even in nis evidence, nas alsoproduced the sanctioned plan and got it marked atFyx.P-/.

14. The contention of the defendant autnority Istnat, the sanctioned plan was only for putting upconstruction of stilt, ground floor, first floor and thesecond fioor, but, the construction of a terrace floorwas by the plaintiffs and the same was in violation ofthe sanctioned plan.

15. Admittedly, the plaintiffs are the purchasers|of the constructed building from its vendor under theregistered Sale Deed at Ex.P-1l. The motherdocument for the plaintiffs to claim the ownership and.possession of the property is the very same Ex.P-l. —Admittedly, the schedule shown in the said Sale Deed.mentioned that the property consists of a construction.with stilt, ground floor, first floor, RCC roofed building:with vetrified flooring. Thus, the Sale Deed neither.Speaks about the putting up of the construction of the.second floor nor even the terrace floor. The existenceof the second floor and the terrace floor is not Indispute since the plaintiffs themselves, both in the.plaint as well in the evidence of PW-1 have stated thatthe suit schedule property comprises of a stilt, ground.floor, first floor, second floor and a terrace floor. —Thus, the question that remains is as to, who built the.

second floor and the terrace floor of the building. —Though the plaintiffs say that the entire structureincluding the terrace floor was built Dy the vendoronly, then, it snould Nave necessarily reflected in the.absolute Sale Deed at Ex.P-1. PW-1 In his cross-examination, though has admitted that, a reference to.the second floor including the terrace floor is notmade in the Sale Deed at Ex.P-1, but, he calls itasasheer mistake. The said explanation of PW-1 is notacceptabie, because, no purchaser of a valuableimmovable property would just ignore the non-mentioning of certain important structures in the formof two upper floors of a building while purchasing the.Same under a registered Sale Deed. Even by mistake,if the same has not been mentioned in the Sale Deed,then, the purchaser was expected to take immediatesteps to get the Rectification Deed executed, so that,

all the alleged floors in existence upon the site are.mentioned in the said Deed. Admittedly, no sucheffort has been made by the plaintiffs till date, in thatregard. Therefore, the contention’ of the plaintiffsthat, as on the date they purchased the suit scheduleproperty, it also contained the structure at secondfloor and the terrace floor is not acceptable.

16. The sanctioned plan which is at Ex.P-6 also|goes to show that, the plan was sanctioned only forstilt, ground floor, first floor and second floor and no.Sanction was accorded to put up any terrace floor. —Therefore, even if it is assumed for a moment that,the building is constructed upon a sanctioned plan,still, there is no sanctioned plan or building plan to putup a terrace floor. Admittedly, the existence of aterrace floor is an undisputed fact. The plaintiffsthemselves, at the earliest point of time, in their legal notice at Ex.P-7 and subsequently in their plaint haveclearly stated that the suit schedule property not only.comprised of stilt, ground floor, first floor and second.floor, but it also has a terrace floor on the top. —Therefore, when the plaintiffs could not able to show.that the construction of the terrace floor was upon aSanctioned plan, the entire construction of the terrace.floor|becomesan|un-authorisecdand|illegalconstruction.

The other point that the said construction was.built by the vendor of the property to the plaintiffs is.also not proved, because, aS already observed, theSale Deed at Ex.P-1 does not mention about theexistence of second floor and a terrace floor in the suit.schedule property. As such, the putting up ofconstruction in the form of second floor and terrace floor was only by the plaintiffs, but not by the vendor.to them. |

However, the Trial Court, without noticing these|aspects has accepted the sanctioned plan as the plan.including the terrace floor and enlarged the fact thatthe defendant did not enter the witness box andproceeded to noid that, the vendor to the plaintiffs nasconstructed the suit schedule residential building inaccordance with the sanctioned plan without anydeviation. In the said process, it also did not botherto analyse the other contention of the defendant that.the plaintiffs nad not left the set Dack according to thesanctioned plan.

17. Thus, the finding of the Trial Court on issue|No.1 framed by it proves to be an erroneous finding.The plaintiffs, bpotn in their plaint as well in theevidence of PW-1, have stated that when they were effecting minor repairs and plastering in April 2004,the officials of the defendant authority appeared atthe spot and threatened them of demolishing a portionof the building. Despite the plaintiffs causing a legalnotice upon them dated 04-04-2014, the officials ofthe defendant repeated the same act on 13-06-2014. —Except denying the said statement of PW-1 in hiscross-examination, the defendant has not put anyeffort in its support to over come the evidence of —PW-1, pbotn oral and documentary, regarding thealleged interference from the defendant's officials. —

On the otner nand, the evidence of PW-1 is.further corroborated by their legal notice at Ex.P-/7which is dated 04-04-2014. In the said legal notice,the plaintiffs have ciearly stated tnat the officials ofthe defendant have interfered in their peacefulpossession and enjoyment of the property with a

threat of demolition of a portion of the suit schedule.property. The postal receipt and the acknowledgmentcard at Exs.P-8 and P-9 respectively go to show that,.the said legal notice was served upon the defendant. ©In such a case, nothing had prevented the defendantauthority from responding to the said legal notice bysending a reply, denying the said interference in thepeaceful possession of the property by the plaintiffs. —Since the defendant has not chosen to react orrespond to the notice served upon it, and also did not.choose to enter the witness box and to lead theirevidence, it has to be inferred that, the contention ofthe plaintiffs that, the defendant's officials interferedin their lawful possession of the property in June 2014.stands established.

18. As such, the plaintiffs are entitled for the|relief of permanent injunction against the defendant authority from interfering in their lawful possessionand enjoyment of the suit schedule property, exceptin accordance witn law.

19. The defendant contends that with respect|to the violation of the building plan and allegedunauthorized and illegal construction, they had caused.notices upon the plaintiffs under Sections 328 and 321.of the KMC Act, followed by a confirmation orderunder Section 321(3) of the same Act. A suggestionmade to the said effect to PW-1 In his. cross-examination has not been admitted as true by thewitness. In such a case, it was incumbent upon the.defendant|authorityeither|tO|confrontthose|documents to PW-1 In his cross-examination and/or toenter the witness box and to lead their evidence andproduce the said documents. However, the defendant authority, for the reasons best known to it, has notdone either of these two.

20. Consequently, the Trial Court has rightlyobserved that, the defendant has not issued anynotice under Section 321(1) of KMC Act nor passedany confirmation order under Section 321 (3) of tneSame Act. Therefore, the contention of the defendantthat it caused such notices and passed such aconfirmation order itn the matter does not standestablisned.

21. In that circumstance, the act of thedefendant's officials in approacning the plaintiffs andthreatening to demolish the alleged unautnorised andillegal construction results in unlawful interference andpossession of the suit schedule property by theplaintiffs. Had really the defendant Corporationintended to take appropriate legal action against the .- plaintiffs for the alleged violation of the building plan.andconstructionofUnauthorisedandillegalupper/terrace floor and for not leaving the set back inthe suit schedule property by the plaintiffs, then, the.defendant was required to take appropriate steps inthe manner known to law. |

22. However, the Trial Court, without noticing:that the defendant, which is a statutory body cannot.be prevented from taking appropriate action inaccordance with law, haS passed a decree in sucn amanner that, it perpetually restrained the defendant,itsagent,menOranybody|through|it,fromdemolishing any portion of the suit schedule propertyOr in any way interfering with the plaintiffs’ peacefulpossession of the schedule property, which may alsointerfere in the defendant taking appropriate legalaction against the plaintiffs, for ever. The said order being not a justifiable order in the circumstance of thecase, the same requires to be modified, giving libertyto the defendant authority to take appropriate actionagainst the plaintiffs, if required, in accordance with.law..

23. This view is’ further supported by a#judgment of the Co-ordinate Bencn of tnis Court in the:case of.The Commissioner, Corporation of the City ofBangalore, Bangalore Vs. Smt. Snanataz M. Snariff|and another reported in 2014 Supreme Court Cases.Online Kar.12957, which judgment was relied upon bythe learned counsel for the appellant in his argument. —

In the said judgment, a Co-ordinate Bench of this Court, in a similar case, has observed that, theowner of the building against wnom the allegation ofviolation of sanctioned plan is made and theconfirmation order is passed under Section 321 of the.

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KMC Act, cannot seek a bare permanent injunctionand in a case of that nature, the relief of permanent.injunction can only be consequential to the relief ofdeclaration. In the absence of any challenge to the.confirmationorder,theconsequentialreliefofpermanent injunction cannot be granted.

24. Since in the instant case, the defendantCorporation has not established that it has issuednotice under Section 321(1) of the KMC Act, theconsequential passing of the confirmation order under.Section 321(3) of the same Act, would not arise. In.such a situation, the appellant being a statutory body,its right to take appropriate legal action cannot betaken away Dy issuing a blanket perpetual order ofinjunction, as in the instant case. As such also, the.impugned judgment and decree requires to bemodified.

Accordingly, I proceed to pass the followinga:-ORDER

[i] The appeal Isallowed in part,

[ii] The Judgment and decree dated29-02-2016 passed in O.S.No.4449/2014by the learned XL Additional City Civil andSessions Judge (CCH-41), Bengaluru,IS|modified, to the extent that, though the.defendant, its agent, men or anybodyunder it are restrained from demolishing»any portion of the suit schedule building or.in any way interfering witn the plaintiffs’possession of the schedule property, but.theyarenotpreventedfromtakingappropriate legal action in accordance withlaw with respect to the alleged non-leaving|of the set back and the unauthorized and illegal construction of the terrace floor in.

the suit schedule property, in accordance.

with law.

[ili] Draw the modified decree

accordingly.

In view of disposal of the main appeal,I.A.No.1/2016|for.staydoes.notSurvivefor.consideration.

Registry to transmit a copy of this judgment)

along with the Lower Court records to the concerned Trial Court, without delay.

BMV

Sd/-'|

JUDGE