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2025 Supreme(Online)(Kar) 9086
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29 TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE C M JOSHI REGULAR FIRST APPEAL NO.949 OF 2009 (INJ)
C/W REGULAR FIRST APPEAL NO.950 OF 2009 (INJ)
IN RFA No. 949/2009:
BETWEEN:
SMT. M. SHARADA W/O R. RAMACHANDRA, AGED ABOUT 60 YEARS, RESIDING AT NO.167, NEHRU ROAD, 3 RD CROSS, KAMMANAHALLI, ST. THOMAS TOWN PAST, BANGALORE-560 084.
…APPELLANT (BY SRI M.K. SHIVARAJU, ADVOCATE)
AND:
1. SRI. SELVARAJ, FATHER'S NAME NOT KNOWN, AGED ABOUT 56 YEARS, 2. SMT. SAROJA W/O SELVARAJ, AGED ABOUT 52 YEARS, BOTH ARE RESIDING AT NO.23, NEHRU ROAD, NEAR KULLAPPA CIRCLE, KAMMANAHALLI, ST. THOMAS TOWN POST, BANGALORE-560 084.
…RESPONDENT (BY SRI. N. VINAYA KEERTHI, ADVOCATE FOR CR1 & R2)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER XLI RULE 1 OF CPC ACT, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 08.06.2009 DECREEING THE COUNTER CLAIM OF THE RESPONDENTS IN O.S. NO.1320/1998 ON THE FILE OF THE XXIV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH:6) AND ETC.
IN RFA NO.950/2009:
BETWEEN:
SMT. M. SHARADA W/O R. RAMACHANDRA, AGED ABOUT 60 YEARS, RESIDING AT NO.167, NEHRU ROAD, 3 RD CROSS, KAMMANAHALLI, ST. THOMAS TOWN POST, BANGALORE-560 084.
...APPELLANT (BY SRI M.K. SHIVARAJU, ADVOCATE)
AND:
1. SRI. SELVARAJ, FATHER'S NAME NOT KNOWN, AGED ABOUT 56 YEARS, 2. SMT. SAROJA W/O SELVARAJ, AGED ABOUT 52 YEARS, BOTH ARE RESIDING AT NO.23, NEHRU ROAD, NEAR KULLAPPA CIRCLE, KAMMANAHALLI, ST. THOMAS TOWN POST, BANGALORE-560 084.
...RESPONDENTS (BY M/S LINC & CO., ADVOCATE FOR R1 & R2)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER XLI RULE 1 OF THE CPC ACT, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 08.06.2009 DISMISSING THE SUIT OF THE PLAINTIFF IN O.S. NO.1320/1998 ON THE FILE OF THE XXIV ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH:6) AND ETC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT AND COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT’, THIS DAY, THROUGH VIDEO CONFERENCING AT KALABURAGI BENCH, THE COURT DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE C M JOSHI
The plaintiff's failure to comply with building bylaws rendered her construction illegal, obstructing the defendants' right to light and air, leading to the dismissal of her appeal.
Headnote:(A) Code of Civil Procedure, 1908 - Section 96 - Appeal against dismissal of suit and decree of counter claim - The plaintiff contended ownership and possession of property, alleging obstruction by the defendants - The trial court found no legal basis for the plaintiff's claims and decreed the defendants' counter claim, establishing that the plaintiff's construction obstructed the defendants' right to light and air. (Paras 1-26)
(B) Building Bylaws - Compliance - The plaintiff failed to obtain necessary permissions for construction, which was deemed illegal, impacting the court's decision. (Paras 22-24)
Facts of the case:
The plaintiff owned sites Nos.24 and 25, while the defendants owned site No.23. The plaintiff alleged obstruction from the defendants in her construction efforts. The defendants countered with claims of illegal construction by the plaintiff.
Findings of Court:
The court upheld the trial court's findings, confirming the defendants' rights and dismissing the plaintiff's appeal.
Issues: The main issues included the legality of the plaintiff's construction and whether the defendants obstructed her rights.
Ratio Decidendi: The court concluded that the plaintiff's construction was illegal and obstructed the defendants' right to light and air, thus affirming the trial court's decision.
Result: Appeals dismissed with costs.
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE C M JOSHI)
These appeals are filed by the plaintiff in O.S.No.1320/1998 assailing the dismissal of the suit filed by her and decreeing the counter claim of the defendants by the 24th Additional City Civil and Sessions Judge, Bengaluru (CCH-6) dated 08.06.2009.
2. The parties would be referred to as per their rank before the trial Court.
3. The facts that are germane for disposal of these appeals are as below:
a) The plaintiff-Sharada happens to be the owner in possession of the sites bearing Nos.24 and 25 situated at Kammanahalli, Bengaluru North Taluk totally measuring 60 feet East – West and 49.5 feet North – South. The defendant Nos.1 and 2 are the occupants of the site No.23, which is situated on the eastern side of the site of the plaintiff. It also measures 50 feet North –South and 30 feet East – West.
b) Plaintiff contended that she purchased site Nos.24 and 25 under a registered sale deed dated 26.08.1991 and since then, she is in possession and enjoyment of the same. Accordingly, the revenue documents stand in her name and she is paying the property tax to the concerned authorities regularly. She further contended that she has constructed a residential house in a portion of the property and rest of the property is vacant.
c) The plaintiff further contends that defendant Nos.1 and 2 are the husband and wife and they are the adjacent owners of the suit schedule property namely of the site bearing No.23. They do not have any right, title or interest over site Nos.24 and 25 owned by the plaintiff and they have tried to obstruct the plaintiff from putting up any construction over the vacant space left in her property. It is also stated that the defendants have fully constructed a building in their property, without leaving any space on either side of the property for free flow of light and air.
d) When the plaintiff tried to construct a building on her portion of the land, the defendants obstructed the construction to harass her since she belongs to weaker section of the society. Such obstruction was on 09.02.1998 and therefore, the plaintiff approached the jurisdictional Police at Banasawadi, who advised the plaintiff to approach the Civil Court.
e) The defendants having the support of the rowdy elements, economically sound, are taking advantage of the position of the plaintiff and therefore, the plaintiff prayed for a permanent injunction to restrain the defendants, agents from interfering the peaceful possession and construction work of the plaintiff in the suit schedule property.
4. On being served with the summons, the defendants appeared and filed their written statement setting up a counter claim.
a) They admitted that they are husband and wife and defendant No.2 is the owner in possession of Site No.23 situated on the eastern side of the sites belonging to the plaintiff.
b) They denied that they have constructed building in the entire site No.23 without leaving any set back. They stated that on the eastern side of their building, they have left a 03 feet set back and have erected a compound wall. They denied that they had objected the plaintiff to construct any building in her property. They denied all other averments made by the plaintiff in her plaint.
c) It is the contention of the defendants that the plaintiff started digging adjacent to the compound wall on the eastern side of her property without leaving any set back. Therefore, they approached the concerned Police and the Police have issued notice to the plaintiff and also the Police informed the authorities of Bengaluru City Corporation. As a result, due to the pressure by the Police as well as City Corporation, the construction was stopped, which prompted the plaintiff to file a suit.
d) It is alleged that on the basis of the status-quo order of the trial Court, the plaintiff completed construction of the illegal wall abutting the defendants compound wall and grills and thereby, obstructed the free flow of air and light to the defe
