Karnataka High Court
Smt Sarvamangala L M vs Dr Vidya Desai Mohan on 4 December, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2023:KHC:43820
RFA No. 1236 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO.1236 OF 2018 (INJ)
BETWEEN:
SMT SARVAMANGALA L.M.,
PRESENT AGED ABOUT 54 YEARS,
D/O. LATE SHRI. L. MAHADEVAIAH,
R/AT FLAT NO.118, "JANHAVI CLUSTERS",
6TH MAIN, P&T COLONY, SANJAYNAGAR,
BENGALURU 560 094.
...APPELLANT
(BY SRI. K.V. NARASIMHAN, ADVOCATE)
AND:
1. DR VIDYA DESAI MOHAN
NO.631, 5TH MAIN, 2ND STAGE,
INDIRANAGAR, BENGALURU 560 038,
2. THE COMMISSIONER
BENGALURU MAHANAGAR PALIKE,
BENGALURU 560 002.
Digitally
signed by
VANDANA S 3. SHRI. P VIJAYAKUMAR
S/O. SHRI. P RAMASWAMY RAJU,
Location:
HIGH AGED ABOUT 49 YEARS,
COURT OF R/O. NO.77/B, 6TH MAIN,
KARNATAKA 17TH AND 18TH CROSS,
MALLESHWARAM, BANGALURU - 560 055.
4. SMT. Y MANJULA
W/O. SHRI. P VIJAYAKUMAR,
AGED ABOUT 44 YEARS, R/O.NO. 77/B, 6TH MAIN ROAD,
17TH AND 18TH CROSS, MALLESHWARAM,
BENGLAURU - 560 055.
...RESPONDENTS
(BY SRI. VIVEK ANAND ANTHONY BRITTO, ADV. FOR R-1;
SRI. B.S. KARTHIKEYAN, ADVOCATE FOR R-2;
R-3 & R-4 ARE SERVED)
-2-
NC: 2023:KHC:43820
RFA No. 1236 of 2018
THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W SEC.96 OF
CPC AGAINST THE JUDGMENT AND DECREE DATED 10.04.2018
PASSED IN O.S.NO.16742/2004 ON THE FILE OF THE XIII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT,
BENGALURU, DISMISSING THE SUIT FOR PERMANENT
INJUNCTION AND MANDATORY INJUNCTION.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the impugned judgment and
decree dated 10.04.2018 passed in O.S.No.16742/2004 by the XIII
Addl. City Civil & Sessions Judge, Mayo Hall Unit, Bengaluru City
whereby the said suit filed by the appellant - plaintiff against the
respondents - defendants for mandatory and permanent injunction
and other reliefs in relation to the suit schedule property was
dismissed by the Trial Court.
2. Heard learned counsel for the appellant and learned
counsel for respondent No.1 and learned counsel for respondent
No.2 - BBMP and perused the material on the record.
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3. Respondent Nos.3 and 4 having served with notice of
this appeal has chosen to remain unrepresented and has not
contested the appeal.
4. In addition to reiterating the various contentions urged
in the Memorandum of Appeal and referring to the material on
record, learned counsel for the appellant submits that respondent
No.1 - defendant No.1 had put-up illegal and unauthorised
construction on the western side of the property of the appellant -
plaintiff by deviating from the sanctioned plan and by violating
building bye-laws and despite the appellant - plaintiff submitting
complaint to respondent No.2 - defendant No.2 - BBMP, no action
was taken and appellant was constrained to institute the instant
suit. It is also submitted that prior to institution of the suit,
defendant No.1 - respondent No.1 sold her property in favour of
the respondent Nos.3 and 4 - defendant Nos.3 and 4, who have
been subsequently impleaded as parties to the suit. It is submitted
that the Trial Court did not correctly and properly appreciate the
material on record and proceeded to dismiss the suit only on the
ground that the report of the Court Commissioner did not contain
sketch.
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5. Alternatively, learned counsel submits that since no
further construction is subsequently being put-up in respect of the
property originally owned and possessed by defendant No.1 -
respondent No.1, the present appeal may be disposed of by
directing respondent No.2 - defendant No.2 to take appropriate
action in respect of the said construction as against respondent
Nos.3 and 4 - defendant Nos.3 and 4 or any further transferee in
respect of the said property.
6. Per contra, learned counsel for respondent No.2 would
support the impugned judgment and decree and submits that there
is no merit in the appeal and the same is liable to be dismissed.
However, learned counsel for respondent No.2 - BBMP submits
that if reasonable time is granted, respondent No.2 - BBMP would
address the grievances of the appellant as regards alleged illegal
and unauthorised construction and take appropriate action against
respondent Nos.3 and 4 or any other transferee of the said
property, in accordance with the provisions contained under the
BBMP Act, 2020.
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7. In view of the aforesaid facts and circumstances,
though several contentions have been urged by both sides as
regards validity, legality of the construction put-up on the property
situated to the west of the property of the appellant - plaintiff,
without expressing any opinion on the merits / demerits of the rival
contentions, I deem it just and appropriate to dispose of this appeal
by modifying the impugned judgment and decree passed by the
Trial Court and by directing respondent No.2 - BBMP to take
appropriate action in respect of the alleged unauthorised
construction without being influenced by the findings and
observations recorded in the impugned judgment and decree after
providing sufficient and reasonable opportunity to the appellant as
well as respondent Nos.3 and 4 and also any other subsequent
transferee of the said property.
8. Appellant is directed to submit a fresh representation
to the respondent No.2 - BBMP within a period of three weeks
from today.
9. If such a representation is submitted by the appellant
to respondent Nos.2 - BBMP, respondent No.2 shall notify
respondent Nos.3 and 4 and / or any subsequent trasferee /
NC: 2023:KHC:43820
alienee of the property and proceed further in accordance with law
within a period of three months from the date of submission of such
representation by the appellant.
10. Subject to the aforesaid directions and liberty reserved
in favour of the parties, appeal stands disposed of.
Sd/-
JUDGE
SV
