2. For orders purpose, notice to respondents is
3. Heard learned counsel for the appellant-BBMP and
4. A perusal of the material on record will indicate that
"Suit was filed by the plaintiff on
13.03.2017 and prays to pass a judgment and
decree against the defendant by an order of
perpetual injunction restraining the defendant,
its agents, men, or anybody, under or through
it from demolishing any portion of the schedule
building and or in any way interfering with the
plaintiff's construction of the building upon the
schedule property and grant such other reliefs."
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The said suit having been contested by the
appellant/BBMP, the trial Court framed the following
issues:
1. Whether the plaintiffs prove that they are
constructing building on suit property as per
sanctioned plan?
2. Whether defendant proves that plaintiffs
have deviated from sanctioned plan and put up
construction illegally?
3. Whether plaintiffs prove the alleged
interference?
4. Whether plaintiffs are entitled for relief
sought?
5. What order or decree?
5. Plaintiff No.2 examined himself as P.W.1 and
documentary evidence at Ex.P1 to Ex.P10 were marked
while the appellant/defendant did not adduce any oral or
documentary evidence.
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6. After hearing the parties, the Tribunal proceeded to
decree the suit against the appellant/defendant by holding
as under:
"9. ISSUES NO.1 TO 4 :: All these issues
are taken up collectively for common discussion
to avoid repetition of facts and also for
convenience of the Court. The present suit is
one for Permanent Injunction to restrain the
defendant authority from demolishing any
portion of the schedule building and interfering
with the plaintiffs construction of building and
from interfering with the plaintiffs peaceful
possession and enjoyment over the suit
schedule property. The plaintiffs in order to
establish that they are in lawful possession and
enjoyment of the suit schedule property and
that the construction is in accordance with the
sanctioned plan and that they have not floated
any building rules, got examined the plaintiff
No.2 as P.W.1 and he has in his affidavit
reiterated the averments made in the plaint.
According to P.W.1, the plaintiffs are the
absolute owners of the suit schedule property
purchased under registered Sale Deed dated
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14.10.2016 and based on the sale deed khata
is effected by the defendant to the names of
the plaintiffs and after obtaining sanction plan
from the defendant authority in L.P.No.63/16-
17 dated 06.01.2017 they have put up
construction of ground, first and second floors
and at the time of putting up construction in
the month of January 2017, the officials of the
defendant authority inspected the spot and
threatened to demolish portion of the schedule
property and also prevented the plaintiffs from
proceeding further with the construction.
However, the plaintiffs prevented the officials of
the defendant authority from damaging the
schedule property by apprising them about the
fact that the schedule building is constructed in
accordance with the sanctioned plan. However,
considering the abrupt threat of demolition, the
plaintiffs caused a legal notice to the defendant
on 09.01.2017 and even after the receipt of the
legal notice, the defendant again came near the
suit property on 10.03.2017 and tried to
damage the structure, the present suit is filed.
10. In support of his evidence of P.W.1
has relied upon Ex.P-1 which is the khata
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certificate issued by the defendant authority
which shows the suit schedule property is
entered in the name of both the plaintiffs
pertaining to the suit property. Ex.P-2 is the
khata extract. Ex.P-3 is the tax paid receipt
which shows the plaintiffs are paying tax to the
defendant authority. Ex.P.4 is the sanctioned
plan which according to the plaintiffs is
approved by the defendant and the construction
was in accordance with the said sanction plan.
Ex.P-5 is the legal notice dated 09.01.2017
issued to the defendant authority by the
plaintiffs calling upon the officials of the
defendant to restrain from causing any damage
or interference with the plaintiffs residential
building. Ex.P-6 and Ex.P-7 are the postal
receipt and acknowledgment which proves the
issuance and service of legal notice on the
defendant. Ex.P-8 is the registered Sale Deed
dated 14.10.2016 which shows the plaintiffs
herein have purchased the suit schedule
property from its owner Smt. Susheelamma.
Ex.P-9 and Ex.P-10 are the loan documents
which shows the plaintiffs have mortgaged the
property in favour of Bank and have availed
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loan for construction of building in the suit
property. So relying on these documents, the
plaintiffs claim that the construction put up by
them is in accordance with the approved plan
and there is no deviation or violation of the
building bye laws.
11. During the cross-examination of
P.W.1, he has consistently deposed that they
have not violated the sanction plan and has
deposed about the interference caused by the
defendant authority and denies the suggestion
put-forth that he has not left set back area and
the construction is not in accordance with the
sanctioned plan.
12. At this point of time it is necessary to
note that, the defendant authority has though
in its written statement raised defence that the
construction put up by the plaintiffs is in
violation of building rules and bye laws and and
on spot inspection they found deviation of the
construction of the building and hence issued
provisional order under Section 321(1), (2) of
K.M.C. Act and confirmation order under
Section 321(3) of K.M.C. Act, the same is not
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substantiated by adducing any oral and
documentary evidence on its behalf. The oral
evidence of P.W.1 and the documents relied
upon by him establishes that the plaintiffs being
the owners of the suit schedule property,
having acquired the same under registered Sale
Deed and having obtained sanction plan from
the defendant authority, have proceeded to put
up construction and at that point of time there
was interference by the defendant to demolish
the structure on the ground that there is
violation of building bye laws and rules. When
the documents of the plaintiffs establishes that
the construction is as per the sanctioned plan
then the burden is on the defendant authority
to establish before the Court that the
construction was not in accordance with the
approved plan. But the defendant has literally
left the suit uncontested. So by this, the
defence raised by the defendant as to the
violation of building bye laws by the plaintiffs is
not established. So relying on the evidence of
plaintiff and the documents placed on record, it
can be held that the construction was in
accordance with the approved plan and so, the
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alleged interference by the defendant is not
sustainable. The notice issued by the plaintiffs
to the defendant shows that there was
interference by the defendant consequent to
which such notice issued. So relying on the
unrebutted testimony of P.W.1 and the
documents relied upon by them it can be held
that the plaintiffs have proved that the
construction was in accordance with the
approved plan and that there was interference
by the defendant and hence, the alleged
interference is required to be restrained by way
of Permanent Injunction. Hence, this Court
proceeds to answer issue No.1 in the
Affirmative, issue No.2 in the Negative and
issues No.3 & 4 in the Affirmative.
13. ISSUE NO.5 :: In view of my findings
on issues No.1 to 4, I proceeds to pass the
following;
ORDER
The suit of the plaintiffs is decreed.
The defendant is hereby restrained from
damaging any structure in the suit schedule
property and from interfering with the plaintiffs
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construction of building over the suit property
by way of Permanent Injunction.
Plaintiffs shall bear the cost of the suit.
Draw decree accordingly."
7. Learned counsel for the appellant submits that the
impugned judgment and decree passed by the trial Court
would come in the way of appellant/BBMP to taking
steps/action against the respondents/plaintiffs by following
due process of law and in accordance with law, and as
such, the impugned judgment and decree passed by the
trial Court may be clarified by permitting the appellant/
defendant to proceed against the respondents/plaintiffs
and take necessary steps/action, by following due process
of law and in accordance with law.
8. Submission of the learned counsel for the
appellant/BBMP is placed on record.
9. In view of the aforesaid facts and circumstances and
the submission made by the learned counsel for the
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appellant/defendant, I deem it just and appropriate to
dispose of this appeal, without interfering with the
impugned judgment and decree and by clarifying that the
impugned judgment and decree will not come in the way of
the appellant/defendant proceeding against the
respondents/plaintiffs in relation to the suit schedule
property and taking necessary steps/action against the
respondents/plaintiffs by following due process of law and
in accordance with law.
10. In the event, the appellant/defendant proceeds
against the respondents/plaintiffs and takes appropriate
action in accordance with law and by following due process
of law, the respondents/plaintiffs would be entitled to
defend all such proceedings, litigations, actions etc., taken
by the appellant/defendant against the respondents/
plaintiffs.
11. Subject to the aforesaid directions and liberty
granted in favour of the appellant/defendant and
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clarification to the impugned judgment and decree, the
appeal stands disposed of.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
MPK
