K.N.SUNDARA RAMA REDDY Vs. KISHORE HEGDE

JUDGEMENT

(1.) HEARD the learned counsel for the appellant and the learned counsel for the respondents.

(2.) THE plaintiff is in appeal. The suit was one for mandatory injunction. The appellant herein and the first respondent are neighbours. They have purchased readily built houses which were said to have been constructed uniformly according to the sanctioned plan of the Bangalore Development Authority (hereinafter referred to as 'the BDA', for brevity). It is later that certain modifications have been made to their respective premises. It was the case of the plaintiff ­ appellant that Respondent No.1 herein had totally violated the building bye-laws of the BDA and had constructed in such a fashion that it interfered with the light and air that was available to the building from inception. It was further alleged that the building was constructed 20 years prior to the suit and hence, any such construction which interfered with the light and air, was certainly an easement which was obstructed and hence, sought for appropriate reliefs in the alternative, while also contending that since the Respondent No.1 had constructed in violation of the building bye-laws and in violation of the sanctioned plan, the second respondent was required to take appropriate action by removing such illegal construction and such part of the construction which interfered with the light and air of the appellant.

(3.) THE learned counsel for the appellant ­ plaintiff has put forth an explanation for the reason as to why the first respondent was not cross-examined at the trial, that it was on account of an inadvertent error committed by the counsel in recording the date to which the case was posted. When the case was posted on 5.12.2009, it had been noted down by the counsel as 5.1.2010, by which time the judgment itself had been rendered as on 2.1.2010 and that it is only on 5.1.2010 that the appellant found that the judgment had been delivered and the effort on his part to restore the case to file was futile and hence, the appeal.