RAVINDRA Vs. LILIYAS THERESA FERNANDES AND ORS.

JUDGEMENT

(1.) This is an unsuccessful plaintiffs regular second appeal against the judgment and decree dated 18.07.2012 made in R.A. No. 79/2011 on the file of the I Addl. Senior Civil Judge & C.J.M., Dharwad, confirming the judgment and decree dated 07.07.2011 made in O.S. No. 311/2009 on the file of the Prl. Civil Judge & Prl. J.M.F.C., Dharwad, dismissing the suit filed by the plaintiff for declaration and mandatory injunction.

(2.) It is the case of the appellant - plaintiff that the suit property is the portion of the property bearing C.T.S. No. 7/5B measuring 15 feet with a letter shown ABCD in the hand sketch annexed to the plaint contending that the plaintiff is the owner of C.T.S. No. 7/5B and in possession and enjoyment of the suit property since several years. The defendant is the owner of the property bearing C.T.S. No. 7/3 measuring 405 -97 square metres. Both the properties are adjacent to each other. The suit property is situated on north west corner of the plaintiffs property and the defendant started construction on the north western side of plaintiffs property, blocking the natural air, light and plaintiffs privacy. The plaintiff made request to the 1st defendant not to construct any building on the north west side of the property, as stated above. But the defendant had not heeded to the same. The plaintiff had objected the construction by filing complaints to the defendant No. 2. The defendant No. 1 has refused to remove the portion which had already constructed. 1st Defendant demolished some illegal construction in existence earlier making the plaintiff to believe that defendant No. 1 would not construct any wall or anything. Suddenly, on 31.05.2009, again defendant No. 1 started construction on the plaintiffs property without leaving proper set back and by violating the rules made by the Hubli Dharwad Municipal Corporation. If the 1st defendant continues the illegal construction over the suit property, the plaintiff will be put to loss and hardship etc. Therefore, plaintiff filed the suit.

(3.) The 1st defendant filed the written statement, denied the entire plaint averments and contended that defendant No. 1 has not violated the rules and regulations made by the Hubli Dharwad Municipal Corporation granting permission on 19.01.2009 with proposed plan commencing the construction in the plot. The competent authorities have not made any objections regarding 1st defendant's the construction or about set back and the construction is a time bound construction entrusted to a contractor who had already received the advance money for the construction. The intimation of the plaintiffs counsel was received by the 1st defendant after completion of the construction. Therefore, defendant No. 1 sought for dismissal of the suit.