K PANDURANGA NAYAK Vs. JAYASHREE

JUDGEMENT

(1.) Appellant was the plaintiff in the original suit before the trial court and being aggrieved by the Judgment and Decree of that court dismissing his suit for the reliefs claimed therein he has approached this Court. Respondents-1 and 2 are wife and husband respectively were defendants-1 and 2 in the court below. The 3rd respondent- defendant-3 is the Bangalore City Corporation. Parties would be referred to in this appeal as described in the original suit. Plaintiff and defendant-2 are owners in possession of the respective properties which are situate side by side. In fact it is the 1st defendant who is the owner of their property having inherited the same from her father Krishna Rao. The plaintiff was residing for some years prior to the suit at Nigeria on an assignment from the Government of India. His nephew living in his house property was managing it. When the 1st defendant succeeded to the estate of her father the proper- ty by the side of the plaintiffs property was only a ground-floor house with a staircase attached to it on the western side, i.e. to the east of the plaintiffs property. Having obtained sanction from the 3rd defendant the 1st defendant added a first floor to their residential house and while doing so they also put up a staircase leading to the terrace of the first floor. In the eastern wall of the plaintiffs house there are windows to his bed-room on the first floor. Thus the plaintiff had already a first-floor for his residence. He received information that while putting up this first floor and a staircase therefrom the defendants-1 & 2 had encroached over his property to an extent of one inch and that the newly put up staircase was directly opposite to the first-floor bed room of his house.

(2.) The plaintiff came to Bangalore and noticed that the first floor construction of the defendants was completed and the staircase put up by them had destroyed his privacy completely in the bed room. Due to this invasion over his privacy he was compelled to keep the windows of his bed room closed resulting in lack of air and light. On enquiry in the office of the 3rd defendant he came to know that the construction put up by the defendants-1 & 2 was in complete violation of the bye-laws framed by the 3rd defendant in the matter of construction of buildings. The staircase from the first floor to the terrace was built up unauthorisedly. His complaint to the Commissioner of the 3rd defendant was of no avail. By this construction of the staircase he is deprived of privacy, safety, light and air to his bed room on the first floor. There are so many deviations even in the construction of the ground-floor. In the suit he prayed for a permanent injunction restraining the 3rd defendant from regularising the unauthorised construction made by these two defendants and for a direction to defendants-1 & 2 to demolish or remove unauthorised construction of the staircase referred to above.

(3.) Defendants-1 and 2 by their written statement denying these allegations inter alia contended that their construction is not in any way in violation of Building Byelaws framed by the 3rd defendant and that the construction of the staircase has in no way caused obstruction for the free passage of light and air to the plaintiffs property. There is no right of privacy which the appellant could claim. The allegation that they constructed even the ground-floor in violation of the sanctioned plan is also denied. Even the encroachment alleged is denied. The 3rd defendant admits to have received complaint from the plaintiff on 5.2.1982. The staircase constructed on the first-floor leading to the terrace was found to have been constructed against the sanctioned plan. There was an extension on the roof of the rear portion of 2' 6" in average width on either side. Thus the defendants have constructed the building deviating in some respects and having verified the same it wanted to take action in accordance with law, but in the meanwhile the plaintiff rushed to the court. Therefore it would not regularise the unauthorised construction and it would abide by the decision of the court. The following issues were framed: (1) Whether the plaintiff establishes that his right of privacy is infringed as alleged in the suit ? (2) Whether he further establishes that the construction on the part of the defendants is unauthorised as contended ? (3) Whether the plaintiff is entitled for mandatory injunction as well as permanent injunction ? The trial court found all these issues in the negative and against the plaintiff and dismissed the suit.