R H RADDI Vs. V P KEDILAYA

JUDGEMENT

(1.) THE brief facts leading to these two appeals are that v. p. kedilaya (referred to as the 'plaintiff hereinafter) is the owner in possession of site bearing No. 45 situated at judicial colony, more fully described in the schedule attached to the plaint. R. h. raddi (referred to as the 'defendant' hereinafter) is the owner in possession of site No. 46 situated on the northern side of the suit schedule property. Thereafter, the plaintiff obtained a sanction plan and also licence to construct a house in site bearing No. 45 on 20-10-1987 and put up the building as per the sanction plan and he celebrated the house warming of his house in the year 1988. Along with the house he had also put up the staircase on the northern side of his house and also put up a compound wall separating the site nos. 45 and 46. In the year 1997, r. h. raddi/defendant obtained sanction plan to construct a house in his site. At that time, it was noticed that the plaintiff had put up the compound wall encroaching the portion of his site and he has also unauthorisedly put up the staircase violating the sanction plan. Therefore, it appears that the defendant approached the bda for demolition of the staircase put up by the plaintiff. Accordingly, the commissioner for bda got issued a notice through the assistant executive engineer under sub-section (1) of Section 321 of the Karnataka municipal corporations act to remove the staircase for. which the plaintiff had sent a reply. Subsequently a final notice as contemplated under sub-section (3) of Section 321 was also issued. Apprehending that the corporation would demolish the staircase, the plaintiff filed a suit in o. s. No. 8267 of 1997 on the file of the additional city civil judge, Bangalore, for permanent injunction restraining the defendants therein, the commissioner, bda, and the assistant executive engineer who are defendants 1 and 2 from interfering with the peaceful possession and enjoyment of the suit schedule property and also restraining them from enforcing the final notice issued vide No. Bda/ee (dn)t-co-101/97-98, dated 3-11-1997. That suit came to be filed on 14-11-1997. The order sheet dated 14-11-1997 reads: "sri tvr produces a document with a memo. Sri B. P. P. takes notice and prays for time to file objections. Sri B. P. P. and the A. E. E. who is in the court undertake not to take any action in this matter till 17-11-1997". Subsequently, the defendants filed written statement and also objections. Thereafter, the plaintiff also filed o. s. No. 63 of 1998 against r. h. raddi for permanent injunction from putting up construction on 'b' schedule property by encroaching his property and also for mandatory injunction against the defendant to demolish the garage constructed on the 'a' schedule property on the southern boundary portion at the cost of the defendants. Along with the plaint he also field la. Under order 39, rules 1 and 2 of the Civil Procedure Code on the file of the 15th additional city civil judge, Bangalore city. By that time, the defendant had already filed a caveat and a notice was ordered to the defendant and subsequently the defendant also filed his written statement and objections. After hearing both parties, the court below has passed orders separately but granting injunction in favour of the plaintiff on 24-3-1978. The operative portion of the ordei on la. Ii in o. s. no. 8267 of 1997 reads as follows: "la. Ii is allowed, granting an order of temporary injunction as prayed therein, till the disposal of the suit". Similarly in o. s. No. 63 of 1998 also an order on i. as. I and ii was passed, the operative portion of which reads as follows: "la. I is allowed. La. Ii is rejected to the following extent: the defendant is restrained by means of temporary injunction till the disposal of the suit from demolishing or meddling within any manner the existing compound wall in between the two properties and the staircase constructed by the plaintiff on the southern side of the plaint 'a' schedule property. It is made clear that the defendant is permitted to construct on the 'b' schedule property except the above stated compound wall and the staircase". Being aggrieved by these orders the defendant-r. h. raddi preferred m. f. a. No. 1442 of 1998. Similarly, the defendant in o. s. No. 8267 of 1997 preferred m. f. a. No. 1508 of 1998. Though the plaintiff is common, the defendants are different in both the suits as indicated above but the subject-matter of the suits pertain to the compound wall and also the staircase.

(2.) WHEN the appeals were taken up for arguments, the learned counsel for the respondent reported no instructions as the respondent himself wanted to argue the case, being a practising advocate. Permitted. The learned counsel appearing for the appellants and the respondent in person were heard. After having heard both the parties, this common order is passed. Retain a copy of this order in each file.

(3.) FROM the narration of facts, it is clear that the respondent/plaintiff has constructed his house and he has been living since the house warmnig ceremony was done along with his family. The compound wall and open staircase were put up by him while constructing the house. The appellants/defendants claim that the plaintiff encroached certain portion of the site belonging to the defendant. According to the owner of site No. 46, more than one foot of land was encroached but the bda claims the plaintiff has encroached about 1/2 a foot while constructing the staircase. The fact remains that the plaintiff had constructed the compound wall and staircase much before the dispute started in the year 1997, i. e. , about 9 years after the construction was done by the plaintiff. Till such time the owner of site No. 46 had not raised his little finger objecting to the construction of the compound wall or staircase by the plaintiff. Thus, the possession of the plaintiff in regard to the area said to have been encroached by putting up a compound wall and also staircase has become settled possession. That being the position, even if he had encroached (subject to proof) upon the area of the defendant, he should workout his remedy according to law as held by this court in a decision in Sathyam Alias Ramaiah and others v Karnataka Milk Federation Co-Operative Limited. It is also alleged by the plaintiff that the owner of site No. 45 was constructing his house and compound wall and trying to encroach upon the plaintiff's property which resulted in filing this suit. He further alleged that the defendant is virtually blocking the passage to use his staircase. Therefore, the commissioner of the bda ought to have directed the defendant to approach the civil grievance. Instead of that he issued notice as stated above. There is no material to show that any joint survey was conducted by the bda authorities before issuing notice. There is a difference in the area said to have been encroached by the plaintiff. Therefore, it is clear that the officers of the bda jumped to the conclusion that there is encroachment by the plaintiff. Be that as it may, if is a matter for the court to decide after the trial.