Bangalore District Court
Jolly Stephen S/O. K.J.Stephen vs Mr.Thomas Kuruvilla on 16 April, 2022
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
OS No.25242/2018
Dated this 16th day of April 2022
Plaintiff:- 1. Jolly Stephen S/o. K.J.Stephen,
Aged about 55 years,
R/at Apartment No.304(3D),
3rd floor, "Pranavah Apple Blossom",
Bellandur Village, Varthur Hobli,
Bengaluru South Taluk.
(Rep by Sri. S Kalyan Basavaraj Advocate)
V/S
Defendants:- 1. Mr.Thomas Kuruvilla,
Father's name not known to the plaintiff,
R/at. Apartment No.301, 3rd Floor,
Pranavah Apple Blossom,
Bellandur Village, Varthur Hobli,
Bengalore South taluk.
(Rep by Sri. K Sundaram Advocate)
2
Judgment OS.No.25242/2018
Date of Institution of the suit 22/02/2018
Nature of the (Suit or pro-note, suit
for declaration and possession, suit Injunction suit
for injunction, etc.)
Date of the commencement of recording
of the Evidence.
29/01/2020
Date on which the Judgment was
16/04/2022
pronounced
Total duration Year/s Month/s Day/s
04 01 24
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
MAYOHALL UNIT: BENGALURU.
:JUDGMENT:
The plaintiff filed suit against defendant for permanent injunction.
2. The brief facts of plaint averments is as under:
The plaintiff submits that he absolute owner in possession of the property residential apartment bearing No.304 on the third floor having super built up area of 2372 sq.ft., with one car 3 Judgment OS.No.25242/2018 parking space in the apartment complex known as "Pranavah Apple Blossom" together with proportionate share in common areas such as passages, lobbies, lifts, staircases and terrace area attached to the apartment i.e., suit schedule C property along with 1014.50 sq.ft., of undivided right, title and interest and ownership suit schedule B property) in the property bearing house list No.83, Khatha No.601/83 formed out of converted Sy.No.85/1 No.85/2, situated at Bellandur village, varthur Hobli, Bengalore South taluk i.e. suit schedule 'A' property.
:SUIT SCHEDULE 'A' PROPERTY:
All the piece and parcel of the property bearing H.L.No.85, Khatha No.603/85 formed out of converted Sy.No.85/1 and 85/2 situated at Bellandur village, Varthur Hobli, Bengalore South Taluk and measuring on the East to West (93+96)2 ft., and North 4 Judgment OS.No.25242/2018 to South 50 ft., and totally measuring 4725 sq.ft., presently coming under the jurisdiction of the BBMP having new joint BBMP khatha No.572/582/597/79, bounded on the East by Park area, West by 50 feet Road, North by site No.087 and South by Site No.083.
:SUIT SCHEDULE 'B' PROPERTY:
1014.50 Sq.ft of undivided right title, interest and ownership in the schedule A property.
:SUIT SCHEDULE 'C' PROPERTY:
All the piece and parcel of the residential apartment bearing No.304(3D) on the third floor of the apartment known as " Pranavah Apple Blossom", constructed over the schedule A property, measuring 2372 square feet of super built up area with one car parking space, 5 Judgment OS.No.25242/2018 together with proportionate share in common areas such as passages, lobbies, lifts, staircases and terrace area attached to the apartment etc., The apartment has RCC roofing, ceramic tiles flooring, Honne Wood windows and flush doors.
3. The plaintiff further submits that he acquired the schedule property by virtue of registered sale deed dated:14/10/2009. That the flat wherein the schedule C property is situated is constructed pursuant to a scheme of construction took up by the builder under a joint development agreement dated 19/07/2006 entered into between him and vendor. The said construction was put up in accordance with the sanctioned plan issued by the competent authority. That presently the schedule property stands vested with the administrative jurisdiction of the Bruhat Bengaluru Mahanagara Palike, Bengalore.
6
Judgment OS.No.25242/2018
4. The plaintiff further submits that schedule property is a duplex flat and the terrace area over and above the said duplex flat is exclusively belonging to him and the rights of which are conferred om him by virtue of registered sale deed dated 14/10/2009 executed in his favour. The schedule C property referred to in the registered sale deed amply makes it clear that the plaintiff has acquired right, title and interest in respect of the schedule Apartment along with car parking area with proportionate undivided share in the common areas such as passages, lobbies, lift, staircases and terrace area attached to the apartment. The joint development agreement preceding the construction of the flats also makes it abundantly clear as to the saleable super built up area including the terrace area, common areas and car park in the multi storied apartment building to be constructed on the schedule A property. The sanctioned plan issued by the competent authority also specifies as to the 7 Judgment OS.No.25242/2018 independent right conferred on him in respect of the terrace area over the property since it is duplex flat in construction. The terrace area would not cover any other property apart from the schedule property purchased by him under registered sale deed dated:14/10/2009.
5. The plaintiff further submits that terrace area which is referred to in the schedule 'C' property is in his exclusive possession and enjoyment ever since he has purchased the same vide registered sale deed dt.14/10/2009 and the rights of which is being in his enjoyment and no other flat owners have got any right over the same or any part thereof. The usage of the terrace area in any manner would not affect the rights of any other flat owners in the apartment complex either obstructing their easement or light and air or any specific usage since it is in his specific usage.
8
Judgment OS.No.25242/2018
6. The plaintiff further submits that the defendant who to be the owner in occupation of Flat No.301 on the third floor of the same apartment, has no manner of right, title or interest whatsoever in respect of the terrace area attached to the schedule 'C' property. He has developed ill will towards the plaintiff of late and started creating problems in the matter of enjoyment of schedule 'C' property by him. The plaintiff further submits that defendant has many times obstructed usage of the terrace area by him by keeping flower pots, dumping garbage etc., That very recently the defendant has picked up quarrels with him in the matter of usage of terrace area and induced the BBMP officials to obstruct the usage of terrace area by him. The defendant has been in the habit of creating problems in the matter of usage of terrace area over the schedule 'C' property and started interfering with its usage by him every now and then, in the context of which the he has also lodged complaint with the jurisdictional police. The 9 Judgment OS.No.25242/2018 defendant has also started putting up waste and garbage over the terrace area despite the fact that he has no manner of right, title or interest over the same and having obstructed the usage of the terrace area, he has also started picking up quarrels with him and interfering with his peaceful possession and enjoyment of the terrace area. That on 21/02/2018 the defendant had come to the his terrace area and threatened him that he shall not use terrace area and obstructed usage of terrace area and further threatened him with dire consequences. The plaintiff submits that defendant may start interfering with his peaceful possession and enjoyment of the terrace area attached to the schedule 'C' property many times in the near future.
7. The plaintiff further submits that the cause of action for the above suit arose on the date of execution of sale deed dated:14/10/2009 and thereafter when the defendant started 10 Judgment OS.No.25242/2018 interfering with the peaceful possession and enjoyment of the terrace area exclusively attached to the schedule 'C' property very recently, particularly on 21/02/2018 and subsequently. The plaintiff prays for permanent injunction restraining the defendant, his henchmen or anybody claiming under him from interfering with his peaceful possession and enjoyment of suit schedule 'C' property.
8. The defendant filed written statement submitting that the averments there in are denied as incorrect and the plaintiff is put to strict proof of the same. The averments made para No.3 of plaint is false that the plaintiff is the absolute owner of the residential apartment as described in schedule C together with proportionate share in common areas such as passages, lobbies, lifts, staircases and terrace area attached to the apartment are factually and legally incorrect. The plaintiff cannot claim absolute 11 Judgment OS.No.25242/2018 ownership or exclusive possession over these areas which are common to all the apartment owners and no exclusive right of ownership can be claimed. Other averments made in the same pare not within his knowledge. The defendant further submits that regarding para 4 the averments there in that the terrace area over and the above the said duplex flat exclusively belongs to the plaintiff are denied as incorrect. In this regard it is stated that the plaintiff has no right of ownership over the terrace area which is common to all the apartment owners and the plaintiff cannot claim any exclusive right over the same which does not belongs to the plaintiff, if any right if conferred on the plaintiff under the gift deed it has not legal sanctity as the donor of the plaintiff could not have acquired any legally enforceable right or title in and over terrace area so as to convey the same in favour the plaintiff. As such the plaintiff did not acquire any absolute and any exclusive right, title over the terrace area, the subject matter 12 Judgment OS.No.25242/2018 of the present suit. If any independent right is conferred on the plaintiff in respect of the terrace area under the sanctioned plan it is illegal and in volition of the building bylaws.
9. The defendant further submits that regarding para 5 the averments made therein that the terrace area is in exclusive possession and enjoyment of the plaintiff aver since he purchase the same under registered sale deed 14/10/2009 are far from truth. If it is to be true the possession and enjoyment by the plaintiff is unauthorized and illegal. That in the guise of the absolute ownership the plaintiff has been making use of the terrace area for his personal benefit thereby depriving other flat owners including the defendants of their legitimate right over the terrace area. The plaintiff with ulterior motive converted the terrace area into private garden for his personal use and the defendants and other flat owners are prevented from entering the terrace area. 13
Judgment OS.No.25242/2018 The illegal act of the plaintiff was brought to the notice of the jurisdictional police and civil authorities who initiated action against the plaintiff for illegal use of the terrace area. By instituting the present suit the plaintiff his attempting to get is legal act legalized which is not permissible. Regarding para 6 the averment made there in are absolutely false and the plaintiff is put to strict proof of the same. The averments made therein that the defendants have obstructed usage of the terrace area by the plaintiff by keeping flower pots and garbage are false. In fact it is the plaintiff who converted the terrace area in to a garden by keeping several flower pots against which several complaints were given by the defendants and the police and civic authority issued notice to the plaintiff. The plaintiff has suppressed many material facts with intention to misguide court. The defendants who approached the police against the plaintiff and not the plaintiff against the defendants. The defendants never obstructed 14 Judgment OS.No.25242/2018 the plaintiff from using the terrace area at any point of time as alleged by the plaintiff.
10. The defendant submits that he is absolute owner in actual physical possession and enjoyment of the flat No.301 on the 3rd floor of the same apartment. However he is prevented from using terrace area by the plaintiff who converted the same into garden for his personal use even though the defendants are, under Law entitled to enjoy the terrace area which shall be treated as common area under the law. The above suit is filed in respect of an illegal claim of right title and interest over the common area over which the plaintiff has no legally enforceable right title or interest. The plaint averments do not reveal or disclose any cause of action and the cause of action as mentioned in the para 7 of the plaint is imaginary as there was o interference by the defendant with the peaceful possession enjoyment of the suit schedule 15 Judgment OS.No.25242/2018 property by the plaintiff. The defendant prays to dismiss the suit with exemplary costs.
11. On the basis of above pleadings following Issues are framed:-
:ISSUES:
(1) Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as on the date of the suit?
(2) Whether the plaintiff proves that the alleged interference of defendant over the suit schedule property?
(3) Whether the plaintiff proves that he is entitled to the relief's as sought in the plaint? (4) What order or decree?
12. The plaintiff examined as PW.1 and marked document ExP1. The defendant not led any oral evidence on his side and not marked any documents.
16
Judgment OS.No.25242/2018
13. That inspite of opportunity given the plaintiff and defendant counsel not argued. Perused the records.
14. My findings to the above Issues are as under:-
Issue No.1: In Negative Issue No.2: In Negative Issue No.3: In Negative Issue No.4: See final order for following:
:REASONS:
15. Issues No.1 to 3:
The plaintiff Jolly Stephen filed his affidavit in lieu of examination in chief as PW.1 and deposed the evidence that the the above suit praying for permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the plaintiff in respect of the suit schedule C property and for such other reliefs against the defendant. He is 17 Judgment OS.No.25242/2018 absolute owner in possession of the property residential apartment bearing No.304 on the third floor having a super built up area of 2372 sq.ft., with one car parking space in the apartment complex known as "Pranavah Apple Blossom"
together with proportionate share in common areas such as passages, lobbies, lifts, staircases and terrace area attached to the apartment along with 1014.50 sq.ft., of undivided right, title and interest and ownership in the property bearing House List No.83, khatha No.601/83, formed out of converted Sy.Nos. 85/1 and 85/2, situated at Bellandur village, varthur Hobli, Bengaluru South Taluk. He acquired the schedule property by virtue of registered sale deed dt.14/10/2009. That the flat wherein the schedule C property is situated is constructed pursuant to a scheme of construction took up by the builder under joint development agreement dated 19/07/2006 entered into between his vendor. The said construction was put up in accordance with 18 Judgment OS.No.25242/2018 the sanctioned plan issued by the competent authority. That presently schedule property stands vested with the administrative jurisdiction of the Bruhat Bengaluru Mahanagara Palike, Bangalore.
16. The PW.1 further deposed evidence that the schedule property is a duplex flat and terrace area over and above the said duplex flat is exclusively belong to me and the rights of which are conferred to him by virtue of registered sale deed dated 14/10/2009 executed in his favour. That the schedule 'C' property referred to in the registered sale deed amply makes it clear that he has acquired right, title and interest in respect of the schedule Apartment along with car parking area with proportionate undivided share in the common areas such as passages, lobbies, lift, staircases and terrace area attached to the apartment. The joint development agreement preceding the construction of the 19 Judgment OS.No.25242/2018 flats also makes it abundantly clear as to the saleable super built up area including the terrace area, common areas and car park in the multi storied apartment building to be constructed on the schedule 'A' property. That the sanctioned plan issued by the competent authority also specifies as to the independent right conferred on me in respect of the terrace area over the property since it is a duplex flat in construction. The terrace area would not cover any other property apart from the schedule property purchased by him under registered sale deed dt.14/10/2009.
17. The PW.1 further deposed evidence that the terrace area which is referred to in the schedule 'C; property is in his exclusive possession and enjoyment ever since the date of purchased vide registered sale deed dated:.14/10/2009 and the rights of which is being in enjoyment by him and no other flat owners have got any right over the same or any part thereof. The usage of the terrace 20 Judgment OS.No.25242/2018 area in any manner would not affect the rights of any other flat owners in the apartment complex either obstructing their easement or light and air or any specific usage since it is in his specific usage.
18. The PW.1 further deposed evidence that the defendant herein who happens to be the owner in occupation of Flat No.301 on the third floor of the same apartment, has no manner of right, title or interest whatsoever in respect of the terrace area attached to the schedule 'C' property. The defendant has developed ill will towards him of late and started creating problems in the matter of enjoyment of the schedule 'C' property by him. The defendant has many a times obstructed usage of the terrace area by me by keeping flower pots, dumping garbage etc., That very recently the defendant has picked up quarrels with him in the matter of usage of terrace area and induced the BBMP officials to obstruct the 21 Judgment OS.No.25242/2018 usage of terrace area by him. The defendant has been in the habit of creating problems in the matter of usage of terrace area over the schedule 'C' property and started interfering with its usage by him every now and then in the context of which he has also lodged complaint with the jurisdictional police. The defendant has also started putting up waste and garbage over terrace area despite the fact that he has no manner of right, title or interest over the same and having obstructed usage of terrace area, he has also started picking up quarrels with him and interfering with the peaceful possession and enjoyment of terrace area by him.
19. The PW.1 further deposed evidence that on 21/02/2018 the defendant had come to the terrace area and threatened him that he should not use terrace area and obstructed usage of the terrace area and further threatened him with dire consequences. Hence he filed suit seeking the prayer made in the plaint. The PW.1 prays to 22 Judgment OS.No.25242/2018 decree the suit as prayed in the plaint. In support of oral evidence marked ExP1 original sale deed of suit schedule property and thereafter taken time to lead further examination-in-chief and maximum opportunity was given to plaintiff for leading further examination-in-chief, but the plaintiff not appeared before court to lead further examination-in-chief and also not subjected for cross-examination. Hence plaintiff side evidence was closed on 24/03/2021 and thereafter case was posted for defendant evidence. The defendant also not led any oral evidence and not marked any documents. Even though burden is on plaintiff to prove that he is in lawful possession and enjoyment of suit schedule property as on the date of the suit and defendant causing interference to his possession and enjoyment of the suit schedule property. That as per the plaintiff he is the absolute owner of the suit schedule property purchased under registered sale deed dated 23 Judgment OS.No.25242/2018 14/10/2009, but not the defendant causing interference to his possession and enjoyment over the suit schedule property.
20. The PW.1 marked ExP1 sale deed dated 14/10/2009 regarding purchase of the schedule property by him from Deepak C. Reddy on 14/10/2009, but the plaintiff has not produced the other documents that title deed of his vendor or katha extract and katha certificate and Encumbrance Certificate standing in the name of his vendor and after purchase by him the katha extract and katha certificate standing in his name relating to the schedule property in the BBMP records and not marked any such documents in his evidence. Further the plaintiff has not produced any documents to show that the defendant causing interference in his possession and enjoyment of the suit schedule 'C' property. Therefore the plaintiff failed to prove his lawflul possession and enjoyment of the suit schedule 'C' property and defendant causing 24 Judgment OS.No.25242/2018 interference to his possession and enjoyment over suit schedule 'C' property. Hence the plaintiff is not entitle for relief of permanent injunction as prayed in the plaint. The plaintiff failed to prove Issues No.1 to 3. Hence I answer Issues No.1 to 3 in Negative.
21. Issue No.4 :
In view of above discussion I proceed to pass following:
:ORDER:
The suit of the plaintiff is hereby dismissed with costs.
Draw decree accordingly.
(Dictated to the stenographer, typed by him. Corrected on line in computer, taken printout, then again corrected, signed and pronounced by me in the open court on this 16th day of April 2022).
(Smt.Suvarna K. Mirji)
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE
MAYOHALL UNIT; BANGALORE
25
Judgment OS.No.25242/2018
:ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFF:
PW1 : Jolly Stephen S/o K.J. Stephen
DOCUMENTS MARKED FOR THE PLAINTIFF:
ExP1 : Sale Deed
WITNESSES EXAMINED FOR THE DEFENDANTS:
-Nil-
DOCUMENTS MARKED FOR THE DEFENDANTS:
-Nil-
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE
MAYOHALL UNIT : BANGALORE.