Bangalore District Court
In V.S.S. Paradise Apartment vs In 1. Sri. Yeruva Jayaprakash Reddy on 19 November, 2021
IN THE COURT OF XLII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-43)
Present: Sri. Kengabalaiah,
B.Com., LL.B.
XLII Addl. City Civil & Sessions Judge.
Dated this 19 th Day of November, 2021
O.S.No. 5112/2017
C/W
OS.Nos.5113/2017, 5115/2017, 5118/2017, 5119/2017
Plaintiff/s in V.S.S. Paradise Apartment
OS.5112/17, Owners Welfare Association [R],
5113/2017, Flat No.405, VSS Paradise Apartment,
5115/2017, No.19, 1st Cross, Air View Colony,
5118/2017 & Konena Agrahara, Bangalore -17
5119/2017 :
Rep. By its Secretary
[By Sri. Guruprasad B.R., Adv.]
-Vs-
Defendant/s in 1. Sri. Yeruva Jayaprakash Reddy
OS.5112/17: S/o Late Yeruva Bhaskar Reddy
Aged about 29 years,
2. Smt.Vaishnavi Nandakumar
W/o Yeruva Jayaprakash Reddy
Aged about 29 years,
Both are R/at Flat No.006,
VSS Paradise Apartment,
No.19, 1st Cross, Air View Colony,
Konena Agrahara, Bangalore -17
Defendant/s in 1. Mr. Niajuddin Mondal
OS.5113/17: S/o Mr. Najir Ahmmad Mondal
Aged about 34 years,
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
2
2. Mrs. Sahanara Mallick
W/o Mr. Abdul Hannan Mallick
Aged about 53 years,
Both are R/at Flat No.302,
VSS Paradise Apartment,
No.19, 1st Cross, Air View Colony,
Konena Agrahara, Bangalore -17
Defendant/s in Sri. Subramanian K.R.
OS.5115/17: S/o Ramakrishnan K.S.
Aged about 39 years,
R/at Flat No.003,
VSS Paradise Apartment,
No.19, 1st Cross, Air View Colony,
Konena Agrahara, Bangalore -17
Defendant/s in 1. Sri. Vinod Maralad
OS.5118/17: S/o Sugappa Marlad
Aged about 36 years,
2. Smt.Supriya Goni
W/o Vinod Maralad
Aged about 29 years,
Both are R/at Flat No.106,
VSS Paradise Apartment,
No.19, 1st Cross, Air View Colony,
Konena Agrahara, Bangalore -17
Defendant/s in 1. Sri. Mithun Vilas Chikhalikar
OS.5119/17: S/o Vilas Ganapatrao Chikhalikar
Aged about 36 years,
2. Smt.Trupti Mithun Chikhalikar
W/o Mithun Vilas Chikhalikar
Aged about 32 years,
Both are R/at Flat No.206,
VSS Paradise Apartment,
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
3
No.19, 1st Cross, Air View Colony,
Konena Agrahara, Bangalore -17
[By Sri. S., Adv.]
Date of institution of the suits 27.07.2017
Nature of the suit Injunction
Date of commencement of 22.3.2021
recording the evidence
Date on which the judgment 19.11.2021
was pronounced
Total duration Years Months Days
04 03 22
(Kengabalaiah),
XVII Addl. City Civil & Sessions Judge.
*********
J UD GM E N T
The plaintiff in all the suits has filed these suits against
the defendants for mandatory injunction to remove the iron
grills erected in the common area in front of the flats of the
defendants i.e., item No.2 of the suit schedule property and
for permanent injunction restraining the defendants from
encroaching or blocking upon the common area of the item
No.1 of the suit schedule property.
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
4
2. The case of the plaintiff is that, the plaintiff is a
registered association formed by the owners of the flats of
VSS Paradise Apartment [for brevity referred as Apartment]
situated at No.19, 1st Cross, Air View Colony, Konena
Agrahara, Bangalore -17, which is duly registered under the
provisions of the Karnataka Societies Registration Act, 1960.
All the owners of the flats of the Apartment are the members
of the plaintiff. The main object of the plaintiff is to protect
the legitimate rights, privileges and interest of all its members
and the main duty is to maintain and protect the legal rights
and interest of the owners in respect of the common areas,
facilities and amenities. Clause-2(m) of the Rules and Bye
Laws of the plaintiff association stipulates that no structures
of any kind whatsoever temporary or permanent shall be
erected or fence/partition shall be put up on the common
area of the Apartment that may obstruct or impede free
movement in the event of emergency of any kind. As per
Clause-20, it is the duty of the plaintiff to take care, upkeep
and maintain the common areas of the Apartment among
other things and no owner or resident of the apartment shall
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
5
use any portion of the common area of the building without
the prior written permission of the managing committee of
the plaintiff. The defendants in OS.No.5112/2017 are the
joint owners of the Flat bearing No.006, the defendants in
OS.No.5113/2017 are the joint owners of the Flat bearing
No.302, the defendants in OS.No.5115/2017 are the joint
owners of the Flat bearing No.003, the defendants in
OS.No.5118/2017 are the joint owners of the Flat bearing
No.106 and the defendants in OS.No.5119/2017 are the joint
owners of the Flat bearing No.206, of the Apartment. Having
become the members of the plaintiff, they are bound by the
rules and conditions of the plaintiff. However, the above
defendants in violation of the memorandum of association,
bye-laws and rules of the plaintiff, have erected permanent
iron grills in the common areas of the apartment in front of
their respective flats by encroaching upon the common area
and thereby they have blocked the common area of the
Apartment for which they do not have any right. Because of
blocking the common area, air and ventilation along with
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
6
natural light have been blocked to the other inmates of the
Apartment and it has become a nuisance to them.
3. It is submitted that, the builder/developer of the
apartment has not sold the common area of the Apartment to
anybody much less to the defendants in the above suits. The
common area of the apartment belongs to every flat owners of
the Apartment and no one can block it or claim exclusive
right over the same. Because of the encroachment of the
common area and erection of iron grills by the defendants
which covers the ducts and shafts, the plaintiff is facing
difficulties in maintenance of the apartment such as
plumbing and sanitary repair activities that needs to be
carried out on a regular basis. In this regard all the aggrieved
owners of the flats have approached the plaintiff and gave a
complaint to take necessary steps for removal of the iron
grills illegally erected by the defendants in the common area
of the apartment. The plaintiff has issued notices to the
defendants thereby asking them to remove the illegally
erected iron grills. However, the defendants did not bother to
remove the iron grills erected by them. Therefore, the plaintiff
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
7
caused a legal notice on 23.3.2017 to the defendants calling
upon them to remove the iron grills and the same were served
on the defendants, but the defendants have not removed the
iron grills and not even replied to the notices. If the iron grills
erected in the common area is not removed by the
defendants, then the other flat owners of the apartment may
also follow the acts of the above defendants and may block
the entire common area of the apartment and in that event
all the dwellers of the apartment will be put to much
difficulty and great hardship and it will not be possible for
the plaintiff to maintain the Apartment and it will be a threat
to the survival of the entire apartment itself. The cause of
action for the suit arose on 12.12.2016 when the notices
were issued to the defendants to remove the iron grills and
when the defendants failed to remove the same and
subsequently. Hence, the suit.
4. In pursuance of the summons, the defendants in
all the suits have appeared through their respective counsels
and filed their separate written statements in all the suits.
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
8
The defendants in all the suits have taken similar
contentions in their respective written statements.
5. The defendants in all the suits have contended
that the suit of the plaintiff is false, frivolous, vexatious and
perverse, filed with falsehood and suffers by valid ground,
vague and bald and they are all denied as false except the
admitted facts. The suit is not maintainable either in law or
on facts. The averments made in para-2 and 3 of the plaint
are true, but the plaintiff has no right whatsoever to file this
suit against the defendants. The suits have been filed with an
malafide intention. There is no any object will serve by filing
these suits against the defendants. It is the duty of the
association to maintain and protect the right of the members
of the association, but the plaintiff has misused their right
and filed this false suit with an intention to harass these
defendants. The averments made in para-4 that Clause-2(m)
of rules and bye-laws of the association stipulates that no
structures of any kind whatsoever temporary or permanent
shall be erected or fence/partition shall be put up on the
common area of the Apartment that may obstruct or impede
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
9
free movement in the event of emergency of any kind and as
per Clause-20, it is the duty of the plaintiff to take care,
upkeep and maintain the common areas of the Apartment
among other things, are correct and the above defendants
know the said duties of the plaintiff association. But as far as
with regard to prior formation of the association, the builder
and owner were taking care of entire apartments and they
have entered in to an agreement of sale and the agreement to
built with the prospective buyers and that the defendants are
one among such buyers, have entered into an agreement of
sale with construction agreement and accordingly the builder
after completion of construction and safety grill work etc., to
the property of the defendants with their cost and expenses,
they have executed the Sale Deed for carpet area and
undivided area in favour of the above defendants and the
above defendants have occupied the same for their residence
and continued to be in possession and enjoyment of the same
along with common area. Further no owner or resident of the
apartment shall use any portion of the common area of the
building without the prior written permission of the
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
10
managing committee of the plaintiff, is denied as false. They
have stated that, to occupy the common area which will use
commonly by other apartment owners are concerned, no one
including the association has right to give the permission
etc., to cover or occupy such area are commonly using. The
present committee of the association with malafide intention
has created new story in order to harass some of the
members who have occupied the premises as they occupied
the same from the date of purchase of the property and after
the purchase and occupied has not made any alteration
outside or common area as alleged.
6. It is further submitted that the averments made
in para-5 of the plaint that the defendants in
OS.No.5112/2017 are the joint owners of the Flat bearing
No.006, the defendants in OS.No.5113/2017 are the joint
owners of the Flat bearing No.302, the defendants in
OS.No.5115/2017 are the joint owners of the Flat bearing
No.003, the defendants in OS.No.5118/2017 are the joint
owners of the Flat bearing No.106 and the defendants in
OS.No.5119/2017 are the joint owners of the Flat bearing
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
11
No.206, of the Apartment and they have become the members
of the plaintiff are admitted. But the further allegations that
the above defendants in violation of the memorandum of
association, bye-laws and rules of the plaintiff, have erected
permanent iron grills in the common areas of the apartment
in front of their respective flats by encroaching upon the
common area and thereby they have blocked the common
area of the Apartment for which they do not have any right,
are all denied as false. The further allegation that because of
blocking the common area, air and ventilation along with
natural light have been blocked to the other inmates of the
Apartment and it has become a nuisance to them, are also
denied the above defendants. The above defendants have
purchased the open space in front of their respective flats
and they are using the open space individually and the open
space which are abutted to their flats of the above defendants
only and no other inmates have access to use the same,
moreover the said flats are situated corner flats and there is
no any house situated after the defendants' flats and there is
no access required to other persons.
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
12
7. It is further submitted that, the allegations made
in para-6 of the plaint that the common area of the
apartment belongs to every flat owners of the Apartment and
no one can block it or claim exclusive right over the same, are
admitted. But the case filed is on the barred allegations
against the above defendants with malafide intention since
the defendants have not blocked the common area and
further allegations made in this regard are all false and
baseless. Due to erection of the said grills there is no any
block to attend immediate actions and the defendants have
not put up any lock to the grill and there is no any
obstruction from the said grills to repair activities of
plumbing or sanitary and there is separate access is available
to do the said repair works as alleged in the plaint. The
allegations made in the same para that the aggrieved owners
of the flats have approached the plaintiff and gave a
complaint to take necessary steps for removal of the iron
grills illegally erected by the defendants in the common area
of the apartment, are all denied as false. It is submitted that
there is no complaint against the above defendants by any
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
13
other owners of the flats. The secretary and other some
persons are colluding each other gave notices in the name of
association with an intention to harass the above defendants
and to grab the money from the defendants. The allegation
that the plaintiff has issued legal notice to the defendants
asking them to remove the illegally erected iron grills, are all
false.
8. The allegations made in para-7 of the plaint are
all created for the purpose of these cases. There is no cause
of action for the suit and the alleged cause of action is
imaginary one. The above defendants further submit that the
defendants have purchased the flats through registered Sale
Deeds. Before that there was a Construction Agreement
between the Vendors i.e., developers/builders and the above
defendants and after the constructions completed the above
defendants have requested to erect iron grills to that corner
passage which have access only to the above defendants of
the specific flats. The developers have permitted to erect the
grills which are necessary for safety purpose. There is no any
obstruction to any members of the said apartment as alleged
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
14
in the plaint. Hence, the defendants in all the suits sought for
dismissal of the above suits.
9. On the basis of the above pleadings, my learned
predecessor has framed the following issues in all the suits :-
Issues in OS.No.5112/2017 :-
1) Whether the plaintiff proves that
common area of the Apartments belongs
to every flat owner of the Apartment and
none have exclusive right over the same
as contended in the plaint?
2) Whether the plaintiff proves that
defendants have erected a permanent
iron grill illegally by encroaching the
common area of the Apartment in front
of their Flat No.006 and blocked the
common area as contended in the
plaint?
3) Whether the plaintiff proves that on
account of encroachment of common
area and erection of iron grills by the
defendants, the plaintiff is facing
difficulties in maintenance of the
apartments as contended in the plaint ?
4) Whether the plaintiff is entitle for the
relief of mandatory injunction against
the defendants as prayed for?
5) Whether the plaintiff is entitle for the
relief of permanent injunction against
the defendants as prayed for?
6) What order or decree?
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
15
Issues in OS.No.5113/2017 :-
1) Whether the plaintiff proves that
common area of the Apartments belongs
to every flat owner of the Apartment and
none have exclusive right over the same
as contended in the plaint?
2) Whether the plaintiff proves that
defendants have erected a permanent
iron grill illegally by encroaching the
common area of the Apartment in front
of their Flat No.302 and blocked the
common area as contended in the
plaint?
3) Whether the plaintiff proves that on
account of encroachment of common
area and erection of iron grills by the
defendants, the plaintiff is facing
difficulties in maintenance of the
apartments as contended in the plaint ?
4) Whether the plaintiff is entitle for the
relief of mandatory injunction against
the defendants as prayed for?
5) Whether the plaintiff is entitle for the
relief of permanent injunction against
the defendants as prayed for?
6) What order or decree?
Issues in OS.No.5115/2017 :-
1) Whether the plaintiff proves that
common area of the Apartments belongs
to every flat owner of the Apartment and
none have exclusive right over the same
as contended in the plaint?
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
16
2) Whether the plaintiff proves that
defendants have erected a permanent
iron grill illegally by encroaching the
common area of the Apartment in front
of their Flat No.003 and blocked the
common area as contended in the
plaint?
3) Whether the plaintiff proves that on
account of encroachment of common
area and erection of iron grills by the
defendants, the plaintiff is facing
difficulties in maintenance of the
apartments as contended in the plaint ?
4) Whether the plaintiff is entitle for the
relief of mandatory injunction against
the defendants as prayed for?
5) Whether the plaintiff is entitle for the
relief of permanent injunction against
the defendants as prayed for?
6) What order or decree?
Issues in OS.No.5118/2017 :-
1) Whether the plaintiff proves that
common area of the Apartments belongs
to every flat owner of the Apartment and
none have exclusive right over the same
as contended in the plaint?
2) Whether the plaintiff proves that
defendants have erected a permanent
iron grill illegally by encroaching the
common area of the Apartment in front
of their Flat No.106 and blocked the
common area as contended in the
plaint?
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
17
3) Whether the plaintiff proves that on
account of encroachment of common
area and erection of iron grills by the
defendants, the plaintiff is facing
difficulties in maintenance of the
apartments as contended in the plaint ?
4) Whether the plaintiff is entitle for the
relief of mandatory injunction against
the defendants as prayed for?
5) Whether the plaintiff is entitle for the
relief of permanent injunction against
the defendants as prayed for?
6) What order or decree?
Issues in OS.No.5119/2017:
1) Whether the plaintiff proves that
common area of the Apartments belongs
to every flat owner of the Apartment and
none have exclusive right over the same
as contended in the plaint?
2) Whether the plaintiff proves that
defendants have erected a permanent
iron grill illegally by encroaching the
common area of the Apartment in front
of their Flat No.206 and blocked the
common area as contended in the
plaint?
3) Whether the plaintiff proves that on
account of encroachment of common
area and erection of iron grills by the
defendants, the plaintiff is facing
difficulties in maintenance of the
apartments as contended in the plaint ?
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
18
4) Whether the plaintiff is entitle for the
relief of mandatory injunction against
the defendants as prayed for?
5) Whether the plaintiff is entitle for the
relief of permanent injunction against
the defendants as prayed for?
6) What order or decree ?
10. As per the Order passed by this court on
27.02.2020, OS.No.5113/2017, 5115/2017, 5118/2017 and
5119/2017 are clubbed with OS.No.5112/2017 since the
subject matter, issues and parties are the same for the same
relief, to lead common evidence in main case i.e.,
OS.No.5112/2017.
11. In order to prove the case, the Secretary of the
plaintiff Association namely Subramanian Ramanathan
examined himself as P.W.1 and got marked the documents at
Ex.P1 to P25. On the other hand, the defendants in all the
suits have not adduced their evidence and not produced any
documents.
12. Heard the arguments of the counsel for the
plaintiff.
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
19
13. My findings on the above issues are as under:-
In OS.No.5112/2017 :-
Issue No.1: In the affirmative
Issue No.2: In the affirmative
Issue No.3 : In the affirmative
Issue No.4 : In the affirmative
Issue No.5 : In the affirmative
Issue No.6: As per final order, for the following:
In OS.No.5113/2017 :-
Issue No.1: In the affirmative
Issue No.2: In the affirmative
Issue No.3 : In the affirmative
Issue No.4 : In the affirmative
Issue No.5 : In the affirmative
Issue No.6: As per final order, for the following:
In OS.No.5115/2017 :-
Issue No.1: In the affirmative
Issue No.2: In the affirmative
Issue No.3 : In the affirmative
Issue No.4 : In the affirmative
Issue No.5 : In the affirmative
Issue No.6: As per final order, for the following:
In OS.No.5118/2017 :-
Issue No.1: In the affirmative
Issue No.2: In the affirmative
Issue No.3 : In the affirmative
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
20
Issue No.4 : In the affirmative
Issue No.5 : In the affirmative
Issue No.6: As per final order, for the following:
In OS.No.5119/2017 :-
Issue No.1: In the affirmative
Issue No.2: In the affirmative
Issue No.3 : In the affirmative
Issue No.4 : In the affirmative
Issue No.5 : In the affirmative
Issue No.6: As per final order, for the following:
R E A SON S
14. Issue No.1 to 3 in all the suits :- I propose
these issues together since they are interlinked with each
other to avoid the repetition of facts.
15. Before going to probe into the matter, it is just
and necessary to mention here the admitted facts between
the parties. It is an admitted fact that the plaintiff is the
registered Association formed by the owners of the flats of
VSS Paradise Apartment. It is also an admitted fact that all
the owners of the flats of the Apartment are the members of
the plaintiff. According to the plaintiff, Clause-2(m) of the
Rules and Bye Laws of the plaintiff association stipulates that
no structures of any kind whatsoever temporary or
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
21
permanent shall be erected or fence/partition shall be put up
on the common area of the Apartment that may obstruct or
impede free movement in the event of emergency of any kind
and as per Clause-20, it is the duty of the plaintiff to take
care, upkeep and maintain the common areas of the
Apartment among other things. It is further stated that no
owner or resident of the apartment shall use any portion of
the common area of the building without the prior written
permission of the managing committee of the plaintiff. The
defendants in OS.No.5112/2017 are the joint owners of the
Flat bearing No.006, the defendants in OS.No.5113/2017 are
the joint owners of the Flat bearing No.302, the defendants in
OS.No.5115/2017 are the joint owners of the Flat bearing
No.003, the defendants in OS.No.5118/2017 are the joint
owners of the Flat bearing No.106 and the defendants in
OS.No.5119/2017 are the joint owners of the Flat bearing
No.206, of the Apartment and they have become the members
of the plaintiff association and they are also bound by the
rules and conditions of the plaintiff association. But the
above defendants in violation of the memorandum of
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
22
association, bye-laws and rules of the plaintiff, have erected
permanent iron grills in the common areas of the apartment
in front of their respective flats by encroaching upon the
common area and thereby they have blocked the common
area of the Apartment for which they do not have any right.
Because of blocking the common area, air and ventilation
along with natural light have been blocked to the other
inmates of the Apartment and it has become a nuisance to
the other residents. However, the defendants have denied the
said allegations made against them.
16. In order to prove the allegations made in the
plaint, the Secretary of the plaintiff association namely
Subramanian Ramanathan has filed an affidavit in lieu of his
examination-in-chief as PW.1 by reiterating the contents of
the pleadings in his evidence. Further he has deposed that
the commonarea of the apartment belongs to every flat
owners of the Apartment and no one can block it or claim
exclusive right over the same. Because of the encroachment
of the common area and erection of iron grills by the
defendants which covers the ducts and shafts, the plaintiff is
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
23
facing difficulties in maintenance of the apartment such as
plumbing and sanitary repair activities that needs to be
carried out on a regular basis. Further he has deposed that
the aggrieved owners of the flats have approached the
plaintiff and gave a complaint to take necessary steps for
removal of the iron grills illegally erected by the defendants in
the common area of the apartment. The plaintiff got issued
notices to the defendants and asked them to remove the
illegally erected iron grills, but the defendants did not remove
the iron grills erected. If the iron grills erected in the common
area is not removed by the defendants, then the other flat
owners of the apartment may also follow the acts of the above
defendants and may block the entire common area of the
apartment and in that event all the dwellers of the apartment
will be put to much difficulty and it is not be possible for the
plaintiff to maintain the Apartment.
17. In support of his evidence, he has relied upon the
Association Registration Certificate which is marked at Ex.P1
and Memorandum of Association Rules and Bye-laws which
is marked at Ex.P2. The legal notice dated 20.3.2017 issued
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
24
by the plaintiff to the defendants in OS.No.5113/2017 in
respect of Flat No.302 calling upon them to remove the iron
grills installed by them in the common area and the said
notice is marked at Ex.P3 and the postal receipt at Ex.P4 and
the said notice has been served to the said defendants
through RPAD which evident from Ex.P5. The legal notice
dated 20.3.2017 issued by the plaintiff to the defendant in
OS.No.5115/2017 in respect of Flat No.003 calling upon him
to remove the iron grills installed by him in the common area
and the said notice is marked at Ex.P6 and the postal receipt
at Ex.P7 and the said notice has been served to the said
defendant through RPAD which evident from Ex.P8. The legal
notice dated 20.3.2017 issued by the plaintiff to the
defendants in OS.No.5118/2017 in respect of Flat No.106
calling upon them to remove the iron grills installed by them
in the common area and the said notice is marked at Ex.P9
and the postal receipt at Ex.P10 and the said notice has been
served to the said defendants through RPAD which evident
from Ex.P11. The legal notice dated 20.3.2017 issued by the
plaintiff to the defendants in OS.No.5119/2017 in respect of
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
25
Flat No.206 calling upon them to remove the iron grills
installed by them in the common area and the said notice is
marked at Ex.P12 and the postal receipt at Ex.P13 and the
said notice has been served to the said defendants through
RPAD which evident from Ex.P14. The certified copy of the
Sale Deed dated 18.9.2015 executed by the Managing
Partners of VSS Builders and Developers namely G.Subba
Rao and A.Srinivasa Reddy in favour of the defendants in
OS.No.5112/2017 is marked at Ex.P15. The certified copy of
the Sale Deed dated 19.11.2015 executed by the Managing
Partners of VSS Builders and Developers namely G.Subba
Rao and A.Srinivasa Reddy in favour of the defendants in
OS.No.5113/2017 is marked at Ex.P16. The certified copy of
the Sale Deed dated 18.9.2014 executed by the Managing
Partners of VSS Builders and Developers namely G.Subba
Rao and A.Srinivasa Reddy in favour of the defendant in
OS.No.5115/2017 is marked at Ex.P17. The certified copy of
the Sale Deed dated 18.1.2016 executed by the Managing
Partners of VSS Builders and Developers namely G.Subba
Rao and A.Srinivasa Reddy in favour of the defendants in
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
26
OS.No.5118/2017 is marked at Ex.P18. The certified copy of
the Sale Deed dated 14.9.2015 executed by the Managing
Partners of VSS Builders and Developers namely G.Subba
Rao and A.Srinivasa Reddy in favour of the defendants in
OS.No.5119/2017 is marked at Ex.P19. The notice issued by
the President of the plaintiff association to the Flat owners of
003, 006, 106, 203, 206, 302, 303 dated 12.12.2016 for
removal of the grills erected in common area and also
arranging meeting on 11.12.2016 to discuss the same and
directed them to remove the grills and they are also requested
to approach the association on or before 24.12.2016 failing
which the association will be forced to remove the grills
encroaching the common area, which is marked at Ex.P20.
The photographs of erecting grills in the common area are
marked at Ex.P21 to 25 and C.Ds. are marked at Ex.P21(a) to
Ex.P25(a).
18. From the evidence of PW.1, it reveals that the
defendants are the joint owners of their respective flats
bearing Nos. 006, 302, 003, 106, 206 respectively of the
Apartment who are the defendants in all the suits and they
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
27
have become the members of the plaintiff association. The
very contention of the plaintiff that the above defendants
have in violation of the rules and bye-laws of the plaintiff
association, have erected the iron grills in the common area
of the apartment in front of their respective flats by
encroaching upon the common area and they have blocked
the common area of the apartment though they are not
having right and because of blocking of the common area, the
air and ventilation along with natural light have been blocked
to the other inmates of the apartment and it become
nuisance to the residents. Further PW.1 has specifically
deposed that the common area of the apartment belongs to
every flat owners of the apartments and no one can block it
or claim exclusive right over the same and because of the
encroachment of the common area and erection of iron grills
by the defendants which covers the ducts and shafts, the
plaintiff is facing difficulties in maintenance of the apartment
such as plumbing and sanitary repair activities. In this
regard all the aggrieved owners of the flats approached the
plaintiff and filed complaint to take necessary steps for
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
28
removal of the iron grills illegally erected by the defendants,
for which the plaintiff got has issued notices to the
defendants as per Ex.P3, P6, P9 and Ex.P12 calling upon
them to remove the illegally erected iron grills in the common
area of the apartment in front of their respective flats. The
said notices have been served upon the defendants, which
evident from Ex.P5, P8, P11 and Ex.P14. In spite of service of
notices, the defendants have not come forward to remove the
iron grills erected in the common area of the apartment, for
which the plaintiff has got issued notices to the above
defendants for removal of the grills erected in the common
area as per Ex.P20 on 12.12.2016. In spite of it, the
defendants have not removed the grills encroaching the
common area, for which the plaintiff has filed the present
suits.
19. The defendants in all the suits admit that it is the
duty of the association to maintain and protect the apartment
in respect of the common area, but the defendants have
denied the rest of the allegations made against them. They
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
29
have admitted that they have erected the iron grills in front of
their flats for their safety and protection.
20. The learned counsel for the plaintiff has argued
and draw the attention of this Court on clause-2(m) of the
Memorandum of Association Rules and bye-laws of the
Society, which reads as under :-
"Restricted Common Areas and Facilities :- No structure
of any kind whatsoever temporary of permanent shall be
erected or fence/partition put up on any limited common
area that may obstruct or impede free movement in the
event of emergency of any kind. In addition, on the limited
common areas adjoining the ground floor apartments, no
trees shall be planted, which may cause similar
hindrance. Structure/fences/trees which do not impede
free movement, may, however, be put up planted, but with
the specific, prior, written permission.
21. The power and duties of the managing committed
which are mentioned in clause-20 of the Memorandum of
Association as Other Duties :- The care, upkeep and
surveillance of the building, including the common areas and
facilities. The learned counsel for the plaintiff submitted that
the defendants have violated the rules and bye-laws of the
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
30
society by erecting the iron grills in the common area of the
apartment and obstructed to other inmates of the
apartments.
22. On perusal of Ex.P2 Memorandum of Association
Rules and Bye-laws, it indicates that no structure of any kind
whatsoever temporary of permanent shall be erected or
fence/partition put up on any limited common area that may
obstruct or impede free movement. When the defendants are
the members of the association, it is the bounden duty of the
defendants to maintain and follow the rules and bye-laws of
the Society. As per Clause-20 of the Memorandum of
Association, the powers and duties of the managing
committed is to take care, upkeep and surveillance of the
building including the common areas and facilities. Based on
the rules and bye-laws of the society, the plaintiff has issued
a legal notice to the defendants calling upon them to remove
the erected iron grills and in spite of notices to the
defendants, the defendants did not care for the notice and
not removed the iron grills erected in the common area which
obstructed to the other inmates of the apartment. As such, it
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
31
is the duty cast upon the plaintiff to maintain the apartment
as per the Memorandum of Association rules and bye-laws.
Though the defendants are the owners of their respective flats
which they have purchased, they have no right to erect the
iron grills in the common area of the apartment.
23. Moreover, the evidence of PW.1 and the
documents relied by the plaintiff remained unchallenged by
the defendants. When the defendants did not enter into
witness box to give their evidence an adverse inference can be
drawn against them. In this aspect there is a decision of the
Hon'ble Supreme Court reported in 1999 (3) SCC 573
Vidhyadhar Vs. Manik Rao, wherein their lordship has held
that, "Evidence Act, 114, 111(g) - Presumption - If party
abstain from entering the witness box an adverse inference
would arise against him". As such an adverse inference can
be drawn that the defendants have failed to prove their case
with cogent and convincing evidence. In other words, the
plaintiff has proved that the defendants have erected iron
grills by encroaching the common areas of the apartment in
front of their respective flats, for which the plaintiff is facing
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
32
difficulties in maintenance of the apartment In the light of the
above discussions, I hold issue No.1 to 3 in all the suits in
the affirmative.
24. Issue No.4 in all the suits :- When the plaintiff
has proved the prime issue No.1 to 3 in all the suits that the
defendants have erected the iron grills by encroaching upon
the common area of the apartment, the plaintiff is entitled to
remove the illegally erected iron grills by way of mandatory
injunction. Hence, I hold issue No.4 in all the suits in the
affirmative.
25. Issue No.5 in all the suits :- When the plaintiff
has proved the prime issue No.1 to 3 in all the suits that the
defendants have erected the iron grills by encroaching upon
the common area of the apartment, the plaintiff is entitled for
permanent injunction against the above defendants
restraining them from encroaching or blocking upon the
common area of the item No.1 of the suit schedule property.
Hence, I hold issue No.5 in all the suits in the affirmative.
26. Issue No.6 in all the suits :- In view of the
discussion above, I proceed to pass the following order:-
OS.No.5112/2017
C/w OS.Nos.5113/17, 5115/17,
5118/17 & 5119/17
33
ORDER
Suits of the plaintiff in OS.No.5112/2017, 5113/2017, 5115/2017, 5118/2017 and OS.No.5119/2017 are hereby decreed with cost.
The defendants in all the above suits are hereby directed by way of mandatory injunction to remove the iron grills erected in the common area in front of their respective flats i.e., Flat Nos.006, 302, 003, 106 and 206 i.e., item No.2 of all the suit schedule property.
The defendants in all the above suits are hereby restrained by way of permanent injunction from encroaching or blocking upon the common area of the item No.1 of the suit schedule property.
Draw a decree accordingly.
The Original of this judgment be kept in OS.No.5112/2017 and the copies of the same be kept in OS.No.5113/2017. 5115/2017, 5118/2017 and 5119/2017.
(Dictated to the Judgment Writer, typed by him, the transcript thereof corrected and then pronounced by me, in open court, on this the 19th day of November, 2021).
(Kengabalaiah), XLII Addl. City Civil & Sessions Judge, Bengaluru.
OS.No.5112/2017 C/w OS.Nos.5113/17, 5115/17, 5118/17 & 5119/17 34 ANNEXURE List of witnesses examined for plaintiff:
P.W.1 Subramanian Ramanathan List of documents exhibited for plaintiff:
Ex.P1 Association Registration Certificate Ex.P2 Memorandum of Association Ex.P3 Legal notice Ex.P4 Postal receipt Ex.P5 Postal acknowledgement Ex.P6 Legal notice Ex.P7 Postal receipt Ex.P8 Postal acknowledgement Ex.P9 Legal notice Ex.P10 Postal receipt Ex.P11 Postal acknowledgement Ex.P12 Legal notice Ex.P13 Postal receipt Ex.P14 Postal acknowledgement Ex.P15 Certified copy of Sale Deed dtd.18.9.2015 Ex.P16 Certified copy of Sale Deed dtd.19.11.2015 Ex.P17 Certified copy of Sale Deed dtd.18.9.2014 Ex.P18 Certified copy of Sale Deed dtd.18.1.2016 Ex.P19 Certified copy of Sale Deed dtd.14.9.2015 Ex.P20 Notice dtd.12.12.2016 OS.No.5112/2017 C/w OS.Nos.5113/17, 5115/17, 5118/17 & 5119/17 35 Ex.P21 to 25 Photographs Ex.P21(a) to C.Ds.
25(a) List of witnesses examined for defendants:
Nil List of documents exhibited for defendants:
Nil XLII Addl. City Civil & Sessions Judge, Bengaluru.