Bangalore District Court
O.S./7479/2008 on 15 November, 2016
THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE
BANGALORE CITY
Dated on this the 15th day of November 2016
-: Present :-
Smt. Hemavathi, BBM, LL.B,
XXXIX Additional City Civil & Judge,
Bangalore City.
ORIGINAL SUIT NO. 7479/2008
Plaintiffs :-
1. A.N.Raghupathy S/o. Late
Narayanaswamy, 55 Years.
2. R.Sabarish S/o.A.N.Raghupathy,
23Years.
3. Mrs.Achamma, 56 Years,
W/o.A.L.Muniswarachari.
4. Sri. S. Pradeep Kumar, 38 Years,
S/o.P.Subramania Pillai.
5. Sri.L. Muthukumar, 28 Years,
S/o.S.Lakshmanam.
6. Sri.Sriram Narasimhan, 36 Years,
S/o.S.Lakshmanan.
7. Sri.R.M.Ramanathan, 34 Years,
S/o.R.M.Ramanathan.
8. Sri. Saji K.George S/o. K. George,
39 Years.
9. Mrs.Helen Saji George, 39 Years,
W/o. Saji K.George.
10. Prasoon Jain S/o.Praveen Kumar
Jain, 31 Years.
11. Santhosh Shindhe S/o. Vasant
Shindhe, 31 Years.
12. Mrs. Ketki Shindhe, 31 Years,
W/o.Santhosh Shindhe.
13. Sri.Balaji Govindan, 35 Years,
S/o.V.Govindan.
14. Sathianantha Thilagar T., 34 Years,
S/o.S.N.Thomas.
15. Sreenivas Nair S/o.K.Balakrishna
Nair, 41 Years.
16. Sri. Senthil Kumar, 38 Years,
S/o.A.Thanumalayan.
17. Rama Kishore Reddy D. S/o.Seetha
Ram Reddy D., 31 Years.
18. Mrs.Jahnavi Reddy W/o. Rama
Kishore Reddy D, 24 Years.
19. Sri. S. Natarajan.S., 38 Years,
S/o.P.K.Shivaramakrishnan.
20. Mrs.G.K.Arathi, 34 Years,
W/o.S.Nataraja.
21. Shamik Choudhury S/o.Late P.N.
Choudhury, 37 Years.
22. Mrs. Srirupa Choudhury W/o.Shamik
Choudhury, 31 Years.
23. Pusarapu Veera Venkata
Sathyanarayana S/o.aPusarapu
Achuta Ramam, 29 Years.
24. Sri.Yasir K.M. S/o.K.M.Mohammed,
30 Years.
25. Sri. Junais Chengalan Chalipurath,
29 Years, S/o.B.P.Aboo Shyam.
26. Vishnu Appasaheb Patil, 31 Years,
S/o. Appasaheb Satanappa Patil.
All the residing at Indraprastha
Apartment, No.45, 5th Main,
O.M.B.R.Layout, Banasavadi,
Bengaluru-43.
[By Sri. Ansar Ali, learned advocate]
/ VERSUS /
Defendant :-
P.Shankar Reddy S/o. Late Papiah
Reddy, 58 Years, R/o.No.45, 5th Main,
OMBR Layout, Garden House,
Bengaluru-560 043.
(Sri.S.Venkatesh, learned Advocate)
Date of Institution of the : 11.11.2008
suit
Suit for permanent
Nature of suit : injunction and
declaration
Date of commencement of : 09.07.2014
evidence
Date on which the judgment : 15.11.2016
is pronounced
Years Months Days
Duration taken for disposal :
08 00 04
***
JUDGMENT
This is a suit initially filed by the plaintiffs against the defendant for the relief of permanent injunction to restrain the defendant, his agents or anybody on his behalf from interfering or obstructing to use the common passage i.e., 'B' schedule property. Later plaintiffs got amended the plaint and claiming the relief of mandatory injunction to direct the defendant to remove the obstruction made on the common passage i.e., 'B' schedule property. Again plaintiffs gotr amended the plaint praying the relief of declaration to declare that the common passage at 'B' schedule as per the sanctioned plan in L.P.No.1250/2004-05 issued by the BBMP connecting the apartment at 'A' schedule property to the 60 ft main road on the western side of the common passage available to plaintiffs and defendant and such other reliefs with costs.
2. The brief facts of the plaintiffs' case are that, the land bearing Survey No.126 of Banasawadi Village originally belonging to the defendant's father and the said property was ancestral property and the defendant filed the suit for partition and separate possession in O.S.No.1643/1986 before the City Civil Court, Bengaluru, in which compromise was entered between the parties on 26.11.1986 and the property in Survey No.126 of Banasawadi Village was allotted to the share of defendant and he was allotted the southern portion of the land to an extent of 37 guntas i.e., 40,293 sq. ft. and it was in his exclusive possession and enjoyment and as per the compromise Decree, entire 37 guntas of land is bounded by East - Late Muniswamy's land, West - Road, North - a portion of the said property allotted to the share of P.Gopala Reddy and South - Puttaswamy's land. Subsequently, the defendant had sold an area measuring 40 x 70 ft in favour of Smt.M.Achamma - plaintiff No.3 herein, through a registered Sale Deed dated 16.8.1989 and since the date of purchase, plaintiff was in actual possession and enjoyment of the property bounded by East - Vacant property, West - property of the defendant, North - 30 ft Road and South - Chikkaliappa's property. Achamma entered into Joint Development Agreement on 22.9.2004 with M/s.Sri Krishna Property Developers and she executed registered GPA in favour of M/s.Sri Krishna Property Developers on 23.9.2004. Plaintiffs further contended that, this defendant also entered into registered Joint Development Agreement with the aforesaid M/s.Sri Krishna Property Developers with respect to an area measuring 28,666 sq. ft on 11.8.2004 and registered GPA dated 11.8.2004 in favour of the aforesaid developers and this developers subsequently developed the land, constructed residential apartments known as 'Indraprasta Apartment' by obtaining sanctioned plan bearing No.L.P.No.1250/2004-05 from the BBMP and according to the sanctioned plan, M/s.Sri Krishna Property Developers have constructed residential apartment in the said Survey No.126 of Banasawadi Village and the plaintiffs are the purchasers of flats in that apartment. The defendant himself has signed the aforesaid sanctioned plan giving his consent and accepting the contents shown in the plan as true and correct and in the said plan, on the western side of the apartment there is a common passage, which leads to 60 feet main road. The plaintiffs have purchased the flats and they are in actual and physical possession and enjoyment of the apartment. As per the building construction sanctioned plan dated 15.5.2005, the western side of the residential apartment, there is a portion of defendant's property and common passage, which is 'B' schedule property herein and the said common passage starts from apartment building and leads to 60 ft main road and said common passage is 30 feet wide and the plaintiffs are using the same and it is more convenient and suitable to the plaintiffs and it is the only connecting road to reach to the main road and the plaintiffs are using the said common passage since from the date of occupation of the flats and it is easementary right of the plaintiffs. The defendant has no right to obstruct the plaintiffs from using the said common passage. Defendant is trying to obstruct the use of the common passage by the plaintiffs and these plaintiffs have no other alternative road to reach the main road, which is more convenient and easy access to reach to the main road from the apartment. The defendant has no right to obstruct the same. These plaintiffs have invested their hard earned money and some of them have raised loan to purchase the apartment. This common passage is left for the exclusive use of the Indraprasta apartment. The defendant is an influential person, having men and material and political background. But the plaintiffs are new comers to the locality having no supporters to resist the illegal acts of the defendant. If the defendant succeeds obstructing to use the common passage, the plaintiffs will be put to great hardship and injury, as nobody can enter the apartment and in that event apartment will become an island. Hence, filed the suit.
3. During the pendency of the suit, the plaintiffs got amended the plain and inserted paras No.7(a) to 12(a), claiming the relief of mandatory injunction alleging that the registered Joint Development Agreement dated 11.8.2004 and registration GPA dated 11.8.2004 in respect of M/s.Sri Krishna Property Developers was with respect to an area measuring 28,666 Sq.Ft. The plan submitted by the defendant for approval to construct apartment was kept pending initially before the Office of the Assistant Director (Town Planning) East Zone, Bangalore Mahanagara Palike as they have sought for further clarification in the proceedings L.P.No.1250/2004-05. In that proceedings, defendant declared by way of affidavit and sketch that he has offered the entire extent of 37 guntas equivalent to 38,492.87 sq.ft. of land acquired by him under the partition decree for the purpose of sanctioning the building plan to construct the apartment. Accordingly, plan was sanctioned and licence was issued to construct the apartment in 'A' schedule property. BBMP approved the sanction plan to have access to the apartment from both the sides and it is only after the defendant has made declaration by of affidavit by furnishing sketch and offering a total extent of 38,492.87 sq.ft. for the construction of apartment, the BBMP has sanctioned plan. During the pendency of the above suit, the defendant has made further obstruction for the residents of the apartment to use the schedule 'B' approach road by digging a trench and doing civil works making it permanent obstruction across the road and also put up a car parking with metal structure on the schedule 'B' road near the entry point to the basement parking slot of the apartment of Block-A towards the western side. When the illegal acts of the defendant was resisted and approached the jurisdictional police by lodging complaint, the jurisdictional police refused to intervene in the matter since the case is pending before the Civil Court. The residential apartment consists of 68 flats and 13 pent houses, consisting of about 300 occupants residing therein and 'B' schedule property is the only approach to the western portion of the apartment connecting to 60 ft. wide road and the defendant is trying to close it permanently. In the event of any fire or any emergency evacuation, the fire engine or the ambulance cannot have access to the western side entrance of Block-A of the apartment, which will create very vulnerable situation and the life and safety of the residents will be at stake.
4. Initially the defendant filed written statement contending that the suit is frivolous, vexatious, illegal tainted with malafide objects, illegal motives and to grab the land of the defendant and also denied the existence of 'B' schedule property and further contended that the suit is bad for non- joinder of necessary parties by name M/s.Sri Krishna Property Developers and also contended the alleged ownership and possession and enjoyment of the plaintiffs in the said apartments are not within the personal knowledge of the defendant. But, the defendant admitted that an area of 37 guntas of Survey No.126 of Banasawadi Village belonged to his ownership and the 'B' schedule road is an access to the defendant for the retained property and the allegation that he sold an area measuring 40 x 70 ft in favour of Smt.Achamma may be partly correct and disputed the boundaries allegedly stated by the plaintiffs and contended that the alleged portion of plaintiff No.3 comes in the middle of the southern portion of the apartment and the boundary does not prevail subsequent to the Joint Development Agreement entered into with M/s.Sri Krishna Property Developers and the alleged property is nothing to do with the alleged property of plaintiff No3 and the execution of alleged Joint Development Agreement by plaintiff No.3 with the developers or execution of GPA by plaintiff No.3 in favour of the developers is not within the knowledge of this defendant, but he admitted that he entered into Joint Development Agreement on 11.8.2004 and also executed GPA on the same day in favour of M/s.Sri Krishna Property Developers and he has retained the remaining portion of Survey No.126 of Banasawadi Village. He further contended that he has constructed a house and residing in a portion of the house and let out the remaining portion to the tenants and obtained building licence, sanctioned plan and other formalieis by the developer with the BBMP, which are all routine in nature and the same is of no consequence in this case and no where either in the title deed or in the plan, the common passage is shown which is allegedly leading to 60 ft road and the apartment has got a direct access from the 4th Main Road towards the East of it, as such there was/is any dearth for any common passage to reach 60 feet main road situated in 5th Main Road, which is on the western side of the apartment and there is retained portion of the same survey number of the property of the defendant and houses have been constructed by this defendant and plaintiffs have no right over the said property. The plaintiffs with a malafide intention have shown the defendant's property as a common passage as 'B' schedule property in the plaint. There is no common passage at all. So, there cannot be any use or enjoyment of the same. Hence, the question of obstruction by him does not arise. He has every right to resist the illegal trespass by therefore parties over his property and the same cannot be found fault with the defendant. Plaintiffs have deliberately cooked up false story to achieve their selfish ends at the cost and peril of defendant. The western boundary given by the plaintiffs themselves in the plaint in respect of 'A' schedule property, they claim the western side is the road between the A and B schedule and it is not their case that it is a alleged common passage, which is different from road. The plaintiffs have no right over the property of defendant. There is no cause of action for the suit. Hence, prayed to dismiss the same.
5. The defendant filed additional written statement to the amended plaint denying the averments made in the amended plaint by away of paras 7(a) and 12(a) and contended that the relief of declaration and mandatory injunction claimed by the plaintiffs are barred by time and these amendments cannot be referred back to the date of filing of the suit. There is no merit and the defendant has not surrendered or parted with the 'B' schedule property under Joint Development Agreement and he retained the same for his exclusive use and enjoyment and as such, the same absolutely belonging to the defendant having right, title and interest over the same. As such they are not entitled to any reliefs. The plaintiffs are trying to misinterpret the same in order to achieve their baseless objects and intention and the plaintiffs have got two entrances towards East of 'A' schedule property to reach the 'A' schedule property and as such, there is no need to have one more access through 'B' schedule property and it is well settled that easementary right can accrue only under the circumstances i.e., by way of easement necessity. But, in this case, none of them are in existence. As such, the plaintiffs cannot have any declaratory relief over the 'B' schedule property. When there is no existence of any approach, road to them over 'B' schedule property, the question of obstructing the way to the apartment holders is absolutely false and incorrect and hence, he has got every right to use the 'B' schedule property in any manner he likes and the same cannot be questioned or obstructed by the plaintiffs. Hence, prayed to dismiss the suit with costs.
6. On the basis of the pleadings of the parties, following issues and additional issues are framed and additional issue dated 11.6.2014 was recasted on 15.9.2014 :
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(2) ªÁ¢AiÀÄgÀÄ PÉÆÃjgÀĪÀAvÉ ±Á±ÀévÀ ¥Àæw§AzÀsPÁeÉ AiÀÄ rQæ ºÉÆAzÀ®Ä CºÀðgÉÃ?
(3) AiÀiÁªÀ rQæ CxÀªÁ DzÉñÀ ¤ Additional Issues framed on 11.6.2014 :
(1) Do the plaintiffs prove that there is
existence of common passage as 'B'
schedule property as per the sanction
plan in LP No.1250/ 2004-05 issued by
Bruhat Bangalore Mahanagara Palike
connecting the apartment at schedule A
to 60 ft main road ?
(2) Do the plaintiffs prove that the defendant constructed illegally over common passage?
(3) Does the plaintiffs prove that they are entitle for relief of mandatory injunction against the defendant?
(4) What order or decree ?
As per order dated 15.9.2014, Additional Issue No.1 framed on 11.6.2014 was recasted as below :
(1) Do the plaintiffs prove that there is existence of easementary right of necessary in his favour over common passage as 'B' schedule property as per the sanction plan in LP No.1250/2004-05 issued by Bruhath Bangalore Mahanagra Palike connecting the apartment at schedule A to 60 ft road ?
Additional issues framed on 18.8.2016 :-
(1) Whether the relief of mandatory
injunction and declaration claimed by
plaintiff is barred by limitation ?
(2) Whether the suit is bad for non-joinder of
necessary parties as stated in para 5 of
written statement ?
(3) Whether the suit claims are not properly
valued and court fee paid is insufficient ?
7. While going through the Issues at the time of dictating Judgment, it is observed that in the Additional Issue No.3 dated 11.6.2014, the word 'plaintiff' is wrongly typed after mandatory injunction instead of defendant. Hence, the same is corrected. Further, on going through the Issues, it is seen that no Issue is framed about the entitlement of the relief of declaration of the plaintiffs. Hence, one Additional Issue on that point is framed today as under : -
"Whether the plaintiffs are entitled for the relief of declaration as prayed for ? "
8. Plaintiffs examined the fifth plaintiff as P.W.1 and got marked 20 documents as per Exs.P.1 to P.20. The defendant examined him as D.W.1 and got marked 26 documents as per Ex.D.1 to D.26.
9. Heard learned advocate for plaintiffs and the defendant.
10. My findings on the above Issues are as follows:
Issue No.1 : In the affirmative.
Issue No.2 : In the affirmative.
Addl.Issue No.1
Dt.15.9.2014 : Partly in the affirmative.
Addl.Issue No.2 Dt.11.6.2014 : In the affirmative.
Addl.Issue No.3 Dt.11.6.2014 : In the affirmative.
Issues framed on 18.8.2016
Issue No.1 : In the negative.
Issue No.2 : In the negative.
Issue No.3 : In the negative.
Issue framed
On 15.11.16 : In the affirmative.
Issue No.3 &
Addl. Issue No.4: As per final order, for the following:
REASONS
11. Recasted Additional Issue No.1 dated 15.9.2014 :- Herein the fact that the first defendant was the owner of 37 guntas of land in Survey No.126 of Banasawadi Village, K.R.Puram Hobli, Bengaluru East Taluk as per the Compromise Decree in O.S.No. 1643/1986 filed by the defendant against his brothers for partition and out of that, he sold 70 x 40 ft in favour of Smt.Achamma who is plaintiff No.3 under registered Sale Deed dated 16.8.1989 and he entered into Joint Development Agreement with respect to an area of 28,666 sq.ft. with M/s.Sri Krishna Property Developers on 11.8.2004 and executed a GPA on the very same day in favour of said developers and he has retained the remaining portion of land in the said survey number with him and also constructed a house therein and the said developer constructed an apartment by name 'Indraprasta Apartment', are all admitted facts.
12. The case of the plaintiffs is that, said Smt.Achamma also entered into a Joint Development Agreement with M/s.Sri Krishna Property Developers on 22.9.2004 and also executed JDA on 23.9.2004 in respect of the property purchased by her under the registered Sale Deed from the defendant and said M/s.Sri Krishna Property Developers have put up an apartment called Indraprasta Apartment on the composite property consisting of the property with respect to which the defendant executed a GPA and the property measuring 70 x 40 sq.ft. with respect to which the plaintiff No.3 executed a Joint Development Agreement and GPA. But, the defendant has not specifically denied the said fact. On the other hand, contended that it is not within the knowledge of this defendant. Further, the case of the plaintiff is that, the said developers obtained the construction plan from BBMP for construction of residential apartment and BBMP issued sanction plan LP.No.1250/2004- 05 and the defendant has signed the sanctioned plan giving his consent and accepting the contents, has also not been denied by the defendant. But, he has contended that the matter of obtaining the building licence, sanction plan and other formalities by the other developers are all of routine nature and his signature on the plan is of no consequence.
13. It is the further case of the plaintiffs that they have purchased the residential flats in the apartment and they are in actual, physical possession of the same. This fact has also not been specifically denied by the defendant, but contended that it is not within his knowledge and he disputed the correctness of the same.
14. Further, it is the case of the plaintiffs that in the sanction plan, on the western side of the apartment, there is a common passage which is 'B' schedule property and it leads to 60 ft main road, it starts from the apartment building and it is 30ft wide and plaintiffs are using the common passage, it is suitable and more convenient to them and it is only the connecting road to reach the main road and they are using the said common passage from the date of accommodation of residential apartment and it is easementary right of the plaintiffs.
15. Per contra, the defendant denied the same and contended that nowhere either in the title deed or in the plan, the common passage is shown and the apartment of the plaintiffs has got a direct access from 4th Main Road towards the eastern side of the apartment, as such there is no any necessary for any common passage to reach 60 feet main road situated in 5th Main Road, which is on the western side of the apartment and towards the western side of the apartment there is a property of the defendant in the retained portion of the same survey number and he has constructed a house, the plaintiffs have no right over it and the existence of defendant's property towards the western side of the apartment shown in the sanctioned plan may be true, but the fact that the alleged common passage is shown is false. There is no existence of common passage.
16. Exs.P.1 and P.2 are the registered Joint Development Agreement and registered GPA dated 11.8.2004 entered into between the defendant and the M/s.Sri Krishna Property Developers, where it is mentioned that the defendant is the absolute owner of southern portion of vacant property bearing Survey No.126 of Banasawadi Village measuring 28,666 Sq.Ft. situated at Banasavadi Village, K.R.Puram Hobli, Bengaluru East Taluk. Ex.P.3 is the sale deed executed by defendant in favour of plaintiff No.5. Ex.P.4 is the Sale Deed dated 18.12.2008 executed in favour of one Ashish Sha and Vineetha Sha by defendant and plaintiff No.3 through their GPA holder M/s.Sri Krishna Property Developers, as one party and M/s.Sri Krishna Property Developers as another party in respect of flats purchased in the composite property consisting of measuring 28,666 Sq.Ft. in Survey No.126 of Banasawadi Village belonged to defendant No.1 and 2,800 sq. ft. belonged to plaintiff No.3 in Survey No.126 of Banasawadi Village. Ex.P.16 is the certified copy of the compromise petition in O.S.No.1643/1986 wherein this defendant was allotted 'A' schedule property for his share.
17. In this case the defendant nowhere specifically described in the written statement what is his total extent of land in Survey No.126 of Banasawadi Village, K.R.Puram Hobli handed over to M/s.Sri Krishna Property Developers under Joint Development Agreement dated 11.8.2004 by him. As per the plaint averments, this defendant had executed Joint Development Agreement in respect of land measuring 28,666 Sq.Ft., which has been admitted the defendant in the written statement, stating that it does not call for any comments. So, it is very clear that the total area of land measuring 28,666 Sq.Ft. was given under Joint Development Agreement to M/s.Sri Krishna Property Developers by the defendant out of 37 guntas in Survey No.126 of Banasawadi Village. Further, the fact that he had sold 40 x 70 ft of land in Survey No.126 of Banasawadi Village in favour of 3rd plaintiff has not been denied by the defendant. So, it is very clear excluding 2,800 Sq.Ft. out of 37 guntas in Survey No.126 of Banasawadi Village, he had executed Joint Development Agreement to the extent of 28,666 Sq.Ft.
18. It is an admitted fact that, the defendant was allotted 37 guntas in Survey No.126 of Banasawadi Village in compromise decree ins O.S.No.1643/1986. If it is calculated to the square feet, it comes to 37 x 2.5 = 92.5 Cents x 435 Sq.Ft = 40,237=50 Sq.Ft. If, 2,800 Sq.Ft sold in favour of plaintiff No.3 out of that area is deducted, it comes to only 37,437.5, which remained to the ownership of the defendant. As per Ex.P.10, the extent of area in respect of which building licence is sought for is 38,492.87. As per Ex.P.1, the defendant is in possession of 37,873 Sq.Ft and he entered into Joint Development Agreement with M/s.Sri Krishna Property Developers for constructing multistoried residential building in an area measuring 28,666 Sq.Ft.
19. As per Ex.P.18, which is dated 9.4.2009 i.e., subsequent to the execution of Exs.P.1 and P.2 and during the pendency of suit, the total extent of property in Sy.No.126, New No.45 in possession of the defendant is 38,492.9 sq.ft. D.W.1 admitted that said khatha is in respect of excluding the land sold in favour of plaintiff No.3. In the course of cross-examination, D.W.1 admitted that he had signed the plan submitted to BBMP for approval, but he deposed that he does not know that since the BBMP did not satisfy with the area shown in the plan submitted for approval, it has conducted proceedings as per Ex.P.5. Further he denied that he had given a letter as per Ex.P.6 in that proceeding. Ex.P.5 is the proceedings before the BBMP in relation to sanction of the building plan in LP.No.1250/2004-05 in favour of defendant herein, which reveals that this defendant had submitted plan for construction of three storied building in his property and the BBMP had sought for clarification from the defendant with respect to the extent of land, which he owned and which he sought for sanction of plan stating that as per the khatha extract, the extent of site is 38,492.87 Sq.Ft. but as per Joint Development Agreement, it measures 28,666 Sq.Ft. This document further reveals that defendant had given affidavit stating that an area measuring 38,492.87 Sq.Ft. belongs to his ownership and possession and the sketch was prepared with respect to the area which is available in the spot. Accordingly, the building plan was sanctioned. Ex.P.6 is the Clarification said to have been given by the defendant stating that he acquired 37 guntas of land by Court compromise decree and the building plan consists of information with respect to the building already in existence and the proposed building and the GPA was given in respect of 28,666 Sq.Ft. and the remaining area is not shown in the sketch. Hence, the said difference found. Ex.P.7 is the affidavit said to have been given by the defendant to BBMP stating that BBMP had issued khatha in respect of land measuring 38,492.87 Sq.Ft in respect of property bearing Municipal No.45, 4th Main Road, B.Channasandra Banasavadi and there is no survey sketch pertaining to this measurement and based on the boundaries available and identified in the spot, the plan has been prepared and the boundaries and the measurement of the property is shown in the sketch drawn in the back of this affidavit and the aforesaid area is in his possession. On perusal of the sketch drawn in the back of this Ex.P.7 it is seen that towards West and East of the property bearing Katha No.45 measuring 35,327 sq.ft. there is a Road and inside the said property there is property measuring 3166 sq.ft. bearing khatha No.37 is situated and towards the South and North there is a private property. So, after going through all these materials, it is very clear that the plan was sanctioned in respect of 28,666 Sq.Ft. for construction of the apartment in Survey No.126 of Banasawadi Village.
20. The defendant has denied the boundaries of 'A' schedule property which is the residential apartment building known as Indraprasta Apartment bearing Sy. No.126, Corporation Ward No.84 of Banasawadi Village, K.R.Puram Hobli, Bengaluru East Taluk. The boundaries to the plaint 'A' schedule property is shown as : East - Late Muniswamy's land, West - Road, North - Gopal Reddy's property and South - Puttaswamy's land. Admittedly, the measurement of 'A' schedule property is not shown. It is an admitted fact that, 'A' schedule property is composite property consisting the property belonged to the defendant and the plaintiff No.3. The boundaries of plaint 'A' schedule property tallies with the boundaries 'A' schedule property allotted to the share of defendant in Compromise Petition in O.S.No.1643/1986 as per Ex.P.16. It is an admitted fact that, defendant is the owner of 37 guntas of land Sy. No.126 of Banasawadi Village acquired under the partition under Compromise Petition in O.S.No.1643/1986 and according to the plaintiffs, defendant sold 2,800 Sq. Ft. in favour of 3rd plaintiff. Admittedly, the plaintiffs have not produced the sale deed of 3rd plaintiff for the reasons best known to them and it is not clear whether the aforesaid 2,800 Sq.Ft. sold in favour of plaintiff No.3 is situated in which portion of entire 37 guntas in Sy. No.126. Even the defendant has not produced any document to show that it is the southern portion of entire Sy. No.126. Further, it is an admitted fact that, defendant had not given Joint Development Agreement in respect of entire property, and in plaint 'A' schedule property the Indraprasta Apartment is situated in composite property consisting the property sold in favour of plaintiff No.3 and an measuring 28,666 Sq.Ft. belonged to the defendant out of the remaining area and the remaining area in Sy. No.126 is retrained by the defendant. When such being the fact, the boundaries to the plaint 'A' schedule property shown in Ex.P.16 cannot be the boundaries to the plaint 'A' schedule of Indraprasta Apartment. So, it is clear that the boundaries given to the plaint 'A' schedule property is not correct.
21. Admittedly, there is no document to show what is the exact boundary of the composite property shown in Ex.P.1 and 2 after construction, but plaintiffs are not claiming any relief on this property. It is the arguments of learned advocate for defendant that though the plaintiffs have not claimed any relief against 'A' schedule property, it is relevant to consider the conduct of the plaintiffs. I do not agree the said arguments of the learned advocate for defendant because, even the defendant himself failed to produce any document to show what is the correct boundary of the 'A' schedule property and he has not furnished the correct boundary of the 'A' schedule property.
22. Now the question is, whether the plaint 'B' schedule property is in existence or not. As already discussed above, the sale deed of the plaintiff No.3 is not produced for the reasons best known to the plaintiff No.3, but in Exs.P.3 and P.4, in the schedule-B, the property purchased by Achamma is described as part and parcel of property bearing Sy.No.126 measuring East - West 40 ft and North - South 70 ft situated at Banasavadi Village, Bengaluru East Taluk, now known as B.Channsandra, Banasavadi, K.R.Puram Hobli, bounded on East by the property belonged to Shankar Reddy, West - property belonged to Shankar Reddy, North - 30 Ft Road and South - private property. So, it is very clear that the property sold in favour of 3rd plaintiff is situated in southern portion of Sy.No.126 measuring 37 guntas and towards the West of Achamma's land there was no passage. As per the plaint 'A' schedule of Exs.P.3 and P.4, an area measuring 28,666 Sq.Ft. in Sy.No.126 is bounded by East - 40 ft Road, West - remaining property in Sy.No. 126 in possession of the defendant, North - Gopalareddy's property and South - private property. But, as per Ex.P.16, there is no 40 ft road towards the East of property allotted to the share of defendant. In Ex.P.11, towards the East the existence of 40 ft road and West the existence of 60 ft road are shown. In Exs.P.3 and P.4, the composite property i.e., schedule 'A' and 'B' properties are described as part and parcel of vacant property bearing Municipal No.45, Old No.126, 4th Main Road, Channasandra, Banasawadi, bounded on East by 40 Ft. Road, West by remaining portion of property No.126 in possession of the defendant, North by Gopal Reddy's property and South by Private property. As per the boundaries shown in Ex.P. 16 to 37 guntas allotted to defendant, it is bounded by East - Muniswamy's land, West - Road, North - Gopal Reddy's property and South - Puttaswamy's land. But, the eastern and southern boundaries shown in Ex.P.16 do not tally with the eastern and southern boundaries shown in the composite property. So, it is very clear that, as on the date of the property allotted to the share of defendant, the eastern Road was not in existence. It is not explained either by the plaintiffs or the defendant whether this road was formed subsequently or it is a private road. No document has been produced to show that it is a public road or private road. However, the existence of road towards the East of composite property in which the plaint 'A' schedule of Indraprasta Apartment is constructed is admitted by both the parties. Further, comparing the western boundary shown in Ex.P.16 and Exs.P.3 and 4, it is very clear that towards the West of Indraprasta Apartment, the portion of the property belonged to the defendant in Sy. No.126 out of 37 guntas of Banasawadi Village is situated, and thereafter the Road, which is shown as western boundary in Ex.P.16 is situated. Further, it is very clear that even after construction of Indraprasta Apartment, the northern boundary is Gopala Reddy's property. Admittedly, when the Joint Development Agreement was entered into by the defendant with M/s.Sri Krishna Property Developers there was no common passage in existence.
23. It is an admitted fact that, M/s.Sri Krishna Property Developers after entering into Joint Development Agreement with the defendant and Achamma for construction of Indraprasta Apartment by composition of both the properties, which is called as composite property, has submitted a plan for construction of apartment, for which the defendant signed, wherein the common passage is shown passing between the South of A Block and North of private property towards the West of the Indraprasta Apartment building connecting 60 ft. main road. Ex.P.11 relating to the ground floor and Ex.P.12 is relating to the first floor. But, the said common passage is not situated all along the Indraprasta Apartment building in the western side. But, as per Exs.P.11 and 12, towards the North of the common passage the 'A' Block is situated and towards the South - private property is situated. It is not shown who is the owner of the private property and even in the plaint it is not explained to whom it belongs. Admittedly, the width and length of common passage is not shown either in Exs.P.11 or P.12.
24. D.W.1 in his cross-examination admitted that as per the sketch attached to Ex.P.6, towards the West of 37 guntas of land 60 ft Road is situated. He admitted that Ex.P.12 contains his signature, but he denied the signature in Ex.P.11. He admitted that in Ex.P.12 towards the East of 60 Ft wide Road, common passage is shown. He deposed that he only signed Ex.P.12, but the builder has altered it for his convenience. He denied that after he submitted Ex.P.7, BBMP had approved Ex.P.12.
25. Herein, admittedly M/s.Sri Krishna Property Developers are not party when the suit was filed. Subsequently, plaintiffs filed an application to implead said developers as defendant No.2 on 30.3.2010 and said application was resisted by the said builders and it was dismissed as per the Order dated 18.10.2010 for the reasons that the suit is one for permanent injunction and there is no allegation against the proposed defendant. The defendant filed an affidavit dated 9.1.2009 of one T.Kirshore Reddy, the proprietor of M/s.Sri Krishna Property Developers along with Memo dated 24.1.2009 before the Court. In that affidavit it is stated that he entered into a Joint Development Agreement with the defendant in respect of the land towards the eastern portion of Sy.No.126 of Banasavadi Village and also the property measuring 40 x 70 ft in the said survey number belonged to one Achamma, who is the third plaintiff herein and the northern boundary mentioned in the sale deed of Achamma about the existence of Road which touches the Road on the eastern side of the said survey number and the defendant retained a land towards the western side of the survey number and after developing the multistoried apartment in the eastern side of the land, they have got two entrances, main gate towards the eastern side of the developed property for ingress and egress from the 4th Main Road, existing on the eastern side of the apartment and except this, this apartment has no any entrance from the western side and in the western side retained land of defendant he has made passage for ingress and egress of his tenants in respect of constructed portion made by him in his land and no right is created for making use of that passage by the occupiers of the flats and there is no agreement in the Joint Development Agreement in that regard. Similarly, in the conveyance deed executed in favour of the apartment holders, they have not created any right regarding the private passage of the defendant and the plaintiffs are not justified in contending that the private passage is available for ingress and egress to reach the apartment. But the defendant has not examined said T.Kishore Reddy. It is the argument of the learned advocate for defendant that the plaintiffs have not made M/s.Sri Krishna Property Developers as defendant in this suit. Hence, this defendant has no opportunity to cross-examine the said developers with respect to the alleged common passage shown in Exs.P.11 and P.12. Ofcourse, the plaintiff has not made an effort to implead M/s.Sri Krishna Property Developers even after claiming the relief of declaration and mandatory injunction in this suit though the defendant had taken said contention. But, when the defendant is able to file an affidavit dated 9.1.2009 of one T.Kirshore Reddy, the proprietor of M/s.Sri Krishna Property Developers, the argument of the learned advocate that plaintiffs have not made M/s.Sri Krishna Property Developers as party, the defendant is deprived from cross-examining the said developers with respect to the common passage is nothing but mockery submission, because when there is already an affidavit got filed in his favour through the proprietor of M/s.Sri Krishna Property Developers, how the defendant can cross-examine the said M/s.Sri Krishna Property Developers even if it is made as a party and it is unknown to law. So, the said argument of learned advocate for defendant that the non-impleading of M/s.Sri Krishna Property Developers by the plaintiffs as one of the defendant affects the case of the plaintiffs to prove the existence of common passage does not hold good, when D.W.1 in his cross-examination stated that he only signed Ex.P.11 and the builder has altered the same for convenience, he should have examined the proprietor Sri.T.Kishore Reddy of M/s.Sri Krishna Property Developers to prove the contents of his affidavit. Further, when the defendant obtained the affidavit of said proprietor, the statement that the builders have altered it for their convenience goes against the contention of the defendant. If the defendant examined the said deponent, said T.Kishore Reddy, there would have been an opportunity to the plaintiffs to rebut the deposition of D.W.1 in the course of cross- examination denying his signature in Ex.P.11 and also the allegation that he only signed Ex.P.12 and builders have altered the same for their convenience and contents of affidavit of T.Kishore Reddy. Therefore, for non-examining said T.Kishore Reddy as a witness by the defendant, an adverse inference is to be drawn against the defendant with respect to the contents of Exs.P.11 and 12.
26. As per Ex.P.11, the alleged common passage is situated between A Block and remaining property of defendant. If the averments in the affidavit of T.Kishore Reddy that the alleged common passage is a private passage made by the defendant in the land retained by him for ingress and egress of his tenants and himself in respect of the constructed portion made by him is true, there is no necessity to mention the same as common passage. It is well known that if there exists a right to the owners of the property over the area which is situated in between two properties, it will be called as common area. Nowhere T.Kishore Reddy stated why the alleged private passage as stated in his affidavit is mentioned as common passage, whether it is a alternation as deposed by D.W.1 in his cross- examination. It is an admitted fact that, Indraprasta Apartment was constructed after approval of sanctioned plan and it is not the case of the defendant that, when the building plan as per Exs.P.11 and 12 were approved, the common passage was not shown and it was subsequently shown, but it is admitted by D.W.1 that as per Exs.P.11 and 12, Indraprasta Apartment was constructed. When the defendant had given his clarification as per Ex.P.6 and P.7 in a proceeding as per Ex.P.5 with respect to the measurement of Exs.P.11 and P.12, he cannot say that he has not signed Exs.P.11 and 12. It is not denied by the defendant that 'A' Block is part and parcel of Indraprasta Apartment. On going through Exs.P.11 and P.12, it appears that the common passage is situated beyond the compound wall of the property of defendant and it is also found in some of the photographs produced as per Ex.P.14. In the course of cross-examination of D.W.1 he deposed that the passage marked in Ex.P.14(a)(1) belongs to him. If really said passage belongs to him, he would have put up compound including the said passage. Why he left open said area by putting compound wall and gate to his house. In Ex.P.4, which is the sale deed in favour of Ashesh Sha and Vineetha Sha in respect of Flat 'D' in Block No.I in the ground floor, the western boundary of the building where Indraprasta Apartment is constructed is shown as remaining property of land remaining in Sy.No.126 and common passage. So, it is the defendant who has to explain which is the said common passage. Ofcourse, in other sale deeds, there is no reference about the said common passage. Even in Ex.P.20 which is broacher with respect to Indraprasta Apartment the existence of way from 60 Ft Road in the eastern side of Indraprasta Apartment is shown. D.W.1 in his cross- examination deposed that the plan shown in Ex.P.20 is correct. Merely because that the existence of common passage is shown in Exs.P.11 and P.12 is not mentioned in some of the sale deeds executed in favour of the purchasers of the flats of Indraprasta Apartment, it cannot be said that the common passage shown in Exs.P.11 and P.12 is not in existence and it is not meant for use of the occupier of the Indraprasta Apartment. Ofcourse, P.W.1 in his cross- examination deposed that there are two gates towards East of the said apartment and he is using both the gates for ingress and egress since from the date of purchase of flat by him and there is no obstruction, but he never stated that they have not been using the common passage shown in Exs.P.11 and 12. If the common passage shown in Exs.P.11 and P.12 is not in existence and it is shown without that being in existence, the defendant should have taken action against the builders or he should have sought for counter- claim in this case to declare that no such common passage is in existence, but he has not made any such relief or he has not taken any action. If that is not common passage and it is only a private passage when there is no property belongs to his ownership towards the North of the said passage, why he kept the said area open without enclosing the same to the boundary of the area and put up construction is not explained by the defendant which is retained by him and put up construction. These are all sufficient to prove that there exists a common passage as shown in Exs.P.11 and P.12 and while constructing Indraprasta Apartment building, it was left for the use of the occupiers of 'A' Block of Indraprasta Apartment to reach 60 ft road situated towards the West of Sy.No.126 measuring 37 guntas.
27. It is the argument of the learned advocate for defendant that, even if it is assumed that there exists a common passage, there is no document to show that it measures North - South 30 ft and even the length of the said passage is not shown. It is true that, in the plaint 'B' schedule, it is shown as 30 ft. common passage situated on the western side of the 'A' schedule property which reaches to 60 ft Main Road. It is not in dispute that beyond the property acquired by the defendant measuring 37 guntas in Sy.No.126 in the western side, there exists 60 ft main road and even it is an admitted fact that, when in between 'A"
Block of Indraprasta Apartment and property retained by the defendant, immediate to the East of the 60 Ft. Road situated towards West as shown in Exs.P.11 and P.12, there is no other property. So, even if the length of the common passage is not mentioned, there cannot be any difficulty to identify the said common passage. Merely because that there is no document to show that the width of the common passage is 30 ft. and also what is the length of the said common passage, the defendant cannot contend that the common passage shown in Exs.P.11 and P.12 does not exist. Here it is very pertinent to note that, in the affidavit filed by T.Kishore Reddy, the proprietor of M/s.Sri Krishna Property Developers, he has stated that the defendant himself made a private passage for ingress and egress, but he never denied that the width of the said passage is 30 ft. Even the defendant has nowhere stated what is the exact width of the said passage. If the defendant has given the exact width of the said passage, which according to him is a private passage, the plaintiff would have taken proper steps to rebut the said contention to produce the exact measurement of the said passage. This itself is sufficient to say that the contention of the defendant that plaintiff has failed to prove that the width of the passage is 30 ft.
28. P.W.1 in his cross-examination deposed that the length of 'B' schedule property might be 114 ft in length. As I have discussed above, admittedly there is no document to show that the width of the passage is 30 ft and length is 114 ft. When as per Exs.P.11 and P.12 the said passage is situated between 'A; Block of Indraprasta Apartment and the remaining property of the defendant in Sy.No.126 and beyond the western edge of Sy.No.126 there is a 60 ft wide Road and this passage ends in the 60 ft. wide road situated on the western side of Indraprasta Apartment and remaining portion of defendant's land in Sy.No.126 even if the width is not mentioned, there is no difficulty to identify the common passage.
29. In view of all these discussions, I come to conclusion that though the plaintiffs have failed to prove that the width of 'B' schedule property is 30 ft, and also to furnish the exact length of the 'B' schedule, the plaintiffs have proved that there exists a common passage towards the West of Indraprasta Apartment 'B' Block and it is situated in between 'A' Block and defendant's property and runs from East to West and connects to 60 ft wide road situated in the western side of Indraprasta Apartment consisting of 'A' and 'B' Blocks.
30. Now the question is, whether any right has been conferred on this passage to the plaintiffs and flat owners. This suit is filed by about 26 persons, but all the plaintiffs have not entered into witness box. P.W.1 is the plaintiff No.5. In his cross-examination he deposed that he has purchased 'C' and 'D' schedule properties under sale deed as per Ex.P.3 and there is no mention about the existence of common passage in 'C' and 'D' schedule properties.
31. It is the argument of the learned advocate for defendant that there are about 68 flats in the Indraprasta Apartment and out of them, only 26 owners have approached the Court and the plaintiffs have not made other flat owners as parties and the plaintiffs are claiming right of common passage based on Ex.P.11, which is not a registered document. Hence, no right can be created based on Ex.P.11 over the alleged common passage which is a immovable property and Ex.P.11 has no evidentiary value. Further, in one breath the plaintiffs claim an easementary right and they are claiming right over the common passage and in para 9 of the plaint they averred that it is very convenient and suitable to them and it is the only connecting road to reach the main road and they are not having any other alternative road to reach the main road and it is easy to reach the main road from the apartment and it is a public way. So, it proves that only for the reason that it is convenient and easy to reach main road from the apartment, they are claiming right over the property. But, P.W.1 admitted that there is an ingress and egress to the main road in the eastern side of the Indraprasta Apartment. There are two kinds of right of easement. One can be acquired by document and another can be acquired by vested right by ownership. As per the Oxford Dictionary, common passage is a passage or thoroughfare and it is public, general and ordinary. In the present suit, it is an ordinary. The right of party to use the same as pedestrian, the road meant for movement of the vehicle thoroughfare and the street and road are different from passage and as per Section 280, 281, 284, 285, 299 and 303 of K.M.C.Act., the street to be declared as public, common passage is not a street or road. The plaintiff is entitled to use the 'B' schedule property as pedestrian, not more than that. So, no right is conferred on the plaintiff to use the said common passage either as easement and Indraprasta Apartment shown in 'A' schedule is constructed in the year 2004-05, this suit is filed in the year 2008. So, the question of acquiring easementary right over the 'B' schedule property does not arise.
32. It is the arguments of the learned advocate for plaintiffs that, in the sale deed as per Ex.P.19 executed by defendant personally and also in the sale deed as per Ex.P.3 and P.4 executed by the general power of attorney holder of defendant, there is a recital that all the rights, easements, privilege apartments thereto to have and hold the same as the vendors of undivided share and the absolute vendor of the apartments transferred and conveyed the same subject to the covenants therein and as per BBMP building bye-law 2003, bye-law 2.12 of the apartment means the property intended for any type of independent use or for residential purposes with a direct exist to the public street, or road, or highway or to a common area leading to such street and the learned Advocate also referred by-law 2.28, 2.33, 2.49. Further the learned Advocate argued that as per bye-laws 2.25, 3.25 (site Plan) shall indicate the title of the drawing consisting of the property No. of the site name, block, street, road, in which the site is situated and name, description of the adjacent road streets, lanes, if any with the width thereof and also referred by law 3.25 (3), 3.3., 5.1, 6.1 and also relied upon the meaning of apartments as mentioned in Law of Lexicon with legal magazines under which the apartments means :
"Signify things both corporeal, incorporeal, appertaining to another thing as a principal ....
Appurtenance or appurtenant means belonging to another thing as a principal ... hamlet to another Village, garden to a home, which passes as incident to the principal thing, things used with an related to or dependant upon, another thing, more worthy and agreeing its nature and quality ... Right of way appurtenant to the land ."
33. The learned advocate for plaintiff relied upon the decisions reported in :
1) AIR 1976 Supreme Court 2602 - Maharaj Singh Vs. State of Uttar Pradesh and others.
2) Manu/MH/0741/2006 - Shatrughan Sinha Vs. Gurudev Singh Mann and Ors.,
3) Manu/SC/2774/2006 - Civil Appeal No.4715/2000 dated 8.5.2006 - Hero Vinoth (minor) Vs. Seshammal.
34. The learned advocate for plaintiff also relied upon Sections 3(a)(f),(1)(2) and 26 of Karnataka Apartment Ownership Act, 1972 and also Section 2(c),3, 3(2)(a)(c), Section 7(1), 8(2), 13(1), and Section 14 of Karnataka Apartment Flat (Regulation of the Promotion of construction, Sale, Managements and Transfer)Act., of 1972.
35. Admittedly, either in Ex.P.1, P.2 or P.3, the existence of 'B' schedule passage is not shown. In all these documents, the western boundary is shown as remaining property in Sy.No.126. When the 'A' Block of plaint 'A' schedule property is situated towards the North of passage and the area shown as private property in Exs.P.11 and P.12 to the immediate of East of 60 Ft. Road shown in Ex.P.11.
So, the western boundary shown as remaining portion of property in Sy.No.126 in all these documents is not correct, it should be portion of the property in Sy.No.126 and the Road measuring 60 Ft. In Ex.P.4, which is dated 8.12.2008, the western boundary to the composite property is shown as remaining portion of property No.126 and common passage. This is the document executed by defendant and plaintiff No.3, Smt. Achamma through GPA holder M/s.Sri Krishna Property Developers, as a owner in one part and also by M/s.Sri Krishna Property Developers represented by its proprietor in favour of T. Kishore Reddy, representing through power of attorney holder in favour of Ashesh Shah and Vineetha Shah who are not the plaintiffs in this suit. The contents of this document have not been disputed by the defendant in the cross-examination of P.W.1. So, it proves that there exists a common passage and right of the common passage was given to the purchasers under this sale deed. Admittedly, these two persons have purchased one of the flat in ground floor, Block No.1 in Indraprasta Apartment. it is not the case of the defendant that only this person was given the right of common passage and other flat owners were not given such right when in Ex.P.4 the common passage is shown as western boundary. It is very clear that the defendant having given the right of common passage not only to these purchasers under this sale deed, but also the purchasers of other flats in Indraprasta Apartment by conferring the same as shown the common passage on the western boundary. Further in 'E' schedule of Ex.P.4 there is recital which reads thus :
"Rights of the purchasers :
(1) Full right and liberty to the purchasers and persons duly authorized and permitted by the purchasers in common with other persons entitled, permitted or authorized at all time by day and night to go, pass and repass the staircase and passage inside and outside the building constructed on Composite Property with reference to Schedule 'D' property.
(2) Full right and liberty to the purchasers in common with all other persons with or without motor cars, or other permitted vehicles, at all times, day or night, to pass or repass over the land or to the building constructed on Composite Property."
This itself is sufficient to say that the right of common passage conferred on the purchasers of the flat situated in 'A' schedule property which includes the plaintiffs. Therefore, it is proved the right to use the passage conferred in favour of the plaintiffs and also the other flat owners in 'A' schedule property by document.
36. Ofcourse, there is an ingress and egress in the eastern side of plaint 'A' schedule property, but, when the common passage is left in between the property retained by the defendant and also 'A' schedule property in the western side abutting to the 60 Ft Road, which is the boundary to the entire 37 guntas of land in Sy.No. 126 allotted to the share of defendant, which is conferred in Ex.P.4, I opine that, the plaintiffs and other flat owners have every right to use the common passage as the easement of necessity from the date of the respective flats purchased by them and it is the right given under the document. It is not a vested right of ownership and because of right acquired by document as per Ex.P.11 and also the recital in Ex.P.4, the plaintiffs have every right to use the common passage as a convenient approach to the 60 Ft. main road situated in western side of plaint 'A' schedule property.
37. It is the argument of the learned advocate for defendant that, the plaintiffs have not produced the sale deeds of all the plaintiffs to show that the right to use common passage was conferred. Ofcourse, the plaintiffs have not produced the sale deeds of all the plaintiffs, but that is not a ground to say that the common passage referred in 'B' schedule is not a common passage and no right is conferred on the plaintiffs or other flat owners in 'A' schedule property by document.
38. As per Section 4 of the Indian Easements Act, 1882, "An easement is a right which the owner or occupier of the certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own." As per Section 12 of the Indian Easements Act, "An easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created, or on his behalf, by any person in possession of the same." As per Section 15 of Easement Act says that, where any access or use of light, air has been peacefully enjoyed as an easement without interruption for a period of 20 years from one person's land or things affixed thereto and where a right of way or any other easement has openly, peacefully enjoyed by any person claiming title thereto as an easement as of right, without interruption, they have acquired the easement by prescription and the said period shall be counted ending within two years next before the institution of the suit. As per Section 13 of the Indian Easement Act, where one person transfers or bequeaths the immoveable property to another person, and if an easement in other immovable property of the transferor is necessary for enjoying the subject of transfer or bequest, the transferee or legatee shall be entitled to such easement. Herein, the common passage is not in existence as on the date of Ex.P.16. So, it is very clear that they have not acquired the easementary right by passage of 20 years. Further, in the plaint, nowhere they have claimed right of easement of necessity, but they have claimed that it is easementary right to the plaintiffs. When the plaintiffs prove that it is a common passage and the right to use the same given in their favour, to reach 60 Ft main road situated in the western end of 'A' schedule property. These easementary right begins from the date of occupying the respective flats. Therefore, though the plaintiffs have failed to prove that there exists an easementary right of necessary in their favour over the common passage 'B' schedule, they proved that they have got every right to use the common passage is shown in the sanctioned plan which is marked as Exs.P.11 and 12.
39. The argument of the learned advocate for defendant that as the plaintiffs are claiming right over the common passage which is an immovable property under Ex.P.11, unless and until it is registered as a property under Section 17(a) of the Registration Act, the plaintiffs cannot claim any right over the common passage. This argument of the learned advocate for defendant has no sanctity because, there is no procedure under any law to get the building plan and licence registered to claim any right, which is shown to be provided and conferred to the purchaser of the flats. Further, the plaintiffs are not claiming any right of ownership on this document. They are claiming right to use the common passage which is shown in Ex.P.11. In view of these discussions, I answer this Issue partly in the affirmative, holding that the plaintiffs have got every right to use the common passage described in 'B' schedule, which is shown in Ex.P.11 to reach the 60 Ft main road in the western side of the 'A' schedule property.
40. Additional Issue No.2 framed on 11.6.2014 and Issue No.1 : - As these issues are interlinked to each other, they are taken up together for consideration to avoid repetition of facts and evidence.
41. Initially the plaintiffs have alleged that the defendant is trying to obstruct the plaintiffs from using the common passage without having any right to obstruct the same. But, during the pendency of the suit, the plaintiff got amended the plaint by inserting para 7(a) and 12(a) contending that during the pendency of the suit, the defendant has made further obstruction for the residents of the apartment to use 'B' schedule approach road by digging a trench, then doing civil works making it permanent obstruction across the road and has put up car parking metal structure near to the entry point to the basement parking slot of Block A of the apartment towards the western side. In the additional written statement, the defendant denied the said fact and contended that when the 'B' schedule property is the absolute property belonged to him, he has got every right to use the same in any manner he likes and the same cannot be questioned, but nowhere in the additional written statement he has denied the allegation made in para 12(a) of the plaint that during the pendency of the suit he dug trench and put up shed across the common passage. Further, there is no cross-examination on this point to P.W.1. In the course of cross-examination of D.W.1, though he denied that in the month of October 2008 he dug trench as shown in the photographs marked as Exs.P.14(2), he has stated that already there was drainage, he only removed the mud which covered the said drainage and he admitted that in Ex.P.14(3) the labourers brought by him are found. He admitted that the car parking shed found in Ex.P.14 is constructed by him, but he denied that he constructed the same in the common passage during the pendency of the suit. Herein, it is very pertinent to note that nowhere in the cross-examination of D.W.1 the contents of Ex.P.14 have been denied by the defendant. Ex.P.14 are the 18 photographs. Out of that, in Ex.P.2, the digging of earth and also Indraprasta Apartment is found and also Indraprasta Apartment are found. In other photographs also the work of digging the earth and construction of car parking in the area situated in front of Indraprasta Apartment is found. Though the defendant denied that he put up the shed by digging the earth in the common passage which is referred as 'B' schedule, he has not produced any photographs to show that the said shed is not situated in the common passage. The photos produced by him are only relating to the ingress and egress of Indraprasta Apartment in the eastern side towards the 40 ft road. The plaintiff produced Ex.P.13 which is the complaint dated 29.10.2010 through one Ashesh Shah, who is the Secretary of Indraprasta Apartment Owner's Association stating that the defendant had blocked the western side access since November 2008 by digging a trench and admittedly the plaintiffs have not lodged complaint. If the defendant had not put up any shed during the pendency of the suit, he would have disclosed when he had put up the car shed and where it is situated and he would have given the details about since when the trench is situated and what was reason for him to remove the mud. These are all clearly shows that the defendant during the pendency of the suit has put up the construction of car shed across the common passage. When the defendant has put up the car shed across the common passage, it proves that thereby he obstructed the plaintiffs and other flat owners from using the common passage situated in the western side leading to 60 Ft road. Further, when the defendant has denied the existence of common passage and the right to use the common passage given to plaintiffs and other owners in his written statement for the claim of the plaintiffs for the relief of permanent injunction alleging that the defendant attempted to obstruct the use of common passage and when he failed to prove that the 'B' schedule passage is private passage, I opine that, plaintiffs also proved the obstruction on the part of the defendant to the use of the common passage by the plaintiffs as on the date of suit. Hence, I answer these Issues in the affirmative.
42. Additional Issue No.2 framed on 18.8.2016:
It is the contention of the defendant that the suit is bad for non-joinder of necessary party i.e., the joint developers i.e., Krishna Property Developers. But, it is the argument of the learned advocate for defendant that the suit is also bad for non-joinder of BBMP who approved the sanctioned plan and issued the building licence. It is an admitted fact that, when the suit was only for permanent injunction, the plaintiff filed an application to implead M/s. Krishna Property Developers and the said application was dismissed on the ground that as the suit is one for permanent injunction, even in the absence of said developers the suit can be adjudicated effectively. But, after claiming the relief of declaration to declare that the common passage provided in the sanctioned plan is available to plaintiffs and defendant. The plaintiffs have not made any efforts to implead the said developers. But, admittedly, the defendant also signed Exs.P.11 and P.12, which are the sanctioned plan. Further, the defendant also filed an affidavit on 9.1.2009 of one T.Kishore Reddy, the Proprietor of the aforesaid developers. But the defendant for the reasons best known to him has not examined the said proprietor to prove the contents of affidavit dated 9.1.2009. Therefore, the contention of the defendant that the suit is bad for non-joinder of said developers does not hold good.
43. With respect to the arguments of learned advocate for defendant that the suit is bad for non-joinder of BBMP who issued the building licence, it is pertinent to note that it is not the case of the plaintiffs that the aforesaid developers had not constructed the apartment as per the approved plan and building licence and even it is not the case of the plaintiffs that the plaint 'B' schedule common passage is being maintained by the BBMP. Ofcourse, in the plaint at para 10 it is stated that it is a public way and in para 12(a) it is stated as an approach road. But, nowhere the plaintiffs stated that it is maintained by the BBMP. When such being the fact, the presence of BBMP in this case is not required. Hence, I answer this Issue in the negative.
44. Additional Issue No.3 dated 18.8.2016 : The defendant in the written statement contended that the suit for the relief of declaration and mandatory injunction has not been properly valued and the court fee paid is insufficient.
45. It is the argument of the learned advocate for defendant that the plaintiffs are claiming the relief of declaration and mandatory injunction over the common passage, which is immoveable property, so, the plaintiffs ought to have paid court fee on the market value of the 'B' schedule property. The Court fee paid under Section 24 (d) and 26(c) of Karnataka Court Fees & Suits Valuation Act for the relief of declaration and mandatory injunction respectively are not proper. Ofcourse, plaint 'B' schedule property is immoveable property. But, herein the plaintiffs are not claiming any ownership right over the said property. They are not claiming any right of ownership over the 'B' schedule property and they are not claiming the possession of the 'B' schedule property, they are claiming the relief of declaration to declare that the common passage mentioned in Ex.P.11 is available and to direct the defendant to remove the obstruction caused to the use of the common passage. So, the valuation made by the plaintiff for the relief of declaration under Section 24(d) of Karnataka Court Fees & Suits Valuation Act and for relief of mandatory injunction under Section 26(c) is proper.
46. Learned advocate for plaintiff relied upon the decisions reported in :
1) ILR 1981 KAR 392 - Basalingappa.N.
Ariwalad and others Vs. Deputy
Commissioner, Dharward and another.
2) Civil Revision Petition 3711/1989 - Master K.P.Ponnappa and another Vs. K.P.Poovaiah and others.
3) ILR 2009 KAR 4276 - V.S.Balasubramanyam Vs. L.K.Trust and others.
4) ILR 2000 KAR 372 - Dondubai Vs.
Fakeerappa Hanumappa M.
47. In view of the aforesaid discussion, I answer this issue in the negative.
48. Additional Issue No.1 framed on 18.8.2016:- The defendant has resisted the claim of the declaration and mandatory injunction firstly on the ground of limitation. This suit is filed on 11.11.2008. The defendant appeared through his Advocate and filed written statement on 18.11.2008 contending that 'B' schedule property is not in existence. The plaintiffs filed an application under Order VI Rule 17 C.P.C. claiming the relief of mandatory injunction on 2.8.2012, which was allowed on 1.8.2013 and the plaintiff also filed I.A. under Order VI Rule 17 C.P.C. on 11.1.2013 seeking relief of declaration which was allowed on 6.3.2014. So, it is very clear that the plaintiffs have not claimed either the relief of mandatory injunction or declaration within the period of 3 years from the date of the written statement filed by the defendant contending that 'B' schedule property is not in existence.
49. In para 12(a) of the plaint, the plaintiff stated that during the pendency of the suit the defendant has made further obstruction for the residents of the apartment to use the 'B' schedule approach road by digging a trench, then doing civil works making it permanent obstruction across the road and has put up car parking metal structure near to the entry point to the basement parking slot of Block A of the apartment towards the western side and plaintiffs tried to resist the illegal acts of the defendant and lodged complaint before the police on 29.10.2010 through association, but, the police refused to intervene in the matter since the case is pending before the Civil Court. Hence, they have sought for the relief of mandatory injunction to remove the obstruction made on the common passage.
50. The plaintiffs have produced Ex.P.13, which is the copy of the complaint dated 29.10.2010 filed by Ashesh Shah, the Secretary of Indraprasta Apartment Owner's Association to the Circle Inspector of Ramamurthy Nagar police station, Bengaluru, where it is stated that the defendant had blocked the western side access for vehicular usage since November 2008 by digging trench, hence, the resident owners have moved the Court in O.S.No.7479/2008, which is still pending, but the defendant has today started a work by erecting material structure, which will prevent the 70+ families of the apartment from accessing to the 'B' schedule property.
51. It is the argument of the learned advocate for defendant that none of the plaintiffs have lodged complaint and the person who lodged the complaint has not been examined and this suit is not filed through the Association, hence, this document cannot be considered as a cause of action to claim the relief of mandatory injunction and the date, month, year of alleged digging the trench has not been mentioned. It is true that the person as the Secretary of Indraprasta Apartment Owner's Association who lodged the complaint is not a party in this suit and he has not entered into the witness box and P.W.1 deposed that he has not produced any document to show that the person who lodged the complaint is the Secretary of the Association and he does not know whether the Secretary purchased any property in the apartment as on the date of filing of the suit and Ex.P.4 belongs to Secretary by name Ashesh Shah and he assumed the charge of Secretary in the year 2010. But, Ex.P.4 is dated 18.12.2008. The defendant though contended that one Eshwara has no right to execute a sale deed, has not challenged the validity of this sale deed. Further the plaintiff nowhere stated in para 12(a) of the complaint that the plaintiffs have lodged complaint, but they have clearly stated that through their Assn they have lodged complaint. There is an endorsement in Ex.P.3 about the receipt of this complaint by the Ramamurthy Nagar Police Station. Though the plaintiffs have not produced any document to show that said Ashesh Shah was the Secretary of the said Association, but the defendant by putting a suggestion that said Ashesh Shah resumed charge of the Association in the year 2010 and he is the Secretary of the Association formed by the Owners of the Flats of Indraprasta Apartment and when this complaint was lodged on 29.10.2010, it is proved by the plaintiffs that they have lodged complaint through their Secretary of the Association. Further, it is proved that defendant dug a trench and thereby blocked the common passage in the year 2010. The plaintiffs claimed the relief of mandatory injunction by filing an application on 2.8.2012 which is within the period of limitation. Therefore, the argument of learned advocate for defendant for the claim of mandatory injunction is barred by limitation is not correct.
52. With respect to declaration, it is the argument of learned advocate for defendant that the right to sue accrued on the date when the defendant filed written statement, i.e., on 18.11.2008, but the application is filed in the year 2013 after lapse of five years, so, it is barred by limitation. The plaintiffs sought for the relief of declaration to declare that the common passage at schedule 'B' provided as per the sanctioned plan in LP.No.1250/2004-05 issued by the BBMP connecting the apartment at schedule 'A' to 60 Ft. Main Road on the western side is a common passage available to the plaintiffs and defendant. The plaintiffs are not claiming any absolute right over the common passage. Even they filed the suit initially for permanent injunction. Their contention is that, there is a common passage left for exclusive use of occupants of Indraprasta Apartment to reach to 60 Ft Main Road and also use of defendant and defendant has no right to obstruct the same. While claiming the relief of declaration by filing amendment application under Order VI Rule 17 C.P.C. on 11.1.2016, it is stated in the sworn affidavit that since the 'B' schedule common passage is already forming part of the sanctioned plan approved by the BBMP and the copy of the same furnished to each of the plaintiffs disclosing about the facilities therein including the 'B' schedule passage for the access to 60 Ft Main Road, used by the plaintiffs since the beginning, but on the advise or opinion that the relief of declaration is not necessary, they have filed the suit only for the relief of permanent injunction. But, the defendant has taken up a contention before this Court as well as Hon'ble High Court of Karnataka in MFA that 'B' schedule property is private road of the defendant alone. Hence, it is necessary to seek the relief of declaration.
53. In the written statement, the defendant contended that the 'B' schedule property is private passage exclusively belongs to him, and the said passage is not in existence. This Court after hearing both the parties disposed off the I.A. filed under Order XXXIX Rules 1 and 2 C.P.C. on 4.6.2011 and directed both the parties to maintain status- quo with respect to the plaint schedule property. Against the said Order MFA No.9225/2011 was preferred before the Hon'ble High Court of Karnataka. The matter was remanded back. Thereafter, the plaintiffs have sought for amendment claiming the relief of declaration. Said application was allowed as per the Order dated 6.3.2014 observing that the present application is filed at a belated stage only with an intention to drag on the proceedings and the same can be resolved by imposing reasonable costs on the plaintiffs and ultimately the application was allowed on payment of cost of Rs.1,000/-. But, though the defendant had taken the contention in the objections that the said relief of plaintiffs was barred by limitation, in the said order it is not observed that the application was allowed subject to raising plea of limitation in the written statement by the defendant and in the Order it is not stated whether the effect of the amendment relates back to the date of application or date of filing of the suit, the defendant had not challenged the said order. In the absence of specific order or observation that the amendment claiming the relief of declaration relates back to the date of application. It is very clear that amendment will have the effect from the date of suit, not date of application.
54. The learned advocate for plaintiff relied upon the decision reported in 2001 Supreme Court Cases 657 (Civil Appeal No. 7292/2001) Siddalingamma and others Vs. Mamatha Shenai
55. The learned advocate for defendant relied upon the decision reported in :
1) (2011) 9 Supreme Court Cases 126 -
Khatri Hotels Private Limited and another Vs. Union of India and another.
2) (2016) 1 Supreme Court Cases 332 -
L.C.Hanumanthappa (Since dead) represented by his Legal representatives Vs. H.B.Shivakumar.
56. In view of these discussions, the claim of the plaintiffs for the relief of declaration is not barred by limitation. It is within the period of limitation. Hence, I answer this Issue in the negative.
57. Issue No.2 and Additional Issue No. 3 framed on 11.6.2014 and additional Issue framed on 15.11.2016 : - Generally when the parties have proved their claim in the suit, they are entitled for the relief claimed in the suit. But, it is subject to the limitation provided to claim such reliefs. The learned advocate for defendant argued that, the plaintiffs are not entitled for the reliefs on the ground that some of the plaintiffs have sold their properties and all the flat owners of Indraprasta apartment are neither joined with the plaintiffs nor they are impleaded as defendants and plaintiffs have got direct access from the 4th Main Road towards East, hence, there is no necessity for common passage to reach 60 ft Main Road situated in the 5th Main Road.
58. Exs.D.5 and D.6 reveal that plaintiffs No.11 and 6 have sold the properties during the pendency of suit and the purchasers are not made party to this suit. But, that dose not non-suit the plaintiffs. It is true that in the plaint it is not stated that whether the plaint 'B' schedule property is situated whether at 4th Main Road or 5th Main Road. But, as per Ex.P.10, the plaint 'A' schedule apartment is situated at 4th Main, Channasandra and defendant is the resident of 5th Main Road. P.W.1 in the cross-examination admitted that there is no obstruction to reach 4th Main Road and they have been using both the gates for ingress and egress situated in the apartment since from the date of purchase of flats and the said road is situated towards the 4th main road, but the fact that A block of the plaint 'A' schedule apartment is situated abutting to the 60 ft road situated in the western side, has not been denied by the defendant. It is clearly stated in para 12(a) of the plaint that the common passage is nearest entry to the 'A' schedule block. This fact has also not been denied by the defendant. Therefore, merely because there is an access from 4th main road towards East, the defendant cannot contend that there is no necessary for the plaintiffs for common passage to reach 60 ft main road situated towards the 5th main road.
59. The learned advocate for plaintiffs has referred Sections 6 and 3 of Karnataka Apartment Ownership Act and also Sections 2(a), (c), Section 7, Section 10, Section 13 and Section 18 of the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972 with respect to what is the duty of the promoter and what are the facilities to be provided to the owners of the flats and what are the amenities includes in the word 'common area and facilities' mentioned in the respective sale deeds produced by the plaintiffs and defendant. When the defendant having signed Ex.P.11 to put up construction of plaint 'A' schedule - Indraprasta Apartment and got approved the said plan through the builders to put up Indraprasta Apartment by showing the common passage as an access in the eastern side to reach the 60 ft main road, after completion of apartments and sale of the apartments, cannot contend that there is no such common passage and it is his private passage. If the defendant takes such a contention, it is nothing but the act of cheating to the flat owners who have made believe that this common passage was available to them to reach the 60 ft main road on the western side, there should not be any disturbance and based on that faith, they were purchased the properties. Hence, on this ground the defendant cannot contend that the plaintiff is not entitled for the relief.
60. Ofcourse, all the flat owners are not joined with the plaintiffs, but on that ground it cannot be said that the common passage is not in existence, hence they have not joined. Further, it is the argument of learned advocate for defendant that Ex.P. 11 is not registered as provided under Section 17 of the Indian Registration Act, hence, it cannot be considered to grant any relief. As already discussed in earlier part of this Judgment, no law is provided to register the sanctioned plan and licence to create any right of the amenities shown to be provided to the flats which are going to be constructed under Ex.P.11. There is no bar to claim the existence of common passage based on Ex.P.11. The learned advocate for defendant relied upon the decision reported in 2001(1) Kar.L.J.468 - S.Sundar Raj Vs. Vijayendra Kumar and others.
61. The learned advocate for plaintiffs relied upon the decisions reported AIR 1965 Supreme Court 182 - Section 115 of Evidence Act.
62. Herein, when the defendant by a document has conferred the existence of common passage for the use of flat owners of Indraprastha apartment, now he cannot contend that no such passage is in existence or it is meant for his private use.
63. Learned advocate for defendant also argued that, there is provision under building bye-laws to regularize the deviation which is below 5%, hence, the plaintiffs are not entitled for the reliefs. Ofcourse, there is a provision under BBMP bye-laws to regularization of the construction of the building in violation of building bye-laws and if it is within 5%. But, herein it is not the building constructed, by obtaining building licence on the property owned by the defendant, but it is the car shed constructed on the property which is exclusively meant for the defendant and plaintiffs, hence, the defendant cannot take advantages of the provision of BBMP bye-laws to regularize the said deviation.
64. Ofcourse, initially the plaintiffs have sought for the relief of permanent injunction to restrain the defendant not to interfere or obstruct the use of common passage and in view of the construction made on the common passage, there is obstruction to use of the common passage. Hence, at that time the relief of permanent injunction becomes infructuous. But, when the plaintiffs have proved that they are entitled for the relief of mandatory injunction and if after removal of obstruction, the defendant causes any obstruction, then again the plaintiffs have to approach the Court. To avoid any multiplicity of proceedings, the plaintiffs are entitled for the relief of permanent injunction to restrain the defendant from either interfering or obstructing the use of common passage by the plaintiffs. Hence, I answer these Issues in the affirmative.
65. Issue No.3 : - In view of my findings to the above Issues, I hold that the plaintiffs are entitled to the reliefs claimed in the suit. Accordingly, I proceed to pass the following:
ORDER Suit filed by the plaintiffs against the defendant is hereby decreed with costs.
It is hereby declared that the common passage described as plaint 'B' schedule which is provided as per Ex.P.11 is the common passage available to the plaintiffs and defendant to connect to 60 Feet Main Road on the western side from the Indraprasta Apartment situated in Sy.No.126 of Banasawadi, K.R.Puram Hobli, Bengaluru East Taluk.
Defendant is directed to remove the obstruction made on the common passage within three months from the date of this Order and allow the same for the use of plaintiffs to the vehicle movement to reach 60 Feet Main Road The defendant is restrained by an order of permanent injunction not to interfere or obstruct the use of common passage shown in Ex.P.11 by the plaintiffs. Draw decree accordingly.
(Dictated to the Judgment Writer and also dictated directly on computer, transcript corrected, signed and then pronounced by me in the open court, this the 15th day of November, 2016.) (Hemavathi) XXXIX Additional City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiffs :
P.W.1 : L.Muttu Kumar
2. List of documents exhibited for plaintiffs :
Ex.P.1 : Copy of Joint Development Agreement.
Ex.P.2 : Copy of GPA
Ex.P.3 : Copy of Sale Deed dated 28.3.2007.
Ex.P.4 : C/c of Sale Deed dated 18.12.2008.
Ex.P.5 : Document in proceedings LP.No.1250/
2004-05.
Ex.P.6 : letter written by defendant requesting
for grant of sanction plan.
Ex.P.7 : Affidavit of defendant with 2 sketches.
Ex.P.8 : Conditional approval order.
Ex.P.9 : Letter of payment of fees - demand
notice.
Ex.P.10 : Calculation of building plan verification Ex.P.11 : Xerox copy of sanction plan in respect of ground floor of apartment Ex.P.12 : Notarized copy of stilt floor of the sanction plan.
Ex.P.13 : Copy of complaint.
Ex.P.14 : 18 photographs.
Ex.P.15 : C.D. Ex.P.16 : C/c of Compromise petition.
Ex.P.17 : C/c of Order Sheet in
O.S.No.1643/1986.
Ex.P.18 : Zerox copy of the khatha extract
Ex.P.19 : C/c of Sale Deed dated 27.9.2008
Ex.P.20 : Broachers
3. List of witnesses examined for defendant:
D.W.1 : P.Shankar Reddy.
4. List of documents exhibited for defendant:
Ex.D.1 to 4 : Photographs.
Ex.D.5 : C/c of Sale Deed dated 21.9.2012.
Ex.D.6 : C/c of Sale Deed dated 31.10.2011.
Ex.D.7 : C/c of Sale Deed dated 20.6.2007.
Ex.D.8 : C/c of Sale Deed dated 25.1.2008
Ex.D.9 : C/c of Sale Deed dated 30.3.2012.
Ex.D.10 : C/c of khatha certificate of property
No.45/80.,
Ex.D.11 : C/c of khatha extract.
Ex.D.12 : C/c of Rectification Deed dated
23.12.2001.
Ex.D.13 : C/c of Sale Deed dated 6.6.2007.
Ex.D.14 : Tax paid receipt.
Ex.D.15 : C/c of Khatha certificate of property
No.45/81.
Ex.D.16 : C/c of khatha extract of property No.45/81
Ex.D.17 : C/c of khatha certificate of property
No.45/79.
Ex.D.18 : C/c of khatha extract of property No.45/79
Ex.D.19 to 21: Tax paid receipts.
Ex.D.22 to 24: Photographs.
Ex.D.25 : C.D.
Ex.D.26 : Rough sketch produced along with W.S.
(Hemavathi)
XXXIX Additional City Civil & Sessions
Judge, Bangalore City.
***
Md/-