Bangalore District Court
Sri.V.Suresh Kumar vs Sri.K.M.Govindan on 28 January, 2020
IN THE COURT OF THE XLIII ADDL. CITY CIVIL AND
SESSIONS JUDGE (CCH.No.44), AT BENGALURU
PRESENT:SRI. SHUBHAVEER B., B.Com.,LL.B.
XLIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
DATED: THIS THE 28 TH DAY OF JANUARY, 2020
O.S.No.7414/2011
Plaintiff- Sri.V.Suresh Kumar,
Aged about 60 years,
son of late
Sri.S.Venkataram,
residing at No.348-3/2,
Front portion of property
First floor, 2 nd cross,
I block, Jayanagar,
Bengaluru -560011.
(By Sri.Sainath)
-vs-
Defendants- 1. Sri.K.M.Govindan,
Aged about 63 years,
son late Sri.K.M.Narayana
Kurup,
No.348-3, Rear portion of
property, First floor, 2 nd
cross, I block, Jayanagar,
Bengaluru -560011.
presently residing at
2
O.S.No.7414/2011
No.404/405, Sun Flower
building, Neelkanth
Garden,
S.P.Jain Mandir,
Govandi East,
Mumbai-400088,
India.
2. Sri.K.M.Chandrashekar,
Aged about 60 years,
son late Sri.K.M.Narayana
Kurup,
No.348-3/3, Front portion of
property, ground floor,
2 nd cross, I block,
Jayanagar,
Bengaluru -560011,
presently residing at
H-107, Yamuna Apartment,
Alakananda, New Delhi-19
Inida.
3. Sri.Jayadev,
Aged about 30 years,
residing at No.348/3,
Rear portion of property,
First floor, 2 nd cross,
I block, Jayanagar,
Bengaluru -560011.
(By Sri.P.V.Vasudevan-
advocate)
3
O.S.No.7414/2011
Date of Institution of the suit : 17.10.2011
Nature of the suit : Partition, separate
possession
Date of commencement of
recording of the evidence : 29.05.2012
Date on which the Judgment
was pronounced : 28.01.2020
Total Duration Years Months Days
: 08 03 11
(SHUBHAVEER B.)
XLIII Addl. City Civil & Sessions Judge ,
Bengaluru
J U D G M E N T
The above suit is filed by the partition, separate possession and for permanent injunction.
2. The brief facts of the case of the plaintiff are that the mother of the defendants 1 and 2, namely- K.M.Janaki Kurup, was the absolute owner in possession of suit schedule 'A' property, i.e., immovable property bearing No.348/3, 2 nd cross, I block, Jayanagar, 4 O.S.No.7414/2011 Bengaluru, measuring East to West - 60 ft. and North to South - 120 ft. with specific boundaries, comprising of land with 3 residential buildings and common vacant spaces, as per the registered sale deed, dated 15.11.1972.
3. It is further alleged that the suit schedule 'A' property consists of 3 residential buildings, i.e., at front portion, two residnetial houses, one in the ground floor and another in the first floor and the third residential house in the first floor at rear portion of the property. The another ground floor portion, i.e., below the said residential house, is left vacant for the purpose of car parking, except a office room, measuring 21 ft. x 10 ft., on the north west corner of the schedule 'A' property . There is a common passage running North to South on the western side , measuring about 100 ft. and the width varying from about 12 feet to 19 feet. There is a vacant 5 O.S.No.7414/2011 space in front of the front building, i.e., on the southern side, measuring about 26 ft. East to West and about 30 ft. North to South. The measurement of 26 feet East to West is, after deducting 12 ft., being the common passage and about 22 ft.; which is exclusively belonging to the plaintiff, having purchased the same as per registered sale deed, dated 23.04.1999. Thus the common vacant area in the suit 'A' schedule property, which is existing from the date of construction, as per the sanctioned plan, till today, are the set backs left at eastern side and northern side, common passage, parking area under the ground floor of the rear portion building and of the front portion building, which are described in plaint 'E' schedule.
4. It is further alleged that the said K.M.Janaki Kurup sold first floor house, in the front portion along with undivided land protion of the plaint schedule 'A' 6 O.S.No.7414/2011 property, measuring 2112 Sq.ft., to the plaintiff as per registered, sale deed, dated 23.04.1999. The property conveyed under the said registered sale deed, dated 23.04.1999 are-
a) The residential house in the first floor at front portion of schedule 'A' property, i.e., suit schedule 'B' property.
b) 799.75 Sq.Ft. Of area at the southeast corner of the schedule 'A' property, which is shown as suit 'C' schedule property.
c) The undivided land protion to an extent of 2112 Sq.Ft in the remaining 6400.25 Sq.Ft. of schedule 'A' property, which is shown as suit 'D' schedule property.
5. It is further alleged that the portion of schedule 'A' property to the extent of 6400.25 square feet, i.e., original extent of 7200 square feet minus 7 O.S.No.7414/2011 799.75 square feet; is described as suit 'F' schedule property. Each of the 3 houses has car parking/garage, which is in open space with the roof for car parking area, on which the first floor house is situated at the rear portion of the suit schedule 'A' property.
6. It is further alleged as per the said sale deed, dated 23.04.1999, the total area in which all the 3 houses are located is 6400.25 square feet and out of the said 6400.25 square feet, the undivided right, title and interest, of the plaintiff is 2112 square feet, which is almost equal to 1/3rd share. Thus, the plaintiff has 1/3rd share in the property, measuring, 6400.25 square feet, i.e., suit 'F' schedule property and the exclusive absolute owner in respect of 799.25 square feet on the south east corner of the schedule property/suit 'C' schedule property. The plaintiff has joint right, title and 8 O.S.No.7414/2011 interest and joint owner of all the vacant land in the suit schedule 'E' property.
7. It is further alleged that prior to execution of the sale deed, dated 23.04.1999, by the said K.M.Janaki Kurup, in favour of the plaintiff, she had executed a will, dated 03.04.1997, beqeuathing the schedule 'A' property, in favour of her 3 sons, namely- defendants 1 and 2 as well as K.M.Shivashankaran. In view of the execution of the registered sale deed, dated 23.04.1999, the earlier will, dated 3.4.1997, is of no consequence, as the defendants 1 and 2 have claimed their respective portions of the suit schedule 'A' property, by virtue of the said will and got the Municipal numbers bifurcated in their respective names. The defendants 1 and 2 are also the co-owners, along with the plaintiff. The suit schedule 'A' property totally lost the character it had at the time of 9 O.S.No.7414/2011 execution of the said will and got converted into a different kind of property, by virtue of the said sale deed, dated 23.04.1999. The defendants 1 and 2 illegally got the Khathas in their favour. The portion delineated in the alphabetical A to Q in the sketch annexed to the plaint, is the common and joint property belonging to and jointly owned by the plaintiff and defendant Nos. 1 and 2. The 3 rd defendant, who has occupied the house recently, started giving trouble to the plaintiff insisting the plaintiff not to park the car of the plaintiff in the car parking area, earmarked for the plaintiff. The plaintiff and his wife have been parking their two cars in the rear portion of the suit schedule 'A' property, i.e., at the ground floor portion, since more than 15 years and they have been enjoying the rest of the common vacant area eversince the sale deed, dated 23.04.1999. The dog of 10 O.S.No.7414/2011 the 3 rd defendant pounces upon the plaintiff, his wife and relatives; when they enter the compound. The stone slab is provided since the date of construction of the 3 houses for washing clothes by all the 3 houses. The 3 rd defendant obstructs the plaintiff for using the common passage.
8. It is further alleged that the plaintiff has been in possession and enjoyment of the plaint 'B', 'C' and 'D' schdule properties as the absolute owner and joint possession of the plaint schedule 'A', 'E' & 'F' properties as the joint owner. Hence the above suit seeking the following reliefs-
1) to pass a Judgment & Decree in favour of the plaintiff against the 1 st and 2 nd defendant, for partition of the plaint schedule 'F' property, by metes and bounds to put the 11 O.S.No.7414/2011 plaintiff in exclusive possession of his 2112 square feet share in the schedule 'F' property.
2) to grant permanent injunction, restrianing the defendants from interfering with the peaceful possession and enjoyment of the plaintiff, over share, to be allotted to plaintiff and grant such other relief and further relifes as the court deems fit to grant in the circumstances of the case, with the costs of the suit.
9. In the written statement of the defendants, except admitting that the mother of defendants- Smt.K.M.Janaki Kurup was the absolute owner of the suit schedule property, consisting of ground floor, first floor and 3 houses; passage measuring 100 ft. in length and varying in width from about 12 feet to 19 feet; enabling access to the 1 st floor through a stair case; in front of the house, there is a space towards South East corner measuring about 799.75 square feet and adjacent to it in 12 O.S.No.7414/2011 the south, there is a vacant land; selling of the residential house situated in the front portion of the 1 st floor, by the said K.M.Janaki Kurup, to the plaintiff; said K.M.Janaki Kurup executing a will; earlier the plaintiff was a tenant in respect of the house situated in the 1 st floor area of the front portion; conveyance of a portion of the suit schedule 'A' property , i.e., suit schedule 'C' property, in favour of the plaintiff, by the said K.M.Janaki Kurup and the occupation of the rear side house in the 1 st floor by the 3 rd defendant; denied all toher allegations made in the plaint, including the correctness of the plaint sketch.
10. They contend that the suit is barred by limitation. The relief sought for partition of undivided share is not sustainable under law. The front portion has a staircase leading to the 1 st floor. The plaintiff was 13 O.S.No.7414/2011 provided with independent staircase for his access to the 1 st floor. Since the plaintiff did not want car parking space in the main building and wanted an independent car parking space, he was provided with a vacant area measuring 799.75 square feet, on the south eastern side of the property for his exclusive car parking space. The said K.M.Janaki Kurup sold the 1 st floor of the suit schedule property/suit 'B' schedule property, measuring 1524.30 square feet of the built up area providing access to it with a fabricated independent staircase. Since the plaintiff desired independent car parking space instead of the car parking space in the main building, K.M.Janaki Kurup provided him with the vacant portion on the south-eastern side, having a total area of 799.75 square feet/ suit 'C' schedule property. This car parking space is not sold but only to facilitate the plaintiff to park his 14 O.S.No.7414/2011 vehicles. Hence the plaintiff had to use the only the plaint schedule 'C' property as the car parking area and not any other portion of the suit schedule 'A' property for car parking. The car parking in the rear portion of the ground floor of the property belongs to the protion of 1 st and 2 nd defendants only. The plaintiff agreed to dismantle the existing compound wall on the southern side to provide independent access and to fix suitable gate to provide entry for vehicles to his parking area, i.e., the schedule 'C' property. Once having taken a separate car parking area, the plaintiff cannot claim any other parking area belonging to the defendants herein. The plaintiff and his family members are interfering with the possession of other properties by the defendants 1 and 2. Hence prayed for dismissal of the suit. 15
O.S.No.7414/2011
11. From the pleadings the following issues are framed -
1. Whether plaintiff proves that he is co-
owner of schedule 'F' property, along with defendants 1 and 2, under registered sale deed, dated 23.04.1999?
2. Whether plaintiff is entitled for partition and separate possession of his share in suit schedule F property? If yes, at what share?
3. Whether plaintiff proves that he is in peaceful possession and enjoyment of the suit schedule property described in suit schedule B,C and D properties and joint possession and enjoyment of A,E and F properties?
4. Whether plaintiff proves that the defendants are illegally interfering in plaintiffs peaceful possession and enjoyment of the suit schedule property?
5. Whether defendants prove that the suit is barred by limitation?
6. Whether defendants prove that the court fee paid is not proper?
7. Whether plaintiff is entitled for the reliefs sought for?
8. What order, or decree?
16
O.S.No.7414/2011
12. On behalf of the plaintiff, plaintiff got examined himself as P.W.1, who deposes in accordance with the allegations made in the plaint. Ex.P1 to Ex.P11 are marked. On behalf of the defendants, the 2 nd defendant got examined himself as D.W.1, who deposes in accordance with the pleadings in the written statement. Ex.D1 and D2 are marked. On behalf of the plaintiff and defendants, written arguments are filed. Arguments heard.
13. The answers to the above issues are-
Issue No.1 Partly positive
Issue No.2 Partly positive
Issue No.3 Partly positive
Issue No.4 Negative
Issue No.5 Negative
Issue No.6 Negative
Issue No.7&8 As per the final order, for the
following-
17
O.S.No.7414/2011
REASONS
14. Issue Nos. 1 and 2- Since these two issues
are interrelated, same are considered together. The
admitted facts in this case are that the defendants 1 and 2 are the children of deceased K.M.Janaki Kurup, who is the vendor of portion of plaint schedule 'A' property, to the plaintiff, as per registered sale deed, dated 23.04.1999.
15. Whereas, it is the contention of the defendants that on the request of the plaintiff, his vendor sold the suit 'C' schedule property, measuring 799.75 Sq.Ft, as per registered sale deed. Hence the plaintiff has no right, title, or interest; whatsoever, over the parking slots, or any other area, i.e., plaint 'E' schedule property. The plaintiff is claiming his right, title and 18 O.S.No.7414/2011 interest as per the admitted registered sale deed, dated 23.04.1999/ Ex.P1.
16. In page No.11 and 12 of the sale deed- Ex.P1, executed by the mother of defendants 1 and 2, in favour of the plaintiff, it is clearly recited-
"the vendor does hereby convey, sale, assign, absolutely unto and to the use of the PURCHASER, the schedule 'B','C' and 'D' properties (shown in the said sale deed) together with all rights, liberties, ways, easements and appurtenances whatsoever to the schedule B,C & D properties belonging, or in any way appurtaining and usually held, or occupied therewith, or reputed to belong, or be appurtenant thereto ."
17. Further, in page-23, para-20, it is recited-
" right of way to every part of the undivided interest is conveyed to the purchaser under this deed."19
O.S.No.7414/2011
18. Further, the A,B, C and D schedules, shown in the said sale deed, Ex.P1, are-
SCHEDULE-A All that piece and parcel of property, bearing Municipal Corporation No. 348/3, (Old No. 348), situated at 2 nd cross, I block, Jayanagar, Bengaluru -560011, (Corporation Division No.62), measuring East to West: 60 ft. and North to South: 120 ft. and bounded as follows - East by : Property bearing No. 349
West by : Property bearing No.347
North by : Property bearing No.357
South by : 2 nd cross road
Comprising of land with three residential buildings thereon (i.e. (I) front portion comprising of residential houses in the ground floor and first floor and (ii) out house, i.e. rear portion comprising of three car parking slots in the ground floor and a residential house in the first floor).
SCHEDULE-B All that piece and parcel of the residential house situated in the first floor of the main building (front portion) of the schedule 'A' property, having a built area 1524.30 sq.ft., with the following split up built areas and a 20 O.S.No.7414/2011 fabricated independent staircase for the 1 st floor roof located inside the house in rear varandha.
1. Kitchen 12 x 9' 8" 112.00 sq.ft
2. Pooja +Passage 3-9x10 37.50
3. Master bed (18-6x10-6) + (3-6 x9-9) 194.25
4. Dining hall (13-9x10-3) 140.93
5. Living room 18x19-6 351.00
6. Room(1) 13-6x13 175.50
7. Room (2) 16-9x10-9 180.06
8. Passage 11-9x4-6 52.87
9. Toilets 3-9x5-9 21.56 6-6x5-6 35.75 6-6x5-6 35.75
10. Rear verandah 18-6x7-9 143.37
--------
1480.55
11. Balcony 12-6x4-6 43.75
---------
Total 1524.30 sq.ft.
SCHEDULE-C All that piece and parcel of land situated on the south-east corner of the schedule 'A' property measuring, East to West - 22' feet on the southern side and 10'9" + 11' 3" on the northern side and North to South 43' on the eastern side and 30' feet + 13' on the western side, 21 O.S.No.7414/2011 having a total area of 799.75 square feet and bounded as follows:
East by : Property bearing No. 349
West by : Remaining vacant space in the schedule 'A' property North by : Existing building (front portion) and passage in schedule 'A' property South by : II cross road The shed, has asbestos sheet roofing, cement flooring; jungle wood doors, no windows, no Electricity and no water connection.
SCHEDULE-D 2112 square feet undivided right, title and interest, in the land comprised in the schedule 'A' property (less the land area comprised in the schedule -C property) which is worked out as under:
Land component available proportionate to the built area of the schedule 'B' property is 7200 Sq.Ft. Minus 779.75 Sq.Ft (i.e. the land area of the schedule 'A' property less the land area of the schedule C property) which is 6400.25 Sq.Ft.
The total built up area of the building comprised in the schedule 'A' property is 4595 square feet.
The undivided share is thus = 1524.30 x 6400.25 = 2112 square feet. 22
O.S.No.7414/2011 4595 whereas the schdules shown in the plaint are-
SCHEDULE-A All that piece and parcel of immovable property bearing No. 348/3, situated 2 nd cross, I block, Jayanagar, Bengaluru -560011, measuring East to West: 60 ft. and North to South: 120 ft. bounded by to the -
East by : Property bearing No. 349
West by : Property bearing No.347
North by : Property bearing No.357
South by : 2 nd cross road and
comprising of land with 3
residential buildings and
common vacant spaces.
SCHEDULE-B
All that piece and parcel of residential house
situated in the 1 st floor of main building (front portion)
at the schedule 'A' property, having super built area of 1760 square feet.
SCHEDULE-C 23 O.S.No.7414/2011 All that piece and parcel of land situated on the south east corner of the schedule 'A' property, measuring East to West: 22 feet on southern side and 10'9" + 11'3"
on the northern side and North to South- 43 feet on the eastern side and 30 feet + 13 feet on the western side having total area of 799.75 square feet.
SCHEDULE-D 2112 square feet undivided right, title and interest in the remaining 6400.25 square feet of schedule 'A' property (i.e., 7220 square feet of schedule 'A' property minus 799.75 square feet of schedule 'C' property.) SCHEDULE-E The common vacant spaces in schedule 'A' property, excluding schedule 'C' property are the entire ground floor portion of the rear side, that is below the first floor residential house at rear side of schedule 'A' property, is left vacant for the purpose of car parking, except a office room measuring 21 ft x 10 ft. on the north west corner 24 O.S.No.7414/2011 of the schedule 'A' property. There is a common passage running North to South on the western side of schedule 'A' property, measuring about 100 feet and the width varying from about 12 feet to 19 feet. There is a vacant space in front of the front building, that is on the southern side of schedule 'A' property, measuring about 26 feet East to West and about 30 feet North to South. The measurement of 26 feet East to West is after deducting 12 feet being the common passage and about 22 feet which exclusively belonging to the plaintiff since it comes under schedule 'C' property. The set backs left at eastern side and northern side of schedule 'A' property and the common vacant spaces in the schedule 'A' property are delineated in the alphabetical A to Q of the sketch which is at Annexure'A' of this plaint and which sketch is part and parcel of this plaint.
SCHEDULE 'F' The portion of schedule 'A' property to the extent of 6400.25 Sq.Ft that is the original extent 25 O.S.No.7414/2011 of 7200 square feet minus 799.75 square feet of schedule 'C' property.
19. When the written document. Ex.P1, shows even though suit 'C' schedule property was absolutely sold to the plaintiff, with regard to car parking slots and other parts, as shown in the sale deed, rights and interest of the plaintiff, are also shown in respect of remaining portions as discussed above. In that event, as per the principles of the ruling reported in AIR 2003 SC 2418 (Roop kumar Vs. Mohan Thedani) wherein, in para-
13, it is clearly held " Sec.91 forbids proving the contents of a writing otherwise than by writing itself. "
Hence the said contention of the defendants that the plaintiff has no right whatsoever over the car parking slots etc., cannot be accepted.
26
O.S.No.7414/2011
20. There is slight difference with regard to the contents of suit schedule 'F' property and schedule 'D' property, shown in the sale deed, Ex.P1. From the recitals of the sale deed, it is clear that in the sale deed itself, the undivided right, title and interest, in respect of 2112 square feet land, comprised in the schedule 'A' property (less the land area comprised in the schedule
-C property) is worked out in the sale deed.
21. It is an undisputed fact that after selling the portion of schedule 'A' property to the plaintiff, the said K.M.Janaki Kurup retained some properties and now she is dead. Since defendants 1 and 2 are also the legal representatives of the said K.M.Janaki Kurup, excluding suit 'B' schedule property and the house sold to the plaintiff in the first floor, the defendants 1 and 2 also along with plaintiff, are the joint owners of the remaining 27 O.S.No.7414/2011 land in plaint 'A' schdule property. In that event, the plaintiff is considered as co-owner, along with defendants 1 and 2 also, in respect of the remaining property, after selling the portions of plaint 'A' schdule property to the plaintiff.
22. It is contended by the defendants that one more brother of the defendants 1 and 2 is still alive. But the said brother/Shivashankaran has not been arrayed as party to the suit. In that event, as per the principles of the ruling, reported in ILR 2012 KAR 2129 (S.K.Lakshminarasappa (d) by L.Rs ) vs. Sri.B.Rudraiah and others.) at the time of filing the final decree proceedings, the said K.M.Shivashankaran/son of deceased K.M.Janaki Kurup, who is the brother of defendants 1 and 2, shall be arrayed as party. Since the plaintiff is also one of the co-owners to the extent of properties, 28 O.S.No.7414/2011 shown at schedule 'D' of Ex.P1/ registered sale deed, he is entitled to partition and separate possession of his share, shown in the registered sale deed, dated 23.04.1999, marked Ex.P1.(schedule 'D' in the registered sale deed, Ex.P1.) The legal representatives of vendor of the plaintiff/Smt.Janaki Kurup are jointly entitled to the remaining portion in the below shown schdule 'D' property also, along with the other properties.Hence these two issues are answered accordingly.
23. Issue No.3 - Plaint schedule 'D' and plaint schedule 'F' are one and the same. In view of the answers to issue Nos.1 and 2, the plaintiff alone cannot be in peaceful possession and enjoyment of the suit schedule B, C & D properties, because suit 'D' property is also being commonly enjoyed by the defendants 1 and 2, because, as per Ex.P1, registered sale deed, common 29 O.S.No.7414/2011 undivided right, title and possession, were transferred in respect of suit 'D' schedule property, to the plaintiff. However, as per the said sale deed, the plaintiff is in joint possession of schedule 'D' property, shown in the sale deed, marked Ex.P1. Hence this issue is answered accordingly.
24. Issue No.4 - As on the date of the filing of the suit, or subsequently, the plaintiff, being the co- owner in joint possession of schedule 'c' property shown in the registered sale deed, marked Ex.P1; along with defendants 1 and 2. In that event, it cannot be said that the defendants are illegally interfering with the peaceful possession and enjoyment of the suit schedule property, by the plaintiff. Hence this issue is answered accordingly.
25. Issue No.5 - Even though the defendants have contended that the suit is barred by limitation, it is an 30 O.S.No.7414/2011 undisputed fact that the plaintiff has purchased portion of schedule 'A' property, from the deceased mother of defendants 1 and 2 and after the death of the mother of defendants 1 and 2, the defendants 1 and 2 also succeeded to the remaining portion of suit schedule 'A' property. In that event, the plaintiff is to be considered as a co-owner, in respect of portion of suit schedule 'A' property. Hence, as per the principles of the ruling, reported in ILR 2005 KAR 3177 ( Babu Rao Vs. Eranna and Otrs.), which states "the right to suit for partition is a continuing right and incidental to the ownership of joint property. So long as the property remains joint, one of the co-owners has a cause of action for bringing a fresh suit for partition." Hence the suit is not barred by limitation. Hence this issue is answered negatively. 31
O.S.No.7414/2011
26. Issue No.6- It is undisputed fact that the plaintiff is the owner of one of the houses, situating in the 1 st floor of suit schedule 'A' property. In that event, it is alleged by the plaintiff and deposed by P.W.1 that he has been in possession of the same. Since the said house is situating in the suit schedule 'A' property, in which defendants 1 and 2 have got the right and possession in respect of remaining portion , it is to be considered that the plaintiff is also in possession of portion of schedule 'A' property . In that event, for the purpose of partition, suit has to be valued u/s.35(2) of Karnataka Court Fees & Suits Valuation Act. Accordingly, the plaintiff has valued the suit u/s. 35(2) of said Act and paid requried fee of Rs.200/-. Further, for the relief of permanent injunction, the plaintiff has valued the suit at 32 O.S.No.7414/2011 Rs.1000/- and paid court fee of Rs.25/-; which is correct. Hence this issue is answered negatively.
27. Issue Nos. 7 & 8 - Since these two issues are interrelated, same are considered together.Considering the the special facts and circumstances of the case, there is no order as to costs. In view of the answers to issue Nos.1 to 6, the following-
ORDER The suit is partly decreed.
No order as to costs.
The plaintiff is entitled to seek partition and entitled to separate possession of below shown schedule 'D' property only.
The legal representatives of vendor of the plaintiff/Smt.Janaki Kurup are jointly entitled to the remaining portion in the below shown schdule 'D' property also, along with the other properties and if 33 O.S.No.7414/2011 required fee is paid, separate possession of the same shall be delivered to each of them.
SCHEDULE-A All that piece and parcel of property bearing Municipal Corporation No. 348/3, (Old No. 348), situated at 2 nd cross, I block, Jayanagar, Bengaluru -560011,(Corporation Division No.62), measuring East to West: 60 ft. and North to South: 120 ft. and bounded as follows -
East by : Property bearing No.
349
West by : Property bearing
No.347
North by : Property bearing
No.357
South by : 2 nd cross road
Comprising of land with three residential buildings thereon (i.e. (I) front portion comprising of residential houses in the ground floor and first floor and (ii) out house, i.e. rear portion comprising of three car parking slots in 34 O.S.No.7414/2011 the ground floor and a residential house in the first floor).
SCHEDULE-B All that piece and parcel of the residential house situated in the first floor of the main building (front portion) of the schedule 'A' property, having a built area 1524.30 sq.ft., with the following split up built areas and a fabricated independent staircase for the 1 st floor roof located inside the house in rear varandha.
1. Kitchen 12 x 9' 8" 112.00 sq.ft
2. Pooja +Passage 3-9x10 37.50
3. Master bed (18-6x10-6) + (3-6 x9-9) 194.25
4. Dining hall (13-9x10-3) 140.93
5. Living room 18x19-6 351.00
6. Room(1) 13-6x13 175.50
7. Room (2) 16-9x10-9 180.06
8. Passage 11-9x4-6 52.87
9. Toilets 3-9x5-9 21.56 6-6x5-6 35.75 6-6x5-6 35.75
10. Rear verandah 18-6x7-9 143.37
--------
1480.55 35 O.S.No.7414/2011
11. Balcony 12-6x4-6 43.75
---------
Total 1524.30 sq.ft.
SCHEDULE-C All that piece and parcel of land situated on the south-east corner of the schedule 'A' property measuring, East to West - 22' feet on the southern side and 10'9" + 11' 3" on the northern side and North to South 43' on the eastern side and 30' feet + 13' on the western side, having a total area of 799.75 square feet and bounded as follows:
East by : Property bearing No. 349
West by : Remaining vacant space in the schedule 'A' property North by : Existing building (front portion) and passage in schedule 'A' property South by : II cross road The shed, has asbestos sheet roofing, cement flooring; jungle wood doors, no windows, no Electricity and no water connection.
SCHEDULE-D 2112 square feet undivided right, title and interest, in the land comprised in the schedule 'A' property (less the land area comprised in the schedule -C property) which is worked out as under:36
O.S.No.7414/2011 Land component available proportionate to the built area of the schedule 'B' property is 7200 Sq.Ft. Minus 779.75 Sq.Ft (i.e. the land area of the schedule 'A' property less the land area of the schedule C property) which is 6400.25 Sq.Ft.
The total built up area of the building comprised in the schedule 'A' property is 4595 square feet.
The undivided share is thus = 1524.30 x 6400.25 = 2112 square feet. 4595 In the event of filing of proposed final decree proceedings, arising from the Judgment & preliminary Decree, passed in this suit, the son of deceased K.M.Janaki Kurup/Shivashankaran, shall also be arrayed as a party.
Draw preliminary decree accordingly. (Dictated to the Judgment Writer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 28 th day of January, 2020.) (SHUBHAVEER B.) XLIII Addl. City Civil & Sessions Judge, Bengaluru 37 O.S.No.7414/2011 ANNEXURE I. List of witnesses examined on behalf of plaintiff-
P.W.1 - Mr.V.Suresh Kumar
II. List of witnesses examined on behalf of defendants-
D.W.1 - Sri.K.M.Chandrashekran
III. List of documents exhibited on behalf of plaintiff-
Ex.P1 Original sale deed
Ex.P1(a) signature of Shivashankar
Ex.P1(b) signature of K.V.Manjunath
Ex.P2 Special notice issued by BBMP
Ex.P3 Khatha certificate
Ex.P4 Khatha extract
Ex.P5 Encumbrance certificate
Ex.P6-P8 Photographs
Ex.P6(a)
to P8(a) Negatives
Ex.P9&P10 Two bills
Ex.P11 Cover given by the Photographer
Ex.P12 Will
Ex.P13 No objection letter
Ex.P14 Affidavit
IV. List of documents exhibited on behalf of defendants-
Ex.D1&D2 Photographs
38
O.S.No.7414/2011
(SHUBHAVEER.B)
XLIII Addl.City Civil & Sessions Judge, Bengaluru (Judgment pronounced in open court) ORDER The suit is partly decreed.
No order as to costs.
The plaintiff is entitled to seek partition and entitled to separate possession of below shown schedule 'D' property only.
The legal representatives of vendor of the plaintiff/Smt.Janaki Kurup are jointly entitled to the remaining portion in the below shown schdule 'D' 39 O.S.No.7414/2011 property also, along with the other properties and if required fee is paid, separate possession of the same shall be delivered to each of them.
SCHEDULE-A All that piece and parcel of property bearing Municipal Corporation No. 348/3, (Old No. 348), situated at 2 nd cross, I block, Jayanagar, Bengaluru -560011, (Corporation Division No.62), measuring East to West: 60 ft. and North to South: 120 ft. and bounded as follows - East by : Property bearing No. 349
West by : Property bearing No.347
North by : Property bearing No.357
South by : 2 nd cross road
Comprising of land with three residential buildings thereon (i.e. (I) front portion comprising of residential houses in the ground floor and first floor and (ii) out house, i.e. rear portion comprising of three car parking slots in the ground floor and a residential house in the first floor).
SCHEDULE-B All that piece and parcel of the residential house situated in the first floor of the main building (front portion) of the schedule 'A' property, having a built area 1524.30 sq.ft., with the following split up built areas and a 40 O.S.No.7414/2011 fabricated independent staircase for the 1 st floor roof located inside the house in rear varandha.
1. Kitchen 12 x 9' 8" 112.00 sq.ft
2. Pooja +Passage 3-9x10 37.50
3. Master bed (18-6x10-6) + (3-6 x9-9) 194.25
4. Dining hall (13-9x10-3) 140.93
5. Living room 18x19-6 351.00
6. Room(1) 13-6x13 175.50
7. Room (2) 16-9x10-9 180.06
8. Passage 11-9x4-6 52.87
9. Toilets 3-9x5-9 21.56 6-6x5-6 35.75 6-6x5-6 35.75
10. Rear verandah 18-6x7-9 143.37
--------
1480.55
11. Balcony 12-6x4-6 43.75
---------
Total 1524.30 sq.ft.
SCHEDULE-C All that piece and parcel of land situated on the south-east corner of the schedule 'A' property measuring, East to West - 22' feet on the southern side and 10'9" + 11' 3" on the northern side and North to South 43' on the eastern side and 30' feet + 13' on the western side, 41 O.S.No.7414/2011 having a total area of 799.75 square feet and bounded as follows:
East by : Property bearing No. 349
West by : Remaining vacant space in the schedule 'A' property North by : Existing building (front portion) and passage in schedule 'A' property South by : II cross road The shed, has asbestos sheet roofing, cement flooring; jungle wood doors, no windows, no Electricity and no water connection.
SCHEDULE-D 2112 square feet undivided right, title and interest, in the land comprised in the schedule 'A' property (less the land area comprised in the schedule -C property) which is worked out as under:
Land component available proportionate to the built area of the schedule 'B' property is 7200 Sq.Ft. Minus 779.75 Sq.Ft (i.e. the land area of the schedule 'A' property less the land area of the schedule C property) which is 6400.25 Sq.Ft.
The total built up area of the building comprised in the schedule 'A' property is 4595 square feet.
The undivided share is thus = 1524.30 x 6400.25 = 2112 square feet. 42
O.S.No.7414/2011 4595 In the event of filing of proposed final decree proceedings, arising from the Judgment & preliminary Decree, passed in this suit, the son of deceased K.M.Janaki Kurup/Shivashankaran, shall also be arrayed as a party.
Daw preliminary decree accordingly. 43
O.S.No.7414/2011 SCHEDULE-A All that piece and parcel of immovable property bearing No. 348/3, situated 2 nd cross, I block, Jayanagar, Bengaluru -560011, measuring East to West: 60 ft. and North to South: 120 ft. bounded by to the -
44 O.S.No.7414/2011 East by : Property bearing No. 349 West by : Property bearing No.347 North by : Property bearing No.357 South by : 2 nd cross road and comprising of land with 3 residential buildings and common vacant spaces. SCHEDULE-B
All that piece and parcel of residential house situated in the 1 st floor of main building (front portion) at the schedule 'A' property, having super built area of 1760 square feet.
SCHEDULE-C All that piece and parcel of land situated on the south east corner of the schedule 'A' property, measuring East to West: 22 feet on southern side and 10'9" + 11'3"
on the northern side and North to South- 43 feet on the eastern side and 30 feet + 13 feet on the western side having total area of 799.75 square feet.
SCHEDULE-D 45 O.S.No.7414/2011 2112 square feet undivided right, titel and interest in the remaining 6400.25 square feet of schedule 'A' property (i.e., 7220 square feet of schedule 'A' property minus 799.75 square feet of schedule 'C' property.) SCHEDULE-E The common vacant spaces in schedule 'A' property, excluding schedule 'C' property are the entire ground floor portion of the rear side, that is below the first floor residential house at rear side of schedule 'A' property, is left vacant for the purpose of car parking, except a office room measuring 21 ft x 10 ft. on the north west corner of the schedule 'A' property. There is a common passage running North to South on the western side of schedule 'A' property, measuring about 100 feet and the wideth varying from about 12 feet to 19 feet. There is a vacant space in front of the front building, that is on the southern side of schedule 'A' property, measuring about 26 feet East to West 46 O.S.No.7414/2011 and about 30 feet North to South. The measurement of 26 feet East to West is after deducting 12 feet being the common passage and about 22 feet which exclusively belonging to the plaintiff since it comes under schedule 'C' property. The set backs left at eastern side and northern side of schedule 'A' property and the common vacant spaces in the schedule 'A' property are delineated in the alphabetical A to Q of the sketch which is at Annexure'A' of this plaint and which sketch is part and parcel of this plaint.
SCHEDULE 'F' The portion of schedule 'A' property to the extent of 6400.25 Sq.Ft that is the original extent of 7200 square feet minus 799.75 square feet of schedule 'C' property.