Bangalore District Court
Sri S. Kumaran S/O Sri R. Srinivasan vs Smt. Ayeesa Obed D/O Sri Syed Obedulla on 24 August, 2021
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Smt. Suvarna K. Mirji, B.Com., LL.B.(Spl).,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
OS No.15427/2006
Dated this 24th day of August 2021
Plaintiff:- 1. Sri S. Kumaran S/o Sri R. Srinivasan,
Aged about 35 years, #435, 3A Cross,
5th Main, HRBR II Block,
Kalyannagar, Bangalore.
(Rep by Sri. M.L.Dayananda Kumar, Advocate)
V/S
Defendant/s: 1. Smt. Ayeesa Obed D/o Sri Syed Obedulla,
Aged about 32 years,
2. Sri Syed Obedulla S/o Syed Abdul Razak,
Major,
Both R/at Apt bearing #001,
Ground Flood, Green View Homes,
In property bearing Nos.144, 145
and 146, K. Kamaraj Road, Bangalore.
3. Smt. K. Eshwari W/o G. Krishnakumar,
Aged about 43 years, R/at No.3, Fruit Street,
8th Cross, K. Kamaraj Road, Bangalore-560 001.
Also at:
Apartment No.001, Ground Floor,
Green View Apartments,
Built on Property No.144, 145 & 146
K. Kamaraj Road, Civil Station, Bengaluru.
(Rep by defendants No.1 & 2 - Sri. CNK,
D-3 by Sri SRV, Advocates)
2
Judgment OS.No.15427/2006
Date of Institution of the suit 13/03/2006
Nature of the (Suit or pro-note, suit
Declaration, Permanent &
for declaration and possession, suit
for injunction, etc.)
Mandatory Injunction
Date of the commencement of
recording of the Evidence.
18/07/2018
Date on which the Judgment was
24/08/2021
pronounced.
Total duration Year/s Month/s Day/s
15 05 10
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
MAYOHALL UNIT: BENGALURU.
:JUDGMENT:
The plaintiff filed suit against the defendants for Declaration, Permanent & Mandatory injunction.
2. The brief facts of plaint averments is as under:
The plaintiff submits that he is absolute owner of Flat No.201 on the 2nd Floor of building known as Green View Homes constructed on property bearing No.144, 145 & 146, K. Kamaraj Road, (Cavalry Road), Civil Station, Bangalore under registered sale deed on 22/07/2002. The plaintiff submits that the Apartment 3 Judgment OS.No.15427/2006 owned by him had also been provided with car parking space at the ground floor of the Apartment Complex as per schedule mentioned below SUIT SCHEDULE 'A' PROPERTY:
Car parking area enclosed by a gate in the ground floor of premises bearing No.144, 145 and 146, Green View Homes, K. Kamaraj Road, (Cavalry Road), Bangalore bounded by East: Gate, West: Parking for Ground Floor portion, North: Private Property, South: Parking for the first floor.
3. The plaintiff submits that ever since the purchase of the Apartment referred to above he has been using the same and also the car parking area provided for him to park his car. He permitted his father to park his car bearing No.CKP 8982 in the schedule property. That the defendants have no right, title and interest in the schedule property are trying to obstruct the Plaintiff from parking his vehicle, which are was been used by the Plaintiff for parking his vehicle and he used to permit his father to 4 Judgment OS.No.15427/2006 park the aforementioned car. The defendant No.1 claims to have owned flat bearing No.001, ground floor in the apartment Green View Homes, K. Kamaraj Road, Bangalore, which has parking area on the other side of the schedule property. That the schedule property (car parking area) is been enclosed by a gate. That though defendants have no right, to use the Schedule property only to cause hardship to the plaintiff have locked the gate and are not permitting him to use the schedule property. He tried to object said act of defendants, inspite of protest the defendants have taken law into their hand and have locked the gate which they are not entitle to do so. He approached the jurisdictional police station for necessary protection against the high handedness of the defendants, the jurisdictional police station have not taken any action against the defendants on the ground that it is a civil dispute. That the defendants on 26/08/2006 tried to interfere with his peaceful possession of schedule property once again, knowing the fact that he has already moved the court for injunction and on 27/08/2006 started closing the car parking 5 Judgment OS.No.15427/2006 area (schedule premises) by converting the same into room, which the defendants are not entitle to do so. That though the sale deed in favour of the plaintiff clearly state that the car parking at the ground floor (schedule premises) is allotted to the share of the plaintiff in view of the fact that the defendants have denied the right over the same, the plaintiff is entitle for declaration that he is the owner of the car parking area, and consequently for possession of the said area from the defendants who have encroached the same during the pendency of the suit more so on 27/08/2006.
4. The plaintiff further submits that during the pendency of the proceedings defendants have sold the suit schedule car parking area to Modi Anwarulla & Anwar Pasha under sale deed on 03/05/2007, who in turn sold the same in favour of defendant No.3 on 17/01/2013. That subsequently on 10/12/2016 the plaintiff questioned the defendant No.3 the encroachment of the parking area which is on the eastern side of flat bearing No.001, ground floor in the apartment Green View Homes Bangalore, 6 Judgment OS.No.15427/2006 which has been demarcated as Parking Area as sit out by barricading the parking area and also use only to park their vehicles and have also provided with amenities such as ceiling fan plastic chairs etc., further they have also encroached upon the common passage on the southern side of the schedule property and removed the electrical panels and meters and shifted them to the eastern side of the schedule property and locked the gate and are using the same exclusively as their office, which again is not permitted by schedule 'E' clause 9 of the sale deeds executed by the vendor only to cause hardship to him and also have locked the gate and are not permitting him to use the schedule property. He objected and inspite of his protests the defendants have taken law into their hand and have locked the gate and encroached upon the common passage and parking area which they are not entitled to do so. They abused him in filthy and vulgar language and tried to assault him and threatened him with dire consequences. The defendant No.3 lodged false complaint against him who questioned them about the unlawful encroachment of the Parking 7 Judgment OS.No.15427/2006 Area and common passage for his personnel use which is specifically not allowed as per the Schedule "E" clause 7 and 9 of the sale deeds executed by the Vendor of the Flats as being expressly provided in the sale deed of all the purchasers of the flats of the apartment Green View Homes, K. Kamaraj Road, Bangalore. That the jurisdictional police have advised both the parties to approach the court as the matter is pending before the court. That the defendants tried to interfere on 10/12/2016 with his peaceful possession of the schedule property by encroaching upon the parking area and common passage which the defendants are not entitled to do so. The defendants have denied the right over the same. That the defendants are liable to demolish the illegal structures put up in the Parking area and the common passage by way of mandatory injunction and the encroached area in the common passage is more fully described in the Schedule 'B' mentioned below;
8
Judgment OS.No.15427/2006 SUIT SCHEDULE 'B' PROPERTY:
Common passage on the Southern side of the Apartment Bearing No.001 in the Ground Floor of the building known as Green View Homes, built in property Nos.144, 145 & 146, K. Kamaraja Road, Bangalore bounded by East: Car Parking area, West:
Private Property, North: Flat No.001, South: Private property.
5. The plaintiff further submits that the cause of action arose on 01/03/2006 and subsequently. The plaintiff prays to decree for mandatory injunction directing the defendants to remove the lock put up by them on the gate of schedule property and to remove the enclosed area in the schedule premises by demolishing the brick wall construction and using the schedule property. The plaintiff further prays for declaration that he is allotted the schedule premises under the sale deed in his favour and direct the defendants to put him possession of the said area. The plaintiff 9 Judgment OS.No.15427/2006 prays for mandatory injunction directing the defendants to remove the illegal structures put up in the parking area and the common passage i.e., schedule 'A' & 'B', failing which he may be permitted remove the same and to recover the costs from the defendants.
6. The defendant No.2 on his behalf and as a GPA holder of the defendant No.1 filed written statement. The defendant No.2 denied the allegations made in the plaint and specifically admitted the ownership of the flat on the second floor constructed on the property bearing Nos.144, 145 and 146 situated at K. Kamaraj Road, Bangalore as belonging to the plaintiff, he having purchased the same under sale deed dated: 22/07/2002. The defendant No.1 purchased flat in ground floor portion of the aforesaid premises measuring 1000 sq.ft of super built up area together with a covered car parking space under sale deed dated:
05/01/1996 which is much earlier to the date of purchase of the plaintiff of his portion.10
Judgment OS.No.15427/2006
7. The defendant No.2 further submits that he is father and power of attorney holder of the defendant No.1 and they have been living in the property since its purchase. The defendants have also been out of town on and off. The defendant No.2 has been continuously parking his car in front of his house in the car space allocated to him as per the sale deed in favour of the defendant No.1. That in the contrast the plaintiff has always let out his portion to one or the other tenant who have never possessed or owned any car excepting two wheelers. The situation presently also continuous to be the same. That they have never committed any breach of the recitals in their sale deed. That neither the plaintiff nor his father have ever parked any car in the ground floor car parking area of the entire premises. The plaintiff and his father own several other properties and have been living elsewhere and in view thereof and in view of their portion having been let out the tenants parking of any car from their side does not arise These defendants reiterate that the tenants in the portion have been parking several two wheelers in the parking area. 11
Judgment OS.No.15427/2006 These defendants deny the allegations in paragraphs No.4 & 5 of the plaint. The allegations made against the defendants are blanket lines. The plaintiff has well within his knowledge the fact of the defendants parking their car in the car parking area in front of her house in front of which a gate is provided way back from her date of purchase. The plaintiff is subsequent purchaser of his portion. There are two large gates and one small gate provided for the entire property. The 1st large gate on the southern side can only provide entry for one car leading to the premises of the defendants. There are pillars thereafter and no other car can be parked on that side. That they have been provided with a right of their car parking in their sale deed which as aforesaid is much earlier to that of the plaintiff and that they have never intruded or trespassed or any of the right of any other parties. That as there has been no intrusion into any body's rights, much less of the plaintiff. There can be no cause of action for the plaintiff to file the instant suit. There is absolutely no cause of action that has arisen to the plaintiff. That in view of the above there is no 12 Judgment OS.No.15427/2006 hardship or inconvenience caused to the plaintiff. There has never been any high handedness on their part. That the plaintiff and his father have been threatening the defendant No.2 and his family with dire consequences in case he or other occupants of the other portions of the premises took any action against them or for leakage of sewerage water leaking from their toilets unto the defendants premises and the premises of the other occupants of the first floor. That a police complaint was lodged by the defendant No.2 and in consequence thereof a mahazar was prepared by the police officials and ultimately and on account of the approach of the plaintiff and his father the matter was dropped by them as of the civil nature. The plaintiff has filed the instant suit only to spite the defendants on account of the above. That the plaintiff has made the living of these defendants and the others of the first floor living in their houses, miserable by not even letting them to repair his toilets so that there is leakage of water in the 1 st and ground floor portions. That they have been making use of the portion along with their rights they have purchased under their 13 Judgment OS.No.15427/2006 sale deeds performing all obligations there under and the plaintiff cannot seek any relief of any nature whatsoever much less of non-
user of his own property the right of which is available in his deed. That after parking their car they have to lock their gate for safety of their vehicle. The attitude of the plaintiff is to be condemned. It is the plaintiff who has not been performing his obligations as provided in the sale deed and has been putting them and the other occupants of the other floors into a lot of inconvenience. That there is ample and more space for the car parking in the other car parking area and the plaintiff cannot have any ground against the defendants who have been parking their car in front of their premises. The suit is frivolous and vexatious in nature only to harass the defendants and force them to part with their property the plaintiff has filed the instant suit. That the plaintiff cannot complain in respect of any right which has been provided by their vendors and they have right to deal with the property in any manner they liked subject to their obligations provided therein. The plaintiff is not entitle for any relief much 14 Judgment OS.No.15427/2006 less the reliefs sought for in the plaint. The suit rid of any cause of action is not maintainable at law. The plaintiff has not approached the Court with clean hands and there is absolutely no prima facie case with no balance of convenience to seek any right much less of the prayer as sought for. The defendant No.2 prays to dismiss suit with exemplary costs.
8. The defendant No.3 filed written statement. The defendant No.3 denied entire allegations of the plaint. The defendant No.3 submits that it is not correct to state that the plaintiff is the absolute owner of Flat No.201, on the 2 nd Floor, Building known as Green View Homes constructed on property bearing Nos.144, 145, & 146 K. Kamaraj Road, (Cavalry Road), Civil Station, Bangalore under registered Sale Deed dated 22/07/2002 and the Apartment owned by him has also been provided with car parking space at the ground floor of the Apartment Complex, which is schedule property. The defendant No.3 denied say of plaintiff that she has no right, title and interest in the schedule property are trying to obstruct the plaintiff form parking his vehicle, which are 15 Judgment OS.No.15427/2006 was been used by the plaintiff for parking his vehicle and he used to permit his father to park the aforementioned car. The defendant No.1 claims to have owned flat bearing No.001, ground floor in the apartment GREEN VIEW HOMES, K. Kamaraj Road, Bangalore, which is parking area on the other side of the schedule property. It is false to state that the plaintiff has locked the gate and are not permitting the plaintiff to use the schedule property. The plaintiff tried to object said act of the defendants inspite of protest the defendants have taken law into their hand and have locked the gate which they are not entitled to do so. The defendant No.3 further submits that para No.7 and 7a and 7b not in with her knowledge.
9. The defendant No.3 further submits that she is absolute owner of the property bearing No.001, Ground Floor, Green View Apartments, Built on Property No.144, 145 & 146, K. Kamaraj Raod, civil station Bengaluru and she purchased under the same registered sale deed on 17/01/2013 and she has been provided with the Car Parking in the Ground Floor, since from the 16 Judgment OS.No.15427/2006 purchase of the property she is in possession of the property enjoying the same without any interference and it is clearly mentioned in the sale deed singed that she has got right to park one car in the open space in the Ground Floor. That the plaintiff claimed to have saying that he is the absolute owner of the property bearing Flat No.201, on the 2nd Floor, building known as Green View Homes constructed in the property No.144, 145, and
146. The plaintiff have been in unlawful possession of the property bearing Flat No.201, the said property No.201 is constructed against to the corporation bye laws and the corporation has not at all sanctioned the sanction plan for the construction of the 2nd floor, and the property bearing No.144, 145, and 146. The sanction plan was approved on 21/09/1994 the application No.34/94-95 is clearly shows that the proposed 2 nd Floor not at all approved by Bengaluru Mahanagara Palike under the same 2nd floor plan was disallowed and it was constructed against the sanction plan the plaintiff is in unlawful possession of the property when there was no existence of the 2 nd floor the 17 Judgment OS.No.15427/2006 plaintiff cannot claim for the car parking area and the defendant No.3 is furnishing the true copy of the sanction plan dated 21/09/1994. The suit claim is frivolous and vexatious. The suit is not maintainable either in law or on facts. The defendant No.3 prays to dismiss the suit of plaintiff with costs.
10. On the basis of above pleadings following Issues are framed:-
:ISSUES:
(1) Whether the plaintiff proves that he the absolute owner of the suit schedule car parking area being alloted to him under his Sale Deed Dt: 22/07/2002?
(2) Whether the plaintiff proves that the defendants have illegally put up the lock on the gate of the suit schedule property?
(3) Whether the plaintiff proves that the defendants have illegally constructed bricks wall in the suit schedule property and is liable to be demolished?
(4) Whether the plaintiff is entitle for the declaration as sought for?18
Judgment OS.No.15427/2006 (5) Whether the plaintiff is entitle for Mandatory Injunction as sought for?
(6) Whether the plaintiff is entitle for possession of suit schedule property from the defendants?
(7) Whether the plaintiff is entitled for Permanent Injunction as sought for?
(8) What decree or order?
11. The plaintiff examined as PW.1 and marked documents at ExP1 to ExP34. The defendant No.3 examined as DW.1 and marked the documents ExD1 to ExD9.
12. The plaintiff counsel and defendants counsel argued. Perused the records.
13. My findings to the above Issues are as under:-
Issue No.1: In Affirmative Issue No.2: In Affirmative Issue No.3: In Affirmative Issue No.4: In Affirmative Issue No.5: In Affirmative Issue No.6: In Affirmative 19 Judgment OS.No.15427/2006 Issue No.7: In Affirmative Issue No.8: See final order for following:
:REASONS:
14. Issues No.1 to 7:
The plaintiff S. Kumaran S/o R. Srinivasan filed his affidavit in lieu of examination in chief as PW.1 and deposed evidence that, he is the absolute owner of Flat No.201 on the 2 nd Floor of building known as Green View Homes constructed on property bearing Nos.144, 145 and 146, K. Kamaraj Road, (Cavalry Road), Civil Station, Bangalore under registered sale deed dated: 22/07/2002. That the Apartment owned by him had also been provided with car parking space at the ground floor of the Apartment Complex as mentioned which area is the schedule property. That ever since the purchase of the Apartment referred to above he has been using the same and also the car parking area provided for him to park his car. He was permitted his father to park his car bearing No.CKP 8982 in the schedule property. That the defendants have no right, title and interest in the schedule 20 Judgment OS.No.15427/2006 property are trying to obstruct him from parking his vehicle, which has been used by him for parking his vehicle, and he used to permit his father to park the aforementioned car. The defendant No.1 claims to have owned flat bearing No.001, ground floor in the apartment Green View Homes, K. Kamaraj Road, Bangalore, which has a parking area on the western side his car parking. That the schedule property (car parking area) is been enclosed by gate as could be seen photographs produced along with the plaint. Though the defendants have no right to use his car parking only to cause hardship to him, have locked the gate and are not permitting him to use the schedule property. The plaintiff tried to object said act of the defendants inspite of protest the defendants have taken law into their hands and have locked the gate which they are not entitle to do so, leaving with no other option except to file the above suit. That the plaintiff approached the jurisdictional police station for necessary protection against the high handedness of the defendants, the jurisdictional police station have not taken any action against the defendants on the 21 Judgment OS.No.15427/2006 ground that it is a civil dispute. That the defendants on 26/08/2006 tried to interfere with peaceful possession of the schedule property once again by the plaintiff, knowing the fact that the plaintiff has already moved the Court for injunction, and on 27/08/2006 started closing their car parking area in the schedule premises by converting the same into room, which the defendants are not entitled to do so. That though the sale deed in his favour clearly state that the car parking at the ground floor (schedule premises) is allotted to his share in view of the fact that the defendants have denied the right over the same, the plaintiff is entitle for declaration that he is the owner of the car parking area and consequently for possession of the said area from the who have encroached the same during the pendency of the suit more so on 27/08/2006. That the defendants during the pendency of the proceedings have sold the suit schedule car parking area to the Modi Anwarulla & Anwar Pasha under sale deed dated 03/05/2007, who in turn sold the same in favour of defendant No.3 on 17/01/2013. That subsequently on 10/12/2016 the 22 Judgment OS.No.15427/2006 plaintiff questioned the defendant No.3 the encroachment of the parking area which is on the Eastern side of flat bearing No.001, ground floor in the apartment area Green View Homes Bangalore, which has been demarcated as "Parking Area" as sit out by barricading the parking area and also use only to park their vehicles and have also provided with amenities such as ceiling fan plastic chairs etc., further they have also encroached upon the common passage on the southern side of the schedule property and removed the electrical panels and meters and shifted them to the Eastern side of the schedule property and locked the gate and are using the same exclusively as their office which again is not permitted by schedule E clause 9 of the sale deeds executed by the vendor, only to cause hardship to him and also have locked the gate and are not permitting him to use the schedule property. He objected and inspite of his protests the defendants have taken law into their hands and have locked the gate and encroached upon the common passage and parking area which they are not entitled to do so. They abused him in filthy and vulgar language 23 Judgment OS.No.15427/2006 and tried to assault him and threatened him with dire consequences. The defendant No.3 had lodged false complaint against the plaintiff, when he questioned them about the unlawful encroachment of the "Parking Area" and common passage for personnel use which is specifically not allowed as per the Schedule "E" clause 7 and 9 of the sale deeds executed by the Vendor of the Flats as being expressly provided in the sale deed of all the purchasers of the flats of the apartment Green View Homes, K. Kamaraj Road, Bangalore. That the jurisdictional police have advised both the parties to approach the court as the matter is pending before the Court. That the defendants tried to interfere on 10/12/2016 with his possession of the schedule property by encroaching upon the parking area and common passage, which the defendants are not entitle to do so. As the defendants have denied the right over the same which the plaintiff is entitle to. That the defendants are liable to demolish the illegal structures put up in the Parking area and the common passage by way of Mandatory Injunction and the encroached area in the 24 Judgment OS.No.15427/2006 common passage is more fully described in the schedule 'B'. The defendants have taken frivolous contentions in their written statement. The PW.1 prays to decree the suit as prayed in the plaint. In support of oral evidence PW.1 marked the documents ExP1 to ExP34.
15. The defendant No.3 K. Eshwari W/o G. Krishnakumar filed her affidavit in lieu of examination in chief as DW.1 and deposed evidence that the suit schedule A property is constructed on No:144, 145 and 146, situated at K. Kamraj Road, Civil Station, Bangalore and the BBMP has sanctioned only ground floor and 1st floor. The same sanctioned plan duly sanctioned by BBMP, other than ground floor and 1st floor, any construction put up on schedule 'A' property is unauthorized and illegal there is 2 nd floor with two tenements out of which one is purchased by the plaintiff and the 2nd floor which is constructed then onwards on schedule 'A' property. The plaintiff without obtaining the sanction plan has put up a ground floor and they have constructed 2 nd floor also and which without permission of the BBMP against the 25 Judgment OS.No.15427/2006 sanctioned plan. There are two position in each floor and i.e. ground and 1st floor there will be having 3 parking areas for his ground and 1st floor position, then owners of the schedule A property have put up one more floor, i.e. 2 nd floor with two tenements and have sold one to plaintiff and other one another purchaser by showing car parking area, though it is not available. That defendant purchased the schedule property-A all the piece and parcel of the property bearing No:144, 145 and 146 situated at K. Kamaraj Road, Civil Station corporation division No:77, measuring 30 feet by 70 feet and total area of 2,100 Sq.ft and schedule C apartment bearing No:1 ground floor building known as green view homes built in property No:144, 145 & 146 Kamaraj Road, Civil Station, Bangalore with rights through all the common passage leading to the main road and entitled for all common areas amenities consisting of two room, hall, kitchen with attached bath rooms hence all easements right pertaining to the land and building enjoyment by the purchaser jointly with the owner of the other flats of the 1 st floor, the said building 26 Judgment OS.No.15427/2006 measuring super built area of 1000 sq.ft with common staircase passage together with right to park one car parking in the open space in the ground floor. That after purchase of the position under the sale deed Dt: 17/01/2013 she has obtained khatha from BBMP and paying the taxes for concerned authorities. That defendant No.3 being the purchaser and occupation of the ground floor along with car parking area enjoying the same as its rightful owner the plaintiff cannot seek any relief in the above case and has not taken any care before his purchase plaintiff being the practicing advocate has not applied his little brain without scrutiny the title deeds without seeking the sanction plan, purchased schedule A property and he is in a illegal position and unauthorized position and he is not entitled any of the reliefs sought by him in the plaint. The D.W-1 prays to dismiss the suit. In support of oral evidence DW.1 marked the documents ExD1 to ExD9.
16. The contention of the plaintiff that he is the absolute owner of the Flat No.201 on the 2nd Floor of the building known 27 Judgment OS.No.15427/2006 as Green View Homes constructed on the property bearing Nos.144, 145 & 146 of K. Kamaraj Road, Civil Station, Bangalore along with the said apartment he also owned about car parking space on the ground floor of the apartment which is plaint schedule property. Even since the date of purchase of apartment he is using the car parking area provided to him and parking his car bearing No.CKP 8982 in the schedule property. The defendants have no right, title and interest in the schedule property, but trying to obstruct him from parking his vehicle. The defendant No.1 claimed to have owned Flat bearing No.001 ground floor in the apartment Green View Homes, K. Kamaraj Road, Civil Station, Bengaluru which has a parking area on the other side of his car parking area. The schedule property is enclosed by a gate. The defendants have no right to use his car parking are, but only to cause hardship to him they have locked the gate and have not permitted him to use the schedule property. That during the pendency of the suit the defendants have encroached his car parking area and the defendant No.3 on the 28 Judgment OS.No.15427/2006 Eastern side of Plat No.101 in the ground floor put the barricade and using the said area to park their vehicles, the plaintiff contention that the defendants are trying to interfere in his possession and enjoyment over the suit schedule property by encroaching upon the parking area and common passage. The plaintiff contention that the defendants are liable to demolish the illegal construction put up in the common area and common passage which is mentioned as 'B' schedule in the plaint. In support of oral evidence the PW.1 marked the documents at ExP1 to P34. The ExP1 to ExP11 are marked as photograph as they belongs to the suit schedule property. The ExP12 is CD of the said photographs. The ExP13 is complaint dated 27/08/2006 given by the plaintiff to the Bharathi Nagar Police Station, Bengaluru against the defendant No.1. The ExP14 is complaint given by Krishnakumar @ Ravi S/o Gopala Krishnan against R. Srinivasan and his son Kumar (present plaintiff) on 13/01/2017. The ExP15 is information taken by Srinivasan under RTI Act relating to NCR No.18/2017 from Bharathi Nagar Police Station. 29
Judgment OS.No.15427/2006
17. The ExP16 is certified copy of the Sale Deed dated 22/07/2002 regarding purchase of the property bearing Flat No.201 second floor Green View Homes constructed on property Nos.144, 145 & 146 of K. Kamaraj Road, Civil Station, Bengaluru by plaintiff from S. Bhaskar S/o N. Somasundar Chettiar. The ExP17 is certified copy of sale deed dated 05/01/1996 regarding purchase of property by Ayesha obed D/o Syed Ubedulla from Bhaskar S/o late Somasundar i.e., Flat No.001 ground floor in Green Home View" constructed in No.144, 145, 146 of K. Kamaraj Road, Cauvery Road, Civil Station Bangalore. The ExP18 is certified copy of the Sale Deed dated 03/05/2007 regarding sale of the property by defendant No.1 in favour of Modi Anwarulla S/o Late Modi Ziaulla and Anwar Pasha S/o Late Sheik Mohiuddin i.e., Flat No.01 in the same Green View Homes constructed on the property Nos.144, 145 & 146 of K. Kamaraj Road, Civil Station, Bengaluru. The ExP19 is certified copy of the Sale Deed dated 17/01/2013 regarding purchase of the Flat No.001 in Ground Floor of 30 Judgment OS.No.15427/2006 building known as Green View Homes built on property Nos.144, 145 & 146 of K. Kamaraj Road, Civil Station, Bengaluru by defendant No.3 from Modi Anwarulla S/o Late Modi Ziaulla and Anwar Pasha S/o Late Sheik Mohiuddin. The ExP20 to ExD25 are photographs as they belongs to schedule property and ExP26 & ExP27 are two CDs of the said photographs. The ExP28 to ExP34 are photographs marked as they belongs to the schedule property. Further ExP35 to ExP37 are photographs confronted by plaintiff counsel in the cross examination of DW.1 and marked. The ExP40 is CD of said photographs.
18. On the contrary defendants No.1 & 2 have appeared through their counsel but they have not examined. The defendants No.1 & 2 have filed the written statement and taken several contentions as discussed above. But they have not led evidence. The defendant No.3 Eshwari W/o Krishnakumar filed her affidavit in lieu of examination in chief as DW.1 and deposed the evidence that the suit schedule 'A' property is constructed on No.144, 145 & 146 situated at K. Kamaraj Road, Civil Station, 31 Judgment OS.No.15427/2006 Bengaluru and BBMP has sanctioned only ground and first floor, other than the ground floor and first floor any construction put up on schedule 'A' property is unauthorized and illegal. There is second floor with two tenements out of which one is purchased by the plaintiff and second floor which is constructed then onwards on 'A' schedule property. The plaintiff without obtaining sanction plan put up the second floor and they have constructed second floor also and without permission of BBMP against sanction plant. There are two position in each floor i.e., ground floor and first floor which is having parking area for his ground and first floor position then the owners of the schedule 'A' property put up one more floor i.e., second floor with two tenements and they have sole one to plaintiff and another one to purchaser by sowing the car parking area though it is not available. That she has purchased the suit schedule 'A' property bearing No.144, 145 & 146 situated at K. Kamaraj Road, Civil Station Corporation Division No.77 measuring 33X70 feet measuring 2100 sq.ft and schedule 'C' apartment bearing No.1 32 Judgment OS.No.15427/2006 ground floor building known as Green View Homes built on property No.144, 145 & 146, K. Kamaraj Road, Civil Station, Bengaluru with all rights to the common passage leading to the main road. Therefore she being the purchaser and occupant of the ground floor along with car parking area enjoying the same. As the plaintiff cannot seek any relief against her. Then the burden is on the plaintiff to prove that he purchased the property mentioned in the plaint along with the suit schedule property as Car parking area and he has right and title to park his vehicle in the suit schedule property. The DW.1 in support of his oral evidence marked the documents ExD4 to ExD9.
19. The ExD1 to ExD3 are the photographs and confronted in the evidence of PW.1 and they are marked. Further ExD4 is sanction plan of property No.144 i.e., Green View Apartments, Bengaluru. The ExD5 is certified copy of the Sale Deed regarding purchase of Flat No.001 in ground floor of Green View Apartments, Bengaluru by defendant No.3 from Modi Anwarulla and Anwar Pasha on 17/01/2013. The ExD6 is Katha Extract and 33 Judgment OS.No.15427/2006 ExD7 is Katha Certificate of property No.144 purchased by the defendant No.3 as per ExD5. The ExD8 is acknowledgement given by Bharathi Nagar Police Station, Bengaluru on complaint of Gopalakrishnan against plaintiff Kumar on 13/01/2017. The ExD9 is another one acknowledgement issued by Bharathi Nagar Police Station on the complaint of Gopalakrishnan.
20. The contention of plaintiff that defendants are obstructing him from parking his vehicle in the ground floor. Further during the pendency of the suit the defendants have sold suit schedule car parking area to Modi Anwarulla & Anwar Pasha under sale deed dated 03/05/2007, and in turn sold the same to defendant No.3 on 17/01/2013. Subsequently on 10/12/2016 the plaintiff questioned the defendant No.3 the encroachment of parking area which is on the Eastern side of Flat No.001 ground floor in the Apartment Green View Homes of Bengaluru which has been demarcated as parking area as sit out by barricading the parking area and also used only to parking their vehicles and also provided with amenities such as ceiling fan, plastic chairs, etc. 34 Judgment OS.No.15427/2006 Further they have encroached the open common passage on the Southern side of the property removed the electric meter and shifted them to the Eastern side of the schedule property and locked the gate and are using the same as exclusive as their office which is not permitted by the schedule 'E' clause-9 of the sale deeds executed by vendor only hardship is caused to the plaintiff not to him and also have locked the gate and not permitting him to use the schedule property. On this aspect the plaintiff counsel cross examined DW.1 and DW.1 deposed the evidence that "ನಡ 2 ರಲಲ ಕಕಣಣಣವ ಗಗಗಟಣ ನಮಮ ಮನಗಯ ಮಣಮದಗ ಪಕರರಮಗಗಣ ಏರಯಕ ನಮತರ ಇದಗ. ಆ ಗಗಗಟಗಗ ರಕತತ ಸಮಯದಲಲ ಮಕತತ ಚಗಚನಗಣಹಕರ ಲಕಕಗಣಮಕಡಣತಗತಗವಗ . ನಡ.2 ಮತಣತ ನಡ.3, ನಡ.4 ಗಳಲಲ ಕಕಣಣವ ಬಕಬರಕಗಗಡಗಣಮದಲನಮದಲಣ ಇದಗ ಆ ಬಕಬರಕಗಗಡಗಣನಕವವ ಹಕರಲಲ. ಆ ಬಕಬರಕಗಗಡಗಣ ಅನಣನ ಯಕರಣ ಹಕರದಣದ ಅಮತ ನನಗಗ ಗಗಗತತಲಲ. ಆ ಬಕಬರಕಗಗಡಗಣ ಅನಣನ ತಗಗಗದರಗ ನಮಗಗ ಏನಣ ತಗಗಮದರಗ ಇಲಲ. ನಪ.11 ರಲಲ ಕಕಣಣವ ಸಗಲಮಗಗಣಫಕಬನಗಣನಮಮದಗ ಇದಗ. ಸದರ ಫಕಬನಗಣ ಪಕರರಮಗಗಣ ಏರಯಕದಲಲ ಇದಗ ಮತಣತ ಆ ಏರಯಕವನಣನ ನಕವವ ಸಟಟಮಗಗಣಏರಯಕ ಅಮತ ಉಪಯಗಗಸಣತತದಗದಗವಗ ಎಮದರಗ ಸಕರಕಯಣ ಬಗಗಸಗಗ ಕಕಲದಲಲ ನಕವವ ಕಕರಗ ಅನಣನ ಹಗಗರಗಡಗ ಪಕರಗರಣ ಮಕಡ ಫಕಬನಗಣ ಕಗಳಗಡಗ ಕಣಳತಣಕಗಗಳಳಲಣ ಉಪಯಗಗಸಣತಗತಗವಗ." The DW.1 further deposed in the evidence that "ಈಗ ನನಗಗ ತಗಗಗರಸಣತತರಣವ ನಪ.35 ಪಗಟಗಗಗದಲಲ ಕಕಣಣವ ಗಗಗಟಗಣ ಒಳಗಡಗ 35 Judgment OS.No.15427/2006 ಕಟಟಡದ ದರಕಣ ಭಕಗಕಗರ ಪಕಬಸಗಗಜಗಣ ಇದಗ ಎಮದರಗ ಸರ. ಆ ಪಕಬಸಗಗಜಗಣನಲಲ ಗಗಗಗಡಗಗಗ ಹಕರದ ಎಲಗರಟಕಕಗಣ ಬಗಗಗಡಣರ ಅನಣನ ತಗಗಗದಣ ಕಟಟಡದ ಪಪವರ ಭಕಗದ ಗಗಗಗಡಗಯಲಲ ಎಲಗರಟಕಕಗಣ ಬಗಗಗಡಣರ ಅನಣನ ಫಕಕ ಮಕಡದಗದಗವಗ ಎಮದರಗ ಸರಯಲಲ, ನಕವವ ಫಕಲಟಗಣ ಅನಣನ ಕತಣಯಕಗರ ಪಡಗಯಣವ ಕಕಲಕಗರ ಅದಗಗ ರಗತ ಪಪವರ ಭಕಗದ ಗಗಗಗಡಗಯಲಲ ಎಲಗರಟಕಕಗಣ ಬಗಗಗಡಣರ ಇತಣತ. ಆ ಪಕಬಸಗಗಜಗಣಅನಣನ ನಕವವ ಲಕಕಗಣಮಕಡಕಗಗಮಡಣ ಬಗಗರಗಯವರಗಗ ಅಲಲ ಓಡಕಲಣ ಬಡಣತತಲಲ ಎಮದರಗ ಸಕರಕಯಣ ನಮಗಗ ಫಕಲಟಗಣ ಅನಣನ ಮಕರಕಟ ಮಕಡದವರಣ ಪಕಬಸಗಗಜಗಣ ಭಕಗವನಣನ ಕಗಡ ಲಕಕಗಣ ಮಕಡ ಸಕಸಧಗನ ಕಗಗಟಟದಕದರಗ ಅಮತ ಹಗಗಳಣತಕತರಗ . ಕಟಟಡದ ದರಕಣ ಭಕಗದಲಲ ಇರಣವ ಪಕಬಸಗಗಜಗಣ ಕಕಮನಗಣ ಪಕಬಸಗಗಜಗಣ ಎಮದರಗ ಸಕರಕಯಣ ನನಗಗ ಗಗಗತತಲಲ ಅಮತ ಹಗಗಳಣತಕತರಗ." The DW.1 in her cross examination further deposed evidence that "ಈಗ ನನಗಗ ತಗಗಗರಸಣತತರಣವ ಫಗಟಗಗಗದಲಲ ನಮಮ ಅಪಕಟರಮಮಟಗಣನ ಮಣಮದನ ಗಗಗಟಣಗಳಣ ಕಕಣಣತತವಗ ಎಮದರಗ ಸರ. ಅದಗಗ ರಗತ ಈ ತಗಗಗರಸಣತತರಣವ ಇನಗನ ಎರಡಣ ಫಗಟಗಗಗಗಳಲಲ ಅಪಕಟರಮಮಟಗಣ ಮಣಮದನ ಭಕಗದ ಕಟಟಡ ಕಕಣಣತತದಗ ಎಮದರಗ ಸರ. ಈಗ ನನಗಗ ತಗಗಗರಸಣತತರಣವ ಎರಡಗ ಫಗಟಗಗಗದಲಲ ಕಕಣಣವ ಸಗಗಗಫಕಗಳಣ ನಮಮದಣ ಇರಣತತವಗ ಎಮದರಗ ಸರ, ಆದರಗ ಅವವಗಳನಣನ ಮನಗ ಪಗಚಮಟಗಣ ಮಕಡಣವ ಕಕಲಕಗರ ಹಗಗರಗಗ ಹಕರದಣದ ಇದಗ. ಸದರ 5 ಫಗಟಗಗಗಗಳನಣನ ವರಗಲರಣ ಸಕರಕಗಗ ಕನನಕಮಟಗಣಮಕಡಲಕಗ ಮತಣತ ಸಕರಕಯಣ ಅವವಗಳನಣನ ಒಪಪಕಗಗಮಡದದರಮದ ಮತಣತ ವರಗಲರಣ ಸದರ ಫಗಟಗಗಗಗಳಣ ಮತಣತ ಸಡಯಮದಗಗ ಮತಣತ ಮಮಗದಗಗಮದಗಗ ಹಕಜರಣಪಡಸದಕದರಗ. ಸದರ ಫಗಟಗಗಗಗಳನಣನ ನಪ-35 ರಮದ 39 ಮತಣತ ಸಡ ಯನಣನ ನಪ- 40 ಅಮತ ಗಣರಣತಸಲಕಯತಣ."
36
Judgment OS.No.15427/2006
21. Therefore from the evidence of DW.1 it is clear that the house of DW.1 is situated in the ground floor and in front of her house she has put the sofa and that in ExP39 photo it is clearly seen that in the ground floor in front of the main door sofas are kept and also in the passage there is a barricade in front of gate is installed. The defendant No.2 has to clarify at the time of purchase of Flat No.001 i.e., house in the ground floor of Green View Apartments there is a provision to her to put the sofa in front of her house and also fixed barricade is already available, but to prove said fact the defendant No.3/DW.1 has not produced any documents. Further ExD4 is proposed plan for construction of the building in site No.144, 145 & 146 of K. Kamaraj Road, Civil Station, Bengaluru, wherein the sketch prepared, 4 sketches were mentioned as disallowed, but the concerned authorities who issued the said layout plan, have not signed and to prove this ExD4 the defendant No.3 has not examined the concerned person who issued the said sketch. Hence ExD4 is not proper to accept. That in ExP38 & ExP39 photos it is clearly seen that in the 37 Judgment OS.No.15427/2006 parking area of the ground floor the defendant No.3 has put the Sofas as well as installed the barricade in front of her house. Further DW.1 in her cross examination clearly admitted that the sofas found in ExP38 & Ex39 are belongs to her and further she admitted that ceiling fan is installed as found in ExP11 belongs to her and she has deposed that she is using the said sofa in summer season to sit below the fan and at that time she park the vehicle outside. But the defendant No.3 has not made out clear that she has right to put the ceiling fan in the ground floor as seen in ExP11 and use the parking area for her sit out as a sit out area. As per the sale deed of defendant No.3 marked at ExD5 the defendant No.3 had right only to enjoy her property bearing No.001 which was parking area and she has to park only her vehicle in the area, but she cannot use the parking area for herself and others for sit out purpose by keeping the ceiling fan. As per the sale deed of the plaintiff marked at ExP16 the plaintiff has purchased his Flat No.201 in the 2nd Floor of Green View Homes along with car parking area in the ground floor. Under the 38 Judgment OS.No.15427/2006 circumstances the plaintiff has right to use the car parking area in the ground floor as per the sale deed. But ExP4, ExP5 & ExP6 discloses that there is barricade found attached to the property of defendant No.3 and it bifurcates the car parking area in the ground floor and ExP6 discloses that due to the said barricade installed there is difficulty in parking the car through gate inside the ground floor car parking area. Further ExD2 discloses that the gate is in locked condition. As the gate is exactly in front of the house of defendant No.3. Therefore the plaintiff has proved by way of oral and documentary evidence that the defendants have locked the gate which disturbed the plaintiff in using the suit schedule property as car parking. Therefore the plaintiff proved that he is the absolute owner of the suit schedule property car parking area is allotted to him under the sale deed dated 27/02/2002 and defendants have put up lock on the gate of the schedule property. Further ExP21 photo dated 27/08/2006 discloses that the construction is going on in the ground floor area. Further in ExP21 the photo dated 27/08/2006 which is 39 Judgment OS.No.15427/2006 clearly seen that room is constructed through bricks, hence it is clear that said room is constructed afterwards. As per the plaintiff the defendants have constructed the said room. The defendants No.1 & 2 even though appeared in the case, have not deposed the evidence and not led the evidence to answer the allegations of the plaintiff. Whereas the DW.1 (defendant No.3) in her cross examination deposed the evidence that "ನಡ.1 ಫಗಟಗಗಗದಲಲ ಕಕಣಣವ ಮಕರಣತ ವಕಬನಗ ಪಕರದಲಲ ಒಮದಣ ಸಣಣ ಕಗಗಗಣಗ ಇದಗ ಎಮದರಗ ಸರ. ಅದಣ 10 X 15 ಫವಟಗ ಅಳತಗಯ ಚಕರ ರಗಮಗ ಅಮದರಗ ಸಕರಕಯಣ ದಗಗಡಡ ಹಕಲಗ ಇದಗ ಅಮತ ಹಗಗಳಣತಕತರಗ. ಮಕರಣತ ವಕಬನಗ ಮಣಮದಗ ಇರಣವ ಗಗಗಗಡಗ 15 ಅಡ ಅಗಲ ಇದಗ ಎಮದರಗ ಸರ. ಆ ಗಗಗಗಡಗಯನಣನ ನಡ-1 ರಲಲ ಕಕಣಣವ ಸಣಣ ಕಗಗಗಣಗಯನಣನ 1 ನಗಗ ಪತತವಕದ 2001 ರಲಲ ಕಟಟದಕದರಗ ಎಮದರಗ ನನಗಗ ಗಗಗತತಲಲ."
22. Therefore DW.1 submits that there is a wall and room in the ground floor where the Maruthi Van is parking. But she shown her ignorance that she do not know defendant No.1 constructed the said room. But ExP21 and ExD1 clearly discloses regarding construction of room in the ground floor area. Therefore, defendant No.1 has to clarify said construction of 40 Judgment OS.No.15427/2006 room as seen in ExP21 and ExD1 photos, but the defendant No.1 is silent and not deposed any evidence to disprove the said contention of the plaintiff. Under the circumstances the allegations of the plaintiff is not disproved by the defendant No.1. Hence the plaintiff has proved that the defendants have illegally constructed the brick wall in the suit schedule property and same is liable to be demolished. Therefore the plaintiff is entitle for the relief of declaration, mandatory injunction, permanent injunction and possession as prayed in the plaint. The plaintiff proved Issues No.1 to 7. Hence I answer Issues No.1 to 7 in Affirmative.
23. Issue No.8 :-
In view of above discussion I proceed to pass following:
:ORDER:
The suit of the plaintiff is hereby decreed with costs.
It is ordered and decreed declaring that plaintiff is allotted the schedule premises under 41 Judgment OS.No.15427/2006 his sale deed and defendants are directed to put the plaintiff in possession of the said area.
It is ordered and decreed that the defendants are directed to remove the lock put by them on the gate of the schedule property.
It is further ordered and decreed that the defendants are directed to remove the brick wall constructed in the ground floor of the schedule premises.
Further it is ordered and decreed that defendants are restrained from using the schedule property belonging to the plaintiff.
It is further ordered and decreed that the defendants are directed to remove the illegal structure put up in the parking area and in the common passage i.e., in the 'A' & 'B' schedule properties within 30 days from the date of this order, failing which the plaintiff is permitted to remove the same in due procedure of law.42
Judgment OS.No.15427/2006
Draw decree accordingly.
(Dictated to the stenographer, typed by Stenographer. Then corrected on line in computer, then taken printout, then again corrected, signed and pronounced by me in the open court on this 24 th day of August 2021).
(Smt.Suvarna K. Mirji) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALO :ANNEXURE:
WITNESSES EXAMINED FOR THE PLAINTIFF:
PW1 : S. Kumaran S/o R. Srinivasan DOCUMENTS MARKED FOR THE PLAINTIFF: ExP1 to11 : Photographs ExP12 : CD ExP13 : Copy of police complaint ExP14 : True copy of police complaint ExP15 : True copy of application filed under RTI Act ExP16 to 19: certified copies of sale deeds ExP20 to 25: Photographs ExP26& 27: CDs ExP28 to 34: Photographs 43 Judgment OS.No.15427/2006 WITNESSES EXAMINED FOR THE DEFENDANTS: DW1 : K. Eshwari W/o G. Krishna Kumar DOCUMENTS MARKED FOR THE DEFENDANT/S: ExD1 to3 : Photographs ExD4 : Sanction Plan of Green View Apartments ExD5 : Copy of Sale Deed dated 17/01/2013 ExD6 : Khatha Extract ExD7 : Katha Certificate ExD8&9 : Copy of complaints given to the Bharthinagar P.S XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT : BANGALORE.