Bangalore District Court
Madhusudhan vs M.R. Narayan on 30 September, 2015
IN THE COURT OF THE XLIII ADDL.CITY CIVIL
& SESSIONS JUDGE, BANGALORE. (CCH 44)
Dated: 30TH DAY OF SEPTEMBER 2015
PRESENT
Sri. R.K.TALIKOTI, B.Com., LL.B.(Spl.),
XLIII ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE, (CCH-44).
O.S. No.8268/2009
PLAINTIFF : Madhusudhan,
S/o N. Mukund Rao,
Aged about 40 years,
No.4, New No.89,1st Floor,
9th Main, Jayanagar 4th Block,
Bangalore-560 011.
(By Advocate Sri Razvi S.M.)
VS.
DEFENDANT : M.R. Narayan,
S/o Late M.N. Rajagopalan,
Aged about 60 years,
R/o No.768, 34th Cross,
9th Main, 4th Block, Jayanagar
Bangalore-560 011.
(By Advocate Sri Arjun R. Khot)
Date of Institution of the suit: 26/12/2009
Nature of the Suit (Suit for
pronote, suit for declaration Suit for Injunction
and possession, Suit for
injunction, etc,) :
2 O.S.8268/2009
Date of the commencement of 16/06/2011
recording of the Evidence:
Date on which the Judgment 30/09/2015
was pronounced:
Total Duration : Year/s Month/s Day/s
05 09 04
(R.K.TALIKOTI)
XLIII Addl. City Civil & Sessions Judge,
BANGALORE, (CCH-44).
JUDGMENT
Suit of the plaintiff is for Permanent Injunction to restrain the defendant from obstructing plaintiff's possession and enjoyment of suit property and for mandatory injunction directing the defendant not to obstruct plaintiff's free ingress and egress to the second floor of schedule property.
2. In brief the averments of the plaint are as under:-
i) Plaintiff is in lawful and permissive possession of suit property. plaintiff is tenant under defendant in respect of first floor premises bearing No.4, New No.89, 4th Block, Jayanagar, Bangalore on monthly rent of Rs.8,000/-. He was tenant under 3 O.S.8268/2009 Gowramma earlier. Plaintiff was carrying on the business of selling uniforms to school children and preparing garments. There was paucity of accommodation to carry on his business. Therefore he had requested the landlord to permit him to construct a room on the second floor which was not part of tenancy and there would not be rent for it.
Plaintiff has invested Rs.2,00,000/- in the year 2003 and constructed a room covered by asbestos sheet. This construction was made with the consent of land lady. Second floor is not at all part and parcel of first floor tenanted property.
ii) The defendant has filed O.S.7738/2009 on the file of CCH-45 for ejectment of plaintiff from first floor premises measuring 400 sq.ft. He ought to have filed separate suit for possession by paying court fee of half of the market value of the property. The defendant wants to take possession of second floor by obtaining proposed eviction order of first floor.
iii) Plaintiff had filed another suit O.S.11204/2006 on the file of CCH 19 for injunction against defendant. The defendant filed a memo undertaking not to interfere in suit schedule 'A' and 'B' properties. Accordingly the suit was disposed off.
4 O.S.8268/2009iv) Plaintiff has got right under general lien to withhold the suit property in lieu of money and also possessory title. The defendant has also filed suit O.S.No.7739/2007 before CCH-45 against the plaintiff's father in respect of ground floor premises. The defendant is practicing lawyer, he has purchased the composite property bearing No.4 New No.89, 4th Block, Jayanagar, Bangalore and immediately has taken law into his own hands and tying to trespass upon the property and had assaulted the plaintiff's brother. A criminal case is pending in the Court. Thus there is strained relationship between plaintiff and defendant. Now it has become necessary to seek right of lien over Suit Schedule Property, the erstwhile landlord has consented for permissive possession. Plaintiff has subsisting right over the property with a legal character as settled possession. The defendant is trying to illegally dispossess him. Therefore suit is filed for Permanent Injunction and mandatory injunction.
3. Defendant has filed his written statement contending that the averments of the plaint are covered in the matter of dispute in O.S.No.7738/2007 filed by the defendant for ejecting the plaintiff from Suit Schedule Property. The suit is liable to be dismissed.
5 O.S.8268/2009It is denied that plaintiff is licensee in the suit property and plaintiff may put to strict proof of the same. In view of the contentions raised in another suit, the suit of the plaintiff be dismissed.
4. From the above pleadings, my predecessor in office has framed the following issues:-
1. Whether the plaintiff proves that he is in peaceful possession and enjoyment of suit property?
2. Whether plaintiff proves that he has right to ingress and egress to the 2nd floor of suit property through ground and first floor?
3. Whether plaintiff proves that the defendant is illegally causing obstruction to his peaceful possession and enjoyment of suit property?
4. Whether the plaintiff is entitled for the reliefs sought for?
5. What order or decree?
5. Plaintiff is examined as P.W.1 and 5 documents are marked as Exs.P.1 to P.5. Defendant is examined as D.W.1 and 6 documents are marked as Exs.D.1 to D.6.
6. Counsel for plaintiff and defendant have filed written arguments.
6 O.S.8268/20097. My findings on the above Issues are:-
Issue No.1: In the affirmative Issue No.2: In the negative Issue No.3: In the negative Issue No.4: In the negative Issue No.5: As per final order for the following :-
REASONS
8. Issue Nos.1 and 2-:- Both the issues are inter- linked and therefore they are taken up for determination together.
9. It is the case of the plaintiff that he is in lawful and permissive possession of suit property and enjoying the same in his own rights. He has possessory rights over the property. It is his further case that plaintiff was tenant under earlier land lady Smt. Gowramma in respect of first floor premises New No.89. Plaintiff in his evidence has stated that with the permission of the land lady he has put up a room with asbestos sheet on the second floor of property No.89 in order to carry on his business. He has stated in his evidence that he has spent Rs.1,00,000/- for constructing the same. Since he has invested amount, he is 7 O.S.8268/2009 in permissive possession and said portion is not part and parcel of tenancy of first floor.
10. In support of his case, plaintiff has produced Ex.P.1 lease agreement entered into between Gowramma and plaintiff in respect of first floor of premises No.4. Plaintiff has further produced copy of legal notice at Ex.P.2 issued by defendant in favour of plaintiff requesting him to deliver vacant possession of the property. Thereafter there is another copy of legal notice at Ex.P.3 for delivering second floor portion of the property. These Ex.P.2 and P.3 notices are seems to be one and the same. Common reply has been given to the said notices on behalf of plaintiff herein, wherein several things have been contended. Further undertaken notice is also produced at Ex.P.5.
11. Plaintiff has been cross-examined at the earlier instance, but not after documents were marked. Plaintiff has admitted that he was tenant under the premises since 2000 and thereafter rate of rent was rs.8,000/- per month. He has stated that he has documents to show that he had constructed a room on second floor with the permission of Corporation. But however no such documents are produced.
8 O.S.8268/200912. Defendant is examined as D.W.1 and he has stated in his evidence that he has filed O.S.7738/2007 for eviction of plaintiff from first floor as well as second floor and all other allegations are baseless. He has produced the plaint in O.S.7738/2007 at Ex.D.1, amended plaint at Ex.D.2, written statement at Ex.D.3 and order sheet of O.S.7738/2007 at Ex.D.4. Defendant has been cross- examined. He has denied that the suit for ejectment is filed for first floor. He has also denied a suggestion that owner Gowramma has executed release deed in favour of plaintiff in respect of second floor.
13. During the course of arguments, learned counsel for plaintiff has submitted that O.S.7738/2007 is decreed and defendant therein is going to prefer RFA before Hon'ble High Court. Thereafter several other contentions have been argued on merits. Further argued that second floor was not part of tenancy. Further other instance of perjury has been argued and it is also stated that action has been taken by the Court.
14. Defendant has produced copy of judgment passed in O.S.7738/2007 and O.S.7739/2007. Plaintiff has already stated in his arguments that O.S.7738/2007 is decreed and defendant therein is going to prefer appeal.
9 O.S.8268/2009Under those circumstances, copy of judgment produced in this case can be looked into, wherein there is a common order directing the defendant to quit, vacate and handover vacant possession of both suit schedule premises along with structure over second floor of the schedule premises within 60 days. Even according to plaintiff, the suit has been disposed off.
15. Since suit for ejectment has been decreed by CCH-45, present suit for permanent injunction would not survive. This Court cannot pass any permanent injunction to negate the order passed in O.S.7738/2007. At best, this Court could have passed order to protect the possession of plaintiff until disposal of ejectment suit. Now that ejectment suit is disposed off and it is against the defendant who is plaintiff herein. The present suit has to be dismissed. Therefore it is held that plaintiff is in lawful possession of the property. Hence issue No.1 is answered in the 'affirmative'.
16. As far as interference for going to second floor is concerned, no material is produced by the plaintiff to prove this issue. Hence issue No.2 is answered in the 'negative'.
17. Issue Nos.3 to 5:- Though plaintiff was shown to be in lawful possession, there is an order passed by 10 O.S.8268/2009 competent Court in O.S.7738/2007 directing the plaintiff to vacate the property. Under those circumstances, the cause of action would not survive for this plaintiff and the suit itself has becomes infructuous. Therefore plaintiff is not entitled for relief of permanent injunction. Hence, I proceed to pass the following:
ORDER The suit of the plaintiff for permanent injunction is dismissed as infructuous. No costs.
(Dictated to the Stenographer, computerized by her, corrected and then pronounced by me in Open Court on this the 30th day of September, 2015) (R.K. TALIKOTI) XLIII Addl. City Civil & Sessions Judge, BANGALORE, (CCH-44).11 O.S.8268/2009
ANNEXURE List of witness examined for the plaintiff/s:-
P.W.1 : Madhusudan List of witness examined for the defendant/s:-
D.W.1 : M.R. Narayan List of Exhibits/Documents marked for the plaintiff/s:-
Ex.P.1 : Certified copy of lease agreement Ex.P.2 : Certified copy of legal notice dated 8/8/2007 Ex.P.3 : Certified copy of legal notice dated 28/7/2007 Ex.P.4 : Certified copy of common reply notice Ex.P.5 : Copy of letter dated 10/1/2007 List of Exhibits/Documents marked for the defendant/s:
Ex.D.1 : Certified copy of plaint in O.S.7738/2007
Ex.D.2 : Certified copy of amendment application
Ex.D.3 : Certified copy of objection
Ex.D.4 : Certified copy of order sheet in
O.S.7738/2007
Ex.D.5 : Certified copy of reply
Ex.D.6 : Certified copy of written statement filed
in O.S.7738/2007
Ex.D.6(a) : Typed copy
(R.K. TALIKOTI)
XLIII Addl. City Civil & Sessions Judge, C.C.H.44, BANGALORE.