Bangalore District Court
Smt. Gisela Narrain vs Smt. Vimala Narrain on 20 November, 2019
C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE VIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-15) AT BENGALURU
Dated this the 20th day of November, 2019.
PRESENT:
Sri MALLANAGOUDA, B.Com.,LL.M.,
VIII Additional City Civil and Sessions Judge (CCH-15),
Bengaluru.
ORIGINAL SUIT No.3270/2014
PLAINTIFFS : 1. Smt. Gisela Narrain,
W/o. Late A.R. Ganesh
Narrain,
Aged about 75 years;
2. Dr. A.G. Yeswanth Narrain,
S/o. Late A.R. Ganesh Narrain,
Aged about 51 years;
3. A.G. Pradeep Narrain,
S/o. Late A.R. Ganesh Narrain,
Aged about 49 years;
4. A.G. Dhanwanth Narrain,
S/o. Late A.R. Ganesh Narrain,
Aged about 40 years.
Plaintiffs 1 to 4 are residing
at No.122, Infantry Road,
Bangalore - 560 001.
(By Sri Prakash Ramaiah,
Advocate)
-VERSUS-
DEFENDANTS : 1. Smt. Vimala Narrain,
W/o. Late A.R. Sampath
Narrain,
Aged about 76 years;
Cont'd..
-2- O.S. No.3270/2014
2. A.S. Kannappa Narrain,
S/o. Late A.R. Sampath Narrain,
Aged about 46 years.
Defendants 1 and 2 are
residing at No.215/217,
HRBR Lay-out, 1st Block,
Kalyan Nagar, Banasawadi,
Bangalore - 560 043.
(By Sri S.S., Advocate)
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Date of Institution of the Suit : 25-04-2014
Nature of the Suit (Suit on : Injunction Suit/Damages.
pronote, Suit for declaration
and possession, Suit for injun-
ction etc,)
Date of the commencement : 04-09-2017
of recording of the evidence
Date on which the Judgment : 20-11-2019
was pronounced
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Year/s Month/s Day/s
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Total duration : 5 years, 5 months, 25 days.
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(MALLANAGOUDA)
VIII Additional City Civil and Sessions Judge,
An&/- Bengaluru.
JUDGMENT
Cont'd..
-3- O.S. No.3270/2014
This suit is filed by the plaintiffs seeking
injunction - both mandatory and permanent - and also for damages.
2. The brief facts of the plaintiffs' case are as under -
First defendant is the wife of A.R. Ganesh Narrain and plaintiffs 2 to 4 are the children of the first plaintiff and A.R. Ganesh Narrain. Ganesh Narrain has died on 14.5.1984 leaving behind plaintiffs as his legal heirs. Ganesh Narrain was owner of the vacant property bearing No.72 - which runs from North to South facing M.G. Road and Church Street of Bangalore. He had acquired title to the said property under registered partition deed dated 21.12.1967. Property bearing No.73 - which also runs from North to South was allotted to A.R. Sampath Narrain - who was the brother of Ganesh Narrain. Said Sampath Narrain is also no more. Property Nos.72 and 73 are described as 'A' schedule properties in the plaint. Defendants are the wife and children of Sampath Narrain and they are the owners and legal representatives of said Sampath Cont'd..
-4- O.S. No.3270/2014 Narrain. Suit 'C' schedule property is the portion of the property bearing No.72 and the property described as 'D' schedule is the portion of property No.73. Property No.72 is measuring East-West : 44.6 feet and North- South : 65.6 feet towards Southern side and 65 feet towards Western side. Likewise, property No.73 is measuring East-West : 40.3 feet and North-South : 65 feet towards Eastern side and 63.6 feet towards Western side. When Ganesh Narrain and Sampath Narrain chose to develop their respective portions, they entered into separate lease agreements with one P.C. Srinivas Murthy and the lease period was 20 years. As per the lease deeds, Ganesh Narrain and Sampath Narrain and common lessee P.C. Srinivas Murthy joined together and applied for amalgamation of subject matter of the lease deeds. In view of the said application, Sub No.72/1 was allotted to the property of Ganesh Narrain and 73/1 was allotted to Sampath Narrain. Thereafter, Ganesh Narrain and Sampath Narrain have jointly submitted a plan for approval for construction of commercial complex. The said plan was approved by the concerned authority. Accordingly, the Cont'd..
-5- O.S. No.3270/2014 lessee has constructed a commercial complex
comprising basement floor, ground and first to fourth floors and the said building is described as 'B' schedule property. As per the lease agreement, the lessee had delivered 600 feet basement floor to Ganesh Narrain and now, after the death of Ganesh Narrain, plaintiffs became the owners of the entire 'C' schedule property inclusive of 600 feet basement floor and they let out basement floor to two different tenants. Soon after expiry of the lease period, symbolic possession of the building was delivered by the lessee in favour of Ganesh Narrain and Sampath Narrain and the tenancies were attorned in their favour. After that, plaintiffs and defendants together had filed suit for ejectment of tenant by name Prakash Gangaram and others in O.S. No.7401/2007. As per the compromise in the said suit, tenants have vacated the building and handed over possession in favour of the plaintiffs and defendants in the present suit. From that day, several floors of the building are lying vacant. Plaintiffs have two tenants in basement and one tenant in the first floor of the Eastern portion of the commercial complex and they are Cont'd..
-6- O.S. No.3270/2014 receiving rents. Likewise, defendants have common tenant in both the basement and ground floor of the Western portion of the complex and they are collecting rents. Now, plaintiffs got entered their names in the Khata of the 'C' schedule property.
While constructing the building, the lesses has not constructed bifurcated wall, - but he has constructed two vertical dividing walls in the basement and ground floors in portion of the property of Ganesh Narrain instead of dividing walls bifurcating the properties of Ganesh Narrain and Sampath Narrain. In first to fourth floors, there are no vertical or dividing walls at all. Those floors are single and separate units. Entire commercial complex has only one staircase leading from ground floor to fourth floor. The same is situated in 'C' schedule property and there is no separate staircase in the 'D' schedule property. In view of the present nature of the existence of the commercial complex, the entire commercial complex has now become required to be bifurcated in consonance with the respective portions of the vacant land - which were Cont'd..
-7- O.S. No.3270/2014 owned by Ganesh Narrain and Sampath Narrain by sharing the expenses equally. Regarding staircase leading to the complex is concerned, as already there is a staircase situated in the plaintiffs' portion which cannot be used by the defendants in future, defendants are required to construct a separate staircase in their portion. After the decree in O.S. No.7401/2007, a joint survey was conducted by the plaintiffs and defendants with regard to modalities to bifurcate the building. But, subsequently defendants never bothered to any kind of response to the same. In fact, after actual bifurcation of the complex only, plaintiffs and defendants can make use of their respective portions. Even if the plaintiffs have requested the defendants several times for bifurcation of the complex, defendants have not responded. Hence, plaintiffs are forced to keep the Eastern portion as complex vacant from February, 2013
- from which, they sustained loss of Rs.2.5 Lakhs per month. As the present vertical walls in the basement and ground floors are not load bearing walls, there is no impediment to dismantle the said walls and construct new bifurcating walls. Plaintiffs got issued notice dated Cont'd..
-8- O.S. No.3270/2014 30.12.2013. In spite of service of notice, defendants have not positively responded, but they sent an untenable reply. Sampath Narrain and Ganesh Narrain never agreed to make use of the commercial complex without bifurcation for all times. Now, due to unreasonable conduct of the defendants, it appears that they have no intention of jointly impleading the reasonable demands made by the plaintiffs. Therefore, plaintiffs are constrained to file suit. Plaintiffs claimed mandatory injunction directing the defendants to join the plaintiffs in constructing the dividing walls, - to direct the defendants to construct separate staircase and providing lavatory to the 'D' schedule property, - permanent injunction to restrain the defendants from alienating 'C' schedule property and from using the staircase existing in 'C' schedule property and also seeking damages of Rs.32,50,000/-.
3. After service of summons, defendants have appeared through their Counsel and filed the following written statement.
Cont'd..
-9- O.S. No.3270/2014 Suit filed by the plaintiff is highly mischievous, baseless and the same is filed only to misdirect the defendants' right in the suit property. When plaintiffs have got other efficacious reliefs, mandatory injunction cannot be granted. There is no cause of action to file the suit. Plaintiffs have not disclosed the true facts - which are as under -
Ganesh Narrain and Sampath Narrain were brothers. Properties described in the suit were fallen to their respective shares in the family partition dated 21.12.1967. They had leased out the property Nos.72 and 73 to P.C. Srinivas Murthy and company under two registered sale deeds for a period of 20 years with permission to the lessee to construct composite non- residential buildings and enjoy them till completion of this period. Further, it was agreed that the building so constructed by the lessee shall be handed over to the owners free of cost after the lease period. Accordingly, the said lessee has constructed composite building comprising basement, ground and upper four floors in both the properties. After death of Ganesh Narrain, Cont'd..
-10- O.S. No.3270/2014 plaintiffs became owners of property No.72. Lease granted in favour of Sampath Narrain and Company came to an end on 16.5.1996. After that, they have handed over the composite building to the plaintiffs and Sampath Narrain. Now, after death of Sampath Narrain, defendants became owners of property No.72.
The lessee has constructed composite building with consent of both the owners. Both the owners of the property got the building plan approved and thereby acquiesced in the construction of a composite building in both the properties. Therefore, there was an implied understanding between Sampath Narrain and Ganesh Narrain that these facilities will be used jointly as long as composite building is in existence. Though land of each building constructed is comprising of two separate properties, in so far as the building is concerned, it continues to be joint family property of plaintiffs and defendants by conduct and implication. Therefore, plaintiffs and defendants are joint owners of the composite building. But, plaintiffs have not chosen to institute suit for partition. In stead, they sought Cont'd..
-11- O.S. No.3270/2014 mandatory injunction and hence, the suit is not maintainable. As there is no pleading about the substantial injury to the plaintiffs for not constructing bifurcating walls, mandatory injunction cannot be granted. If the Court orders for construction of bifurcating wall, defendants would be put to irreparable loss and hardship. Their easementary right exercised over the last nearly four decades would be affected as the lift and staircase situated in plaintiffs' portion would be inaccessible to the defendants and hence, the defendants are in joint possession of the building along with the plaintiffs and therefore, they are entitled to use the staircase and the lift. Hence, the plaintiffs are not entitled for permanent injunction. Plaintiffs' request for direction to construct additional lift and staircase is concerned, the same is inappropriate as it does not take in to account the structural stability of the building which was constructed more than 35 years ago. Therefore, it is impracticable to bifurcate the walls and construct staircase and lift in the defendants' property. With regard to relief for damages is concerned, on account of inflexible stand taken by the plaintiffs in Cont'd..
-12- O.S. No.3270/2014 demanding construction of bifurcating walls, the
building has remained vacant from 16.2.2013 and therefore, plaintiffs cannot be permitted to take advantage of their own wrong and they are not entitled for mesne profits. Though they were aware about the difficulties in constructing vertical walls, plaintiffs got issued notice - to which, defendants have suitable replies, and the plaintiffs declined to accept the suggestions put forth by the defendants. Therefore, plaintiffs are not entitled for any reliefs as claimed in the plaint and suit of the plaintiff is liable to be dismissed.
4. On the basis of the above facts, the following Issues have been framed -
ISSUES
1. Whether plaintiffs prove defendants are liable to join them in constructing a vertical bifurcating walls in all floors of 'B' schedule property?
2. Whether plaintiffs prove defendants are liable to Cont'd..
-13- O.S. No.3270/2014 construct a separate staircase and provide lift facility in the suit schedule 'D' property?
3. Whether plaintiffs prove they are in lawful possession of 'C' schedule property?
4. Whether plaintiffs prove alleged interference of defendants in respect of 'C' schedule property?
5. Whether plaintiffs are entitled for relief of damages as sought?
6. Whether plaintiffs are entitled for relief of permanent injunction as sought?
7. What decree or order?
6. In support of their case, plaintiffs have examined fourth plaintiff as P.W.1 and got marked documents as per Exs.P.1 to P.25 on their behalf.
6. On the other hand, defendants have examined second defendant as D.W.1 and got marked a document as per Ex.D.1.
8. Heard arguments.
Cont'd..
-14- O.S. No.3270/2014
9. My findings on the above Issues are as under -
ISSUE No.1 - Affirmative;
ISSUE No.2 - Negative;
ISSUE No.3 - Negative;
ISSUE No.4 - Affirmative;
ISSUE No.5 - Negative;
ISSUE No.6 - Affirmative;
ISSUE No.7 - As per final order, for the following -
REASONS
10. ISSUE No.1 : It is the case of the plaintiff that defendants 1 to 7 are the members of the joint family; defendants 2 to 7 are the sons of defendant No.1; being Kartha of the family, defendant No.1 had purchased land bearing old Survey Nos.8 + 9, new Survey No.6/3 measuring 1 acre 07 guntas of Jodi Ambalipura village through sale deed dated 12.4.1950; subsequently, 00- 22 guntas of land in the said Survey number was acquired by the Bangalore Development Authority for Cont'd..
-15- O.S. No.3270/2014 road-widening purpose and the remaining 00-25 guntas was retained by the defendants; plaintiff and defendants have entered into Memorandum of Understanding under which plaintiff has agreed to develop the property in an area measuring 18,000 square feet belonging to the defendants; as per the said Memorandum of Understanding, defendants have agreed to make available the property for joint development. As per Clause 5, at the time of Memorandum of Understanding, plaintiff has paid Rs.50,00,000/- towards non-refundable security deposit and Rs.25,00,000/- towards refundable security deposit to defendants 1 to 7 and they all have acknowledged the same.
11. Defendants 1 and 3 go 7 have admitted about execution of the Memorandum of Understanding and also receipt of Rs.50,00,000/- and Rs.25,00,000/- towards non-refundable and refundable security deposits respectively. But, defendant No.2, though admitted about receipt of Rs.4,16,670/- as his share in the non-refundable security deposit, he has denied Cont'd..
-16- O.S. No.3270/2014 execution of Memorandum of Understanding and receipt of his share in the refundable security deposit. With regard to proof of execution of Memorandum of Understanding by defendant No.2 is concerned, P.Ws.1 and 2 have deposed in detail and in the cross- examination of P.W.1, he has denied about non- payment of any other amount except the non- refundable security deposit. P.W.2 is one of the attesting witness to the Memorandum of Understanding. In the cross-examination, he has deposed that in his presence only, second defendant has put his signature on the Memorandum of Understanding. Though in the written statement of defendant No.2 he has denied receipt of his share in refundable security deposit, in the cross-examination of P.W.2, there is no suggestion made by the defendants' Counsel about non-payment of the said amount. Further more, as rightly argued by the plaintiff's Counsel, plaintiff has got marked a document marked as per Ex.P.9 - which is the agreement between the defendants and M/s. Akme Projects Limited in respect of the other portion of the property and defendant No.2 Cont'd..
-17- O.S. No.3270/2014 has admitted the said agreement and signature of defendant No.2 on the said agreement. By looking to the signature of defendant No.2 on Ex.P.8 and admitted signature of defendant No.2 on Ex.P.9, it clearly appears that both the signatures are pertaining to one and the same person. Therefore, it appears that plaintiff's contention that defendants 1 to 7 have executed the Memorandum of Understanding dated 13.8.2007 as per Ex.P.8 by receiving non-refundable security deposit of Rs.50,00,000/- and refundable security deposit of Rs.25,00,000/- appears to be true and correct. Therefore, Issue No.1 is answered in affirmative.
12. ISSUE NOs.2 AND 3 : Since all these Issues are inter-related with each other, they are being taken up together for discussion at a stretch in order to avoid repetitive discussion of facts.
13. Plaintiff filed the present suit seeking direction to the defendants to execute the Joint Development Agreement and in the alternative, to repay the amount of Rs.84,00,000/- - which includes amount paid by him and interest thereon till filing of he suit along with Cont'd..
-18- O.S. No.3270/2014 interest at 12 per cent per annum from the date of suit till payment of the entire amount. With regard to prayer for direction to the defendants to execute Joint Development Agreement is concerned, though in the cross-examination plaintiff requested for directing the defendants to execute the Joint Development Agreement, in the cross-examination, he has admitted that now in view of order of the Green Tribunal, it is not possible to construct the building as agreed - which goes to show that because of the order of the Green Tribunal, there is prevention for construction of the building in the suit schedule property. Therefore, even if defendants are directed to execute the Joint Development Agreement, it is not possible to construct the building in the suit property as agreed by the parties as per Ex.P.8 Memorandum of Understanding. Hence, the question of directing the defendants to execute the Joint Development Agreement, is not at all possible and hence, the plaintiff is not entitled for the relief of direction to the defendants to execute the Joint Development Agreement.
Cont'd..
-19- O.S. No.3270/2014
14. With regard to prayer for refund of the money paid by the plaintiff to the defendants is concerned, defendants' Counsel has argued that there is forfeiture clause in the Memorandum of Understanding marked at Ex.P.8; as the plaintiff himself has failed to perform his part of the contract within the time fixed for it due to delay caused by him only, it became not possible to construct the building in the suit schedule property and therefore, defendants have forfeited the amount paid by the plaintiff and the suit of the plaintiff is barred by limitation. In support of his said argument, he has relied upon the following judgments -
(1) (2013) 1 Supreme Court Cases 345 [Satish Batra -versus- Sudhir Rawal] -
"B. Contract and Specific Relief - Stipulated damages, Penalty clauses and Earnest money deposits - Agreement for sale - Payment of earnest money deposits
- Forfeiture of, for non-performance of contract - Justifiability of - Agreement to sell entered into between appellant seller and respondent purchaser for consideration of Rs.70,00,000 - Respondent purchaser paid Rs.7,00,000 Cont'd..
-20- O.S. No.3270/2014 as earnest money deposit - Upon non- performance of contract by buyer, appellant seller forfeited entire sum of Rs.7,00,000 paid as earnest money deposit - Respondent purchaser filed a suit for recovery of Rs.7,00,000/- but it was dismissed - In appeal, High Court observed that appellant seller was entitled to forfeit only nominal amount out of Rs.7,00,000 but not entire Rs.7,00,000 - Unsustainability of - Held, Rs.7,00,000 was paid by respondent purchaser as earnest oney deposit - It was paid as guarantee that contract would be performed - As per terms of contract, it was permissible to forfeit entire earnest money deposit - There were no other clauses militating against forfeiture clause
- Appellant seller was justified in forfeiting entire sum of Rs.7,00,000 paid as earnest money deposit - Hence, High Court erred in reversing decree of trial court - Decree of trial court, restored - Transfer of Property Act, 1882 - S. 55 - Contract Act, 1872, S.74.(Paras 15 to 17)"
(2) AIR 1999 KARNATAKA 231 KARNATAKA HIGH COURT [K. Premananda and another -versus- Syndicate Bank] -
Cont'd..
-21- O.S. No.3270/2014 "Limitation Act (36 of 1963), S.3, S.18 - Bar of limitation - Duty of Court - Suit for recovery of money - Plea that plaintiffs had acknowledged his liability to pay debt and thus suit was barred by limitation -
Not considered by Court - Order decreeing suit - Per se illegal - Court directed to decide question whether suit was barred by limitation."
(3) ILR 2014 KAR 233 [Smt. Padmini Raghavan
-versus- Mr. H.A. Sonnappa, since dead by his LRs and others] -
"B) SPCIFIC RELIEF ACT, 1963 -
CLAUSES (a) (b) & (c) OF SECTION 16 -
Readiness and Willingness - Plaintiff to plead and prove not only the terms of the agreement, but also his readiness and willingness".
"E) LIMITATION ACT, 1963 - ARTICLE 54
- Period of limitation to enforce specific performance - Effect of substituting or adding new plaintiff or defendant - HELD, Article 54 of the Act 1963 prescribes three years as the period within which a suit for specific performance can be filed. The period of three years is to be calculated from the date specified in the agreement Cont'd..
-22- O.S. No.3270/2014 for performance or in the absence of any such stipulation, within three years from the date the performance was refused."
(4) 2010 (3) KCCR 2093 KARNATAKA HIGH COURT [Sri H.D. Hanumanthappa -
versus- Sri Mohammed Sab and others] -
"A. LIMITATION ACT, 1963 - Articles 56 to 58 - Limitation to challenge alienation madeby Guardian - Held, suits relating to declaration fall within Part III of the Schedule to the Act, which was within it, Articles 56 to 58 - The period of limitation prescribed with regard to the suits relating to decrees and instruments is put under Part IV of the Schedule to the Act, which has within it, Articles 59 and 60. Article 60 is with regard to the setting aside a transfer of property made by the guardian of a ward and the period of limitation is 3 years, commencing from the time when the ward attains majority - Suit filed almost after 40 years on attaining majority is barred by limitation."
"B. LIMITATION ACT, 1963 - Section 3(1)
- Plea as to limitation - The defendants in their written statement have specifically contended that, the suit is barred by time.
Cont'd..
-23- O.S. No.3270/2014 It has also been averred that, the claim of the plaintiff cannot be allowed in law as he slept over the matter for over 5 decades it was averred that, the plaintiff nor his predecessors have ever set their feet in the suit land, since the date of sale deed dated 19.6.1940."
(5) AIR 2000 SUPREME COURT 3597 [State of Kerala -versus- T.N. Chacko] -
"(A) Limitation Act (36 of 1963), Art.47, S.18 - Suit for recovery of consideration on frustration of contract - Limitation -
Suit for recovery of bid amount paid to Forest Deptt. filed beyond period of limitation - Defence of acknowledgement of liability by Forest Deptt., in reply to claim by plaintiff raised - Said claim by plaintiff was for remission of consideration viz., bid amount by 150% and not for recovery of consideration -
Hence, it does not amount to acknowledgement - Suit not saved from being barred by limitation."
15. On the other hand, plaintiff's Counsel has argued that when defendants have admitted about execution of the Memorandum of Understanding and Cont'd..
-24- O.S. No.3270/2014 receipt of the security deposit from the plaintiff, and they themselves ave committed default in complying with their part of contract as per the Memorandum of Understanding marked at Ex.P.8, defendants were expected to cooperate for some rectification in the R.T.C. and for getting the conversion order - for which, they have not at all cooperated and supported the plaintiff; defendants are not entitled to take the benefit of their own default and therefore, they are liable to repay the amount paid by the plaintiff along with interest thereon.
16. On perusal of the pleadings and evidence of both the parties to the suit and arguments of their Counsel, it appears that as rightly argued by the defendants' Counsel, in Clause 8 of the Memorandum of Understanding, there is a clause for forfeiture of the amount paid by the plaintiff in favour of the defendants. In case of breach of contract by the plaintiff and to show that plaintiff is always ready and willing to perform his part of contract, plaintiff has to plead and prove the said fact, and as per Clauses IV to VI of the Memorandum of Understanding, the plaintiff is under Cont'd..
-25- O.S. No.3270/2014 the obligation to rectify the dicrepancy appearing in the R.T.C. and obtain conversion order from the competent authority and the plaintiff has not produced any documentary evidence to show that he has made efforts to get the discrepancy appearing in the R.T.C. rectified and obtain the conversion order .
17. But, in his oral evidence, plaintiff has deposed that as the defendants have failed to cooperate for rectifying the entries in the R.T.C. and getting the conversion order, he was unable to develop the property and execute the Joint Development Agreement. By looking to Clause 8 of the Memorandum of Understanding marked at Ex.P.8, it appears that there is a clause for forfeiture of security deposit. Therefore, when the plaintiff has not produced any documentary evidence to show that he filed application before the competent authority for rectification of the discrepancy appearing in the R.T.C. and for getting conversion order, mere oral evidence of P.W.1 is not sufficient to show that plaintiff made efforts to perform his part of contract. Further more, though 18 months' period is Cont'd..
-26- O.S. No.3270/2014 fixed for construction of the building, plaintiff got issued notice to the defendants on 5.1.2012 only i.e., after about more than 4 years from the date of Memorandum of Understanding - which also supports the contention of the defendants that plaintiff has not made any efforts to perform his part of contract. Therefore, in view of Clause 8 of Ex.P.8 - Memorandum of Understanding, the defendants are entitled for forfeiture of non- refundable and refundable security deposit paid by the plaintiff.
18. Further more, as rightly argued by the defendants' Counsel, as the plaintiff has failed to file suit within three years from the date of Memorandum of Understanding, suit of the plaintiff is barred by limitation also. Accordingly, when plaintiff has failed to perform his part of contract, defendants are entitled for forfeiture of the amount paid as security deposit and suit of the plaintiff is barred by limitation. Accordingly, plaintiff is not entitled for alternative relief of refund of Rs.75,00,000/- paid by him with interest as claimed by him. Hence, Issue Nos.2 and 3 are answered as above.
Cont'd..
-27- O.S. No.3270/2014
19. ISSUE No.4 : As already discussed above, as the plaintiff has failed to perform his part of contract and suit of the plaintiff is barred by limitation, suit of the plaintiff is not maintainable and liable to be dismissed. Hence, Issue No.4 is answered in negative.
20. ISSUE No.5 : For my reasons and discussion on the above Issues, I proceed to pass the following -
ORDER Suit of the plaintiffs is partly decreed. Defendants are directed to join the plaintiffs for constructing vertical walls in all the floors of the 'B' schedule property by removing the existing dividing walls in the portion of the property belonging to the plaintiffs by dividing the property of plaintiffs and defendants as per their title.
In the event of failure on the part of the defendants to join the plaintiffs for construction of the dividing walls, plaintiffs are at liberty to get the walls constructed by filing Execution Petition.
Cont'd..
-28- O.S. No.3270/2014 Suit of the plaintiffs for direction to construct separate life and staircase in the defendants' property and for damages of Rs.32,50,000/- and permanent injunction, is dismissed.
No order as to cost.
(Dictated to Judgment Writer, transcribed by him, revised by me and after corrections, pronounced in open Court on this the 20th day of November, 2019.) (MALLANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
ANNEXURE
1. WITNESS EXAMINED FOR THE PLAINTIFFS:
Examined on:
P.W.1 : A.G. Dhanwant Narrain 04-09-2017
2. DOCUMENTS MARKED ON BEHALF OF PLAINTIFFS:
Ex.P.1 : Certified copy of registered partition deed dated 21.12.1967.
Ex.P.2 : Certified copy of registered lease deed dated 17.5.1976.
Ex.P.3 : Office copy of legal notice dated 30.12.2013.
Ex.P.4 : Reply notice dated 27.2.2014. Ex.P.5 : Rejoinder notice dated 19.3.2014. Ex.P.6 : Certified copy of the death certificate. Ex.P.7 : Certified copy of order sheet in Cont'd..
-29- O.S. No.3270/2014
O.S. No.7401/2007.
Ex.P.8 : Certified copy of plaint in
O.S. No.7401/2007.
Ex.P.9 : Certified copy of written statement in
O.S. No.7401/2007.
Ex.P.10 : Khata certificate.
Ex.P.11 : Tax paid receipt.
Ex.P.12 : Approved blue print of the construction plan dated 6.8.2013.
Ex.P.13 : Certified copy of lease deed dated 17.12.1976.
Ex.P.14 : General Power of Attorney dated 31.3.1998 Exs.P.15 to: Nine photographs. P.23 Ex.P.24 : Certified copy of lease deed dated 17.5.1976.
Ex.P.25 : Certified copy of lease deed dated 28.6.2017.
3. WITNESS EXAMINED FOR THE DEFENDANTS:
D.W.1 : Kannappa Narrain 20-07-2018
4.DOCUMENT MARKED ON BEHALF OF DEFENDANTS:
Ex.D.1 : General Power of Attorney dated 29.9.2016.
(MALLANAGOUDA) VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
Cont'd..
-30- O.S. No.3270/2014 Judgment pronounced in open Court vide separate judgment kept in file. The operative portion of the judgment reads thus -
ORDER Suit of the plaintiffs is partly decreed.
Defendants are directed to join the plaintiffs for constructing vertical walls in all the floors of the 'B' schedule property by removing the existing dividing walls in the portion of the property belonging to the plaintiffs by dividing the property of plaintiffs and defendants as per their title.
In the event of failure on the part of the defendants to join the plaintiffs for construction of the dividing walls, plaintiffs are at liberty to get the walls constructed by filing Execution Petition.
Suit of the plaintiffs for direction to construct separate life and staircase in the defendants' property and for damages of Rs.32,50,000/- and permanent injunction, is dismissed.
No order as to cost.
Cont'd..
-31- O.S. No.3270/2014
(MALLANAGOUDA)
VIII Additional City Civil and Sessions Judge, An&/- Bengaluru.
Cont'd..