Bangalore District Court
Savyasachi Projects vs Varun on 16 February, 2024
KABC010032752022
IN THE COURT OF THE XXXVII ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH-38), BENGALURU CITY.
:PRESENT:
Sri. Yashawanth Kumar, B.A.(Law), LL.B,
LI Addl. City Civil & Sessions Judge,
C/c XXXVII Addl. City Civil & Sessions Judge, (CCH-38)
Bengaluru City.
Dated this the 16th day of February 2024
O.S.NO. 813/2022
PLAINTIFF/S 1. SAVYASACHI PROJECTS
REGD OFFICE AT NO.501,
5TH FLOOR B WING,
MITTAL TOWERS, M G ROAD,
BENGALURU.
REP BY ITS MANAGING PARTNER,
VIJAYANATH HEGDE
2: PARAG MANIAR
S/O. G.A. MANIAR,
AGED ABOUT 37 YEARS,
R/AT. NO.19/1, 1ST MAIN ROAD
JAYAMAHAL EXTENSION
BENGALURU-46,
REP BY HIS GPA HOLDER
VIJAYANATH HEGDE
(By Sri. B.N.P., Advocate)
Versus
2 O.S.No. 813/2022
DEFENDANT/S 1. Sri. VARUN
S/O. SHYAMALA,
AGED ABOUT 35 YEARS,
2: Smt. SHYAMALA
W/O. K.N. MADHUSUDHAN,
AGED ABOUT 60 YEARS,
BOTH ARE R/AT NO.19/4,
1ST MAIN ROAD,
JAYAMAHAL EXTENSION
BENGALURU-46.
(D-1 & D-2 By Sri. G.M. Advocate)
Date of Institution of the suit 2.2.2022
Nature of suit Injunction suit
Date of commencement 15.4.2023
of recording of evidence.
Date on which judgment 16.2.2024
was pronounced.
Total Duration. Years Months Days
02 00 14
C/c. XXXVII ACCJ, BENGALURU
3 O.S.No. 813/2022
JUDGMENT
This is a suit filed by the plaintiffs for the relief of permanent injunction restraining the defendants from interfering with their possession and enjoyment of the suit schedule property particularly with western side of compound wall of suit schedule property.
2. The case of the plaintiffs in brief is as under:-
The property bearing No. 19/1, 1st Main road, Jayamahal extension, Bangalore-46 measuring 13,184 sq. ft. originally belonged to one G.A. Maniar. He had acquired the same through registered sale deed on 3.8.1972. He died intestate leaving behind his wife Smt. Saryu G. Maniar and son plaintiff No.2 Parag Maniar. At the time of execution of sale deed dt:
3.8.1972, there were no houses surrounding the property bearing No. 19/1. G.A. Maniar had constructed compound wall so as to demarcate the boundaries of his purchased property and to protect the same from encroachment. The said compound wall was in existence at the time of purchase of property by the plaintiff. The plaintiff No.1 is a partnership firm engaged in the business of real estate development. Plaintiff No.1 entered into a registered Joint Development 4 O.S.No. 813/2022 Agreement (JDA) dt: 3.7.2007 with the plaintiff No.2 and his mother Smt. Saryu G. Maniar to develop the said property by constructing high rise residential apartment. Smt. Saryu G. Maniar died leaving behind the plaintiff No.2 as the sole successor to the said property bearing No. 19/1. Subsequently in furtherance of said JDA, plaintiff No.1 purchased property bearing No. 19 measuring 2477.540 sq.ft through registered sale deed dt: 3.2.2010 and property bearing No. 19/33-2 measuring 2341.667 sq.ft through registered sale deed 8.4.2010. After the purchase the plaintiff No.1 got amalgamated properties bearing No. 19, 19/1 and 19/33-2 and property number of amalgamated properties continued as No.19/1 and total extent of property is 17,999 sq. ft. It is described as suit schedule property. The katha of suit schedule property stands in the joint name of plaintiffs No.1 and 2. The plaintiff No.1 obtained necessary permission from the BBMP and got plan approved for construction of apartment complex. Plaintiff No.1 started construction work in the year 2014 and it is in final finishing stage. The construction is in accordance with law without any deviation or violation and the BDA has issued occupancy certificate. Plaintiff No.1 has reconstructed 5 O.S.No. 813/2022 the compound wall surrounding the suit schedule property as there were minor cracks on it. The defendants are utter strangers to the suit schedule property, they are falsely claiming to be in unauthorized possession of the house property bearing No. C/19/4 said to be belonging to one K.L. Narayanasa company situated at the western side of the suit schedule property. The plaintiffs have learned that there are disputes among M/s. K. L. Narayanasa company and the defendant No.2 in respect of the property bearing No. C/19/4 and the court has already ordered and directed the defendant No.2 to vacate the said property. The defendants claiming to be the owner of property bearing No. C/19/4 have illegally removed two layers of bricks on the north west side of the compound wall belonging to the plaintiffs. When the defendants started to make a false claim, the plaintiff filed suit in O.S. No. 8299/2018 for the relief of permanent injunction. The court has passed an order of temporary injunction which is still operating and the suit is pending consideration. On 13.1.2022 the defendants along with some anti-social elements came near the western side compound wall of suit schedule property which was under reconstruction 6 O.S.No. 813/2022 and tried to obstruct the reconstruction work. The plaintiffs have resisted the same with great difficulty and lodged complaint to the jurisdictional police on 13.1.2022. The defendant No.2 being highly influential lady in the locality, she may again try to interfere with the possession of the plaintiff over the suit schedule property. The compound wall surrounded the suit schedule property is existing since from several decades. The western side of compound wall demarcates the property bearing No. C/10/4 and the property of the plaintiffs. The width of property of the plaintiff is 112 ft, the present width of the compound wall is 111.1 ft, it shows that plaintiffs have not encroached the adjacent property. The compound wall surrounding the suit property is within the plaintiffs property. The defendants have no right over the same. Defendants are making illegal claim over the suit schedule property. Hence, this suit.
3. The defendants No.1 and 2 have appeared and filed their written statement. They have contended that the suit is barred by principles of res-judicata in view of the suit in O.S. No. 8299/2018. The construction of super structure of plaintiffs is in total violation of building bye-laws. The 7 O.S.No. 813/2022 plaintiffs have taken undue advantage of interim injunction order passed by the court, they have constructed two units of toilets attached to the common wall, with windows opening into the passage of the defendants residence. This construction is in the open space on one of the sides and it is an obstruction. The construction is also in violation of provisions of National Building Code 2016. The open space on the western side of high rise building does not seem to be 6 meters, the construction of the toilet has reduced this width even more. Hence, causing obstruction for the easy access to the fire engine. No sanction plan has been sought for earth quake protection as mandated in the model bye laws 2017. The western compound wall is a common property to both plaintiffs and defendants. In the year 2018 the plaintiffs illegally demolished the common compound wall and made entire property of defendants open to all kinds of intrusion and trespassing. But the police have failed to take action. After demolition the plaintiffs have constructed toilets.
4. On the basis of the above pleadings of the parties, the following issues have been framed by my learned predecessor in office;
8 O.S.No. 813/2022
1. Whether the plaintiffs prove that, they are in actual, physical and lawful possession over the suit schedule property ?
2. Whether the plaintiffs prove that, the defendants are trying to make illegal interference in respect of suit schedule property ?
3. Whether the plaintiffs are entitled for the reliefs as sought for in the plaint ?
4. What order or decree?
5. In order to prove their case, the Managing partner of plaintiff No.1 is examined as PW 1 and got marked 24 documents at Ex.P1 to P24. On the other hand the defendant No.2 is examined as DW-1 and got marked documents at Ex. D-1 to D-16.
6. Heard the arguments of the learned counsel for the plaintiffs and the learned counsel for the defendants.
7. My answer to the above issues are as under:
Issue No.1 : In the Affirmative,
Issue No.2 : In the Affirmative,
Issue No.3 : In the Affirmative,
Issue No.4 : As per the final order,
for the following;
REASONS
8. Issue No.1: It is the contention of the plaintiffs that
plaintiff No.2 being the absolute owner of the property 9 O.S.No. 813/2022 bearing No. 19/1 measuring 13,184 sq. ft executed registered Joint Development Agreement along with his mother Smt. Saryu G. Maniar on 3.7.2007 in favour of the plaintiff No.1, which is a partnership firm engaged in the business of real estate development. Thereafter the plaintiff No.2 and his mother executed registered GPA on the same day in respect of the same property in favour of plaintiff No.1 to carry out the development work. Subsequently, the plaintiff No.1 purchased the property bearing No. 19 measuring 2479.540 sq. ft through registered sale deed dt: 3.2.2010 and another property bearing No. 19/33-2 measuring 2341.667 sq. ft through registered sale deed dt: 8.4.2010. Subsequently, those three properties were amalgamated and total extent of these 3 properties is 17,999 sq. ft. The property number of the amalgamated property continued as No.19/1.
9. In support of this contention, Pw-1 has produced the certified copy of the registered agreement dt: 3.7.2007 executed by the plaintiff No.2 and his mother in favour of plaintiff No.1 in respect of properties bearing No. 19/1 and 19/7 measuring 13.184 sq. ft for the development of the said property. Ex. P-2 is the certified copy of the registered GPA 10 O.S.No. 813/2022 executed by plaintiff No.2 and his mother in favour of plaintiff No.1 authorising plaintiff No.1 to develop the said property i.e., property bearing No. 19/1 and 19/7 measuring 13.184 sq. ft. The agreement holder and the GPA holder is named as M/s. Savyasachi Services, a proprietorship firm and the plaintiff is named as Savyasachi Projects, a partnership firm. It has not been disputed by the defendants that Ex. P-1 and P-2 have been executed in favour of the plaintiff firm. Further, plaintiff firm Savyasachi Projects and agreement holder/ GPA holder M/s. Savyasachi Services, a proprietorship firm are represented by same person i.e., Vijaynath Hegde.
10. Ex. P-3 is the certified copy of the registered sale deed dt: 3.2.2010 executed by Sri. Naveen Chander Aranha and Ms. Maureen J. Aranha in favour of plaintiff firm represented by its partners. It is in respect of property bearing New No.19 (Old No. 7/B) measuring 2470 sq ft. Ex.P-4 is the certified copy of the sale deed dt: 8.4.2010 executed by Nithin S shetty and Sapna N. Shetty in favour of plaintiff No.1 firm represented by its partners. It is in respect of the property bearing No. 19/33- 2(Old No. 7/C) measuring 2345 sq. ft. If the extent of all the above said 3 properties i.e., property No. 19/1 and 19/7, 11 O.S.No. 813/2022 property No. 19(old No. 7B) and property No. 19/33-2 (Old No. 7C) are added together it will come to 17,999 sq.ft.
11. The plaintiff has not produced document to show the amalgamation of those three properties. However, the katha extract and katha certificate as per Ex. P-5 and P-6 show that the extent of new property No. 19/1 is 17.999 sq. ft and the name of the owners is plaintiffs No.1 and 2. From those documents it can be made out that those 3 properties were amalgamated and new number has been given as 19/1. There is no change in the total extent of property and the owners of property. Ex.P-8 is the sanction letter issued by the BBMP for construction of building in property bearing No. 19/1 issued in favour of the plaintiffs. All these documents show that the suit schedule property i.e., property bearing No. 19/1 measuring 17.999 sq. ft belongs to plaintiffs.
12. On going through the boundaries stated in Ex. P-1, P- 2, P-3 and P-4, the western boundary of property is house property bearing No. C/19/4. The plaintiff has alleged that the defendants claiming to be the owners of property bearing No. C/19/4 trying to interfere with the possession of the plaintiffs over suit schedule property. The plaintiffs have contended 12 O.S.No. 813/2022 that they have completed the construction of building in the suit schedule property and they have put up building comprising of 14 floors by investing several crore of rupees. The plaintiffs have contended that the width of the suit schedule property is 112 sq. ft., and the actual width including compound wall is 111.1 ft, it clearly shows that the plaintiffs have not encroached the adjacent property. When the dispute is in respect of the western side of the suit schedule property, the plaintiff has to show the measurement of western boundary.
13. Ex.P-13 is the sanctioned plan of the plaintiffs property. It shows the width of the property is 112 ft. Ex. P- 16 is the sketch prepared by the Universal Surveys and Consultants, it shows that the width of the property is less than 112 feet. It is about 111ft 1 inch. There is nothing to show that the plaintiffs have constructed their building in violation of building bye-laws as contended in the written statement by the defendants. In the cross-examination of Dw-1, who is defendant No.2, she has admitted that she does not have any right, title and interest over the property No. 19/1 i.e., the suit schedule property. From the above evidence, it clearly appears 13 O.S.No. 813/2022 that the plaintiffs are in possession of the suit schedule property as described in the plaint schedule. Accordingly, I answer Issue No.1 in the Affirmative.
14. Issue No. 2:- The Dw-1 in her evidence admitted that the plaintiffs have filed complaint against her. However, she has denied that in the said complaint, it is alleged against her that she was trying to demolish the compound wall, which is existed on the western side of the suit property and also disturbing the work undertaken by the plaintiff. But Ex.P-15 produced by the plaintiffs show that the said complaint has been filed on the same allegation. Dw-1 has admitted that in the said case, the police have filed charge sheet against her. She has stated that she has challenged the complaint filed by the plaintiffs by filing Writ petition before the Hon'ble High Court of Karnataka in W.P. No. 31109/2019 and the said order has been marked as Ex. P-23. It shows that the said writ petition has been dismissed. Further, the evidence of Dw-1 shows that she has filed a complaint against plaintiffs to Karnataka Fire and Emergency department. Though she has denied that the said department has not taken any action against the plaintiffs, Ex.P-24 shows that the plaintiffs have 14 O.S.No. 813/2022 rectified the defect by extending width of Exit gate from 4.70 meters to 6 meters. Further, she has stated in her cross- examination that she does not remember whether she has filed complaint before Karnataka Pollution Board and the said board had taken any action against the plaintiffs. But she has not denied the suggestion. Hence, the contention of plaintiffs that she has filed complaint before the Karnataka Pollution Board can not be disbelieved.
15. Defendants contended that plaintiffs have constructed two units of toilets attached to the common wall, with windows opening into the passage of the defendants residence; the western compound wall is a common property to both plaintiffs and defendants; in the year 2018 the plaintiffs illegally demolished the common compound wall. But, there is no evidence to prove the same. The defendants failed to prove the contentions raised by them.
16. The plaintiffs have not admitted that property bearing No. C/19/4 towards the west of the suit schedule property belongs to the defendants. In the cross-examination of Dw-1, she has denied the suggestion that the property No. 19/4 is not in the name of the defendants. She has produced 15 O.S.No. 813/2022 the certified copy of the plaint in O.S. No. 27215/2015 marked as Ex.D-9 filed by the defendant no.1 herein and his sister. In the said suit for partition, plaint schedule item No. 8 is shown as property No.19/4 to which the eastern boundary is shown as Corporation Plot No. A. In her cross-examination Dw-1 has admitted that Plot No. A is the suit schedule property herein. Ex.D-8 is the sale deed of property bearing No. 19/4 regarding purchase of said property by M/s. K.L. Narayanasa company from A.M. Samiulla. But no document has been produced before the court to show that the property bearing No. 19/4 belongs to the defendants. Therefore, the defendants have not shown their right to resist the interference if any in property No. 19/4 or to establish the right in the compound wall situated separating the plaintiffs property and property No. 19/4.
17. In the above circumstances, it appears that the defendants are interfering with the possession of plaintiffs over the suit schedule property. Accordingly, I answer Issue No.2 in the Affirmative.
18. Issue No. 3:- Inview of the above discussion, the lawful possession of the plaintiffs over the suit schedule 16 O.S.No. 813/2022 property is to be protected from interference by the defendants. Accordingly, the plaintiff is entitled for the relief of permanent injunction as prayed in the suit. I answer Issue No.3 in the Affirmative.
19. Issue No. 4 : In view of my above discussion, I proceed to pass the following:
ORDER The suit of the plaintiffs is hereby decreed with costs.
The defendants No.1 and 2 or any one claiming through them are hereby restrained by way of permanent injunction from interfering with the possession of the plaintiffs over the suit schedule property or meddling with the western side of compound wall of the suit schedule property. Draw decree accordingly.
(Dictated to the Stenographer grade-I, transcribed and typed by her, corrected and then pronounced by me in open court, this the 16th Day of February 2024) (YASHAWANTH KUMAR) C/c. XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38) BENGALURU.17 O.S.No. 813/2022
Schedule All that piece and parcel forming a part of the property bearing No. 19/1, situated at 1st main road, Jayamahal Extension, Bangalore-46, measuring 17,999 Sq. ft and bounded on:
East by: Property bearing No.19/3, West by: Property bearing Plot No. B and house property bearing No. C/19/4, North by: 1st Main Road, Jayamahal Extension, South by: Private Road.
ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
PW1 - Vijayanath Hegde, Documents marked on behalf of the plaintiff/s:
Ex.P-1 Certified copy of the registered agreement dt:
3.7.2007 Ex.P-2 Certified copy of the registered GPA dt:
5.7.2007 Ex. P-3 Certified copy of the registered sale deed dt:
3.2.2010 Ex.P-4 Certified copy of the registered sale deed dt:
8.4.2010
Ex. P-5 Certified copy of t Katha extract
Ex. P-6 Certified copy of Katha certificate
Ex. P-7 Certified copy of property tax receipt
Ex. P-8 Certified copy of the consent letter
Ex. P-9 Certified copy of plaint in O.S. No. 8299/2018
18 O.S.No. 813/2022
Ex.P-10 Certified copy of the order sheet in O.S. No.
8299/2018
Ex.P-11 Certified copy of the loan sanction letter
Ex.P-12 Certified copy of the occupancy certificate
dated 01.07.2019.
Ex.P-13 Attested copy of site and section plan.
Ex.P-14 Attested copy of sanction building plan.
Ex.P-15 Police acknowledgement dated 23.02.2022.
Ex.P-16 Certified copy of site plan.
Ex.P-17 to Four photographs of suit property
Ex.P-20 produced at the time of filing the suit.
Ex.P-21 CD in respect of Ex.P-17to Ex.P-20.
Ex.P-22 u/Sec.65(B) Certificate in respect of Ex.P.17
to Ex.P.21.
Ex. P-23 C/c of Order W.P. No. 31109/2019
Ex. P-24 Letter
List of witnesses examined on behalf of the defendants/s:
DW-1 - Shamala Khoday.
Documents marked on behalf of the defendants/s:
Ex. D-1 Letter
Ex. D-1(a) Signature.
Ex. D-2 Photos
Ex. D-3 Photos
Ex. D-4 Photos
Ex. D-5 Photographs
Ex. D-6 Photographs
Ex. D-7 Photographs
Ex. D-8 Certified copy of the registered sale deed dt:
29.1.1993
19 O.S.No. 813/2022
Ex. D-9 Certified copy of the plaint in O.S. 27215/2011
Ex.D-10 Certified copy of the certificate of marriage
Ex.D-11 Certified copy of the decree in O.S.
No.8941/2014 along with memorandum of
settlement
Ex. D-12 Two photographs in one sheet
Ex. D-13 Three photographs in one sheet
Ex. D-14 Two photographs in one sheet
Ex. D-15 Receipt in respect of internet and color xerox Ex. D-16 Sec. 65-B certificate in respect of Ex. D-12 to 14.
(YASHAWANTH KUMAR) C/c. XXXVII ADDL. CITY CIVIL JUDGE, (CCH-38) BENGALURU.