Bangalore District Court
O.S./2847/2009 on 7 February, 2020
THE COURT OF XXXIX ADDITIONAL CITY CIVIL JUDGE,
[CCH-40], BANGALORE CITY.
Dated on this the 7th day of February, 2020
-: Present :-
Sri. Kadarsab, B.A., LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
ORIGINAL SUIT NO.2847/2009
PLAINTIFF :
D.Prabhakar S/o. Late D.Shamarao,
58 Years, R/o.No.191, 3rd Model House
Street, Basavanagudi,
Bengaluru - 560 004.
(By Sri.Y.V.Parthasarathy, Advocate)
/ VERSUS /
DEFENDANTS :
1. K.M.Vijayasimha, Major, Father's name
not known to plaintiff.
2. L.Gururaja Rao S/o. Late L.Narasimha
Murthy. (Abated)
3. Smt.A.G.Sunanda W/o.L.Gururaja Rao,
58 Years.
4. S.Srikanth S/o.Seshadri.H.S., 34 Years.
5. Ananth Kulkarni, Major, Father's name
not known to plaintiff.
6. Smt. C. M. Gayatri D/o. C. M. Madhava
Rao, 61 Years.
7. Ms.G.Shilpa D/o.C.M.Gayathri, 29 Years.
8. J.Sameera Simha S/o.K.M.Jayasimha,
40 Years.
9. Manjur Sheshadri.S.L., 33 Years,
S/o.S.Lakshminarayana.
10. Smt.Shylaja Sheshadri W/o.Manju
Sheshadri, 31 Years.
11. B.S.Shankar S/o.A.N.Subramanyam,
34 Years.
12. Smt.Lavanya Lakshmi, 33 Years,
W/o.B.S.Shankar.
Defendants No.1 to 12 are
R/o.Aparttments in Vasista Apartment
Building, No.50, khata No.666,
Uttarahalli Main Road, Uttarahalli,
Bengaluru- 560 061.
13. M/s. Vasista Apartment Owner's
Association (Regd), No.50, Khata
No.666, Uttarahalli Main Road,
Uttarahalli, Bengaluru - 560 061.
Represented by its Secretary
Smt.C.M.Gayatri.
(Sri.S.S.M., Advocate for defendants No.1,
3, 6 to 13.
Case against Defendant No.2 abated.
Defendant No.5 - ex-parte
Defendant No.4 by Sri.M.S.M., Advocate)
Date of Institution of the
: 22.04.2009.
suit
Suit for declaration,
Nature of suit : permanent & Mandatory
injunctions
Date of commencement of : 23.11.2013
evidence
Date on which the : 07.02.2020
judgment is pronounced
Years Months Days
Duration taken for disposal :
10 08 14
***
JUDGMENT
That, the plaintiff has filed the suit for declaration that the defendants have no share, right, title or interest in the entire ground floor and terrace of the Vasista Apartment constructed on Property No.50, Uttarahalli, Bangalore South Taluk, further relief of declaration that the agreement dated 16.3.2008 entered between defendant No.13 and BSNL is illegal and void, for permanent injunction restraining the defendants, their agents, servants and all those who claim through or under them by way of permanent injunction from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff and for the relief of mandatory injunction directing the defendants to vacate and deliver vacant possession of the entire ground floor of the Vasista Apartment to the plaintiff.
2. The case of the plaintiff in brief is as under :
Initially plaintiff had filed the suit for the relief of permanent injunction restraining the defendants and any person claiming under them from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. Subsequently amendment application has been filed and said application came to be dismissed on 16.9.2013. Against the said order, the plaintiff preferred writ petition No.12021/2014 before the Hon'ble High Court of Karnataka, same was allowed on 30.7.2015 and the reliefs of declarations and mandatory injunction have been incorporated.
3. It is averred in the plaint that the plaintiff was the absolute owner of Site bearing No.50, measuring East - West 87 + 32/2 Feet and North - South 70+100/2 Feet, Khatha No.666, carved in Old Sy.No.12/1 of the then Uttarahalli Village, Bangalore South Taluk. The plaintiff purchased the said site from one M.Vijayakumar on 11.7.2002. After purchase of the said site, khatha transferred in the name of plaintiff. That, the plaintiff with an intention to put up construction of a residential apartment building comprising ground, first and second floors with 3 apartments in each floor on the said site obtained a sanctioned plan and licence from the then Uttarahalli Gram Panchayath on 25.1.2003. Pursuant to the said sanctioned plan the plaintiff constructed 6 apartments in the first and second floors. However he constructed a hall in the ground floor having mosaic flooring and a toilet therein. The ground floor construction was completed in the middle of 2003. The plaintiff let out the entire ground floor to M/s.Prism Books Pvt. Ltd., Bengaluru for the purpose of a godown on monthly rent of Rs.10,000/- with effect from 1st September, 2003. The said M/s.Prism Books Pvt. Ltd., occupied the entire ground floor building and were sending rents through cheques after TDS to the plaintiff.
4. Plaintiff further pleaded that he wanted to put up third floor with 3 residential apartment therein and accordingly he obtained sanctioned plan for construction of third floor over the said building as per sanctioned plan and licence bearing No.LP No.25 dated 20.12.2003. Pursuant to the said sanctioned plan, the plaintiff constructed third floor consisting of 3 residential apartments, accordingly the Vasista Apartments building comprises 9 apartments i.e., 3 apartments in each floor and a godown in the ground floor. That, the said M/s.Prism Books Pvt. Ltd., were in possession and enjoyment of the ground floor of the building as a tenant of the plaintiff since September 2003. The plaintiff has been enjoying overdraft facilities to a limit of Rs.15 Lakhs from Central Bank of India, Sarakki Layout Branch, Bengaluru. As security he has mortgaged the ground floor of the Vasista Apartment building together with the undivided area of 600 Sq.Ft. of land owned by him in favour of said Central Bank of India by way of deposit of title deeds. Apart from this, the plaintiff was also the owner of a triangular area measuring about 1,000 Sq.Ft. lying towards South-West corner of the Site No.50. The plaintiff added the said triangular area to the Site No.50 and accordingly the area of Site No.50 became 6000 Sq.Ft.
5. The plaintiff further pleaded that, after construction of the building he has sold all the 9 apartments in the said 3 floors with undivided share in the land under 9 registered sale deeds i.e., apartment No.1 in first floor having super built-up area of 800 Sq.Ft. together with undivided area of 600 Sq.Ft. in the site area in favour of defendant No.1 on 23.7.2004, apartment No.2 in first floor having super built-up area of 1200 Sq.Ft. together with undivided area of 600 Sq.Ft. in the site area in favour of Latha on 5.5.2004, apartment No.3 in first floor having super built-up area of 800 Sq.Ft. together with undivided area of 600 Sq.Ft. in the site area in favour of defendants No.2 and 3 on 28.6.2004, apartment No.4 in second floor having super built-up area of 800 Sq.Ft. together with undivided area of 600 Sq.Ft. in the site area in favour of defendant No.4 on 28.6.2004, apartment No.5 in second floor having super built-up area of 800 Sq.Ft. together with undivided area of 600 Sq.Ft. in the site area in favour of defendant No.5 on 21.3.2005, apartment No.6 in second floor having super built-up area of 1000 Sq.Ft. together with undivided area of 600 Sq.Ft. in the site area in favour of defendants No.6 and 7 on 19.8.2004, apartment No.7 in third floor having super built-up area of 800 Sq.Ft. together with undivided area of 600 Sq.Ft. in the site area in favour of defendant No.8 on 28.6.2004, apartment No.8 in third floor having super built- up area of 1500 Sq.Ft. together with undivided area of 600 Sq.Ft. in the site area in favour of defendants No.9 and 10 on 23.3.2005, apartment No.9 in third floor having super built- up area of 1000 Sq.Ft. together with undivided area of 600 Sq.Ft. in the site area in favour of defendants No.11 and 12 on 9.3.2007. Out of the total site area of 6000 Sq.Ft. the plaintiff sold an area of 5,400 Sq.Ft. and retained 600 Sq.Ft. together with the entire ground floor for himself. That, at the time of the sale of respective apartments, the purchasers were allotted car parking space in the open area around the building and inside Site No.50. That, the ground floor of the building was already in occupation of M/s.Prism Books Pvt. Ltd., as the tenant of the plaintiff as on the date of sale of the apartments to the defendants No.1 to 4 and Smt.Latha. Accordingly, the defendants have been using the open car parking space allotted to them. That, in the month of September 2007 the defendants No.1 to 12 all of a sudden without giving any notice to the plaintiff or to Smt.Latha i.e., owner of apartment No.2 in the first floor of Vasista Apartment building got registered an association by name Vasista Apartment i.e., defendant No.13 before the Office of Sub-Registrar, Basavanagudi, Bengaluru. The plaintiff came to know about registration of the above said society on 12.9.2007 when defendant No.13 demanded the plaintiff to provide roofed car parking area in the ground floor of the said apartment building. The defendant No.13 demanded the roofed car parking area through the letters dated 12.9.2007 and 20.9.2007 and also claimed the maintenance charges. After receiving the said letters, the plaintiff replied to the said letters. The plaintiff never executed sale deeds with covered car parking area and as on the date of sale deeds in favour of defendants No.1 to 12, ground floor of the apartment building was let out and in occupation of the said M/s.Prism Books Pvt. Ltd., and hence, the question of providing covered car parking area does not arise. The defendants No.1 to 12 have formed the association without following the prescribed law and even without giving the notice to the plaintiff.
6. The plaintiff further pleaded that, the said M/s.Prism Books Pvt. Ltd., vacated the ground floor on 30.11.2008. The defendants No.1 to 12 who came to know about the same, started interfering with the plaintiff's possession of the ground floor of the said building. When the plaintiff objected to their interference, the defendants went away. Again on 18.4.2009 when the plaintiff was sitting in the ground floor of the apartment building the defendants came and tried to interfere with plaintiff's possession over the suit schedule property. The plaintiff again prevented the defendants from entering into the suit schedule property. The act of the defendant is high handed and illegal one.
7. The plaintiff further averred that he has not sold the apartments with covered car parking area. The sale deeds executed in favour of defendants No.1 to 12 do not refer to the word 'covered car parking'. Even then the defendants are trying to illegally grab the plaintiff's property. The defendants after filing the suit trespassed into the ground floor of the building, removed the belongings of the plaintiff and have taken possession of the same illegally on 29.5.2009. On 30.5.2009 when the plaintiff came to know about the same, he was prevented by the defendants from entering into the suit schedule property. However, the defendants forcibly entered into the suit schedule property and started to park their cars in the ground floor of the apartment building. The defendants have forcefully taken the possession of the ground floor. The act of the defendants is high handed and illegal.
8. The terrace portion of the Vasista Apartment continued to be owned and possessed by the plaintiff and had entered into an agreement with BSNL for installation and running a mobile equipment tower in the terrace area and accordingly BSNL had erected a mobile equipment tower and was running the same. The said BSNL authority paying the rents to the plaintiff. All the defendants clandestinely and in order to cause loss to the plaintiff approached the BSNL, misrepresented the BSNL, got a fresh agreement entered into between defendant No.13 and BSNL and are receiving the rents. That, all the acts of the defendants clearly establish malafideness of the defendants. The defendants are trying to grab the property illegally. Hence, he prays for decreeing the suit.
9. In response to suit summons, the defendants appeared through their counsel and defendants No.4 and 13 filed their written statement. Remaining defendants have filed Memo stating that they adopt the written statement filed by defendant No.13. That, during the pendency of the suit, defendant No.2 died and as per Order on I.A.Nos.1 to 3 dated 14.1.2006 suit against defendant No.2 dismissed as abated.
10. The defendants contended that the suit of the plaintiff is not maintainable. The plaintiff is making false claim over the suit schedule property. Defendant No.4 contended that the entire ground floor of the building was not let out to the M/s.Prism Books Pvt. Ltd., and the ground floor of the Vasista Apartment is not the property of the plaintiff. The ground floor area is meant for car parking and it is the common property of all the apartment owners of Vasista Apartment. The plaintiff does not own any apartment in the Vasista Apartment. The plaintiff has not retained the ownership of ground floor and terrace. The defendants No.1 to 12 have purchased the apartments from plaintiff and they are in possession of their respective apartments. Except the ground floor there is no other area where the apartment purchasers can park their car. The plaintiff has sold the entire property to the defendants and hence, he is not at all owner of any portion of the Vasista Apartment building. The plaintiff is claiming over the suit schedule property by creating the documents. The defendants are using the ground floor portion of the building for the purpose of parking the car. The plaintiff is well aware about this fact, even then he has filed the present suit. The plaintiff himself agreed to provide roofed car parking area to all the apartment owners. The defendants have denied the alleged encroachment and interference. The plaintiff has filed the present suit only with an intention to harass the defendants.
11. The defendants have registered the association as per law under the name and style Vasista Apartment. The plaintiff falsely claiming that the Site No.50 is measuring 6000 Sq.Ft. The space left around the building is not for car parking. The open space left around the building is for the ingress and egress as well as for the free flow of air and light as per the BBMP bye-laws. The plaintiff is trying to twist the facts to suit his convenience. The plaintiff prepared and produced the sketch in order to suit his claim. That, the defendants are parking their cars in the ground floor by exercising their legal right over the area so purchased by them in the ground floor which is earmarked for car parking. The defendant No.13 further contended that the plaintiff has no property of his own in the entire building much less the schedule property. The entire suit schedule property belongs to the defendants as they have paid for it.
12. The defendant further contended that the M/s.Prism Books Pvt. Ltd., was not in possession of entire ground floor, it was in possession of portion of ground floor. Besides, as all the apartment owners were not having the cars at the time of purchasing the apartment, they were also keeping quiet as there was no necessity for them during that time. When all the apartment owners purchased their cars they started demanding the plaintiff to provide the car parking area in the ground floor of the building by getting the tenant vacated from the portion of the ground floor. The plaintiff could not swallow the real and actual requirements of the defendants No.1 to 12 in requesting the plaintiff to provide the car parking area in the ground floor as he will loose the rents. Hence, the plaintiff went on postponing the request of all the defendants to provide the car parking area. When the request and demands of the defendants have failed, the defendants have sent a letter on 12.9.2007 demanding the car parking area in the ground floor. On receipt of the said letter the plaintiff has sent the reply on 26.9.2007 in which he clearly admitted that he has provided car parking space to each of the apartment owners in the ground floor of the apartment as per the sale deeds and also admitted about providing car parking area in the ground floor. Though the plaintiff admitted for providing the car parking area in the ground floor, but has failed to provide the same. Therefore, once again defendant No.13 sent a legal notice on 3.10.2007, same was served upon the plaintiff, but failed to send the reply. Once again the defendants have issued legal notice on 5.11.2007 to the plaintiff, same was served on the plaintiff and he replied on 19.11.2007 wherein he denied the claim of the defendants and contended that he has not at all sold the car parking area in the ground floor and further contended that the parking area with drive way space in the ground floor has already been provided for. That, the plaintiff has failed to comply his promise, therefore the defendants have made a request to the BBMP and BBMP issued notice to the plaintiff for providing car parking area. On issuance of notice by the BBMP, the plaintiff has handed over the remaining portion of the ground floor area to the apartment owners on 1.12.2008 to make use the same for parking the cars in the entire ground floor. After repairing and modification, the defendants continued to be in possession of the entire ground floor from 1.12.2008. Subsequently, on 14.12.2008 the defendants have performed the Vastu Pooja and Satyanarayana Pooja in the ground floor by inviting many people of the locality and the member of Legislative Assembly.
13. Defendant No.13 further contended that the plaintiff who has built one more apartment in Site No.57/58 which is situated at the backside of Vasista Apartments, tried to lay the pipes to take BWSSB water connection to the other building through Vasista Apartment premises by trespassing the area belongs to Vasista Apartments. When the Vasista Apartment owners objected for the illegal laying of water pipe in the land belongs to Vasista Apartment, the plaintiff has quarreled with them by using filthy language and asserts that the land in which he is intending to lay the water pipe belongs to him, etc., As such, the apartment owners have filed a complaint to the Executive Engineer, BWWSB, Jayanagar on 26.5.2007. The BWSSB has taken immediate action and directed the plaintiff to produce all the necessary documents in question. Sensing the problems that will arise in future, the plaintiff has dropped his illegal claim and has laid the water pipe on the other side. Thus, he has dropped his alleged claim over the entire ground floor and the passage around it. That, the plaintiff had permitted the BSNL for housing of mobile telephone equipments on the roof space for the installation of mobile equipment tower of height 15 meters to be mounted on the existing 4 pillars of the roof top for the purpose of mounting the GSM antenna and space for generator cabin for housing the 15 KVA DG set in the open passage of the premises No.50, Uttarahalli, Bengaluru and he was collecting the rents from BSNL. After the formation of the association, the defendant No.13 has requested the plaintiff on 12.9.2007 to transfer to the BSNL tower ownership in favour of the defendant No.13. The defendant No.13 also requested the BSNL to stop payment of rents to the plaintiff. In the meantime, the plaintiff had brought pressure on BSNL to pay the rent to him only contending that he is the owner of the land, etc., After verification of all the records and getting the legal opinion that BSNL has made it clear that the plaintiff is not holding valid title and therefore not entitled to receive the rents. The BSNL has also came to know from the records that the association is the owner. After discussing the matter with the BSNL, the association has agreed to lease and the BSNL has agreed to take the land and roof on lease and finally the lease agreement was entered into on 16.3.2008 between the association and BSNL and the BSNL is paying the rents to the association. In spite of all these, the plaintiff has sent the legal notice to BSNL on 6.3.2008 to vacate and hand over the possession to the plaintiff. Apart from this, the plaintiff had written a letter on 29.3.2008 to BSNL not to deal with defendant No.13. The plaintiff has no right, title or interest over the Vasista Apartment, even then he is making false claim over the same. Hence, they prayed for dismissal of suit.
14. On the basis of the pleadings and documents produced by the parties, my predecessors in Office have framed the issues and additional issues as follows :
1) Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property on the date of instituting the suit ?
2) Whether the plaintiff proves that the
defendants are illegally attempting to
interfere with his possession over the suit schedule property as stated in the plaint ?
3) Whether the plaintiffs are entitled for the relief of permanent injunction as prayed ?
4) What order or decree ?
ADDITIONAL ISSUES FRAMED ON 30.03.2016
1) Whether the plaintiff proves that after
filing of the suit the defendants
trespassed into the ground-floor of the
building and taken possession of the
same on 29.5.2009 ?
2) Whether the plaintiff proves that he is
entitled for the vacant possession of the
entire ground-floor of Vasista
Apartments building ?
3) Whether plaintiff proves that the
defendants have no right over the entire
ground-floor and terrace of Vasista
Apartments building constructed on the
property bearing No.50, Uttarahalli,
Bangalore South ?
4) Whether the plaintiff proves that
defendant has entered into an
agreement with the BSNL on 16.3.2008
as alleged in the plaint ?
5) Whether the plaintiff proves that alleged agreement dated 16.3.2008 entered into by the 13th defendant with the BSNL is illegal and void ?
6) Whether the court fee paid on the additional relief is insufficient ?
15. In order to substantiate his claim, the plaintiff himself examined as P.W.1 and got marked the documents Exs.P.1 and P.28. In order to establish their defence, the President of defendant No.13 has been examined as D.W.1, the general power of attorney holder of defendant No.4 has been examined as D.W.2, defendants No.7 and 8 have been examined as D.Ws 3 and 4 and general power of attorney holder of defendants No.9 and 10 has been examined as D.W.5 and got marked the documents as per Exs.D.1 to D.29.
16. That, during the pendency of the suit defendant No.2 died and the plaintiff filed I.A.Nos.1 to 3 for bringing the LRs, for condonation of delay and for setting aside the order of abatement. The said applications came to be dismissed on 14.1.2016 and the suit against defendant No.2 has been dismissed as abated.
17. Heard the arguments and perused the written arguments filed by both the parties.
18. My findings on the above issues are as follows:-
Issue No.1 : In the negative.
Issue No.2 : In the negative.
Issue No.3 : In the negative.
Addl.Issue No.1 : In the negative.
Addl.Issue No.2 : In the negative.
Addl.Issue No.3 : In the negative.
Addl.Issue No.4 : In the affirmative.
Addl.Issue No.5 : In the negative.
Addl.Issue No.6 : Court fee paid is
insufficient.
Issue No.4 : As per final order, for the
following:
REASONS
19. Issues No.1 and 2 and Additional Issue
No.1 :- These issues are interlinked with each other.
Therefore, in order to avoid repetition of facts and evidence, they are taken up together for discussion.
20. That, the burden casted upon the plaintiff to prove that he is in possession of suit schedule property as on the date of suit and the alleged interference by the defendants.
21. On perusal of the entire materials available on record, it is admitted that the plaintiff has purchased the Site No.50 of Uttarahalli and has constructed 9 apartments in the said site and has sold to the defendants No.1 to 12. It is also admitted fact that the defendants No.1 to 12 are in possession of their respective apartments. The only dispute is with regards to the ownership of ground floor area and terrace area in Vasista Apartment.
22. That, the plaintiff has initially filed the suit for the relief of permanent injunction restraining the defendants from interfering with his peaceful possession and enjoyment of the suit schedule property. Subsequently, amendment has been carried out and the reliefs of declarations and mandatory injunction have been incorporated. The plaintiff claims that he is in possession of suit schedule property as on the date of suit. In order to establish his claim, plaintiff himself examined as P.W.1 and got marked the documents Exs.P.1 to P.28. The examination-in-chief of P.W.1 is nothing but replica of plaint averments. P.W.1 in his examination-in- chief deposed that as on the date of suit he is the owner in possession of suit schedule property, the defendants are interfering with his peaceful possession and enjoyment over the suit schedule property. Though the plaintiff claims that he is the owner in possession of entire ground floor and terrace area, but in his cross-examination at page No.22 he clearly admitted that, "It is true that, as per my chief-affidavit shown to me I have given evidence on 23.11.2013. It is true that in the said chief-affidavit I have stated that I am in possession of suit property. It is true that, on 27.3.2012 I have filed an application for amendment of plaint. It is true that, in the said application I have stated that 29.3.2009 and 30.3.2009 the defendants have taken possession of the suit schedule property illegally". P.W.1 in his cross-examination at page No.23 he clearly admitted that, "It is true that on 22.4.2009 when I filed this suit the fact that the defendants had taken possession of the suit schedule property on 29.3.2009 and 30.3.2009 as alleged by me was within my knowledge", which clearly goes to show that as on the date of suit the plaintiff is not in possession of suit schedule property, even then he has filed the present suit by suppressing the material facts. It is well settled law that, one who approaches the Court must be with clean hands. P.W.1 unequivocally admitted that as on the date of suit he is not in possession of the suit schedule property, even then he has filed the present suit by contending that he is in possession of the suit schedule property. On perusal of I.A. filed on 27.3.2012 for amendment of plaint, it clearly reveals that in which it is mentioned that, "On 29.3.2009 and 30.3.2009 the defendants have taken possession of the suit schedule property", which clearly goes to show that plaintiff was not in possession of the suit schedule property. The plaintiff knowing fully well about the fact that he is not in possession of the suit schedule property, even then he has filed the present suit by suppressing the material facts only with an intention to get the relief at the hands of the Court.
23. In order to establish their defence, the President of defendant No.13 has been examined as D.W.1, the general power of attorney holder of defendant No.4 has been examined as D.W.2, defendants No.7 and 8 have been examined as D.Ws 3 and 4 and general power of attorney holder of defendants No.9 and 10 has been examined as D.W.5 and got marked the documents as per Exs.D.1 to D.29. D.Ws.1 to 5 clearly deposed that the defendants No.1 to 12 have purchased the apartments in the Vasista Apartment building from the plaintiff as per Exs.D.1, D.3 to D.10 - Sale Deeds. Since then they are in possession of their respective apartments. The plaintiff agreed to provide car parking area in the ground floor. In the beginning plaintiff had provided a portion of ground floor for parking the cars owned by the apartment owners and other portion was let out earlier by him to M/s.Prism Books Pvt. Ltd., as all the apartment owners were not having the cars at the time of purchasing the apartments, the owners when purchased the cars, they started demanding the plaintiff to provide car parking area in the ground floor by vacating the M/s.Prism Books Pvt. Ltd., The plaintiff has postponed the requests of the defendants. Therefore, defendants have sent a letter dated 12.9.2007 to the plaintiff requesting him to provide car parking area in the ground floor. Same was duly served upon the plaintiff. After receipt of the same, the plaintiff sent a reply on 26.9.2007 through his counsel as per Ex.D.17, in which he clearly admitted that he has provided car parking space to each of the apartment owners in the ground floor of the apartment. When the plaintiff has failed to provide car parking area to defendants, the defendants have sent legal notice on 3.11.2007. But, the plaintiff has failed to comply his promise. Therefore, the defendants once again issued notice on 5.11.2007 as per Ex.D.23, for which the plaintiff sent a reply on 19.11.2007 as per Ex.D.24 in which also the plaintiff admitted that he has provided car parking space in the ground floor to all the owners. Since the plaintiff has not taken any action, the defendants have sent a notice to BBMP to take action against the plaintiff. Thereafter a reminder was sent on 13.2.2008 as per Ex.D.26. It is then the plaintiff got M/s.Prism Books Pvt. Ltd., vacated and handed over the portion of the ground floor to the apartment owners for the purpose of car parking in the entire area. Since then the defendants are in possession of the entire suit schedule property. The plaintiff is no way concerned with the suit schedule property, even then he has filed the present suit only with an intention to engulf the property. The counsel for the plaintiff cross-examined D.Ws.1 to 5 in full length and made a specific suggestion that the plaintiff has agreed to provide car parking areas in the open space, but the witnesses denied the same.
24. That, the plaintiff has filed the suit on 22.4.2009 for the relief of permanent injunction against the defendants. In the plaint at para No.17 he pleaded that, "On Saturday 18th April, 2009 when he was sitting in the ground floor of the apartment building, the defendants came to him and tried to interfere with his possession of the ground floor of the apartment building (suit schedule property) by trying to park their vehicle inside the ground floor of the said building owned and possessed by the plaintiff". The plaintiff has filed his affidavit in lieu of examination-in-chief on 23.11.2013 and he reiterated the plaint averments. Subsequently plaint has been amended and on 17.6.2016 plaintiff filed the additional affidavit by way of further evidence in chief of P.W.1, in which at para No.5 he sworn that, "The defendants illegally trespassed into the ground floor of the Vasista Apartment building which was vacant and where I had stored certain civil contract materials on 29.5.2009 by breaking open the locks put up by me on the premises and removed my belongings stored therein, I came to know of this on 30.5.2009". Though P.W.1 deposed in his examination-in- chief that, "The defendants have trespassed into the suit schedule property on 29.5.2009, but in his cross-examination at page No.23 he clearly admitted that, "It is true that on 22.4.2009 when I filed this suit, the fact that the defendants had taken possession of suit schedule property on 29.3.2009 and 30.3.2009 as alleged by me with my knowledge", which clearly goes to show that the plaintiff is not in possession of the suit schedule property and there is no cause of action to file the suit.
25. That, on perusal of Ex.P.2 - Sketch, it is prepared by plaintiff himself. The area shown in Ex.P.2 - sketch is not the space available for parking the cars. It is the common passage left for the ingress and egress of the apartment owners. If the cars are parked in the said area, it will cause inconvenience to the inmates of the apartment. Even P.W.1 during his cross-examination at page No.18 dated 27.10.2016 clearly admitted that, "It is true to suggest that as per Ex.P.2 in the eastern corner of the suit schedule site, there is staircase which leads to building and abutting to staircase there is lift area. It is true to suggest that, I left set-back as per Ex.P.2 is only 13 feet." The plaintiff is intending to convert the said set-back area for car parking. As per BBMP Building Bye-laws and the Karnataka Apartment Ownership Act, 1972 and the rules framed thereunder, the common area cannot be used for the car parking. Hence, the contention of the plaintiff is not acceptable one.
26. In order to establish his possession over the suit schedule property, plaintiff much relied upon Ex.P.4 - Tax Paid Receipts, Ex.P.6 - Khatha Certificate. On perusal of Exs.P.4 and P.6, the property mentioned in said documents are not similar one. The plaintiff relied on one more document i.e., Exs.P.9 to P.20 - Photographs and contended that the plaintiff has provided car parking slots. Though the plaintiff much relied upon Exs.P.9 to 20 - photographs, but failed to establish the fact that who and when snapped the said photos. It is well settled law that, mere producing the photographs will not establish the right of the plaintiff over the suit schedule property, it has to be pleaded and proved by cogent evidence.
27. The plaintiff claimed ownership over entire ground floor area, but on perusal of the plaint schedule he has not mentioned the boundaries in the plaint schedule. In order to ascertain the property mentioning of boundaries is quite essential.
28. That, by considering all the materials available on record, it clearly goes to show that the plaintiff is not in possession of suit schedule property as on the date of suit. The plaintiff has filed the present suit by suppressing the material facts only with an intention to engulf the property. As discussed supra, the plaintiff is not in possession of the suit schedule property as on the date of suit, the question of alleged interference does not arise at all. Accordingly, I answer Issues No.1 and 2 and Additional Issue No.1 in the negative.
29. Additional Issues No.2 and 3 : - The plaintiff claims that he is the absolute owner in possession of entire ground floor and terrace of Vasista Apartment building constructed on the property bearing No.50, Uttarahalli, Bangalore South Taluk. As discussed on Issues No.1 and 2 and Additional Issue No.1, it is admitted fact that the plaintiff was the owner of Site No.50, Uttarahalli, Bangalore South Taluk and he has constructed 9 apartments in the said site. It is admitted that the plaintiff has sold the apartments constructed in the Site No.50 to the defendants No.1 to 12 as per Exs.D.1, 3 to 10 - Sale Deeds. It is also admitted fact that the defendants No.1 to 12 are in possession of their respective apartments. It is the only dispute as regards to the ownership terrace area and ground floor area. The plaintiff claims that he has not at all sold the ground floor area and terrace area to the defendants. Per contra, defendants claim that the plaintiff has sold the entire Vasista Apartment building in favour of defendants No.1 to 12 and one Latha and the plaintiff has agreed to provide car parking area in the ground floor area, but the plaintiff claims that he has agreed the provide car parking area in the open space and accordingly 9 slots have been made in the open space area and the defendants are parking their respective vehicle in the said slots.
30. The plaintiff claims that he sold 9 apartments to the defendants No.1 to 12 along with car parking area. The said car parking area is an open space. Though P.W.1 deposed that he has sold the open space car parking area to the defendants No.1 to 12, but in his cross-examination at page No.15 he clearly deposed that, "I sold Flat No.4 in favour of defendant No.4. The contents of said sale deed are true. .... Now I see the zerox copy of the sale deed dated 28.6.2004 executed in favour of defendant No.4 by me. It is true that in this sale deed 'C' schedule property is described as Flat No.4, 2nd Floor Building known as Vasista constructed on the 'A' schedule property with super-built-up area 800 Sq.Ft. with car parking space one with RCC roofing, mosaic tiles, steel window, jungle wood along with sanitary water and electricity and lift and staircase facilities." Ex.D.1 is the certified copy of the sale deed pertains to defendant No.4. P.W.1 further deposed that, "RCC roofing, mosaic tiles etc., are not related to car parking area." But, on perusal of Ex.D.1 there is no separate description of the car parking area. Hence, the evidence of P.W.1 is contrary to Ex.D.1 - Sale deed. P.W.1 being the author and signatory of the document deposing contrary to the said document, which is not permissible under law. P.W.1 himself in his cross- examination at page No.16 clearly admitted that, "It is true that along with Ex.D.1 any other document or sketch showing the parking area were not registered", which clearly goes to show that sale deed is the only document in order to ascertain the car parking area.
31. P.W.1 in his cross-examination at page No.17 at one stretch deposed that, "Suit schedule property does not come under the limits of BBMP", but another stretch he admits that, "Suit schedule property comes within the jurisdiction of BBMP." It is well settled law that, no one is permitted to approbate and reprobate.
32. As discussed supra P.W.1 claims that open space car parking area has been provided to the defendants No.1 to 12. But, in his cross-examination at page No.18 he clearly admitted that, "It is true to suggest that as per Ex.P.2, in the eastern corner of suit schedule site there is staircase which leads to the building and abutting the staircase, there is lift area. It is true to suggest that I have left set-back as per Ex.P.2 is only 13 Feet. ..... It is true to suggest that as per rules, area is to be left for movement of the fire vehicles in case of any fire mischief." That, as per Section 3(f)(2) of the Karnataka Apartment Ownership Act, 1972, "There should be sufficient space for movement of fire vehicle in case of mischief". The plaintiff claims that common area is to be considered as car parking area, which is not permissible under law.
33. Plaintiff further claims that the defendants unauthorisedly trespassed into the ground floor area and started car parking in the ground floor area. But, in his cross-examination at page No.19 deposed that, "It is not true the suggest that even now the defendants are parking their vehicles on the ground floor and they have not been parking vehicle outside the building". The entire evidence of P.W.1 is contrary to his own pleadings.
34. P.W.1 in his cross-examination at page No.19 clearly admitted that, "It is true to suggest that in the western side there is generator room .... It is true to suggest that nearby side generator room there is transformer. As per rules I have provided said area to the BESCOM. It is true to suggest that no vehicle can park in that area." P.W.1 further deposed in his cross-examination at page No.28 that, "It is true to suggest that towards North of the building there is no vacant area available. Towards South I have left 20 Feet vacant area. It is true that the road is situated towards South of my building." As per evidence of P.W.1 it is impossible to park the vehicles towards eastern, western and northern sides of the suit schedule property. Eastern side space is left for the movement of inmates of apartment and towards western side generator is installed and northern side there is no space. The remaining area is only towards the southern area. P.W.1 himself admits that towards southern area there is a road. The said road is required for the inmate's movement. Hence, the contention of the plaintiff that the defendants can park their vehicles in the open space is not probable one.
35. P.W.1 further admitted in his cross-examination at page No.20 that, "It is true to suggest that mosaic floor is only in the ground floor, not in any other floor", which clearly goes to show that, as per Exs.D.1 and 3 to 10 the plaintiff has sold the apartments to defendants No.1 to 12 and agreed to provide car parking area in the ground floor with RCC roofing and mosaic floor, etc.,
36. It is admitted fact that, initially plaintiff has not provided entire ground floor area for car parking to the apartment owners, therefore the apartment owners have filed an application to the BBMP and BBMP got issued notice to the plaintiff to provide car parking area in the ground floor. Even the defendants have got issued notice to the plaintiff for providing car parking area in the ground floor. The plaintiff has replied to the said notice in which he clearly admitted regarding the car parking area in ground floor.
37. The plaintiff claims that he has constructed the Vasista Apartment in an area of 6,000 Sq.Ft. In order to support his case, he has produced Ex.P.2 - sanctioned plan, but, on perusal of Ex.P.2 it clearly reveals that the Uttarahalli Gram Panchayath has sanctioned the plan for construction of building in Site No.50 and the total plot area is 5,057.50 Sq.Ft., ground floor area is 2,952 Sq.Ft., first, second and third floors area is 2,982 Sq.Ft. The pleading of the plaintiff are contrary to his own documents i.e., Ex.P.2. Plaintiff's another contention is that, he has purchased another property as per Ex.P.5 - Sale Deed dated 13.11.1995 and has constructed the building, therefore the total measurement of the Vasista Apartment is 6,000 Sq.Ft. But, there is no document to show that the property subsequently purchased by the plaintiff has been amalgamated in Site No.50. Without documentary evidence, Court cannot rely upon the oral testimony of P.W.1.
38. On perusal of the entire material available on record, it reveals that the plaintiff has constructed Vasista Apartment in Site No.50. As per Ex.P.2 - sanctioned plan he has constructed the building in an area of 5,057.50 Sq.Ft. P.W.1 also in his cross-examination at page No.31 admitted that, "In the plan got sanctioned by me for construction of the building, I have shown the area of property as about 5,045 Sq.Ft. It is true that in that plan the area of the property is not mentioned as 6,000 Sq.Ft. It is true that I have constructed entire building as per the sanctioned plan. It is true that one flat and one car parking area to the respective purchasers", which clearly goes to show that the plaintiff has constructed the building as per Ex.P.2 - sanctioned plan and has sold all the nine apartments to the defendants No.1 to 12 and one Latha. On perusal of Ex.P.1 and Exs.P.3 to 10 it clearly reveals that plaintiff has sold 5,400 Sq.Ft. to the defendants No.1 to 12 one Latha i.e., more than what he had.
39. Plaintiff further claims that he has retained undivided share of 600 Sq.Ft. including the ground floor area and terrace area. But, in order to show that he has retained the said portion, the plaintiff has utterly failed to produce an iota of documents. P.W.1 himself in his cross-examination at page No.31 clearly admitted that, "In the respective sale deeds I have not mentioned that I have retained any portion of property ..... I have no document to show that I have retained the terrace portion with me. I have no document to show that I have retained the ground floor with me", which clearly goes to show that plaintiff has not at all retained any portion in the Vasista Apartment, even then he claims the ownership over the property. It is well settled law that, in order to claim the ownership over the property there should be document, but in this case plaintiff has utterly failed to produce semblance of evidence to show that he has retained portion of the property in the Vasista Apartment. Hence, without documentary evidence the claim of the plaintiff is not sustainable.
40. The counsel for the plaintiff argued that, the plaintiff is the owner of entire ground and terrace area of the Vasista Apartment. The plaintiff had sold 5,400 Sq.Ft. undivided area to the defendants No.1 to 12 and one Latha and he retained 600 Sq.Ft. undivided interest in the said property. The defendants have admitted the ownership of the plaintiff over the said 600 Sq.Ft. undivided area in Ex.P.3 i.e., evidence given by Secretary of defendant No.13. The defendants have been provided car parking area in the open space of site No.50. The defendants have admitted the plaintiff's ownership over the suit schedule property in the evidence of D.Ws.1 to 5 and even in Ex.D.15. The defendants have admitted the ownership of plaintiff over the ground floor area and terrace area in the Society Registration Certificate also. Hence, he prayed for decreeing the suit. That, on perusal of the entire material available on record it is admitted fact that, the plaintiff has sold an area of 5,400 Sq.Ft. to the defendants No.1 to 12 and one Latha i.e., 600 Sq.Ft. x 9 = 5,400 Sq.Ft. Admittedly, the plaintiff has obtained permission to construct the apartment in the said Site No.50. Ex.P.22 is the Sale Deed dated 11.7.2002 pertains Site No.50. On perusal of Ex.P.22 - Sale Deed, the total area of said site is 5,057.50 Sq.Ft. The plaintiff has obtained the permission from the local authority to construct the building in the said area only as per Ex.P.27 - Sanctioned Plan. Though plaintiff obtained permission for construction of the said apartment in an area of 5,057.50 Sq.Ft., but he claims that he is the owner of an area of 6,000 Sq.Ft., which is not permissible under law.
41. The counsel for plaintiff contended that the plaintiff has provided car parking area to the defendants in the open space left around the building. As discussed supra, as per the Karnataka Apartments Ownership Act, 1972 and BBMP Building Bye-laws, common area cannot be used for car parking. The open space has been left around the building for ingress and egress of inmates and for free flow of air and light to the building. The plaintiff claims the said space is to be considered as car parking area, which is against the law of the land.
42. Besides, the plaintiff claims the ownership over the entire ground floor and terrace area. Admittedly, all the 9 apartments have been sold to defendants No.1 to 12 and one Latha. But, the said Latha has not been arrayed as a party to the suit. Though defendant No.2 has been arrayed as a party, during the pendency of the suit defendant No.2 died. The suit against defendant No.2 has been abated. The plaintiff has failed to bring on record the LRs of defendant No.2 within the prescribed period. The LRs of defendant No.2 and said Latha are also necessary parties to the suit. In the absence of said Latha and legal heirs of defendant No.2, effective decree cannot be passed. Hence, the suit of the plaintiff is bad for non-joinder of necessary parties.
43. The counsel for plaintiff further argued that, as on the date of construction of apartment the Site No.50 comes within the jurisdiction of Uttarahalli Gram Panchayath and accordingly the said Gram Panchayath has issued the licence for construction of apartments in Site No.50 as per Ex.P.27, hence, the BBMP building bye-laws will not applicable to the suit schedule property. It is well settled law that Gram Panchayath is not the competent authority to approve any apartment constructions. Gram Panchayath can approve only ground floor plus two floors construction and anything above this level of construction needs no objection from B.D.A. In this case plaintiff has constructed ground floor plus 3 floors building. Hence, the contention of the plaintiff that BBMP building bye-laws is not applicable to the suit schedule property is not acceptable one. Hence, for construction of more than two floors approval from BBMP/ B.D.A. is a must, nobody should construct an apartment or house without considering the safety issues, approach roads to the apartment. The BBMP/B.D.A. are the only authority to approve building plan and not Gram Panchayath.
44. Another contention of the plaintiff is that he has provided car parking area around the building, same has been admitted by D.W.1 to 5, hence, the defendants cannot claim rights over the ground floor. Admittedly, the space provided around the building is for flow of air and light to the apartments and also for the ingress and egress of the inmates. Hence, the common area cannot be used as car parking area.
45. That, Section 2.60 of the Bengaluru Mahanagara Palike Building Bye-laws, 2003 defines parking space, which reads thus :
"Parking space means an area enclosed or unenclosed covered or opened sufficient in size to park vehicles together with a drive-way connecting the parking space with the street or any public area and permitting the ingress and egress of the vehicles."
Hence, the contention of the plaintiff that the parking area has been provided around the building is not acceptable one. Besides, plaintiff himself in his reply unequivocally admitted the fact that he has provided car parking space in the ground floor. Hence, plaintiff is estopped from making go-bye to his earlier statement.
46. That, as discussed supra the plaintiff has alienated all the 9 apartments to defendants No.1 to 12 and one Latha and he has not at all retained any portion of the apartment. Once all the flats have been sold the builder has not right to claim right over the property and he is estopped from making such claim.
47. Another contention of the plaintiff is that, the written statement filed by defendant No.13 is signed by Vijaya Simha in his capacity as President and Shankar in his capacity as a Secretary of the association, but as per Article 36 of Memorandum of Articles of Association i.e., Ex.D.13, the Secretary is the only authorised person to sign the written statement, the said Shankar was not the Secretary of defendant No.13 - Association and even D.W.1 is also in his cross-examination at page No.8 clearly admitted that Shankar has put signature to the written statement as the Secretary and also admitted at page No.7 that Shankar was not the Secretary at any point of time. Hence, the written statement filed by defendant No.13 signed by Shankar is not in accordance with law and same cannot be considered. It is well settled law that, in the absence of Secretary the President or any authorised person can sign the document, there is no bar to sign the written statement on behalf of Association. Besides, at once stretch plaintiff claims that Ex.D.3 - Memorandum of Articles of Association is illegal and on the other stretch he is intending to rely upon the said document, which is not permissible under law. Hence, the contention of the plaintiff is not acceptable one.
48. Though the counsel for the plaintiff contended that the plaintiff is entitled for the relief, but in a recent decision reported in (2019) 6 Supreme Court Cases 82 [Jagadish Prasad Patel Vs. Shivnath and others] wherein the Hon'ble Apex Court held at para No.44 and 45 that, "In the suit for declaration of title and possession, the plaintiffs could succeed only on strength of their own title and not on the weakness of the defendants. Burden is to the plaintiffs to establish their title to the suit properties to show that they are entitled for decree for declaration. In a suit for declaration plaintiffs are to succeed on strength of their own title irrespective of whether defendants prove their case or not. Weakness, if any, in case of defendants is not ground for grant of relief to plaintiff." In another decision reported in 2004 (1) KCCR 662, (K.Gopala Reddy (deceased) by LRs Vs. Suryanarayana and others) the Hon'ble High Court of Karnataka held that, "Head Note B : Pleading and proof - Whenever a party approach the Court for a relief based on the pleading and issue, he has to prove his case, a suit has to be decided based on merits and demerits of the party who approaches the Court. Weakness of the defendant cannot be considered as a trump card of the plaintiff." In this case also the plaintiff has to prove his lawful ownership and possession over the suit schedule property as on the date of suit. But, the plaintiff utterly failed to prove his lawful ownership and possession over the suit schedule property as on the date of suit. Hence, the above said decisions are aptly applicable to the case in hand.
49. That, in a suit for declaration, as per Section 34 of the Specific Relief Act, the plaintiff has to make out a case by evidence that proves his legal character/rights as to the property, he cannot derive any strength from weakness of the case of the person denying his title. The initial burden of proof always rests on the person asserting the affirmative of an issue. Who approaches Court for relief has to prove those facts. Under Section 101 of the Indian Evidence Act burden is on the plaintiff to prove his case, only after satisfying the initial burden, the onus shifts on the defendants to disprove the plaintiff's case under Section 102 of Evidence Act. The counsel for the plaintiff argued that the defendants have admitted the possession of plaintiff over the suit schedule property, hence, as per Section 110 of Indian Evidence Act the burden shifts upon the defendants to disprove the case of the plaintiff. On perusal of the entire evidence of D.Ws.1 to 5, D.Ws.1 to 5 nowhere admitted the ownership and possession of plaintiff over the entire suit schedule property. Hence, the shifting of burden upon the defendants does not arise at all. Besides, P.W.1 himself executed Exs.D.1 and D.3 to D.10 - Sale Deeds in favour of defendants in which he clearly admitted that the ownership of terrace vests with the apartment owners and also admitted for providing car parking area in the ground floor.
50. Besides, P.W.1 in his cross-examination at page No.31 unequivocally admitted that, "In the respective sale deeds I hve not mentioned that I have retained any portion of property.... I have no document to show that I have retained the terrace portion with me. I have no document to show that I have retained ground floor with me", which clearly goes to show that the plaintiff has not retained any portion of the suit schedule property and he has executed sale deed in favour of defendants No.1 to 12 and one Latha with respect to entire Vasista Apartment building including the open area.
51. That, on perusal of the pleadings and evidence of P.W.1 and D.Ws 1 to 5, it clearly goes to show that the entire claim of the plaintiff is based upon the documentary evidence. On perusal of Ex.D.1, D.3, D.5, D.6, D.7, D.8 and D.10 - Sale Deeds, it reveals that the sale deeds pertain to Flat No.4, 7, 3, 1, 6, 5 and 9. The said flats have been sold to defendants in which it is clearly mentioned that, "The purchaser has absolute right over the terrace area on second floor building known as VASISTA. Construction on the 'A' schedule property with super-built area of approximately 800 Sq.Ft. and also the purchaser has right over the roof, top terrace, common No.2. He has absolute right, occupation, enjoyment of the roof top terrace." Hence, the plaintiff has utterly failed to prove his title and possession over the entire suit schedule property.
52. The counsel for the plaintiff argued that the defendants have unauthorisedly and illegally trespassed into the suit schedule property and are making false claim over the suit schedule property and contended that the plaintiff is entitled for the reliefs claimed. In a decision reported in (2007) 13 SCC 565 (Gurunath Manohar Pavaskar and others Vs. Nagesh Siddappa Navalgund and others) the Hon'ble Apex Court clearly held that:
"Head note A - Specific Relief Act, 1963 - Ss.
36, 38 and 39 - Permanent, mandatory injunctions and prohibitory injunctions - Title to the land should first be proved by the plaintiff seeking injunction - Suit filed by the respondent/plaintiffs for direction for demolition of structures and removal of sign board raised by the appellants/defendants on the suit land by encroaching thereon and for restoration of vacant possession and for injunction against defendants interference with peaceful enjoyment of the property - Burden of proof on plaintiff to prove that the suit land belong to them - Suit cannot be decreed on the basis of revenue records alone, but should be decided on appreciation of evidence.
The above said decision is aptly applicable to the case on hand. The plaintiff has utterly failed to prove his ownership over the suit schedule property.
53. That, the counsel for the plaintiff further argued that the defendants have not produced any reliable evidence in order to accept the defence of the defendants and further argued that D.Ws.1 to 5 in their cross-examination admitted that the plaintiff has let out the ground floor area to M/s.Prism Books Pvt. Ltd., and also admitted that plaintiff was receiving the rents from the said M/s.Prism Books Pvt. Ltd., hence, the plaintiff is entitled for the relief. That, D.Ws.1 to 5 in their evidence deposed that, initially the plaintiff had let out portion of ground floor to M/s.Prism Books Pvt. Ltd., at that time all the apartment owners had not owned cars, subsequently all the apartment owners owned their cars and the M/s.Prism Books Pvt. Ltd., vacated the premises and the defendants have started car parking in the entire ground floor area. D.Ws 1 to 5 clearly deposed that the plaintiff in his reply dated 19.11.2007 i.e., Ex.P.23 clearly admitted that, "Car parking in the ground floor is provided to the owners of 7 units." Hence, plaintiff is not the owner in possession of entire suit schedule property. That, on perusal of the Ex.P.23 - Reply sent by the plaintiff in para 2 of the said reply it is clearly mentioned that, "Car parking area is provided in the ground floor area to the owners of 7 units." Further plaintiff admitted that in his reply dated 8.12.2007 i.e., Ex.P.21 at page No.2 that, "The parking area with drive way space in the ground floor has already been provided for", which clearly goes to show that the plaintiff is not the owner in possession of the suit schedule property. Though the plaintiff denied Exs.P.21 and 23, but in his cross-examination he admitted the contents. Besides, as discussed supra the plaintiff himself admitted in his cross-examination at page No.23 that as on the date of suit he is not in possession of the suit schedule property, which clearly goes to show that the plaintiff is not in possession of the suit schedule property as on the date of suit, he has filed the present suit only on the imaginary cause of action with an intention to gain by unlawful means.
54. In order to establish his rights over the property plaintiff has produced Exs.P.1 to P.28, none of these documents establish the fact that as on the date of suit the plaintiff is the owner in possession of suit schedule property. The counsel for the plaintiff much relied upon Ex.P.3 - Evidence of P.W.1 in O.S.No.3066/2011 i.e., suit filed by present defendant No.13 against the present plaintiff and argued that, the said witness in his cross-examination deposed that, "BBMP authorities have delivered the possession of ground floor", but the defendants have utterly failed to produce document in order to show that the BBMP authorities have handed over the possession of ground floor area and further relied upon Ex.P.28 - Judgment passed in O.S.No.3066/2011 on the file of 29th Additional City Civil and Sessions Judge, Bengaluru. Hence, he prays for decreeing the suit. As discussed supra, the plaintiff himself admitted in the sale deed executed by himself that the apartment owners have got absolute right over the terrace area and also admitted the fact that ground floor area is reserved for car parking. The argument of the counsel for the plaintiff is contrary to the documents i.e., sale deeds executed by the plaintiff and the reply issued by him through is counsel. That, on perusal of the Ex.P.28 - Judgment passed in O.S.No.3066/2011 it reveals that the present defendant No.13 has filed the suit against the present plaintiff for the relief of mandatory injunction, the said suit came to be dismissed. In the said suit there is no issue regarding the title, the only issue is regarding the delivery of title deeds. Hence, any observation made in the said Judgment will not create rights to the plaintiff as regards to the ownership over the suit schedule property. He has to prove his title over the suit schedule property independently.
55. The main contention of the plaintiff is that he has provided car parking area in the open space. It is well settled law that, any common area left out is to be utilized by the apartment owners for their common use. As per Section 6 of the Karnataka Apartment Ownership Act, 1972, "Each Apartment owner shall be entitled to an undivided interest in the common area and facilities in the percentage expressed in the declaration". Besides, as per Section 6(4) of the said Act, "Each Apartment owner may use the common areas and facilities in accordance with the purpose for which they are intended without hindering or encroaching upon the lawful rights of the other apartment owners". Hence, there is no provision under the law for parking the vehicles in the common area. Besides, as per Rule 16 of the BBMP Building Bye-laws there is no provision to park the vehicle in the set- back area and the contention of the plaintiff regarding the car parking in common area is not acceptable one. Besides, in a decision reported in (2010) 9 Supreme Court Cases 536 (Nahalchand Laloochand Pvt. Ltd., Vs., Panchali Co- Operative Housing Society Ltd., Hon'ble Apex Court at para No.65 held that, "We think this argument does not bear detailed observation. Suffice it to say that if the argument of the learned Senior Counsel and counsel for promoter is accepted, the mischief with which MOFA is obviously intended to deal with would remain unabated and flat purchasers would continue to be exploited indirectly by promoters. In our opinion MOFA does restrict the rights of the promoter in the block or building constructed for flats or to be constructed for flats to which that act applies. The promoter has no right to sell any portion of such building which is not a 'flat' within the meaning of Section 2 (a-1) and the entire land and building has to be conveyed to the organization, the only right which remains with the promoter is to sell unsold flats. It is thus clear that the promoter has no right to sell 'stilt parking space' as these are neither a 'flat' nor appurtenant or attachment to a 'flat'." The said decision is squarely applicable to the case in hand. In this case also the plaintiff has sold entire 9 apartments to the defendants No.1 to 12 and one Latha and he has not retained any portion of building, even then he is claiming rights over the ground floor and terrace area, which is not permissible under law.
56. The plaintiff raised one more contention that the formation of association i.e., defendant No.13 is not in accordance with law. Admittedly, the present plaintiff himself executed Exs.D.1 and D.3 to D.10 - Sale Deeds. That, on perusal of Exs.D.1 and D.3 to 10, in which at page No.6 it is clearly mentioned that, "This is apartment as per Apartment Ownership Act 1972 provision of Articles 20(2)". Hence, the Karnataka Apartment Association Ownership Act is applicable.
57. That, on perusal of Exs.D.1 and 3 to 10 sale deeds there is a provision for formation of association. As per recital found in Exs.D.1 and D.3 to 10, the defendants have formed the association and same has been registered as per Ex.D.12. Hence, the formation of association under the name and style M/s. Vasista Apartment Owners' Association is in accordance with law. Hence, the contention of the plaintiff as regards to the validity of the formation of defendant No.13 - Association is not acceptable one. Hence, the plaintiff has utterly failed to prove that he is entitled for the possession of suit schedule property. Accordingly, I answer Additional Issue No.2 and 3 in the negative.
58. Additional Issues No.4 and 5 :- These issues are interlinked with each other. In order to avoid repetition of facts and evidence, these issues are taken up together for discussion.
59. The plaintiff claims ownership over entire ground floor and terrace area, as discussed supra one of the apartment owner i.e., Smt.Latha who is the owner of apartment No.2 has not been arrayed as a party to the suit, she is also one of the necessary party to the suit. Besides, during the pendency of the suit defendant No.2 died, his LRs have not been brought on record within prescribed period. Hence, the application filed by the plaintiff for bringing the legal heirs of defendant No.2 has been rejected and the suit against defendant No.2 has been dismissed as abated. The plaintiff has not challenged the said order within the prescribed period. The legal heirs of defendant No.2 and the said Latha are the necessary parties to the suit. In their absence, effective decree cannot be passed. Hence, the suit of the plaintiff is bad for non-joinder of necessary parties.
60. As discussed supra after formation of the Vasista Apartment Owners' Association, the defendants entered into an agreement with the BSNL for installation of mobile tower. That, on perusal of the Exs.P.25 and P.26 - Lease Agreements it clearly reveals that the defendant No.13 and General manager, Mobile Services, BSNL, Bengaluru - 19 have entered into a lease agreement. P.W.1 also in his cross-examination admitted the execution of lease agreement by the defendant No.13 in favour of BSNL. As per Section 58 of Indian Evidence Act admitted facts need not be proved.
61. The plaintiff claims that he is the owner of ground floor and terrace area of Vasista Apartment and the agreement dated 16.3.2008 entered between the defendant No.13 and BSNL is illegal and void. As discussed supra, the plaintiff himself executed registered sale deed as per Exs.D.1 and D.3 to 10 in favour of defendants No.1 to 12, in which he clearly admitted at page No.7 that purchasers have got absolute right and possession over terrace area. Plaintiff himself executed these documents, even then he claims ownership over the terrace area. As per Section 54 of the Transfer of Property Act once sale deed is executed, all the proprietary rights over the property transfer to purchaser from transferee (vendor). Hence, claiming right over terrace is not permissible under law. The counsel for the plaintiff argued that the defendants have agreed that they have no rights over terrace area, hence, he prays for decreeing the suit. It is well settled law that, any agreement must be in consonance with law of the land. Any agreement in contravention with law is void. That, in a decision reported in AIR 1994 Allahabad 298 [Nutan Kumar Vs. 2nd Additional District Judge, Banda] in which the Hon'ble Allahabad High Court held that, "An agreement offending a statue or public policy or forbidden by law is not merely void, but it is invalid from nativity. It cannot become valid even if parties thereto agreed to it." The said decision is aptly applicable to the case in hand.
62. The plaintiff claims the relief of declaration to declare that the agreement dated 16.3.2008 entered between the defendant No.13 and BSNL is illegal and void. Though the plaintiff claims the said relief, but the BSNL has not arrayed as a party. Without arraying BSNL as a party to the proceedings, he is claiming the relief which is not permissible under law. The said BSNL authority is also one of the necessary party to the proceedings. The plaintiff has failed to prove additional Issue No.4 and 5. Accordingly, I answer Additional Issues No.4 and 5 in the negative.
63. Additional Issue No.6 : - The plaintiff has filed the present suit for the relief of declarations, mandatory and permanent injunctions. That, on perusal of the entire materials available on record makes it clear that the plaintiff is not in possession of the suit schedule property as on the date of suit. Whereas, the plaintiff paid court fee on the relief of permanent injunction under Section 25 (c) of Rs.25/- and also paid court fee for the relief of possession of Rs.2,38,100/-. Though the plaintiff sought the relief of declaration, but has failed to pay the court fee on the said reliefs. Hence, plaintiff ought to have paid court fee under Section 24 of Karnataka Court Fees & Suits Valuation Act on the actual market value of the property. For these reasons, plaintiff need to pay court fee on the market value of the suit schedule property as on the date of filing this suit. Accordingly, I answer Additional Issue No.6 in the affirmative.
64. Issue No.3 : - That, the plaintiff claimed the relief of permanent injunction against the defendants restraining them from interfering with his peaceful possession and enjoyment of the suit schedule property, mandatory injunction directing the defendants to deliver the possession of the entire ground floor of Vasista Apartment Building to the plaintiff and the relief of declaration that the defendants have no share, right, title or interest in the entire ground floor and terrace area of Vasista Apartment, further declaration that the agreement entered between defendant No.13 and BSNL is illegal and void. As discussed supra, the plaintiff has utterly failed to prove his title and possession over the suit schedule property. Besides, P.W.1 himself admitted in his cross-examination that as on the date of suit he is not in possession of suit schedule property, which clearly goes to show that the plaintiff has filed the present suit on imaginary cause of action.
65. The plaintiff claims the declaration that defendants have no share, right, title or interest in the entire ground floor and terrace area of the Vasista Apartment constructed on property bearing No.50. The plaintiff claiming negative reliefs. Under the Specific Relief Act, 1963 such reliefs cannot be granted.
66. Besides, plaintiff has not come before this Court with clean hands and he wants to withheld the true facts from this Court. His own conduct not being legal and above board and in fact has been in contravention of all known principles of law and equity. There is no link between cause of action and relief claimed in the plaint. Hence, he is not entitled for any reliefs. Accordingly, Issue No.3 is answered in negative.
67. Issue No.4 :- In view of the above discussions, I proceed to pass the following:
ORDER Suit filed by the plaintiff is hereby dismissed with costs.
Plaintiff is liable to pay court fee under Section 24 of the Karnataka Court Fees & Suits Valuation Act on the market value of the suit schedule property as on the date of suit, soon after the expiry of the appeal period. If plaintiff fails to pay the same, office is hereby directed to calculate the requisite court fee on the market value of the suit schedule property and to intimate the concerned Tahsildar to recover the same from the plaintiff as if it was the land revenue and remit the same to the Court account.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed directly on computer, script corrected, signed and then pronounced by me in the open court, this the 7th day of February, 2020.) (KHADARSAB), XXXIX Additional City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiffs:
P.W.1 : D.Prabhakar.
2. List of documents exhibited for plaintiffs:
Ex.P.1 : Letter dated 29.1.2009 by M/s.Prism Books Pvt. Ltd., Ex.P.2 : C/c of sketch Ex.P.3 : C/c of deposition of C.M.Gayatri in O.S.No.3066/2011.
Ex.P.4 : C/c of 2 Tax Paid Receipts Ex.P.6 : Khatha extract.
Ex.P.7 : House and vacant building register extract. Ex.P.8 : 2 Tax Paid Receipts Ex.P.9 to 20 : Photographs Ex.P.21 : C.D. Ex.P.22 : C/c of Sale Deed dated 11.7.2002 Ex.P.23 : Letter dated 12.9.2007 written by Vasista Apartment Association to plaintiff. Exs.P.23(a and b) : Signatures on Ex.P.23. Ex.P.24 ; Letter dated 20.9.2007 written by Vasista Apartment Association to the owners of Vasista Apartments.
Ex.P.24(a) : Signature of Secretary Ex.P.25 : Lease Agreement of defendant No.13 with BSNL dated 16.3.2008.
Ex.P.26 : Standard lease agreement for use in BSNL dated 10.9.2014 Ex.P.27 : Original Sanctioned plan Ex.P.28 : C/c of Judgment in O.S.No.3066/2011
3. List of witnesses examined for defendants :
D.W.1 : Vijayasimha D.W.2 : M.S.Nagaraj D.W.3 : Shilpa. D.W.4 : Sameer Simha D.W.5 : V.Nagaraj
4. List of documents exhibited for the defendants :
Ex.D.1 : Z/c of Sale deeds dated 28.6.2004.
Ex.D.2 : C/c of deposition of plaintiff in
O.S.No.3066/2011.
Ex.D.3 to 11 : 9 C/c of Sale Deeds.
Ex.D.10(a) : Portion marked in Ex.D.10
Ex.D.12 : C/c of Registration of Association.
Ex.D.13 : Copy of general body meeting held on
16.6.2007.
Ex.D.14 : Copy of List of Executive Committee
Members.
Ex.D.14(a) : Signature of Sameerasimha.J. in
Ex.D.14.
Ex.D.15 : Copy of bye-laws of Vasista Apartment
Ex.D.15(a)(b): Portions marked in Ex.D.15.
Ex.D.16 : Letter dated 1.9.2007 written by
Secretary of Vasista Apartment
Association to the plaintiff.
Ex.D.15(c) : Signature of Sameerasimha J. in
Ex.D.15.
Ex.D.12(a) : Signature of S.Srikanth in Ex.D.12. Ex.D.17 : Rejoinder dated 26.11.2007 - legal notice to the reply notice of the plaintiff.
Ex.D.18 : C/c of Legal notice dated 18.1.2010 to plaintiff.
Ex.D.19 : C/c of Postal acknowledgment copy. Ex.D.20 : C/c of Legal notice dated 18.1.2010 to Central Bank of India.
Ex.D.21 : C/c of Postal acknowledgment copy Ex.D.22 : C/c of Reply notice to rejoinder by plaintiff dated 8.12.2007 Ex.D.23 : C/c of Legal notice dated 5.11.2007 by defendant No.13 to the plaintiff.
Ex.D.24 : Reply notice by plaintiff dated
19.11.2007
Ex.D.25 : Original GPA dated 14.7.2017
Ex.D.26(Ex.D.29) : Letter dated 13.2.2008 by defendant No.13 to BBMP.
Ex.D.27(Ex.D.30) : Notice by BBMP dated 24.9.2008 to plaintiff.
Ex.D.28 : original GPA dated 24.11.2018
Ex.D.29 : Construction plan.
Ex.D.10(a) : Recital in Ex.P.10
(KHADARSAB),
XXXIX Additional City Civil & Sessions
Judge, Bangalore City.
***