Bangalore District Court
Sri.R.Janardhan Kumar vs Sri.A.N.Yellappa Reddy on 20 April, 2016
IN THE COURT OF THE IV ADDL.CITY CIVIL & SESSIONS
JUDGE AT MAYO HALL UNIT, BENGALURU. (CCH-21)
Dated: This, the 20th day of April 2016.
Present: Sri.Bannikatti Hanumanthappa.R.
B.A.,LL.B(Spl)
IV Addl.CC & SJ, Mayohall Unit,
Bengaluru.
O.S. No.27051/2008
Plaintiff: Sri.R.Janardhan Kumar,
S/o.Late.N.Raman, aged about
45 yrs, R/at.No.24, Bazar Street,
Adugodi, Bengaluru-560030.
(By Sri.C.Nagaraj, Advocate)
V/S
Defendants: 1. Sri.A.N.Yellappa Reddy,
S/o.Late.Muninanjappa, aged
about 70 yrs, R/at.No.9C, Sector
VII, H.S.R. Layout, Bengaluru-
68.
2. Sri.N.Krishna Reddy,
S/o.Late.Muninanjappa, aged
about 65 yrs, R/at.No.14/9,
1st Main, Nanjappa Layout,
Adugodi, Bengaluru-560030.
(By Sri.K.P.Chandra Shekar Reddy, Advocate for deft.No.1)
(By Sri.R.Chandrashekar, Advocate for deft.No.2)
2 O.S. No.27051/2008
Date of institution of the suit 15.12.2008
Nature of the suit (Suit for Pro-note, Suit for Permanent
Suit for Declaration and Possession, Injunction
Suit for Injunction, etc.)
Date of commencement of recording 21.11.2009
of the evidence
Date on which the Judgment was 20.04.2016
pronounced
Total duration Year/s Month/s Day/s
07 04 05
JUDGMENT
Present suit has been filed under Order VII Rule 1 of CPC for permanent injunction to restrain the defendants from demolishing schedule 'B' property or causing any damages thereto in any way in any manner whatsoever and for costs.
2. The description of the suit schedule properties as shown in the schedule to the plaint is as follows:-
SCHEDULE 'A' All the piece and parcel of the house property bearing No.24, situated at Bazar Street, Adugodi, Bengaluru-560030, being the Eastern portion measuring East to West: 25 feet and North to South: 50 feet and bounded on the:
East by: Conservancy Lane;
West by: Property of the First Defendant;
3 O.S. No.27051/2008
North by: Road; and on
South by: Private Property.
SCHEDULE 'B'
All that part and parcel of open space measuring about East to West: 13 feet and North to South: 16.6 Feet running in between the Schedule 'A' Property and the Property of the First Defendant; Common Verandah measuring East to West: 5.7 feet and North to South: 9.2 Feet;
Staircase landing measuring East to West: 6.3 feet and North to South: 9.2 feet, as per sketch produced as Document No.10 Annexed to the plaint.
3. Case of the plaintiff, in brief, is as below: -
All that piece and parcel of residential property bearing No.24, situated at Bazar Street, Adugodi, Bengaluru-30 was belonged to one Muninanjapppa, who is the father of the defendants 1 & 2 and grandfather of the plaintiff. During the lifetime of the said Muninanjappa, he has bequeathed all his properties in favour of his legal heirs and among such properties, the property bearing No.24, situated at Bazar Street, Adugodi, Bengaluru-30, is also one and has also executed a Will on 21.01.1988. As per the Will, the property bearing No.24, situated 4 O.S. No.27051/2008 at Bazar Street, Adugodi, Bengaluru-30, which in all measuring about 6684 Sft., has been bequeathed and allotted in favour of his four sons namely (1) N.Raman (2) A.N.Yellappa Reddy (3) N.Krishna Reddy and (4) A.N.Gopala Reddy. As per the Will schedule 'A' property has fallen to the share of Sri.N.Raman who is none other than the father of the plaintiff and brother of defendants 1 and 2 and it was exclusively enjoyed without any interferences along with his family members. The above said N.Raman died on 14.03.1989 leaving behind him the plaintiff his other 3 sons and wife as his legal heirs to succeed to the schedule 'A' property by way of inheritance. In the Will it is mentioned that the schedule 'B' property have been reserved for the common usage of schedule 'A' property and also the portion of the properties bequeathed in favour of the defendants 1 and 2 for the common utility which is mainly available only to the schedule 'A' property. Since the properties bequeathed in favour of the defendants 1 and 2 on the Western and Southern portions of Schedule 'A' property are having separate access and road facility.
The above said arrangement was done which was the intention of 5 O.S. No.27051/2008 Muninanjappa. The plaintiff and his brothers and also his mother have entered into a Memorandum of partition during 23.04.1993 by got dividing the family properties among themselves; but at that time the schedule 'A' property is not included, as it was unanimously and orally agreed to allot schedule 'A' property in favour of the plaintiff and accordingly he has been in possession of the same along with his family members since past 17 years. The khatha of the schedule 'A' property is standing in the name of the mother of the plaintiff/N.Sarojamma at present and the same will be changed after execution and registration of the partition deed in respect of the schedule 'A' property in favour of the plaintiff. The schedule property consists of three portions. In one of the portions, the plaintiff and his family members are living. The remaining two portions have been let out to the tenants and they are in the occupation of the same. For the above said tenements comprising in schedule 'A' property, schedule 'B' property is the only access available for ingress and egress and also for the enjoyment of air and light. The defendants No.1 and 2 are the adjacent owners who were in the occupation of their respective portions bequeathed in 6 O.S. No.27051/2008 their favour by virtue of Will dated 21.01.1988. The defendant No.1 herein whose property situated on the Western side has undertaken for demolition of old structure existing in the same. He has intended to put up new construction in his portion. In that process, the 1st defendant has damaged to the Eastern wall of schedule 'A' property which is really disturbed the entire structure of the schedule 'A' property and there is a threat of collapse, in case the damage is not set at right. In this connection the plaintiff has questioned the negligent act of the 1st defendant in respect of damaging the Western wall of schedule 'A' property; then the defendants No.1 and 2 threatened to the plaintiff stating that they will demolish the schedule 'B' property, if the plaintiff made a object to the acts of the defendants 1 and 2. The defendants No.1 and 2 have no manner of right, title and interest to demolish or disfigure the structures existing in the schedule property, under any circumstances as the same is reserved as per the recitals of the Will dated 21.01.1988 executed by Late.Muninanjappa. Hence, this suit arose.
7 O.S. No.27051/2008
4. After issuance of the suit summons and duly served upon them, the defendants No.1 and 2 appeared through their advocates Sri.K.P.Chandra Shekar Reddy & Sri.R.Chandrashekar respectively; thereafter both the defendants have filed their separate WS; as they are one and the same.
5. Case of the defendants No.1 & 2, in brief, is as below:-
Defendants have contended in their WS that suit of the plaintiff is not maintainable either on law or on facts and it is fundamentally defective. Totally this defendant denied that schedule 'A' property has fallen to the share of N.Raman/father of plaintiff. In fact the said property allotted to the father of plaintiff/Late.N.Raman, which is situated on North Eastern portion of the property and it is measuring 30 x 40 ft. It is also contended that when the division of the khatha was effected and the assessment of the property to tax was made by the authority of BBMP on the request of the four share holders, the khatha of the property Municipal No.24/1 fallen to the share of N.Raman and later on it was changed in the name of his wife Smt.S.Sarojamma. It is also denied that the common utility is mainly available only to 8 O.S. No.27051/2008 the schedule 'A' property and schedule 'B' property is common for all the four members of the family. This defendant further contended that the plaintiff is not an exclusive owner of the plaint schedule properties and the plaintiff has no right of any manner to file this suit as the owner of schedule 'A' property which is belonging to Smt.N.Sarojamma W/o.N.Raman and the khatha of the said property is still in the name of Smt.N.Sarojamma. Further it is denied that the tenements comprising in schedule 'A' property, schedule 'B' property is the only access available for ingress and egress and also for the enjoyment of air and light. Further it is contended that North Western portion measuring 30 ft. x 40 ft. was fallen to the share of 1st defendant and continued with the Municipal No.24. On the other hand the North Eastern portion of the property measuring 30 ft x 40 ft was allotted to Sri.N.Raman/plaintiff's father and the khatha was effected in the name of his wife Smt.S.Sarojamma and the Muncipal No. given to the said property was No.24/1. It is contended that as the property is very old, the 1st defendant was intending to demolish the existing old structure in his property and wanted to built a new building. In 9 O.S. No.27051/2008 this regard the BBMP has issued a notice to the 1st defendant under Section 322 (1) of KMC Act 1976 calling upon him to dismantle the structure standing in premises No.24, Bazar Street, Adugodi, Bengaluru and also the 1st defendant has obtained a sanction plan and the dismantling work taken out by the 1st defendant is only in his property and it is not causing any harm to the adjacent buildings and already 80% of the demolishing work is over and another 20% of the work is remaining. After finishing the dismantling work, the 1st defendant has to start the construction work of the new building in accordance with the approved sanction plan. Further it is contended that while dismantling the 1st defendant has taken utmost care and caution; but denied that he took mob of persons. The 1st defendant is a responsible citizen and renowned environmentalist and he being a retired Government Officer has no occasion or intention to disobey the law of the land by taking illegal methods. It is contended that the schedule 'B' is meant for common usage for all the four beneficiaries of the Will and it is denied that the schedule 'B' is meant for the utility of the plaintiff exclusively and the persons who are in possession of 10 O.S. No.27051/2008 schedule 'A' property and schedule 'A' property has got only access through schedule 'B' property. The boundaries given makes it abundantly clear that schedule 'A' property is approached through road. And this defendant is not at all carrying out dismantling work in the schedule 'B' property; i.e., common to all. This defendant is only dismantling the portion existing in his property and not touching the adjacent properties. Further it is contended that there is no cause of action arisen to this suit and the valuation made in the suit is also not proper and this suit is liable to be dismissed on the ground of non-joinder and miss-joinder of proper parties. Thus, the defendants No.1 & 2 pray to dismiss the suit of the plaintiff with heavy costs.
6. From the above said pleadings, following issues have been framed:-
1. Whether the plaintiff was in lawful possession of the suit schedule property as on the date of the suit?
2. Whether the plaintiff proves the alleged interference?
3. What order or decree?11 O.S. No.27051/2008
7. On behalf of the plaintiff, affidavit evidence of plaintiff has been filed and she has been examined as P.W.1 and his wife as P.W.2 and another witness by name M.N.Shashibhushan as P.W.3 and Exs.P.1 to P.6 documents have been got marked.
8. On the other hand, on behalf of the defendants also, affidavit evidence of 1st defendant, has been filed and he has been examined as DW.1 and the SPA holder of the 2nd defendant by name Sri.R.Surendra Babu Reddy has been examined as DW.2 and Exs.D.1 to D.23 documents have been got marked.
9. Ex.P.1 is the passport, Ex.P.2 is the letter of Sahakara Bank, Ex.P.3 is the letter of bank, Ex.P.4 is the certified copy of plan, Ex.P.5 is the mortgage agreement, and Ex.P.6 is the certified copy of the Will executed by plaintiff's grandfather.
10. Ex.D.1 is the special notice dated 03.02.2003, Ex.D.2 is the house list extract, Ex.D.3 is the khatha certificate, Ex.D.4 & D.5 are the tax paid receipts, Ex.D.6 is the notice dated 22.08.2008, Ex.D.7 is the plan, Ex.D.8 is the special power of attorney executed by 2nd defendant, Ex.D.9 is the khatha extract dated 25.03.2006, Ex.D.10 is the khatha certificate dated 25.03.2006, Ex.D.11 is the 12 O.S. No.27051/2008 gift deed dated 27.03.2006, Ex.D.12 is the notice dated 21.11.2006 issued by the BBMP, Ex.D.13 is the khatha extract dated 18.12.2006, Ex.D.14 is the khatha certificate dated 09.01.2007, Ex.D.15 is the uttara patra dated 27.11.2006 issued by BBMP, Exs.D.16 to D.22 are the tax paid receipts and Ex.D.23 is the acknowledgement for the year 2013-2014.
11. In spite of sufficient time granted to the plaintiff advocate in this old suit did not come forward for advancing the argument of plaintiff; hence taken as argument of plaintiff advocate heard and later on heard the argument of defendant and case is posted for judgment. Learned advocate for the 1st defendant has submitted written arguments also and the same has been considered.
12. After considering the evidence on record, my findings on the above issues are as follows:-
Issue No.1: In the Negative, Issue No.2: In the Negative, Issue No.3: As per final order, for the following:-13 O.S. No.27051/2008
REASONS.
13. ISSUE No.1 & 2: Both these issues are interlinked each other; hence, for avoiding repetition I have taken up both these issues for discussion at one stretch. In order to prove the case of plaintiff he himself got examined as a P.W.1 by reiterating the plaint averments in his chief-examination stated that the suit property is a residential property bearing No.24, situated at Bazaar Street, Audogodi, was originally belonging to his grandfather Muniyappa; during his lifetime Muniyappa executed a registered Will on 21st January 1988 and bequeathed and allotted above said suit schedule property in favour of his sons by namely N.Raman, A.N.Yellappa Reddy, N.Krishna Reddy and A.N.Gopala Reddy. The above said bequeathed property measuring East to West: 25 ft., and North to South: 50 ft., consisting of residential house plinth area about 750 Sq.Ft., which has fallen to the share of N.Raman, who is none other than the plaintiff father and brother of the defendants 1 & 2. During the lifetime of N.Raman, he was exclusively being enjoyed and possessed without any interference and disturbance of anybody. After bequeathing the properties by 14 O.S. No.27051/2008 Muninanjappa, his father and other family members were living in schedule property by exercising their ownership and N.Raman passed away on 14th March 1989, leaving behind him, his wife N.Sarojamma and sons Prashanth Kumar, Raghunandana Kumar, Janardhan Kumar and A.R.Srihamsha and the said persons become the legal heirs of the Raman and succeeded the suit schedule property by way of inheritance. According to the Will executed by late Muninanjappa, an open space is measuring about East to West:
30 ft., North to South: 16.6 ft., running in between schedule 'A' property and the property of 1st defendant, there is left a common veranda measuring which is East to West: 5.7 ft., North to South:
9.2 ft., and also staircase landing East to West: 6.3 ft., North to South: 9.2 ft., they have been reserved for common usage of schedule A property and also the portion of properties bequeathed in favour of the defendant No.1 and 2. It is also stated by the P.W.1 that common utility is available only to the schedule A property since the day of properties bequeathed in favour of the defendants 1 and 2 on the Western and Southern portions of suit schedule property, which is having a separate access and road 15 O.S. No.27051/2008 facility. It is also stated that he himself and his brothers and his mother have entered into memorandum of partition on 23.04.1992 by got dividing the family properties among themselves. In the memorandum of the partition schedule A property is not included, because unanimously and orally agreed to allot schedule A property in favour of plaintiff; as such he become a exclusive possessor and enjoyment of the same along with his family members from more than 17 years. P.W.1 it is stated that the co-
parceners is enjoying the suit schedule A property by exercising all rights in and over it, the khatha of the A schedule property is standing in the name of his mother N.Sarojamma at present and which will be changed upon execution and registration of partition deed in respect of A schedule property in favour of plaintiff. P.W.1 further stated that suit schedule A property consists a 3 portions, he himself and his family members were living in one portion as on the date of filing of the suit and recently he shifted to his new house due to lack of accommodation. Remaining 2 portions have been let out to the tenant and they are in occupation of the same. For the said tenements comprising in A schedule 16 O.S. No.27051/2008 property the above said open space, veranda and staircase, landing which are described in the B schedule property of plaint, which is only access available for ingress and egress and also for the enjoyment of air and light to the property of plaintiff. P.W.1 further stated that 1st and 2nd defendants are adjacent owners who were in occupation of their portions bequeathed in their favour by virtue of Will dated 21.01.1988. It is also stated that the 1st defendant whose property is situated on the Western side he has undertaken the demolition of old structure existing in the same and he has intended to put up a new construction in this portion. When this process was in running 1st defendant has damaged the entire structure of A schedule property and there is a threat of collapse of plaintiff property in case, if the same is continued and the damage cannot set-right. In this connection P.W.1 questioned the negligent act of the 1st defendant, then 1st and 2nd defendants also given a undertaking and promised that if the process of demolition which has been threatened to the plaintiff stating that they will demolish the staircase, landing, 17 O.S. No.27051/2008 veranda, which will cover the open space comprising in B schedule property.
14. P.W.1 further stated on 03.11.2008 at about 11.30 a.m. he was away in his job, then the defendant and some others came near the suit schedule A property and attempted to demolish the staircase, landing comprising in the B schedule property. It is also stated that his wife Usha called to him by mobile and explained the situation, then he rushed to the spot and resisted the acts of defendants. Ultimately defendants given a threat to the P.W.1 by stating and challenging that in a day or within two days he will come again and see the structure in the B schedule property which is completely demolished; therefore he had approached to the jurisdictional police; but, they have not supported to the plaintiff. B schedule property is meant for common use and for the utility of herself and persons who are in occupation of schedule A property. Defendants 1 and 2 have no manner of right, title and interest to demolish or disfigure the structures of existing in the B schedule property. P.W.1 further stated that in view of the apprehension he filed this suit, if the said defendants are not prevented by means of 18 O.S. No.27051/2008 the appropriate orders by this court; then the plaintiff will be put into hardship. P.W.1 further stated that he availed a loan from Karanataka Kaigarika Sahakara Niyamitha Bank, Hanumanthanagara Branch, for their legal necessities and deposited the original family partition deed. Thus, the P.W.1 tried to establish the case of plaintiff and interference of the defendant. Upon perusal of the chief-examination of P.W.2, it is appearing that there is no difference in between the affidavit evidence of P.W.1 and his wife P.W.2. But, the jurisdictional police have failed to take legal action. It is also stated that B schedule property is a subject matter of the Will dated 21.01.1988 executed by the plaintiff grandfather Muninanjappa. The said B schedule property is left for common use. P.W.3 a brother in law of plaintiff also has given a affidavit evidence as to that of P.W.1 and 2. In total the plaintiffs given a evidence making allegation against the defendant that both the defendants are intended to grab the suit schedule properties by forcibly got demolishing the 'B' schedule portion of property which is belonging to him and damaging to the property of plaintiff allotted in 'A' schedule property.
19 O.S. No.27051/2008
15. On the other hand, the 1st defendant Dr.A.N.Yellappa Reddy submitted his affidavit evidence as a D.W.1. He has categorically supported his WS contents and stated in his chief- affidavit evidence that plaintiff is not the owner of suit schedule properties, no any documents produced to show that the same is standing in the name of plaintiff. Therefore, the plaintiff is not entitled for any suit reliefs. D.W.1 admitted the Will executed by N.Raman in favour of himself and his other brothers and categorically the suit schedule A property is allotted in between them as stated in WS. D.W.1 further stated that in fact father of the plaintiff was allotted East to West: 30 ft., North to South: 40 ft., the property mentioned in Will and its khatha was effected in the name of Sarojamma and she has paid the tax of the said property also. Further stated that neither Sarojamma who is the mother of plaintiff or no any his brothers filed a suit in respect of the suit schedule B property for which defendant has demolished as per the notice of BBMP. All are the beneficiaries of a property separate measuring mentioned in the Will. Accordingly he is also entitled for the same. The said matter is suppressed by the plaintiff; 20 O.S. No.27051/2008 therefore the plaintiff cannot make objection for his construction. The plaintiff has filed a suit with malafide intention. D.W.1 admitted in his chief-examination only that a common passage is left; but regarding the measurement mentioned in khatha is suppressed. It was left for common utilize at the said moment, each were agreed to set-forth in their khatha. It is also stated that plaintiff's wife by namely Smt.Usha/P.W.2 has admitted that she is not residing in the suit property and residing in some another address. Therefore, the question of continuously interfering in the suit schedule property does not arise. D.W.1 further stated that in the boundaries stated in A schedule property on the Eastern side and also on the Northern side there are a road. Therefore, the passage have been reserved for common usage of A schedule property. But, it is not left for common utility. D.W.1 further stated that in the cross-examination of the P.W.2 she has admitted that suit schedule property is towards Northern side and it is also facing Northern side/Bazaar Street/Main Road leading from Adugodi to Koramangala. Therefore, there does not arise a question of B property leaving for ingress and egress and also for 21 O.S. No.27051/2008 enjoyment of air and light. D.W.1 further stated that he acquired the North Western portion of the property measuring 30 ft. x 40 ft. and subsequently corporation reassessed the entire property by effecting the division of khatha and inserting the measurement of the beneficiary. In this regard BBMP has issued a special notice to all regarding the reassessment and bifurcation clearly mentioned in the khatha and also paying regular tax. After obtaining the approval relating to the dismantling undertaken in B schedule property he took the work of dismantling which cannot cause any hardship to the plaintiff. D.W.1 further alleged that plaintiff and his family members want to put the plaintiff into irreparable loss. Therefore, plaintiff is objecting for the construction undertaken by the defendants in suit schedule property in which they are dismantling as per the notice of BBMP. D.W.1 denied that B property is only meant for common usage of the plaintiff and very access available to the A schedule property through B schedule property and it was brought to the notice of the wife of plaintiff. P.W.2 in her cross-examination admitted that they are not residing in suit schedule property; but they are residing at Nanjappa Reddy 22 O.S. No.27051/2008 Layout and in which he is carrying out a dismantle in the B schedule property is a common to all; it is not belonging to the plaintiff alone. Further D.W.1 stated that if defendant encroached the suit schedule property as alleged in plaint then the mother of plaintiff and brothers were definitely objecting; but the same is not done and suit schedule property is standing in the name of mother of plaintiff and defendants and plaintiff has filed a suit against the defendants without obtaining a power of attorney etc. Thus when the mother or brother of the plaintiff objected for bifurcating the khatha in their names wherein he is entitled for 30 ft. x 40 ft. suit site. It is also D.W.1 stated that if he made a construction in the building it would fetch Rs.30,000/- and thus the plaintiff with malafide intention has made a suit against the defendants to put into loss. The another witness of defendants D.W.2 who is a SPA holder of defendant No.2 by name R.Surendra Babu Reddy also given a same chief-affidavit evidence in this case; even both the witnesses have same spoken regarding the cause of action, in respect of that the plaintiff was on his job and the defendants along with mob of persons went near the A schedule property attempted 23 O.S. No.27051/2008 to demolish the same staircase, landing and comprising in B schedule property. Plaintiff's wife Usha called the plaintiff over mobile explaining the situation and plaintiff immediately rushed to the spot and resisted the defendants activities. In total he has supported the evidence of D.W.1. Both the witnesses affirmed that B schedule property is kept for common usage and separate divisions are made in the A schedule property and allotted to the plaintiff. Therefore, neither the plaintiff nor his wife can be questioned. Thus, the plaintiff with the help of the neighbours resisted the interference of the defendants by stating that there is no cause of action arisen for filing the suit, etc., and prays for dismissal of the suit with costs.
16. During cross-examination of P.W.1 answered that his mother and other 3 brothers had got effected the khatha in their names to the properties allotted to them; accordingly in the said properties, North-East half portion 30 x 40 ft came to his mother and 60 x 34 ft. a middle portion of the South came to the 2nd defendant and Southern side half portion measuring 60 x 34 ft. had came to the Gopala Reddy. Accordingly they are in possession of 24 O.S. No.27051/2008 their respective shares even relation of all these persons also admitted in the cross-examination. P.W.1 further admits that neither his mother nor his brothers given a any power of attorney to file a suit against defendant. It is also admitted that suit schedule B property is belonging to his mother and 1st defendant. P.W.1 further answered that near about 60% of the portion of defendant property was demolished. P.W.1 admitted that 2nd defendant is being his uncle whose property is measuring 30 x 64 ft. According to Ex.P.4 'B' schedule property is shown as common passage and he stated that there is no any link in between 2nd defendant and common passage and 2nd defendant has given the said property to his daughter Subhashini. P.W.1 denied that the property belonging to Subhashini is demolished prior to filing of this suit and answered that after filing the suit it was demolished and it was not in the knowledge of her father. It was not in his knowledge that Subhashini is being the owner of the said portion. Further P.W.2 answered in his cross-examination as to that of P.W.1 by stating that suit schedule property is not standing in the name of plaintiff, but it is standing in the name of Sarojamma. 25 O.S. No.27051/2008 P.W.1 stated that he does not know nothing is written about the suit schedule property in Will and the demolition steps taken to the suit schedule property was intimated to her through the phone call and further answered that he does not know if her mother-in-law had received the message from phone call and it is also she does not know that suit schedule property is came to the share of his mother. Ex.P.4 Approved Blue Print of the suit schedule property and Mortgage Agreement is got marked as Ex.P.5, it is executed in between P.W.1 and Subramani. Original Will executed by his grandfather is with his mother; now she is not alive.
17. During the cross-examination of D.W.1 he answered that his father Muninanjappa had 5 sons, among them Ramachandra Reddy is no more, he died in the year 1980. It is also admitted that 'A' schedule property mentioned in Will is came to the share of N.Raman and plaintiff is being a son of the said Raman. According to Will 'B' schedule property is came to their share and passage which is 13 x 16.6 ft., and 5.7 x 9.2 ft., common veranda are situated and which is having a staircase. It is denied that according to Will 'B' schedule property was kept open for 26 O.S. No.27051/2008 common passage and at the time of filing the suit the brother and mother were in Audugodi Nanjappa Layout. During the cross- examination of D.W.2 also answered like the WS contents of D1 and D2. Through the above said cross-examinations of the both side witnesses it is clearly appearing that 'B' schedule property is left for mother of the plaintiff and defendant No.1. Ex.D.9 to 11 a khatha extract and khatha certificate are disclosing that N.Krishna Reddy who is defendant No.2 is shown as a owner and possessor of the said property. Upon perusal of the Ex.D.11 to D.14 and Ex.D.16 to D.23 are disclosing that about the properties of defendant which is claiming in the suit schedule property as a common passage. It is admitted fact in this case that P.W.1 admitted that he along with his family members are presently not residing in the suit schedule property. Though in the partition deed, gift deed which are taken place in between N.Krishna Reddy and K.Subhashini, about the 'B' schedule property and kept open for common passage. But, it is not at all disputed by the both parties about 'B' schedule property which is kept of common usage and 1st defendant has acquired North Western portion measuring 30 27 O.S. No.27051/2008 x 40 ft. In all D.W.1 and 2 answered that in the 'B' schedule property some portion belonging to defendant No.1 is dismantled. As the notice Ex.D.6 is issued to the property owners stating that the condition of the 'B' schedule property is very old and may be dilapidated at any time which would be caused a loss to the persons who will be used the same. As such the 1st defendant has undertaken to demolish his portion of property coming in 'B' schedule portion of the property. It is further important to note that both the plaintiff and defendants witnesses admitted that the 'B' schedule property is left for passage and veranda of the plaintiff and defendants. It is also admitted that the 'B' schedule property is standing in the name of 1st defendant and mother of the plaintiff by name Sarojamma. In all after careful consideration of the oral evidence and documentary evidence it is appearing that the schedule got divided 'A' property in between plaintiff and other sharers; but admitted that 'B' schedule property is being a common passage for all, it is also admitted by the both side witnesses that the property of the 1st defendant coming in 'B' schedule property dismantled is exclusively belonging to him. But, the allegation of 28 O.S. No.27051/2008 the plaintiff which was that if the same is dismantled the very property of the plaintiff allotted in 'A' schedule will be damaged. The said allegation is not at all proved by the plaintiff either by placing oral or documentary evidence or any independent witnesses like technical persons, engineers, etc. Therefore, it is clear that suit schedule 'B' property is not a specific property belonging to plaintiff and he cannot prevent the steps taken by the defendants for demolition of 'B' schedule property. It is also pertinent to note that the portion of 'B' schedule property demolished is as per the direction given by the BBMP by issuing a Ex.D.6 Notice in which alleged that the construction of 'B' schedule property is very old and in a dilapidated conditions, if the same is happened it will cause a loss to the property and persons who are enjoying the same. Thus, in this case the plaintiff has not successfully proved the lawful possession and enjoyment of the suit schedule 'B' property, for which plaintiff is claiming permanent injunction against the defendants. On the other hand, defendants have successfully proved the defence taken about the suit schedule 'B' property through the oral and documentary evidence. For the said reasons I 29 O.S. No.27051/2008 came to conclusion that the plaintiff has failed to prove the issue No.1 and 2. On the other hand, defendants have successfully proved their defence that they are having a joint ownership and possession over the suit 'B' schedule common passage property and in the evidence of D.W.1 and 2 it is stated that the portion of 'B' schedule property which is touching to the property belonging to D1 is demolished with an intention to demolish and reconstruct the property in 'B' schedule, as per the Notice Ex.D.6 which is even though disputed by the plaintiff not successed to prove that defendants 1 and 2 are not entitled to get demolish their property coming in 'B' schedule property about which categorically discussed in the above said paras. Therefore, I would like to answer issue No.1 & 2 as a Negative. In view of that issue No.3 also answered in favour of the defendants. Accordingly, I proceed to pass the following:-
ORDER.
Suit of the plaintiff is dismissed without costs.30 O.S. No.27051/2008
Draw the decree accordingly.
(Dictated to the Stenographer on online computer, thereof corrected and then pronounced by me in the open court on this the 20th day of April, 2016).
(Bannikatti Hanumanthappa.R.) IV Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru.
ANNEXURES List of witnesses examined for the plaintiff:
P.W.1 - R.Janardhan Kumar
P.W.2 - Smt.Usha.J.Kumar
P.W.3 - Sri.M.N.Shashibhushan
List of documents exhibited for the plaintiff:
Ex.P.1 - Passport
Ex.P.2 - Letter of Sahakara Bank
Ex.P.3 - Letter of bank
Ex.P.4 - C/C of plan
Ex.P.5 - Mortgage agreement
Ex.P.6 - C/C of Will executed by plaintiff's
grandfather
List of witnesses examined for the defendants:
D.W.1 - Dr.A.N.Yellappa Reddy
D.W.2 - Sri.R.Surendra Babu Reddy.
List of documents exhibited for the defendants:
Ex.D.1 - Special notice dated 03.02.2003 31 O.S. No.27051/2008 Ex.D.2 - House list extract Ex.D.3 - Khatha certificate Ex.D.4 & 5 - Tax paid receipts Ex.D.6 - Notice dated 22.08.2008 Ex.D.7 - Plan Ex.D.8 - Special power of attorney executed by 2nd defendant Ex.D.9 - Khatha extract dated 25.03.2006 Ex.D.10 - Khatha certificate dated 25.03.2006 Ex.D.11 - Gift deed dated 27.03.2006 Ex.D.12 - Notice dated 21.11.2006 issued by the BBMP Ex.D.13 - Khatha extract dated 18.12.2006 Ex.D.14 - Khatha certificate dated 09.01.2007 Ex.D.15 - Uttara patra dated 27.11.2006 issued by BBMP Ex.D.16 to 22 - Tax paid receipts Ex.D.23 - Acknowledgement for the year 2013- 2014. (Bannikatti Hanumanthappa.R.) IV Addl.City Civil & Sessions Judge, Mayohall Unit, Bengaluru. 32 O.S. No.27051/2008