Bangalore District Court
Raja R vs Suresh R G on 1 October, 2024
KABC010173122021
IN THE COURT OF THE XI ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-8)
PRESENT
SRI. B.DASARATHA., B.A., LL.B.
XI Addl. City Civil & Sessions Judge,
Bengaluru City.
DATED THIS THE 1st DAY OF OCTOBER, 2024
O.S.No.4439/2021
Plaintiffs:- 1. Sri. R.Raja,
S/o. late Sri.V.Ramakrishnan,
Aged about 53 years.
2. Nutana Saraswathi,
D/o. late Sri.V.Ramakrishnan,
Aged about 48 years.
Both residing at No.16, Ground Floor,
Venkateshwara Building, 3rd Cross,
2nd Main Road, Kumara Park West,
Bengaluru - 560 020.
(By Adv. Sri. S.Subramanya)
Vs.
Defendants:- 1. Sri. R.G.Suresh,
S/o. late Sri.R.S.Govindappa Setty,
2 O.S.No.4439/2021
Aged about 74 years,
Residing at No.239/2,
H.S.G. Soorya, 15th Main,
Banashankari II Stage,
Bengaluru - 560 070.
2. Smt. Raghavi,
W/o. Sri.K.S.Raghu,
Aged about 43 years.
3. Sri. K.S.Raghu,
S/o. Sri.K.Satyanarayana,
Aged about 43 years.
Both defendant No.2 & 3 are
Residing at No.3944/C, 17th "E" Cross,
7th Main, BSK II Stage,
Bengaluru - 560 070.
(By Adv. Sri. Raghavendra S.)
Date of institution of the suit : 19.08.2021
Nature of the suit : Declaration & Injunction
Date of commencement of : 02.01.2023
Recording of the evidence
Date on which the Judgment : 01.10.2024
was pronounced
Total Duration : Years Months Days
03 01 12
XI ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
3 O.S.No.4439/2021
JUDGMENT
This is a suit filed by the plaintiffs for the relief of judgment and decree of declaration, mandatory injunction and for permanent injunction.
2. The brief averments of the plaint is as follows: -
The plaintiffs contend that their mother namely Smt.Suryakantha had purchased the property described in the suit schedule "A" under a registered Sale Deed dated 01.07.1977 from its erstwhile owner Sri.M.V.Bhadraiah alias M.V.Bhadraiah Shetty and others. Ever since the said purchase until her death, the mother of the plaintiffs was in peaceful possession and enjoyment of suit schedule "A" property as its absolute owner. The wife of defendant No.1, mother of defendant No.2 and mother-in-law of defendant No.3 namely Smt.R.Kamala Suresh had purchased all that piece and parcel of first floor premises bearing No.15 built on site No.E4, situated at 1st Block, 2nd Main Road, Kumara Park Extension, Bangalore, measuring East to West: 54 feet and North to South:45 feet described as schedule-B property under the registered Sale Deed dated 13.07.1977 from its erstwhile owner Sri.M.V.Bhadraiah alias M.V.Bhadhraiah Shetty and others.
After the said purchase, till her death Smt.R.Kamala Suresh was in peaceful possession and enjoyment of the schedule-B property and after her death, the first and second defendants are in possession of the schedule-B property.
4 O.S.No.4439/20212(a). The plaintiffs contend that suit schedule-A and B properties are built on site bearing No.E4, situated at 1 st Block, 2nd Main Road, Kumara Park Extension, Bangalore, measuring East to West: 54 feet and North to South:45 feet. The schedule-A property is in the ground floor and the schedule- B property is in the first floor. The plaintiffs contend that from the reading of the Sale Deeds, it is very clear that the plaintiffs are entitled to a verandah, hall, two rooms attached with western commode, pooja room, dining and kitchen, bathroom with western commode, wide passage, rare verandah, room adjacent to the garage and garage and surrounded by compound wall on the south, northern and eastern side having plinth area of 167.1 square metres. The Sale Deed of defendants clearly states that the house of defendants consists of a veranda, two rooms attached with western commode, two small rooms, kitchen, bath, western commode and two side rooms, rear veranda includes that portion of the staircase leading to 1st floor and 2nd floor, the first floor consist of an area of 152.92 square meters constructed with brick and RCC roofing. The reading of the Sale Deeds makes it clear that defendants are entitled to use the staircase situated in the southern side of schedule-A and B properties and plaintiffs shall not interfere with the said enjoyment by the defendants except to an extent that the plaintiffs are entitled to use the staircase for their ingress and egress to the terrace area and for cleaning purposes by the scavengers.
5 O.S.No.4439/20212(b). The plaintiffs contend that from the date of purchase, the defendants are using the staircase situated on the southern side of schedule-A property for their ingress and egress. Recently, the defendants have shifted their residence from schedule-B property to the property detailed in the cause title. After shifting their house, the defendants have started raising petty issues with the plaintiffs and intimated the plaintiffs that they are intending to lease the schedule-B property and the prospective tenants are demanding for an entry from the eastern side of schedule-A property and started demanding the plaintiffs to allow them to put up a staircase on the eastern side in the passage exclusively belonging to the plaintiffs. The plaintiffs contend that they have explained to the defendants as to the difficulty in such allowance as any staircase that would be erected in the passage, not only affects the light and air of the plaintiffs to the schedule-A property, but also invade the privacy of the plaintiffs. The plaintiffs have also explained that passage on the eastern side is the exclusive property of the plaintiffs as the said passage is the setback area left at the time of construction of the building and conveyed in favour of the plaintiffs for exclusive use and enjoyment. The defendants are already having a staircase on the southern side which they are using for years and said position cannot be altered at present.
2(c). The defendants on 02.08.2021 have brought about 20 workers and have forcibly started working in the passage detailed as ABCDEFGHA in the sketch annexed to the plaint, 6 O.S.No.4439/2021 the schedule-C property. After the plaintiffs approached the police station, the defendants have stopped their work. The defendants again on 04.08.2021 attempted to interfere with the possession of the plaintiffs in schedule-A property. When the plaintiffs was out of station on 07.08.2021, the defendants by taking advantage of the same, have illegally barged into schedule-C property and put up a pre-fabricated metal stair case providing an entry to their house by demolishing a portion of their balcony. The photographs produced by the plaintiffs clearly disclose the illegal acts of defendants in trespassing into the property of plaintiffs and unauthorisedly putting up staircase contrary to the rights and interest of the plaintiffs and demolition of a portion of balcony to create a forcible entry to schedule-B property. The jurisdictional police have not taken any action against the defendants. The defendants have no semblance of rights whatsoever over schedule-C property. The defendants are claiming common enjoyment over schedule-C property contrary to the documents on record and contrary to the right, title and interest of the plaintiffs over schedule-A property including schedule-C property. The plaintiffs have locked the gate on southern side and restricted any entry by the defendants or any persons claiming under them from entering schedule-B property by using the staircase situated at the eastern side of schedule-A property. The defendants at any time illegally break open the lock and barge into schedule-C property contrary to the rights of the plaintiffs. Hence, this suit 7 O.S.No.4439/2021 for declaration, permanent injunction and mandatory injunction. On these grounds plaintiffs prays to decree the suit.
3. The brief averments of written statement of defendants is as follows: -
The plaintiffs and defendants are close relatives. Smt.R.Suryakantha is the eldest sister of Smt.R.Kamala Suresh. The plaintiffs are the children of Smt.R.Suryakantha. The first defendant is the husband of Smt.R.Kamala Suresh. The second defendant is the daughter of Smt.R.Kamala Suresh and wife of 3rd defendant. The third defendant is the son-in-law of Smt.R.Kamala Suresh and 1st defendant. The suit schedule- A property originally is a part of one single unit and part and parcel of Sri.Venkateswara Building, consisting of four houses (ground floor-two premises and 1st floor-two premises) the said
4 houses are having common wall, common load bearing beams, common roof, common staircase and also having common sanitary, electricity and water etc. Door No.15 and 16 are on the eastern side and door No.13 and 14 are on the western side of said Sri.Venkateswara Building. The eastern side of said building is occupied by the plaintiffs and defendants. The western side of said property bearing No.13 and 14 was occupied by none other than own brothers of said Smt.R.Suryakantha and Smt.R.Kamala Suresh, namely M.S.Mahadev Prasad and M.S.Ashok Kumar. Defendant No.3 is neither a necessary nor proper party to the suit. In fact the said western side owners namely M.S.Mahadev Prasad and 8 O.S.No.4439/2021 M.S.Ashok Kumar are necessary and proper party in view of demolition caused on the western side by the said owners. The suit is bad for non-joinder of proper and necessary parties. The defendants contend that originally all the 4 houses in Sri.Venkateswara Building were owned and constructed in the year 1956 by one Sri.Chennaiah, who in turn sold western side portion of the said building to one M.Sathyanarayana and eastern side portion was sold to one M.V.Bhadraiah Setty. Later on, M.V.Bhadraiah Setty sold schedule-A property to Smt.R.Suryakantha, consisting ground floor premises No.16 vide a registered Sale Deed dated 01.07.1977. Further Smt.R.Kamala Suresh purchased "B" schedule property from said M.V.Bhadraiah Setty and others vide a registered Sale Deed dated 13.07.1977. Admittedly, all the four premises were built in the year 1956. The ground floor premises No.16 is built on site No.E-4, measuring East to West: 54 feet and North to South: 45 feet. Similarly, first floor premises No.15 is built on ground floor premises 16 and first floor No.15 is built on site No.E-4 measuring East to West: 54 feet and North to South: 45 feet. Thus, the vendor of first floor and ground floor premises No.15 and 16 are common. After the sale transaction, Smt.R.Kamala Suresh executed a registered a Gift Deed dated 20.02.2020 in favour of her husband i.e., first defendant and her daughter i.e., second defendant and thus, defendant No.1 and 2 are the joint owners of the first floor. The first defendant and his wife namely Stm.R.Kamala Suresh are Advocates by profession, having Law Chambers at first floor of B-schedule 9 O.S.No.4439/2021 property since 1975 till date. Due to the death of his wife Smt.R.Kamala Suresh on 04.01.2020, defendant No.1 could not continue his practice due to the sudden demise of his wife and due to the Covid pandemic situation. The 1 st defendant being a senior member of the Bar moved to Banashankari 2nd Stage and decided to continue his office after the pandemic situation subsided. Unfortunately, 1st defendant met with an accident and sustained injuries and therefore, his office is taken care of by his Associates.
3(a). The schedule of first floor and ground floor premises are one and the same and it is common to plaintiffs and defendants. The schedule and boundaries of ground floor and 1st floor premises extends up to the road on South and East side. After constructed area of the first floor premises No.15, there exist still a vacant open space both on the eastern and southern side. Similarly, after the constructed area of ground floor premises No. 16, there exists a vacant space both on the eastern and southern side. This vacant space is common to both the owners of ground floor premises and 1 st floor premises. Both the owners have equal rights over the same as per the respective Sale Deeds. There is a covenant in both the Sale Deeds of ground floor and first floor that both the owners have equal rights over the second floor. The covenant of the Sale Deeds firmly establishes that vacant space is common to both ground and first floor and both have equal rights over the same. The vacant space is open and is covered by a compound 10 O.S.No.4439/2021 wall. There are no structures in this vacant space, except the recent iron staircase put up by the defendants having ingress and egress on the southern side of suit "B" schedule property, which is the only access available for the defendants to get into the first floor, without using main iron gate on eastern side belonging to the plaintiffs, in any manner. The said vacant space is common to both the ground floor and first floor and both of them have equal rights. The defendants have got equal rights over vacant space, which is common to both the plaintiffs and defendants properties. The suit "C" schedule property is not a passage. The suit "C" schedule property is a vacant space open to the sky and same is an open space. The defendants having equal rights to use suit "C" schedule property. The plaintiffs have no exclusive right, title and interest over the vacant space i.e., plaint "C" schedule property. The rear door on the backside of ground floor and first floor premises facing southern side and same is being used as a service door for the maid servants to throw garbage and same is not used by the defendants and Smt.Kamala Suresh during her life time for the purpose of entering their premises. The rear southern door is not the main door for the first floor. The plaintiffs recently blocked the open space on the southern side by putting up a grill under lock, which was used by the defendants in order to access the electricity meters, sewage chambers, sanitary and sewage pipeline. The plaintiffs also constructed bathroom inside their premises in order to obstruct the defendants from using the said rear door to enter the first floor. Thus, the 11 O.S.No.4439/2021 defendants being denied their access over the said amenities by the unruly conduct of the plaintiffs. The plaintiffs have not approached the court with clean hands. The plaintiffs also caused demolition and structural damage to the western side of schedule "A" and "B" properties. The act of demolition is made in an unscientific way, as it can be seen in the photos and report from the Structural Engineer. The cutting of the common load bearing beams and cutting the common roof and half of the staircase is made manually. The structural alterations, crack beneath the staircase and reducing the size of staircase is dangerous to use and utilise for any person including defendants and their clients. Under these circumstances, defendants were constrained and perforce to put up iron staircase having access from southern side to reach the 1 st floor being suit "B" schedule property. The said staircase in the vacant space, which is common vacant space to both 1 st floor and ground on the southern side to enter the first floor. The iron staircase occupies a negligible space in the south-eastern corner of plaint "C" schedule property. This does not affect plaintiffs in any manner. The iron staircase put up by the defendants is in the extreme southern side and the same is not put up facing the main door of ground floor and iron staircase put up by the defendants will in no way cause obstruction and affect privacy and is not causing any hindrance for the plaintiffs to enter, to have an ingress and egress to their ground floor premises. The contention of the plaintiffs that their light, air and invasion of privacy is affected is without any basis. The 12 O.S.No.4439/2021 common cement staircase is highly damaged and is beyond repair. The defendants are unable to repair the said the staircase and further, the said staircase has lost its strength and using the same is dangerous to life. The suit "C" schedule property is already in possession and enjoyment of defendants and the defendants are already using the iron staircase which has come up in suit "C" schedule property. In both the Sale Deeds concerning the ground and first floor premises, there is no clause or covenant to the effect that the defendants are barred from putting up a staircase in the vacant open space. The iron staircase put up by the defendants is legal and proper. The plaintiffs have blocked the open, vacant space by putting up iron grill and thereby prevented the defendants from having access in the said side. This act of plaintiffs, forced the defendants to put up the present staircase, which is a measure of necessity, having access to the southern side.
3(d). The electricity metre, sewage and water pipeline of the defendants have been blocked by the grill covering the compound and open space. The plaintiffs have blocked the passage with grill door. The plaintiffs were initially allowing to make use of said amenities whenever required and in this regard plaintiffs were opening the lock whenever the defendants required the same. In view of the strained relationship, the plaintiffs locked the open space covered by the grill and thereby prevented the defendants from using the said amenities since the beginning of 2020. Under these 13 O.S.No.4439/2021 circumstances, the defendants constrained to seek the relief of mandatory injunction to remove the said Iron grill by keeping it open to the sky on the southern side and permanent injunction restraining the plaintiffs from causing any obstructions to ingress and egress of defendants to enter to 1 st floor and restrain the plaintiffs from preventing the defendants to make use of electricity and water etc., in keeping it under lock by the plaintiffs.
3(e). The erection of iron staircase is made without affecting any movement of plaintiffs and also in no way of affecting the alleged privacy of plaintiffs or plaintiffs' access to their main entrance of the ground floor. Pursuant to demolition caused on the western side amounting to structural changes affecting the remaining portion of suit schedule "A" and "B" properties. The defendants decided to demolish suit "B" schedule property, for which the plaintiffs did not allow and threatened with dire consequences if the defendants demolished "B" schedule property. The plaintiffs neither co- operating to demolish "A" and "B" schedule properties nor allowing the defendants to demolish "B" schedule property and also interfering to enjoy the "B" schedule property by filing this suit.
3(f). The defendants contended that there is a covenant in both the Sale Deeds that plaintiff's and defendants have got half rights in the terrace and equal rights in the open space , 14 O.S.No.4439/2021 which justifies the conduct of defendants in putting up a iron staircase. The iron staircase put up by the defendants is situated on the south-eastern side of the vacant space and plaintiffs characterising that iron staircase is put up in the passage exclusively belonging to the plaintiffs is utterly false. The iron staircase is put up by the defendants on the extreme southern side in the vacant space open to the sky, which is common to both ground floor and first floor and not in the passage as characterised by the plaintiffs. The place where the iron staircase is put up is not the passage and the same is a vacant space, wherein both the plaintiffs and defendants have equal rights and same is a vacant space. The vacant area that is left on the eastern side is the exclusive property of plaintiffs and the same is a passage. The "C" schedule property is not in existence in the way and in the manner as explained by the plaintiffs. The description of "C" schedule property as narrated by the plaintiffs is mere imaginary and is without basis. The suit "C" schedule property forms part and parcel of E-4 Site measuring East to West: 54 feet , North to South: 45 feet and "C" schedule property has no separate independent existence.
3(g). The plaintiffs have locked the open space covered by the grill and thereby prevented the defendants from using the said amenities. Hence, the defendants have sought for counter claim against the plaintiffs. The open space which is covered by the plaintiffs is causing severe predicament to the defendants and posing a severe blockade to the defendants in 15 O.S.No.4439/2021 this regard. Hence, the plaintiffs are duty bound and liable to remove the grill, plastic sheet roofing from the open space which is bounded on by East by: remaining space and small iron gate and staircase. The defendants have described in the schedule of the written statement, which is the subject matter of mandatory and permanent injunction. The BBMP has also issued around 400 notices to the various old dilapidated house owners. The BBMP after inspecting the suit schedule properties also considering the demolition of western side building and issued a similar notice to the defendants and opined that suit schedule "B" property is in dilapidated condition and has directed the defendants to evict and demolish suit "B" schedule property. The similar notice was also issued to the plaintiffs in respect of suit schedule "A" property. In view of the notice issued by the BBMP, suit itself has become infructuous. Hence, these defendants prays for dismissal of the suit of the plaintiffs and prays to decree their counter claim.
4. The plaintiffs have filed rejoinder to the counter claim of the defendants. There is no basis for the relief of the counter claim raised by the defendants. The counter claim is barred by limitation. The suit schedule "A" and "B" properties are provided with separate electric metres and they are installed separately so that the plaintiffs and defendants have independent access to the same. Both suit "A" and "B" schedule properties are provided with separate pipelines leading to main chamber which is not located within the compound wall of the plaintiffs.
16 O.S.No.4439/2021The plaintiffs have denied that during 31st January 2020, putting up a grill, covering the compound and open space with the plastic sheet. The plaintiffs are denied of blocking the passage with the grill and door. The court fee paid on the counter claim is insufficient. The defendants are not entitled to any relief much less the counter claim raised in their written statement. The relief as claimed by the defendants are on imaginary basis. Under the guise of counter claim, the defendants cannot meddle with the proprietary and possessory rights of the plaintiffs over suit schedule "A" property. On these and other grounds, plaintiffs prays for rejection of counter claim.
5. On the basis of the pleadings of the parties, my predecessor-in-office has framed the following issues for determination:-
ISSUES
1. Whether the plaintiffs prove their title over the suit "A"
schedule property?
2. Whether the plaintiffs further prove that suit "C" schedule property is part of suit "A" schedule property?
3. Whether the plaintiffs further prove that on 07.08.2021, the defendants have illegally barged into suit "C" schedule property and put up a pre-fabricated metal staircase as averred in Para No.10 of the plaint?
4. Whether the defendants prove that the defendant No.3 is neither necessary nor proper party?
17 O.S.No.4439/20215. Whether the defendants further prove that on 30.01.2020, the plaintiffs put up a grill covering the compound wall and open space as averred in Para No.65 of their written statement?
6. Whether the plaintiffs are entitled for the relief of declaration and mandatory injunction as prayed for?
7. Whether the plaintiffs are entitled for the relief of injunction as prayed for?
8. Whether the defendants are entitled to the relief of mandatory injunction as averred in their counter claim?
9. What order or decree ?
6. After settlement of issues, plaintiff No.1 has entered into the witness box as PW-1 and Ex.P.1 to Ex.P.59 were marked through him and closed their side. On behalf of the defendants, defendant No.2 has entered into the witness box as DW-1 and Ex.D.1 to Ex.D.61 were marked through her and closed their side.
7. Heard the arguments of the learned counsel for plaintiffs and defendants.
8. My findings on the above issues are as under:-
Issue No.1: In the Affirmative
Issue No.2: In the Negative
Issue No.3: In the Negative
Issue No.4: In the Negative
Issue No.5: In the Affirmative
Issue No.6: In the Negative
Issue No.7: In the Negative
18 O.S.No.4439/2021
Issue No.8: In the Affirmative
Issue No.9: As per final order below
for the following:
REASONS
9. Issue No.1:- PW.1- R.Raja is the plaintiff No.1. The plaintiff No.1 and 2 are the children of Smt.R.Suryakantha, who is the purchaser of suit schedule "A" property. The plaintiff No.1 is examined as PW-1. PW-1 has filed his affidavit evidence in lieu of his examination-in-chief in support of his case and reiterated the plaint averments in his affidavit evidence.
10. The defendant No.1 and 2 are the husband and daughter of deceased Smt.R.Kamala Suresh, who is the purchaser of suit schedule "B" property. The wife of defendant No.1 and mother of defendant No.2 by name Smt.R.Kamala Suresh is the sister of Smt.R.Suryakantha. Both these sisters purchased suit schedule "A" and "B" properties. The mother of plaintiffs purchased suit schedule "A" property and the wife of defendant No.1 and mother of defendant No.2 purchased suit schedule "B" property from a common vendor of the property by name M.V.Bhadraiah @ M.V.Bhadraiah Shetty through registered Sale Deeds as per Ex.P.1 and 2 (certified copies). The mother of plaintiffs purchasing suit schedule "A" property through Ex.P.1 certified copy of the Sale Deed dated 01.07.1977 is not disputed by the defendants. The defendants have not denied the purchase property bearing No.16, ground floor on the eastern side as per Ex.P.1 certified copy of Sale 19 O.S.No.4439/2021 Deed by the mother of plaintiffs . There is no denial to the title of the plaintiffs over the suit schedule "A" property from the defendants. The purchase of suit schedule "A" property by the mother of plaintiffs by name Smt.R.Suryakantha from one M.V. Bhadraiah @ M.V. Bhadraiah Shetty is not disputed and denied by the defendants. The wife of defendant No.1 and mother of defendant No.2 by name Smt.R.Kamala Suresh purchasing of suit "B" schedule property from the same vendor by name M.V.Bhadraiah @ M.V. Bhadraiah Shetty is not denied by the plaintiffs. The defendants have not denied title of the plaintiffs over suit schedule "A" property. Under these circumstances, the plaintiffs have proved their title over suit schedule "A" property. Hence, issue No.1 is answered in the affirmative.
11. Issue No.2, 3, 5 & 8 : - Since all these issues are interlinked with each other and involves common discussion and evidence all these issues taken together for discussion.
12. It is the case of plaintiffs that "C" schedule property is a part of suit schedule "A" property. The plaintiffs have described their property as suit schedule "A" property, which is situated in the ground floor. The plaintiffs have described the property of defendants as suit schedule "B" property, which is situated in the first floor. As already discussed supra, the purchase of ground floor by the mother of the plaintiffs and wife of defendant No.1 and mother of defendant No.2 purchasing of 1st floor in the said property is not in dispute.
20 O.S.No.4439/202113. The suit schedule "A" and suit schedule "B" property are the constructed house properties, situated in the ground floor and second floor bearing property No.16 and 15. The property measuring East to West: 54 feet and North to South:
45 feet and its boundaries is not in dispute. The only dispute with respect to open space of the property situated outside the building within the compound wall. According to the plaintiffs, suit schedule "C" property is a passage of the property shown in the sketch annexed to the plaint and denoted as ABCDEFGHA. The suit schedule "C" property forms part of suit schedule "A" property belonged to the plaintiffs. According to the plaintiffs, the passage on the eastern side is the exclusive property of these plaintiffs as the said passage is the setback area left at the time of construction of the building and conveyed in favour of plaintiffs for their exclusive use and enjoyment. The defendants are already having a staircase on the southern side which they had been using for years and the said partition cannot be altered at present. The plaintiffs have described the said passage described as ABCDEFGHA in the sketch. The plaintiffs have produced the said sketch as per Ex.P.19.
14. According to the defendants, after the constructed area of ground floor premises No.16, there exist a vacant space both on the eastern and southern side. This is a vacant space is common to both owners of ground floor premises and first floor premises. Both the owners have got equal rights over 21 O.S.No.4439/2021 the said vacant space as per their respective Sale Deeds. The said vacant space is open to sky and is covered by a compound wall. There are no structures in this vacant space except the recent iron staircase put up by the defendants having ingress and egress on the southern side of suit "B" schedule property which is the only access available for the defendants to get into the first floor, without using main iron big gate on eastern side belonging to the plaintiff's, in any manner. The first floor premises is built on the ground floor and measurement of both properties are one and the same. The said vacant space is common to both the ground floor and first floor and plaintiffs and defendants have equal right over the same. The defendants have got equal rights over "C" schedule property. The deceased Smt.R.Kamala Suresh during his life time was in possession and enjoyment of 1st floor premises inclusive of the vacant space as its absolute owner. The plaintiffs have no exclusive right, title and interest over the vacant space i.e., plaint schedule "C" property. The rear door on the backside of ground floor and first floor premises facing southern side and same is being used as service door for the maid servants to throw garbage and the same is not used by the defendants and Smt.Kamala Suresh during her life time for the purpose of entering their premises. In fact the rear southern door is not the main door for the first floor. The defendants and Smt.Kamala Suresh were entering the first floor through the ground floor premises and there is a provision in the ground floor premises itself entering the first floor and this arrangement 22 O.S.No.4439/2021 was being made in view of the close relationship between the plaintiffs and defendants and this arrangement was in operation for the past so many years. The plaintiffs have recently constructed a bathroom inside their premises in order to obstruct the defendants from using the said rear door to enter first floor. The act of plaintiffs is illegal and unjust and done with a malafide intention to prevent the defendants from using the same to enter the first floor.
15. It is also the case of the defendants that plaintiffs have also recently blocked the open space on the southern side by putting up the grill under lock, which was used by the defendants in order to access the electricity metres, sewage e chamber, sanitary and sewage pipeline line. Thus, the defendants being denied their access over the said amenities by the unruly conduct of the plaintiffs. Thereby, the defendants have pleaded that suit schedule "C" property is not the passage and it is open space meant for plaintiffs and defendants and it is not the exclusive property of plaintiffs. Thereby, the defendants denied the case of plaintiffs that suit schedule "C" property is a part of suit schedule "A" property.
16. PW-1 in his affidavit evidence also deposed that reading of the Sale Deeds, it is very clear that plaintiffs are entitled to a verandah, hall, two rooms attached with western commode, bathroom with western commode, wide passage, rear verandah, room adjacent to the garage and garage and 23 O.S.No.4439/2021 surrounded by compound wall on the south, northern, eastern side having plinth area of 167.1 meters. In the same fashion, the Sale Deed under which the defendants are asserting their rights clearly states that, the house of the defendants consists of verandah, two rooms attached with western commode, 2 small rooms, kitchen, bathroom with western commode, two side rooms, rear verandah includes that portion of the staircase leading to 1st floor and second floor, the first floor consist of an area of 152.92 square meter. According to PW-1, the reading of the Sale Deeds makes it clear that the defendants are entitled to use staircase situated in the southern side of the schedule-A and B properties. From the date of the purchase, the defendants are using the staircase situated on the southern side of schedule "A" property for their ingress and egress. The defendants intending to lease the schedule-B property and the prospective tenants demanding for an entry from the eastern side of schedule-A property started demanding the plaintiff to allow them to put up a staircase on the eastern side in the passage exclusively belonging to the plaintiffs. PW-1 further deposed that any staircase that would be erected in the passage not only affects their light and air to the suit schedule "A" property and also invade their privacy. The passage on eastern side is their exclusive property as the said passage is the setback area left at the time of construction of the building and conveyed in their favour for the exclusive use and enjoyment. The defendants are already having a staircase on 24 O.S.No.4439/2021 the southern side which they are using for years and the said partition cannot be altered at present.
17. PW-1 in the cross-examination admitted the boundaries of suit schedule "A" and "B" properties. PW-1 admitted that on the eastern and southern side, existence of the road. PW-1 also admitted the demolition of structure situated on the western side of suit schedule "A" and "B" properties. It is suggested to PW-1 in the cross-examination that staircase of suit schedule "A" and "B" properties situated on the western side. PW-1 to this suggestion has stated that the staircase is situated in south-west. PW-1 admitted the demolition of building situated on western side in the year 2021. The admission made by PW-1 in the cross-examination that before the demolition of structure by his brothers-in-law, they were also using the same staircase, which was referred by this witness. PW-1 further in the cross-examination clearly admitted that their brothers-in-laws at the time of demolishing their structure they had also demolished the staircase, which they were using the same as their right/share. PW-1 clearly admitted that their brothers-in-law at the time of demolishing their structure situated towards the western side of the suit schedule "A" and "B" properties, also demolished the staircase to an extent of their share. The admission made by PW-1 clearly discloses that in between the properties of plaintiffs and defendants and the property situated towards western side of suit schedule "A" and "B" properties, there was no existence of 25 O.S.No.4439/2021 any wall bifurcating the same. PW-1 unable to say the measurement of the staircase after the demolition made by owners on western side of the property. From this admission of PW-1 it is very much clear that the staircase which was referred to by this witness situated on the south-west was demolished by the property owners situated on the western side of suit schedule "A" and "B" schedule properties to an extent of their share in the said the staircase. From this admission made by PW-1 it is very much clear that there is a probability in the case of the defendants that due to the demolition of structure by the owners of the property situated towards western side of suit schedule "A" and "B" schedule properties, there was a damage to the staircase situated towards western side as per the case of defendants and situated towards south-west as per the case of PW-1. This act of demolition of staircase and the structure by the owners of property situated towards western side of suit schedule "A" and "B" schedule properties reduced the measurement of the staircase which was used by these defendants and it also obstructed the use of staircase by the defendants. Hence, there is a probability in the case of the defendants in the case on hand. It is relevant to note that, it is the case of the defendants that due to the demolition of structure/staircase by the owners of the property situated towards the western side by reducing the size of the staircase made it dangerous to use and utilise for any person including defendants and clients of defendant No.1. Under these circumstances, the defendants were constrained and pre-forced 26 O.S.No.4439/2021 to put up iron staircase having access from southern side to reach 1st floor being suit schedule "B" property. The said staircase is in the vacant space which is common vacant open- space to both the 1st floor and ground floor on the southern side to enter the 1st floor. The said iron staircase is in the vacant space occupies a negligible space in the South Eastern corner of plaint "C" schedule property, they do not affect plaintiffs in any manner. The said iron stair case put up by the defendants is in the extreme southern side and same is not put up facing the main door of the ground floor and iron staircase in no way causes obstruction and affected privacy and hindrance for the plaintiffs and further, it is not going to cause any obstruction to the ingress and egress to the ground floor premises. There is a main iron gate which is in existence facing eastern side and the said big main iron gate is being used by the plaintiffs have their access to the ground floor. The contention of the plaintiffs that their light, air and invasion of privacy is without any basis.
18. The defendants confronted Ex.D.1 sketch of suit schedule "A" and "B" properties to PW-1 in the cross- examination. PW-1 has not denied the said sketch confronted to him, which is marked as Ex.D .1. In the said sketch, nowhere it is disclosed that suit schedule "C" property is a part and parcel of suit schedule "A" property as contended by the plaintiffs. The suit schedule "C" is not reserved to the plaintiffs' right and use. The measurement of properties of plaintiffs and defendants are one and the same. PW-1 admitted that there is 27 O.S.No.4439/2021 a recital in their Sale Deed about the reservation of rights of Smt.Kamala Suresh to make use of electricity lines, water pipes and sanitary pipes situated in the suit schedule "A" property. From this admission, it is very much clear that the basic amenities such as electricity lines, water connection pipes and sanitary pipes are situated in the suit schedule "A" property and plaintiffs shall not cause any obstruction to purchaser of "B" schedule property. It is also admitted by PW-1 that both of them have equal rights on the terrace and it is mentioned in the Sale Deeds in this regard. It is also admitted by PW-1 the right of pre-emption was also reserved in favour of Smt.Kamala Suresh to purchase the property of plaintiffs in case of they alienating the said property. The admission made by PW-1 also clear that Smt.Kamala Suresh was also having the same equal right in the property like that of the mother of plaintiffs. This admission of PW-1 also very much clear that plaintiffs cannot claim any exclusive right over suit schedule "C" property. From this admission of PW-1, it is very much clear that defendants have got equal right over the open area situated within the compound wall of the suit schedule "A" and "B" properties. The careful perusal of recitals of Ex.P.1 and P.2 clearly discloses that the open-space situated within the compound wall has to be enjoyed by the purchasers of suit schedule "A" and "B" properties and no one can claim exclusive right as contended by the plaintiffs. This is evident from the recitals of the Ex.P.1 and P.2 certified copies of the Sale Deeds.
28 O.S.No.4439/202119. Further, PW-1 in the cross-examination admitted the damages caused to the property of defendants and also causing damages to the staircase of the defendants, due to the structural changes made by western side owners . PW-1 in the cross-examination further admitted the demolition of ½ portion of staircase which was used by defendants situated on the western side by the owners of the property situated towards western side. It is suggested to DW-1 that due to demolition of ½ portion of staircase by the owners of property situated on the western side it has reduced the width of staircase. But, PW-1 denied the suggestion. But, it is interesting to note that PW-1 has not denied the reduction of staircase to an extent of ½ portion due to demolition of staircase to an extent of share of the owners of the property situated on the western side of suit schedule "A" and "B" properties. It is suggested to PW-1 that due to reduction of width of staircase prompted the defendants to install iron staircase. The defendants in this regard have also produced the photos, which is not denied by PW-1. PW-1 was also confronted with Ex.D.1 to D.33 photographs in the cross- examination. PW-1 admitted these photographs. The careful perusal of these photographs, it is evident that due to demolition of structure by the owners of the western side of the property it has caused damages to the staircase and it is not possible for these defendants to use the said staircase. It is also admitted by the plaintiffs the issue of notice by the BBMP for the demolition of old structure of plaintiffs and defendants. The perusal of these photographs, it also discloses that 29 O.S.No.4439/2021 plaintiffs have put up grill in the open-space of schedule "A" and "B" properties. From these photographs, the case of the defendants is very evident and is more probable. The case of the defendants that due to demolition of the structure by the owners of the western side of the property and demolition of staircase to an extent of their share has caused danger and due to the dilapidated condition of the staircase they cannot make use of the same as such it prompted them to install iron staircase in the suit schedule "C" property. PW-1 admitted the issue of Ex.D.35 notice of demolition of the suit schedule "A" and "B" properties by the BBMP Authorities.
20. The careful perusal of photographs Ex.D.4, D.6, D.9, D.20, D.21, D.29, D.36 and D.37, it clearly establishes that there is a probability in the case of the defendants regarding the plaintiffs installing and putting up iron grills towards southern side of their house. PW-1 stated in the cross-examination the said property, wherein they have put grill is exclusively belong to them and as such they have closed the said property by grill. But, PW-1 in the cross-examination admitted that in the Sale Deed there is no mention that open-space towards southern side is belonged to them. PW-1 during the course of cross-examination admitted the alterations made to their property and also admitted erection of grill towards southern side of their property without the permission of defendants. But, the plaintiffs very strangely are denying rights of defendants to erect iron staircase in the suit schedule "C" property.
30 O.S.No.4439/202121. The defendant No.2 is examined as DW-1. DW-1 in his evidence has specifically stated that Sale Deeds concerning the ground and first floor premises there is no clause or covenant to the effect that defendants are barred from putting up a staircase in the vacant open-space. DW-1 has clearly stated in evidence that due to structural alterations made to the suit schedule properties caused severe damage and cracks to suit schedule "B" property. DW-1 has specifically stated that boundaries to suit schedule "A" and "B" properties extend upto the road situated on the south and eastern side. DW-1 has specifically stated after constructed area of the first floor premises there exist still a vacant open space both on the eastern and southern side. This vacant space is common to both owners of ground and first floor premises. Both the owners have equal rights over the same as per the respective Sale Deeds. DW-1 has specifically stated as per the covenant in the Sale Deeds of ground floor and first floor that both of owners have equal rights over the second floor and as such as per the covenant of Sale Deeds, vacant space is common to both the ground floor and first floor and both of them have got equal rights over the same. There are no structures in the vacant space except the recent iron staircase put up by the defendants for having ingress and egress on the southern side of suit "B" schedule property, it is the only access available for them to get into the first floor, without using the main iron big gate on eastern side of the plaint A schedule property, in any manner. DW-1 has denied that "C" schedule property is a passage. The 31 O.S.No.4439/2021 plaintiffs have no exclusive right, title and interest over the vacant space which is suit schedule "C" property. The plaintiffs recently without the notice to the defendants or knowledge have constructed a bathroom in the said their premises in order to obstruct defendants from using the said rear door to enter 1 st floor. DW-1 has also stated that plaintiffs recently blocked the open-space on the southern side by putting up an iron grill under lock, which was used by defendants in order to access the electricity.
22. The evidence of DW-1 followed by photographs produced and also the recitals of Ex.P.1 and P.2 it clearly establishes that plaintiffs have no exclusive right, title and interest over the vacant space i.e., plaint "C" schedule property. It also establishes that due to structural changes made by owners of western side of the property the common cement staircase is highly damaged and is beyond repair and use of the same is very dangerous. Further, admittedly the building is 65 years old. The plaintiffs have also prevented the defendants from making use of open-space by blocking by putting up iron grills and also prevented the defendants from having access to the said place. This conduct of the plaintiffs prompted the defendants to put the iron staircase in the suit schedule "C" property. The place where the iron staircase is put up is on the extreme southern side in the vacant space open to sky which is common to both the ground floor and first floor. Further more, where the iron staircase is put up is a vacant 32 O.S.No.4439/2021 space , wherein the plaintiffs and defendants have equal rights to enjoy and make use of as per the recitals of Sale Deeds marked as per Ex.P.1 and P.2. The plaintiffs have no right to prevent the defendants from installing iron staircase to go to their property as per the rights reserved to them in Ex.P.1 and P.2 Sale Deeds. The plaintiffs have not produced sanctioned plan so as to prove that suit schedule "C" property is a passage , verandah and a setback area.
23. No doubt, DW-1 in the cross-examination admitted that except the staircase situated in the southern side, no other places reserved for them to go to 1st floor in their Sale Deed. But, subsequent development of alteration and structural damages made by the western side owners of the property and also demolishing of the staircase situated at the southern side prompted these defendants to install iron staircase in the suit schedule "C" property which is open-space meant for both the parties to the suit as per the Sale Deeds. In the cross- examination of DW-1 plaintiffs have confronted Ex.P.20 photograph and suggested to her that they could very well make use of the staircase depicted in the Ex.P.20 photograph. DW-1 has denied the suggestion. DW-1 has clearly stated that said staircase is only partial. The plaintiffs have not produced the photograpgh of entire staircase as per Ex.P.20. The plaintiffs have shown only partial staircase, from this staircase it is not possible to arrive at a conclusion that defendants can make use of this staircase to reach their property. DW-1 in the 33 O.S.No.4439/2021 cross-examination clearly stated that due to demolition of structure by the owners of western side property they had to put up iron staircase on the eastern side. The plaintiffs have not denied the case of DW-1 by suggesting that structural damages made by the western side owners of the property has not prompted them to put up iron staircase in the eastern side of the property. On the other hand, the materials placed by the defendants clearly establishes that due to structural damages made by the western side owners of the property and also demolition of southern side staircase of the defendants, which has caused dangerous to this defendants to make use of the dilapidated staircase and forced them to put up iron staircase in "C" schedule property.
24. In Ex.P.1 certified copy of the Sale Deed, it is clearly mentioned that vendors have agreed to sell the first floor of the schedule premises bearing No.15 of eastern side to Smt.Kamala Suresh by way of separate Sale Deed and whereas the water, sanitary, sewerage, electric lines are drawn from the same sources and a part of them are situated in the schedule premises and the purchaser of the first floor is also entitled to the said amenities, the purchaser not to do or forbear from doing any deed, act or thing that would result in diminishing or developing or in any way affecting the said amenities to the first floor of the schedule premises. It is also mentioned in the recitals of Ex.P.1 Sale Deed that if need be and if there is an occasion, the purchaser shall provide all the 34 O.S.No.4439/2021 facilities and co-operation in renewing or repairing or replacing any or all of the said amenities to the purchaser of the first floor of the schedule premises. Further more, in the said Ex.P.1 Sale Deed it is also mentioned that in the backside of the schedule premises where the door is situated in the southern side which is marked as 'x' in the annexed plan which leads to the outer passage where the staircase for the first floor of schedule premises and also a staircase for the first floor of the adjacent premises on the western side belonging to Smt.Varalakshmma is being put to use for entrance to the schedule premises from the southern side which is mainly used for entrance for servants and scavengers and for such purpose of cleaning the bathroom and the purchaser is at liberty to continue to do so. However, the purchaser herein shall not affect any movement or free passage to the staircase referred to above by putting up any construction, structures or fixtures and in no way affect the right of passage of the purchaser and all occupants of the first floor of the schedule premises.
25. The plaintiffs have not denied these recitals in their Sale Deeds. From the recitals of the said Sale Deed clearly establishes that plaintiffs shall not cause any obstruction to the movement of defendants in making use of the staircase and shall not obstruct right of passage of the purchaser and occupants of the first floor. From these recitals, it is very much clear that defendants have got every right for free passage to the staircase and plaintiffs shall not obstruct by putting up any 35 O.S.No.4439/2021 constructions, structures or fixtures by causing obstructions to the defendants to make use of the passage and staircase. Since the southern side staircase which is referred to in Ex.P.1 Sale Deed reserved for the defendants to make use of is demolished and it has become impossible and dangerous to make use of which prompted the defendants to erect iron staircase in "C" schedule property. This right of defendants to erect iron staircase is nothing but rights reserved in the Ex.P.2 Sale Deed. It is also very relevant to note in Ex.P.2 schedule nowhere it is mentioned that suit "C" schedule is a part of suit schedule "A" property. On the other hand, in the schedule of Ex.P.2 the ground floor property is surrounded by compound wall on the southern, northern and eastern side. Nowhere in the Ex.P.1 it is mentioned that plaintiffs are also entitled to close the open-space by grill and suit schedule "C" property is a passage.
26. DW-1 has produced Ex.D.60 report of the Technical Director. As per the said Ex.D.60 report also it is observed that partial demolition of the building at western side have further aggravated the present situation. The report of the Technical Director and photos goes to show that there is a probability in the case of the defendants. As per the Ex.D.60 report that building is old and in distress needs restoration/strengthening. Hence, the plaintiffs failed to prove that "C" schedule property is part of "A" schedule property. The plaintiffs and defendants are entitled to claim their right as per Ex.P.1 and 2 Sale Deeds. In 36 O.S.No.4439/2021 the said Ex.P.1 and P.2 Sale Deeds, there is no mention that suit schedule "C" property is a passage property and belong to the plaintiffs. On the other hand, the schedule of Ex.P.1 goes to show that the plaintiffs have got right in the plinth area of 167.1 square meters. The plaintiffs cannot claim their rights over the open-space extended till the compound wall of the property. The open-space is meant for the use of both the parties i.e., plaintiffs and defendants. Hence, the plaintiffs also failed to prove that on 07.08.2021 defendants have illegally barged into suit "C" schedule property and put up a pre- fabricated metal staircase. The defendants, on the other hand, have put up metal staircase for their use and to go to the 1st floor of their property due to demolition of half staircase, damage done to the staircase situated on the southern side as as disclosed in Ex.P.1 and P.2 Sale Deeds. The plaintiffs have not denied demolition of western side property by the owners and also damages caused to the staircase situated on the southern side of staircase which is mentioned Ex.P.1 Sale Deed.
27. The plaintiffs have not denied putting up grill covering the compound wall and open-space. PW-1 in the cross- examination clearly admitted the erection of iron grill on the vacant space situated in the southern side. DW-1 also admitted that he has not taken any permission from the defendants for putting up the said grill on the southern side. As per schedule of Ex.P.2 Sale Deed the property is surrounded by compound 37 O.S.No.4439/2021 wall on the southern, northern and eastern side. The plaintiffs have not produced the plan annexed to the Ex.P.2 Sale Deed. Under these circumstances, the defendants have proved that plaintiffs have put up the grill covering the compound wall and open-space as contended by them in para 65 of the written statement. Under these circumstances, the defendants have established that the iron grill covering the compound wall and open-space as described in the written statement property has to be removed, because it is contrary to Ex.P.1 and 2 Sale Deeds. In Ex.P.1 and 2 Sale Deeds there is no reservation of rights to the plaintiffs to cover southern side of their property by iron grill and preventing the defendants from entering the open- space situated in the compound wall on southern, northern and eastern side. The defendants have got equal right to make use of the open-space situated in the compound on all southern, northern and eastern side. The defendants are entitled for the relief of mandatory injunction as sought in the written statement as counter claim. Accordingly issue No.2 is answered in the negative. The issue No.3 is answered in the negative. The issue No.5 is answered in affirmative. The issue No.8 is answered in the affirmative.
28. Issue No.4: - The defendant No.3 is the husband of defendant No.2. The defendants in their written statement have pleaded that defendant No.3 is neither a necessary nor proper party to the suit. There is no pleadings against defendant No.3 in the suit. All the allegations made by the plaintiffs are against 38 O.S.No.4439/2021 defendant No.1 and 2 . On these grounds defendants in their written statement have pleaded that defendant No.3 is not proper and necessary party to the suit.
29. The plaintiffs have also sought for permanent injunction. In the prayer column, the plaintiffs have sought for restraining the defendants permanently from interfering with the peaceful possession and enjoyment of the plaintiffs over the suit schedule "A" property including suit schedule "C" property. The plaintiffs in para No.10 have pleaded that defendant No.3 also attempted to interfere with the possession of plaintiffs over suit schedule "A" property. These allegations made against the defendant No.3 in the plaint. It is the case of the plaintiffs that defendant No.3 also joined other defendants and put up iron staircase providing an entry to their house by demolishing a portion of their balcony. The plaintiffs in para No.13 of the plaint have pleaded that defendants for the first time made a futile attempt to interfere with the peaceful possession and enjoyment of plaintiffs over suit schedule "A" property. The plaintiffs have stated that the defendant No.3 attempted to interfere with their peaceful possession and enjoyment. The plaintiffs have claimed reliefs against this defendant also. Under these circumstances, though the defendants have pleaded that defendant No.3 is not a proper and necessary party to the suit, but plaint averments clearly discloses that plaintiffs have made allegation against defendant No.3 also and they have also sought relief against defendant No.3. Hence, the defendants failed to prove that 39 O.S.No.4439/2021 defendant No.3 is not a proper and necessary party to the suit. Accordingly, issue No.4 is answered in the negative.
30. Issue 6 & 7:- The plaintiffs failed to prove that suit schedule "C" property is a part of suit schedule "A" property. The plaintiffs have also failed to prove that defendants have illegally put up pre-fabricated metal staircase illegally in suit schedule "C" property. The defendants have also proved that plaintiffs have put up a grill covering the compound wall and open space. The defendants have no other alternative staircase to go to their house situated in the first floor without using the metal staircase, which was installed by them recently. The defendants have established that southern side staircase becoming unusable, dangerous to use in view of demolition of the structure by the owners of the property situated on western side of suit schedule "A" and "B" properties and for damaging the staircase and reducing its extent. The demolition of structure and also demolition of the staircase and its width, prompted the defendants to erect metal staircase to go to their house situated in the first floor of the property purchased by the wife of 1st defendant and mother of plaintiffs. The rights given to the purchaser as per Ex.P.1 and 2 Sale Deeds permits the defendants to erect metal staircase by safeguarding right of use of staircase to go to their house situated in the 1 st floor, which is "B" schedule property. Under these circumstances, plaintiffs are not entitled to the relief of declaration and mandatory injunction as sought.
40 O.S.No.4439/202131. The plaintiffs have also sought for permanent injunction against the defendants in respect of suit schedule "A" and "C" properties. The defendants nowhere stated that they have interfered with the peaceful possession and enjoyment of the plaintiffs over suit schedule "A" property. The plaintiffs failed to prove that suit schedule "C" property is a part of suit "A" schedule property. As per Ex.P.1 and 2, both the plaintiffs and defendants have got equal right to make use of open spaces situated inside compound wall of suit schedule "A" and "B" properties . Both the purchasers of Ex.P.1 and P.2 Sale Deeds have been given equal rights to make use of open spaces situated within the compound wall of suit schedule "A" and "B" properties. Under these circumstances, the plaintiffs are also not entitled for the relief of permanent injunction. Under these circumstances, the plaintiffs are not entitled to get the relief of declaration and also mandatory injunction as sought. Hence, Issue No.6 and 7 are answered in the negative.
32. Issue No.9: In view of the above discussions, this court proceed to pass the following:-
ORDER The suit of the plaintiffs for the relief of declaration, mandatory injunction and permanent injunction is hereby dismissed.
The counter claim of the defendants is hereby decreed.41 O.S.No.4439/2021
The plaintiffs are hereby directed to remove the Iron Grill described in the written statement schedule property at the costs of the plaintiffs. If the plaintiffs fails to remove the same, the defendants are at liberty to remove the said Iron Grill through the Agency of this court at the costs of the plaintiffs.
The plaintiffs are permanently restrained from causing any obstructions to ingress and egress of defendants to enter to first floor by using the said iron staircase and also the plaintiffs are restrained from preventing the defendants to make use of electricity, water and other amenities of the defendants.
In view of the close relationship of the parties and the facts and circumstances of the case, the parties are directed to bear their own costs.
Draw decree accordingly.
(Dictated to the Stenographer Grade-I on computer, typed by her, corrected and then pronounced by me, in the open court, on this the 1st day of October, 2024) (B.DASARATHA) XI ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU CITY.
ANNEXURE List of witnesses examined for plaintiffs:
PW.1 : Sri.R.Raja 42 O.S.No.4439/2021 List of documents exhibited for plaintiffs: Ex.P.1 : Certified copy of Sale Deed dated 01.07.1977 Ex.P.2 & 3 : Endorsements issued by BBMP Ex.P.4 : Certified copy of Sale Deed dated 13.07.1977 Ex.P.5 to 12: 8 Photographs Ex.P.13 : Receipt Ex.P.14 : C.D. Ex.P.15 & 16: 2 Police Complaints Ex.P.17 : Acknowledgment issued by the Police Ex.P.18 : Served copy of Caveat Petition Ex.P.19 : Rough Sketch Ex.P.20 to 28: Photographs Ex.P.29 : C.D. Ex.P.30 : Receipt Ex.P.31 to 39: Electricity Bills Ex.P.40 : Certified copy of Order in W.P.No.3883/2022 Ex.P.41 : Acknowledgment dated 23.08.2021 issued by Police Ex.P.42 to 48: Colour Photographs Ex.P.49 : C.D. Ex.P.50 : Receipt Ex.P.51 to 58: Colour Photographs Ex.P.59 : Stability Certificate issued by Athreya Associates List of witnesses examined for defendants: DW.1 : Smt. Raghavi S. List of documents exhibited for defendants: Ex.D.1 : Xerox copy of Plan Ex.D.2 to 33: Photographs Ex.D.34 : Colour xerox copy of Death Certificate of Kamala Kumari M.S. Ex.D.35 : Xerox copy of Notice dated 13.10.2021 issued by BBMP 43 O.S.No.4439/2021 Ex.D.36 & 37: Photographs Ex.D.38 : Death Certificate of Kamala Kumari M.S. Ex.D.39 : Notice dated 13.10.2021 issued by the BBMP under Section 256(1) and (2) of BBMP Act Ex.D.40 to 55: 16 Photographs Ex.D.56 to 59: C.Ds. Ex.D.60 : Inspection Report issued by one S.Ravi, Technical Director of M/s. Enstructura Consultants (Pvt) Ltd. Ex.D.61 : Certificate under Section 65-B of the Indian Evidence Act XI ADDL., CITY CIVIL & SESSIONS JUDGE BENGALURU CITY.