Bangalore District Court
Sri.C.N.Rudramurthy vs Sri.C.R.Nagappa & Sons on 8 December, 2020
IN THE COURT OF THE XXVI ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU
(CCH-20)
Present:
Sri.D.S.Vijaya Kumar, B.Sc., LL.B.,
XXVI Addl. City Civil & Sessions Judge, Bengaluru
th
Dated this the 8 day of December, 2020.
O.S.No.25674/2011
Plaintiff: Sri.C.N.Rudramurthy,
S/o Late C.R.Nagappa,
Aged about 60 years,
R/a. No.40, Hospital Road,
Bengaluru - 560 001.
[By MP-Advocate]
Vs.
Defendants: 1. Sri.C.R.Nagappa & Sons
Charitable Trust', Having its
Registered Office at No.16,
Kasturba Road,
Bangalore-560 001
represented by its Trustee
-Secretary Sri.C.N.Kumar
2. Sri.C.N.Kumar,
S/o Late C.R.Nagappa,
2 O.S.No.25674/2011
Aged about 63 years,
R/a No.16, Kasturba Road,
Bangalore-1.
[By Sri.A.R-Advocate]
Date of Institution of suit: 01.04.2011
Nature of the Suit (Suit for
Pronote, Suit for Declaration
and Possession, Suit for Injunction Suit
Injunction, etc.):
Date of Commencement of 27.06.2014
recording of evidence:
Date on which the Judgment
was pronounced: 08.12.2020
Total Duration:
Years Months Days
09 08 07
(D.S.VIJAYA KUMAR)
XXVI Addl. City Civil Judge
Mayo Hall, Bengaluru.
3 O.S.No.25674/2011
JUDGMENT
This is a suit filed by the plaintiff for grant of an order of permanent injunction to restrain the defendants and their henchmen, Agents or any other person/s or any one claiming under them from interfering with the plaintiff's peaceful enjoyment of the suit schedule property, and also from erecting any hoarding or other structures in the suit schedule property and for costs.
2. Brief facts of the case of the plaintiff, as shown in the plaint, are as below:-
Plaintiff was the absolute owner of the property bearing Nos. 13 and 14, Old Nos.4 and 5, Kasturba Road, Bangalore, having acquired same under a Registered Deed dtd. 14.04.1955 executed 4 O.S.No.25674/2011 by his father Sri.C.R.Nagappa. During the life time of his father C.R.Nagappa, a Public Charitable Trust in the name and style of 'Sri.C.R.Nagappa and Sons Charitable Trust' was established with a view to carry out several objects of charitable nature as per the deed of trust dtd. 7.7.1975. Since from the date of demise of Sri.C.R.Nagappa, no useful purpose was achieved to meet the objects of the above said trust and in order to commemorate the memory of his father late C.R.Nagappa, plaintiff came forward and donated an extent of 14,650 sq. feet of property in the property bearing Nos. 13 and 14, Kasturba Road, Bangalore under a Regd. Gift Deed dtd. 29.03.1978 in favour of 1st defendant. Trust and retained the remaining portion in the same property, where he has built a residential house in a portion of property No.14. 2Nd defendant who is the trustee and 5 O.S.No.25674/2011 secretary of the first defendant trust was solely running the affairs of the 1st defendant trust and in the year 1998 a commercial complex was constructed in the property bearing No.13 after demolishing the old building that was existing in its place. Towards the western side of commercial complex built on the property bearing No.13, a passage of 21.2 feet x 143 feet is left with a gate opening to Kasturba Road and extending upto the house of plaintiff. The said passage and gate has been used by the plaintiff for his ingress and egress to reach his residential property bearing No.14, which is the suit schedule property of this suit. On 21.03.1979 2nd defendant and another brother of the plaintiff by name C.N.Nataraj had entered into an Agreement with the plaintiff under which the plaintiff was permitted to use the passage in 6 O.S.No.25674/2011 property bearing Nos.15, 16, 19 and 20 to reach plaintiff's residential house situated in property No.14. However, said passage was blocked by the 2 nd defendant in the year 1988 when the commercial complex was constructed in the adjoining property no.13 and a compound wall was erected thereby separates property nos. 13 and 14 from property nos. 15, 16, 19 and 20. Hence the access that was made available to the plaintiff as per the Agreement dtd. 21.3.1979 was totally blocked by the compound wall. Subsequent to erecting the compound wall, plaintiff was permitted by the 1 st defendant to use the schedule property as passage for his ingress and egress to reach his residential house at property no.14, through the Gate existing at the northern end of the schedule property and opening to Kasturba Road and is being used from the year 1988 7 O.S.No.25674/2011 peacefully by the plaintiff without any hindrance from the defendants or the tenants in property no.13, which is the only access to him. But on 28.3.2011 the plaintiff found that the gate which is situated on the northern end of the schedule property was locked and a foundation structure was laid in the scheduled property. Upon enquiry plaintiff learnt that 2nd defendant has instructed his men to lock the gate and to erect a permanent hoarding with a concrete structure in the schedule passage and permitted the tenets and their customers to park vehicles in the schedule passage and causing hardship to the plaintiff. Hence, this suit seeking permanent injunctions against the defendants.8 O.S.No.25674/2011
3. Defendant Nos.1 and 2 have contested the suit by filing written-statement, which is in brief as under:-
Suit is not maintainable either in law or on facts of the case. Defendants admit formation of Charitable Trust under a Regd. Trust Deed dtd. 7.7.1975. Defendants also admit plaintiff gifting property bearing No.13, Kasturba Road to the said Trust under a Gift Deed dtd. 29.03.1978. Plaintiff declared vide a reply dated 4.4.1982 that he has no objection for constructing an office complex on the said property gifted by him. Hence, a commercial complex was built. Defendants also admit that while plaintiff gifting the above property, he retained property no.14 and towards the western side of the said commercial complex built by the trust, there is a 9 O.S.No.25674/2011 passage of 21.2 feet x 143 feet with a gate opening to Kasturba Road and the trust has permitted the plaintiff to use the said passage for his ingress and egress to reach his residential property. But as the plaintiff is not residing at the house behind the said building, and as he has rented it to a company as a godown. There is no difficulty or inconvenience for the plaintiff's tenant to use the passage as a driveway to ingress or egress from the plaintiff's property. With a view to augment the Trust income, first defendant Trust decided to use a corner of its property to erect a hoarding so that it generate additional income for the Trust. Accordingly, 1t defendant has taken steps to erect a hoarding on a single pillar about 3 feet width. Said pillar hoarding will not obstruct the passage as the said pillar hoarding is of only about 3 feet in width and 10 O.S.No.25674/2011 remaining space left in the passage is 19.9 feet, which is sufficient for the plaintiff to access his property. Dispute is with respect to the passage which belongs to the 1st defendant who is the owners of the said property. Plaintiff has mere a right of way in the said passage which is permitted by the 1st defendant to use the said passage as ingress and egress to his residential house and plaintiff does not have any right to restrict the 1 st defendant in carrying out its activities to meet the objects of the Trust. Suit is merely a means of harassment by the plaintiff. The tenants of the commercial complex are parking only two wheelers in the said passage and it is not blocking the passage as alleged by the plaintiff. Suit is liable for dismissal for want of cause of action. On the said grounds defendants has sought for dismissal of suit. 11 O.S.No.25674/2011
4. In support of the plaintiff's case, plaintiff got examined as P.W.1 and got marked 24 documents as Ex.P.1 to P.24. In defence, 2nd defendant being secretary of the 1st defendant Trust got examined himself as DW.1 and got marked 9 documents as Ex.D.1 to D.9.
5. Heard arguments.
6. The following issues have been framed for determination:-
1. Whether plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as on the date of the suit?
2. Whether plaintiff proves that defendants are illegally interfering into his possession in suit property ?12 O.S.No.25674/2011
3. Whether plaintiff is entitled for decree of permanent injunction as sought in the plaint?
4. What decree or order?
7. For the reasons stated in the subsequent paragraphs, I answer above Issues as follows:-
Issue No.1 :- Does not arise for
consideration
Issue No.2 :- In the affirmative
Issue No.3 :- In the affirmative
Issue No.4 :- As per final order
for the following
REASONS
8. Issue No.1:- Under the issue for
consideration, plaintiff is required to prove his
lawful possession of the suit schedule property as 13 O.S.No.25674/2011 on the date of the suit. However, suit schedule property is admittedly a passage. Plaintiff is not claiming exclusive possession over the suit schedule property. At paras-21 and 23 of the written statement it is manifestly admitted by the defendants that the suit schedule property has been permitted to be used as passage by the plaintiff and plaintiff has right to use the same as there is no alternative access to the plaintiff's property/house. Paras-21 and 23 of the written statement read as under:-
"21. Regarding para No.9: It is true that the plaintiff was permitted to use the passage for his ingress and egress to reach his residential house at property No.14 through the gate existing at the Northern end of the suit schedule property. It is pertinent to mention here that the Trust is the absolute owner of the suit schedule property and the said passage described in the suit schedule belongs to the 14 O.S.No.25674/2011 Trust. The plaintiff has only a right of way in the said passage and he is permitted by the Trust to use the said passage as ingress and egress to his residential house. The plaintiff does not have any right to restrict the Trust in carrying out its activities to meet the objects of the Trust".
23.Regarding Para No.11: Knowing the fact that plaintiff does not have any other way/passage as ingress and egress to his residential house the Trust had permitted the plaintiff to use the said passage. Even today, the defendants are not obstructing the plaintiff in using the said passage as ingress and egress to his residential house".
Also in other parts of the written statement too, defendants have admitted that the suit schedule property is a passage as claimed by the plaintiff. During the cross examination of plaintiff/PW.1, said aspect has not been disputed. Whereas, in the affidavit filed for examination in chief by defendant 15 O.S.No.25674/2011 No.2, fact that the suit schedule property is a passage in which plaintiff has right to user has been admitted. Therefore, issue under consideration is of no consequence. Consequently, Issue No.1 is answered as the same does not arise for consideration.
9. Issue Nos.2 and 3:- There is serious dispute about the cause of action for filing the suit. Plaintiff claims that defendant no.2 who is the Secretary of the defendant No.1-Trust instructed his men to lock the gate which is to be put up at the outer margin of the suit schedule property and also erect a permanent hoarding with a concrete structure in the schedule passage and permitted the tenants of the Trust and also their customers to park vehicles in the suit schedule passage Paras-13 and 14 of the plaint 16 O.S.No.25674/2011 which describe the alleged cause of action for the suit read as follows:-
"13. The plaintiff upon enquiry has learnt that the 2nd defendant has instructed his men to lock the gate and to erect a permanent hoarding with a concrete structure in the schedule passage. The plaintiff submits that the 2nd defendant who is managing the 1st defendant as its Secretary bears ill will towards the plaintiff in view of the fact that plaintiff's son's had filed a petition before the Principal City Civil and Sessions Judge, at Bangalore in Miscellaneous Petition No.611/2020 seeking permission for instituting a suit against the 1st defendant and its trustees alleging mismanagement of the trust properties. The 2nd defendant in order to wreak vengeance on the plaintiff has been doing such illegal acts causing hardship to the plaintiff.
14. The plaintiff further submits that the 2nd defendant has further permitted the tenants and their customers to park vehicles in the schedule property (passage) as could be seen in the photographs produced as document no... thereby further blocking the passage". 17 O.S.No.25674/2011
10. Plaintiff/PW.1 has reiterated the above said contention in his affidavit filed for examination in chief. In order to substantiate the said averments, apart from his oral testimony, inter alia has produced photographs as per Ex.P. 5 to 24 and C.D. of the said photographs as Ex.P. 17. Said photographs are actually not in dispute. Among the said photographs Ex.P. 7 and 8 show that on one side of the passage four wheeler vehicles have been parked and on the other side two wheelers and even four wheelers have been parked. Ex.P. 9 to 16 show a gate which has been erected in front of the suit schedule passage. Ex.P.19 shows that defendants have erected some iron grill structure and also photographs show that a barricade of iron structure has been erected for a tree which is on the border of the suit schedule passage. Ex.P. 20 to 24 18 O.S.No.25674/2011 photographs show that the defendants have got concrete bed constructed for the purpose of erecting iron pillars for putting up hoardings and even iron pillar are lying by the side of the said concrete bed which are meant to be erected thereon.
11. In the cross examination of plaintiff/PW.1, suggestion has been made that no hoarding has been erected on the suit property and PW.1 has admitted same. However, said admission does not mean that defendant did not make any attempt to put up permanent hoarding in the suit schedule property as seen in the above said photographs. Therefore, said suggestion of the plaintiff will not in any manner benefit the defendants. On the other hand, said photographs have not been disputed by 19 O.S.No.25674/2011 the defendants. As a consequence of which, it is crystal clear that defendants had indeed tried to put up permanent hoarding in the suit schedule property passage. Of-course, defendants have stopped erecting the said hoarding after this suit was filed and hence admission of PW.1 that defendants have not erected any hoarding in the suit property is self explanatory.
12. Defendants have produced certified copy of order passed in MFA No.7983/2011 dtd. 3.11.2011 by the High Court of Karnataka, wherein interim order of temporary injunction passed in this suit on IA Nos.1 and 2 of the plaintiff has been modified as below as per the operative portion of the said order:-
20 O.S.No.25674/2011
"ORDER (1) Appeal is allowed in part. The order of the Trial court restraining the defendants from obstructing the plaintiff from causing interference to plaintiffs use and enjoyment of the passage in question for the purpose of ingress and egress is sustained.
(2) The order of the trial court granting an order of temporary injunction restraining the defendants from parking of the vehicles in the suit passage is set aside. Defendants and / or its tenants including its employees are permitted to park two wheeler vehicles in the passage in question without causing any obstruction to the plaintiff whatsoever for use of the passage to reach his house.
(3) In view of the appeal having been disposed of, IA pending for consideration does not survive for consideration and accordingly the same is disposed off".
Of-course, same is confirmation of the interim order passed by this court with modification in so far as it relates to permission given to the defendants to 21 O.S.No.25674/2011 allow two wheeler parking on one side of the passage by defendants employees/tenants/ customers, but not public. Four wheeler parking has not been permitted in the said order. In any case, same being an interim order, it is subject to the evidence adduced at Trial.
13. As can be seen from the above said order, parties are at an Agreement that the width of the suit scheduled passage is actually 21.2 feet. Para-24 of the written statement shows that after defendants tried to put up hoarding by erecting concrete bed and pillars, which according to the admission, occupied 3 feet, remaining space in the passage is 19.9 feet. So, if the hoarding is put up, same would reduce the width of the passage from 21.2. feet to 19.9 feet. In the cross examination defendant No.2/DW.1 admits that he attempted to 22 O.S.No.25674/2011 put up structure for hoarding. In fact, in the written statement as well, said fact has been admitted by the defendants Further at para-3 of the cross examination DW.1 admits that metal barricade which has been constructed for the tree, which is claimed to be in between the boundary of the suit schedule passage and the neighbour property, measures 5 feet long. So, said barricade has also occupied 5 feet in the passage.
14. Actually 21.2 feet width may be convenient for the movement of vehicles either four wheeler or two wheeler to reach the plaintiffs property which is behind the passage. But, further reduction in the said measurement may further substantially reduce the user value of the passage and render it too narrow for comfortable user of the same. Although parking of two wheeler by the tenants/ 23 O.S.No.25674/2011 customers/employees of the defendants may not ipso facto cause much inconvenience, if four wheeler are allowed and also erection of permanent hoarding structure is allowed, same may render user of the suit schedule property as passage inconvenient.
15. Defendants have also produced Ex.D.2 to 5 photographs. In the said photographs vehicles have been parked on one side. As stated if two wheelers vehicles are allowed to be parked on one side of the passage, in an orderly manner, same may not cause much inconvenience to the user of the suit schedule property as passage and for its enjoyment. But, permitting parking of four wheelers and also putting up of any permanent structure in the suit schedule passage may substantially interfere with plaintiffs right to user of passage in comfortable and 24 O.S.No.25674/2011 convenient manner to access his property. Therefore, I am of opinion that from the admitted facts there is cause of action for the suit for granting an order of permanent injunction, of -course, to the extent discussed supra.
16. Defendants have contended that plaintiff is not residing in the house abutting to the passage, but his tenant is residing and therefore cause of action alleged by the plaintiff is false. Plaintiff is not disputing that his tenant is residing in the house abutting to the suit passage. But, that does not in any manner affect plaintiff's right of user of the suit schedule property as passage by his tenants. Since the facts are admitted, I am of opinion that irrespective of the fact that plaintiffs tenant is in occupation of the house, same constitute sufficient cause of action for the relief sought for in the suit. 25 O.S.No.25674/2011 Consequently, Issue Nos. 2 and 3 are answered in the affirmative.
17. issue No.4 :- For the reasons stated above, I proceed to pass the following :-
ORDER Suit of the plaintiff is hereby decreed with cost.
Defendants, their agents, henchmen or any other person/s claiming thorough or under the Trust are hereby restrained by an order of permanent injunction from interfering with plaintiff's peaceful enjoyment/ user of the suit schedule property as 'passage' and from erecting any 26 O.S.No.25674/2011 hoarding or other structure in the suit schedule property.
However, liberty is reserved for parking of two wheeler vehicles of the defendants tenants/customers/ employees on one side of the suit schedule passage in an orderly manner.
Draw decree accordingly.
--
(Dictated to the Stenographer, transcript thereof, is corrected and then pronounced by me in the open court on this the 8th day of December, 2020)
--
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge Mayo Hall, Bengaluru.
vk 27 O.S.No.25674/2011 ANNEXURE
1. List of witnesses examined for the plaintiff:
P.W.1 Sri.C.N.Rudramurthy
2. List of witnesses examined for defendants:-
D.W.1 Sri.C.N.Kumar
3. List of documents exhibited for the plaintiff:
Ex.P.1 Certified copy of the Trust Deed dtd. 07.07.1975 Ex.P.2 Certified copy of the Gift Deed dated 21.03.1979 Ex.P.3 Certified copy of the Katha Certificate dated 07.06.2011 Ex.P.4 Katha Extract Ex.P.5-16 Photographs Ex.P.17 C.D. Ex.P.18 Certified copy of the Gift Deed dated 29.03.1978.
Ex.P.19 to 24 Photographs 28 O.S.No.25674/2011
4. List of documents exhibited for defendants:
Ex.D.1 Certified copy of the Judgment dtd. 03.11.2011 in MFA No.7983/2011 Ex.D.2-5 Photographs Ex.D-6 C.D. of photographs Ex.D.7-9 Receipts of Photo Studio (D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge Mayo Hall, Bengaluru.
Vk 29 O.S.No.25674/2011 (Judgment pronounced vide separate judgment) ORDER Suit of the plaintiff is hereby decreed with cost.
Defendants, their agents, henchmen or any other person/s claiming thorough or under the Trust are hereby restrained by an order of permanent injunction from interfering with plaintiff's peaceful enjoyment/ user of the suit schedule property as 'passage' and from erecting any hoarding or other structure in the suit schedule property.
However, liberty is reserved for parking of two wheeler vehicles of the defendants tenants/customers/ employees on one side of the suit schedule passage in an orderly manner. Draw decree accordingly.
(D.S.VIJAYA KUMAR) XXVI Addl. City Civil Judge Mayo Hall, Bengaluru.30 O.S.No.25674/2011
31 O.S.No.25674/2011