Bangalore District Court
Kurien Cunnumpurath Kurien vs Sharuna Verghis on 24 November, 2025
KABC010032412017
IN THE COURT OF THE XXIX ADDL.CITY CIVIL &
SESSIONS JUDGE AT BANGALORE (CCH-30)
Present: Srinivasa Gowda.C. B.A.L.L.L.B
XXIX Addl.City Civil & Sessions Judge,
Bengaluru (CCH-30)
Dated this the 24th day of November, 2025.
O.S.No.921/2017
PLAINTIFFS: Mr.Kurien Cunnumpurath
Kurien,
S/o Cunnumpurath Kurien,
Aged about 50 years,
R/at Flat No.102,
Chateau, Old No.8,
Wheeler Thomas Town,
Bangalore-560 084.
(By Sri.TVP, Advocate)
-V/s-
DEFENDANTS: 1. Sharuna Verghis,
Residing at Flat No.202,
Chateau, Old No.8,
Wheeler Thomas Town,
Bengaluru - 560 084.
Also at,
Resident of 1601, Block A,
Maxwell Towers,
No.10 Jalan 5/58C, 46000,
Petaling Jaya,
Malaysia.
2 O.S.No.921/2017
2. Nirmal Raj,
Flat # 303 Cheroy Manor,
15, 5th Cross, 'C' Street,
Hutchins Road,
St.Thomas Town,
Bengaluru - 560 084.
3. Mrs.Koshy John,
Flat No.001,
Chateau, Old No.8,
Wheeler Thomas Town,
Bengaluru - 560 084.
(Deleted vide order dated
13.07.2017)
4. Ms.Nivedita Deshpande,
Flat No.002,
Chateau, Old No.8,
Wheeler Thomas Town,
Bengaluru - 560 084.
(Deleted vide order dated
13.07.2017)
5. Mrs.Audrey Mukherjee,
(aka Aloh Rani Chakraverty)
Flat No.101,
Chateau, Old No.8,
Wheeler Thomas Town,
Bengaluru - 560 084.
(Deleted vide order dated
13.07.2017)
6. Mr.Jacob Mani,
Flat No.201,
Chateau, Old No.8,
Wheeler Thomas Town,
Bengaluru - 560 084.
3 O.S.No.921/2017
(Deleted vide order dated
13.07.2017)
7. Mr.J.Mahesh Reddy,
S/o Sri.C.Jagadish,
202, Chateau, Old No.8,
Wheeler Thomas Town,
Bengaluru - 560 084.
(Impleaded vide order dated
03.08.2023)
(D1 - Exparte, D2 By Sri.JAK,
D3 to 6 - Deleted, D7 by
Sri.JAKA, Advocates)
Date of institution of the :- 06-02-2017
suit
Nature of the suit (suit on :- Declaration and
pronote. Suit for injunction
declaration and
possession suit for
injunction, etc.)
Date of the :- 15-04-2025
commencement of
recording of the evidence.
Date on which the :- 24-11-2025
judgment was pronounced
Total duration :- Year/s Month/s Day/s
08 09 18
(Srinivasa Gowda.C)
XXIX Addl.City Civil and Sessions Judge,
Bengaluru.
4 O.S.No.921/2017
JUDGMENT
The plaintiff has filed the present suit against the defendants seeking relief of declaration to declare that the terrace area above the flat No.202 in the apartment is a common area, the plaintiff and other flat owners have equal right to access the terrace area. To restrain the defendant No.1, defendant No.2, and defendant No.7 from denying the plaintiff and defendant No.3 to defendant No.6 to access the terrace above the flat No.202. To restrain the defendant No.1, defendant No.2 and defendant No.7 from erecting any structure over the terrace of flat No.202.
2. The Plaintiff submits that he is the absolute owner and in possession of flat bearing No.102, "Chateau apartment"
constructed on the property bearing No.8, situated at Wheeler road extension cross, St.Thomas Town, Bangalore. The defendant No.1 is the absolute owner of flat bearing No.202.
The defendant No.3 to 6 having their respective flats in the aforesaid apartment. The vendor of the plaintiff has 5 O.S.No.921/2017 purchased the flat No.102 from Mr.Koshy John and M/s.Allied Constructions under the registered sale deed dated 02.03.2000. The plaintiff vendor has purchased the flat No.102, with car parking and common area. It was specifically stated in the sale deed that the open terrace area on the roof of the apartment is a common area. It was also stated that the purchasers shall not put up any additional structure over the terrace floor. The vendor of the plaintiff has alienated the flat bearing No.102, in favour of plaintiff under the registered sale deed dated 10.07.2015 including car parking area and common area. The sale deeds executed by the land owners and developers are subject to the Karnataka Apartment Ownership Act, 1978. Therefore the apartment owners have got right to enjoy the common area available in the apartment.
3. The plaintiff has further stated that the plaintiff was intend to carry out certain works relating to water connection with respect to flat No.102, for which the plaintiff tried to 6 O.S.No.921/2017 access the terrace floor over the flat No.202. It was noticed by the plaintiff that the defendant No.2 being the representative of defendant No.1, he has locked the door of the terrace floor and kept the key with him. The plaintiff has sent several emails with a request to open the door of the terrace floor and to permit him to carry out the repair works. But there was no response from the defendant No.1 and defendant No.2. Therefore the plaintiff got issued legal notice dated 02.12.2016 calling upon the defendant No.1 and 2 to handover the keys of the terrace, which is above the flat No.
202. In response to the same, they have sent a reply, wherein they have denied the rights of the plaintiff and others to access the terrace floor. The defendant No.1 and 2 have no exclusive right over the terrace floor of flat No.202. Despite they are denying the legitimate right of the plaintiff over the terrace floor. During the pendeny of the suit, the defendant No.1 has alienated the flat No.202 in favour of defendant No.7. The plaintiff and defendant No.3 to 6, being the owners of their respective flats, they have got legitimate right over 7 O.S.No.921/2017 the terrace floor. Therefore the plaintiff has filed the present suit seeking relief of declaration and other consequential reliefs. Accordingly, the plaintiff has prayed to decree the suit with costs.
4. The suit summons was duly served on defendant No.1, she has not represented in the present suit. Hence she was placed exparte. The defendant No.3 to 6 were deleted. Though the defendant No.7 entered appearance, he has not chosen to file the written statement.
5. The defendant No.2 has filed the written statement contending that originally the property bearing No.8, situated at wheeler road extension cross, St.Thomas Town, Maruthiseva Nagar, Bangalore, belong to Mr.Koshy John. He has acquired the said property through the 'Will' dated 12.11.1989 executed by Mr.Thomas John. Following that Mr.Koshy John entered into Joint Development Agreement with M/s.Allied Constructions to construct the apartment in the aforesaid property. In terms of the Joint Development 8 O.S.No.921/2017 Agreement, the apartment was constructed, consisting of two towers with individual terrace with separate entry and exit. The defendant No.1 has purchased the flat No.202 from Shailaja Raj, W/o S.Basavaraj, under the registered sale deed dated 25.05.2013. As per the said registered sale deed, the defendant No.1 has got exclusive right over the terrace which is above the apartment No.202. The defendant No.1 has paid additional consideration amount with respect to terrace. Therefore the defendant No.1 has got exclusive right over the terrace area. The apartment is consisting of two terrace with independent entry and exit. The overhead tank and other equipments were installed in another terrace area. The terrace area which is above the flat No.202 is vacant. As the owners of the flat No.202 was the absolute owner of the said terrace, the builder has not put up any construction like water tank and other facilities in the terrace area. Therefore the plaintiff and other flat owners have no locus standi to claim the terrace area as a common area. The plaintiff has suppressed the true material facts and filed the present suit 9 O.S.No.921/2017 for wrongful gain. Therefore, the suit filed by the plaintiff is liable to be dismissed with costs.
6. In the light of the aforesaid pleadings of the parties, the following issues have been framed:
ISSUES (1) Whether the plaintiff proves that the terrace area above the flat No.202 is a common area and all the flat owners have right to access the same ?
(2) Whether the plaintiff proves that the defendant No.1, 2 and 7 are restraining him to access the open terrace above the flat No.202 ?
(3) Whether the plaintiff proves that the defendant No.1, 2 and 7 are trying to put up the structure over the open terrace, which is above the flat No.202 ?
(4) Whether the plaintiff is entitled for relief of declaration and permanent injunction as prayed in the suit ?
(5) What order or decree ?10 O.S.No.921/2017
7. The plaintiff got examined himself as PW1 and got marked Ex.P1 to Ex.P14. The defendant No.2 has not chosen to adduce the evidence.
8. Heard the arguments of learned counsel for plaintiff. The defendant No.2, defendant No.7 and their counsel are absent. Hence the arguments on behalf of defendant No.2 and defendant No.7 taken as nil.
9. My answer to the above issues are as under:
Issue No.1: In the Affirmative
Issue No.2: In the Affirmative
Issue No.3: In the Negative
Issue No.4: In the Partly Affirmative
Issue No.5: As per final order
for the following:
REASONS
11. Issue No.1 & 2: These issues are inter-connected with each other, therefore they have been taken up together for common discussion in order to avoid repetition of facts. 11 O.S.No.921/2017
12. PW1 has deposed that he is the absolute owner and in possession of flat bearing No.102 of Chateau apartments, situated at No.8, Wheeler road extension cross, St.Thomas Town, Bangalore. Originally Mrs.Mariam Abrahman has purchased the flat No.102 from Mr.Koshy John and M/s. Allied Constructions under registered sale deed dated 02.03.2000 including car parking and common area. In the said sale deed, it was specifically stated that the open terrace area on the roof of the apartment is a common area. It was also mentioned in the sale deed that the flat purchasers shall not put up any additional structure over the terrace area. Mrs.Mariam Abrahman has sold the flat No.102 in his favour under the registered sale deed dated 10.07.2015, including car parking area and common area. From the date of purchase of flat No.102, he is in possession and enjoyment of the same. The defendant No.1 is the flat owner of 202, the terrace is situated above the flat No.202. The defendant No.2 being the agent of defendant No.1, he has illegally locked the terrace above the flat No.202 and he has kept the keys with 12 O.S.No.921/2017 him. Inspite of repeated requests, the defendant No.2 has not opened the terrace floor above flat No.202 and he has denied the access to the plaintiff and other apartment owners. Himself and other owners required to access the terrace floor for installation of air condition units, dish TV, internet junction boxes and other general maintenance. As the terrace floor which is above flat No.202 was under lock, it has been causing inconvenience to himself and other flat owners to carry out the installation of machineries and maintenance in the said Apartment.
13. In order to establish that he is the absolute absolute owner of flat No.102, PW1 has produced the Certified copy of registered sale deed dated 10.07.2015, the same is marked as Ex.P12. It establishes that he has purchased the flat No.102 including 50% undivided share in the suit 'A' schedule property and common area. The encumbrance certificate of flat No.102 is marked as Ex.P14. The entries at Ex.P14 reveals that Mr.Koshy John has sold flat No.102 in favour of 13 O.S.No.921/2017 plaintiff's vendor. At this juncture, it is just and proper to refer Section 6(4) of the Karnataka Apartment Ownership Act, 1972, wherein it is stated that;
"Each apartment owner may use the common areas and facilities in accordance with the purpose for which they are intended without hindering or encroaching upon the lawful rights of the other apartment owners."
In view of the above provision, it is very clear that each apartment owner is entitled to enjoy the common area without any obstruction. As per the version of plaintiff, the common area includes terrace floor. Therefore the plaintiff and other apartment owners are entitled to use the terrace which is above the flat No.202. Such being the case, the defendant No.2 has been contending that the defendant No.1 has purchased the flat No.202, including the terrace area. Therefore the builder has not constructed the water tank, and he has not installed any machinery in the said terrace area. As the defendant No.2 contending that the terrace area which is above the flat No.202 is the exclusive property of defendant 14 O.S.No.921/2017 No.1, the burden lies on him to prove the same. In order to establish that the defendant No.1 has got exclusive right over the terrace area above the flat No.202, the defendant No.2 has not chosen to adduce the evidence or he has not produced any clinching evidence. Though PW1 was subjected to cross examination, nothing has been elicited that defendant No.1 has got exclusive right over the terrace of flat bearing No.202. Indeed the defendant No.2 has failed to establish that the defendant No.1 has purchased flat No.202 inculding terrace area under the registered sale deed. Thus the defendant No.1 has no exclusive right over the terrace area which is situated above flat No.202.
14. It is the contention of the plaintiff that the terrace area of flat No.202 is a common area, the flat owners have got absolute right to utilize the same. As discussed above, the defendant No.2 has failed to establish that the terrace floor of flat No.202 belong to the defendant No.1. None of the flat owners have been claiming exclusive right over the terrace 15 O.S.No.921/2017 area of flat No.202. It shows that the developer had intention to leave the terrace as the common area for better enjoyment of the flat owners. The defendant No.2 being an agent of defendant No.1, he has kept the terrace area of flat No.202 under lock. Though the defendant No.1 has no exclusive right over the terrace floor area, the defendant No.2 has locked the same, which is in contrary to provisions of The Karnataka Apartment Ownership Act, 1972. In the cross examination PW1 has stated that;
"ಪ್ಲಾಟ್ ಸಂಃ 202 ರ ಮೇಲ್ಚಾ ವಣಿಯಲ್ಲಿ ನೀರಿನ ಸಂಪರ್ಕ, ಇತರೆ ಸೌಲಭ್ಯ ಗಳು ಇರುತ್ತವೆ. ಸದರಿ ಜಾಗದ ಬಾಗಿಲಿಗೆ ಬೀಗವನ್ನು ಹಾಕಿದ್ದಾರೆ. ಇತರೆ ಪ್ಲಾಟ್ ಮಾಲೀಕರು ಸಹ ಮೇಲ್ಚಾ ವಣಿಗೆ ಹೋಗಲು ನಿರ್ಬಂಧ ಮಾಡಿದ್ದಾರೆ. 2017 ರಿಂದ ನನ್ನ ಪ್ರಕಾರ ಯಾವುದೇ ಪ್ಲಾಟ್ ಮಾಲೀಕರು ಪ್ಲಾಟ್ ಸಂಃ 202 ರ ಮೇಲ್ಚಾ ವಣಿಗೆ ಹೋಗಲು ಅವಕಾಶ ನೀಡಿರುವುದಿಲ್ಲ . 1, 2 ಮತ್ತು 7 ನೇ ಪ್ರತಿವಾದಿಗಳು ನಿಮಗೆ ಯಾವ ರೀತಿ ಪ್ಲಾಟ್ ಸಂಃ 202 ರ ಮೇಲ್ಚಾ ವಣಿಗೆ ಹೋಗಲು ನಿರ್ಬಂಧವನ್ನು ಮಾಡಿದ್ದಾರೆ ಎಂದರೆ ಪ್ಲಾಟ್ ಸಂಃ 202 ರ ಮೇಲ್ಚಾ ವಣಿಗೆ ಹೋಗುವ ಬಾಗಿಲಿಗೆ ಬೀಗವನ್ನು ಹಾಕಿದ್ದಾರೆ."16 O.S.No.921/2017
On appreciation of this part of cross examination, it clearly establishes that since 2017 the other flat owners were refrained to access the terrace of flat No.202. The defendant No.1 and 2 have locked the door of the terrace of flat No.202. Since the defendant No.2 has locked the door of the terrace of flat No.202, the plaintiff has sent email with a request to open the door of the terrace and to permit them to access to the terrace area, the same is evident by Ex.P1. That apart, the plaintiff got issued a legal notice through his counsel, the same was served on defendant No.1. The defendant No.1 has issued a reply, wherein she has denied that the terrace area is a common area. On appreciation of all these facts, it clearly goes to show that the terrace floor of flat No.202 does not exclusively belong to either defendant No.1 or defendant No.2. The said terrace is a common area. As such, the plaintiff and other flat owners have got right to enjoy the same. In other words the plaintiff and other flat owners have purchased their respective flats including the common area. Therefore they have got right to enjoy the terrace area, which 17 O.S.No.921/2017 is above the flat No.202. Despite the defendant No.1 and 2 have been causing obstruction by locking the door of the terrace floor and restrain the plaintiff and other defendants to access the terrace area. Considering all these aspects, this Court is of the opinion that the plaintiff has proved that the terrace area of flat No.202 is a common area and all the flat owners have right to access the same. The plaintiff has also proved that defendant No.1, 2 and 7 have restrained them to access the terrace of the flat No.202. Accordingly I hold issue No.1 and 2 in the Affirmative.
15. Issue No.3: The plaintiff has been contending that the defendant No.1 2 and 7 have no manner of right or interest over the terrace area of flat No.202. They have illegally kept the door of the terrace under lock and they have not been permitting the other flat owners to access the terrace area. The defendant No.1, 2 and 7 have been trying to put up additional structure over the terrace area. It is pertinent to note here that the plaintiff has not produced the documents 18 O.S.No.921/2017 to establish that the defendant No.1, 2 and 7 are trying to put up additional structure over the terrace floor. The plaintiff has also not produced any approved plan obtained by the defendant No.1 and 2 to put up additional structure. As there is no prima facie materials that the defendant No.1, 2 and 7 are intending to put up additional construction over the terrace area of flat No.202. In such circumstances, the contention of the plaintiff that the defendant No.1, 2 and 7 are trying to put up construction over the terrace floor of 202 cannot be acceptable. Accordingly I hold issue No.3 in the Negative.
16. Issue No.4: The plaintiff has filed the present suit for the relief of declaration to declare that the terrace area above the flat No.202 in the apartment is a common area, the plaintiff and other flat owners have equal right to access the terrace area. To restrain the defendant No.1, defendant No.2, and defendant No.7 from denying the plaintiff and defendant No.3 to 6 to access the terrace above the flat No.202 and to 19 O.S.No.921/2017 restrain the defendant No.1, defendant No.2 and defendant No.7 from erecting any structure over the terrace of flat No.202. In the case on hand, the plaintiff has established that the terrace area above the flat No.202 is a common area. All the flat owners have right to access the same. The plaintiff has proved that defendant No.1, 2 and 7 have illegally locked the door of the terrace and denied the access to the flat owners. But the plaintiff has failed to establish that the defendant No.1, 2 and 7 are trying to put up additional structure over flat No.202. Indeed the plaintiffs are entitled for the relief of declaration with respect to the terrace area above the flat No.202 as common area. The plaintiff and defendant No.3 to 6 have right to access over the terrace above flat No.202. Accordingly I hold issue No.4 partly in the Affirmative.
17. Issue No.5: In view of the discussion made on Issue No.1 to 4, this court proceed to pass the following: 20 O.S.No.921/2017
ORDER The suit filed by the plaintiff is hereby partly decreed.
It is declared that the terrace above flat No.202 of Chateau apartment situated at No.8, Wheeler road extension cross, St.Thomas Town, Bangalore, is a common area.
The defendant No.1, 2 and 7 are hereby directed to remove the lock of the terrace area of flat No.202 within three months from this day.
The defendant No.1, 2 and 7 are hereby restrained by way of permanent injunction from causing any obstruction or inconvenience to the plaintiff and other flat owners to access terrace above the flat No.202.
Draw decree accordingly.
(Dictated to the Stenographer Grade-1, typed by her, corrected and then pronounced in the Open Court by me on 24th day of November, 2025.) (Srinivasa Gowda.C) XXIX Addl.City Civil and Sessions Judge Bengaluru.21 O.S.No.921/2017
ANNEXURE WITNESS EXAMINED ON BEHALF OF PLAINTIFF/s:
PW1 : Kurien Cunnumpurath Kurien DOCUMENTS EXAMINED ON BEHALF OF PLAINTIFF/s:
Ex.P1-7 : Email conversations Ex.P8 : Affidavit Ex.P9 : Legal notice dated 02.12.2016 Ex.P10 : Postal Track consignment Ex.P11 : Email dated 09.12.2016 Ex.P12 : Certified copy of sale deed dated 10.07.2015 Ex.P13 : Reply notice dated 01.01.2017 Ex.P14 : Encumbrance Certificate WITNESS EXAMINED ON BEHALF OF DEFENDANT/s:
Nil DOCUMENT EXAMINED ON BEHALF OF DEFENDANT/s:
Nil (Srinivasa Gowda.C) XXIX Addl.City Civil and Sessions Judge Bengaluru.22 O.S.No.921/2017
(Judgment pronounced in open court vide separate judgment) ORDER The suit filed by the plaintiff is hereby partly decreed.
It is declared that the terrace
above flat No.202 of Chateau
apartment situated at No.8,
Wheeler road extension cross,
St.Thomas Town, Bangalore, is a
common area.
The defendant No.1, 2 and 7
are hereby directed to remove the
lock of the terrace area of flat
No.202 within three months from
this day.
The defendant No.1, 2 and 7
are hereby restrained by way of
permanent injunction from
causing any obstruction or
inconvenience to the plaintiff and
other flat owners to common
23 O.S.No.921/2017
access over the terrace area to
the flat No.202.
Draw decree accordingly.
XXIX A.C.C & S.J., Bengaluru