Bangalore District Court
O.S./1669/2021 on 8 November, 2021
KABC010056762021
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: Sri. MALLIKARJUNA., B.Com., LL.M.,
XIV ADDL. CITY CIVIL JUDGE
Dated this the 8th day of November, 2021
O.S.No.1669/2021
Plaintiff/s :
Mr.H.M.Rajesha,
S/o H.K.Mahadevappa,
Aged about 51 years,
Residing at No.92/2,
(Old No.114) situated at
2nd main Road,
Sheshadripuram,
Bengaluru-560020
(By Sri.H.M.R., Advocate)
- Vs -
Defendant/s :
1. Smt.H.J.Padmapriya,
D/o Sri.Jagannath.H.P.
Aged about 33 years,
2. Sri.H.J.Mahesh Kumar,
Aged about 30 years,
O.S.No.1669/2021
2
S/o Sri.Jagannath.H.P.
Both are residing at
No.93/4, 2nd Main Road,
Sheshadripuram,
Bangalore-560020
(By Sri.D.R.B., Advocate)
Date of institution
of the suit : 06-03-2021
Nature of the suit
[suit on pronote, suit : Perpetual Injunction
for declaration and
possession, suit
for injunction]
Date of the commencement
of recording of the evidence : 07-09-2021
Date on which the
Judgment was pronounced : 08-11-2021
Year/s Month/s Day/s
Total Duration - 08 02
JUDGMENT
This suit is filed by the plaintiff against the defendants for the relief of perpetual injunction.
2. The brief facts of the plaintiffs' case are as under:
The plaintiff is the absolute owner in possession of suit schedule property, acquired it under the registered O.S.No.1669/2021 3 sale deed, dated: 8-2-2008, khatha is standing in his name, he is paying tax to the concerned authority also obtained the electricity as well as water connection. Originally the property bearing No.114 and 115 situated at 2nd main road, Seshadripuram, Bangalore was belongs to one Sri.Vedatala Subramanya Shastri S/o Vedatala Nanjunda Shashtri, he has acquired it under the registered Sale Deed, dated: 06-04-1918, thereafter he sold property bearing Municipal No.114 measuring East to West: 100 feet, North-South : 45 feet in favour of his own brother Sri.Suryanarayana Shastry under the registered Sale deed, dated: 04-01-1941. Thereafter Sri.Suryanarayana Shastry divided the suit property into two portions, one consisting of site measuring 69 x 45 feet under residential premises measuring 31 feet x 45 feet. The said sites were assigned with number 115 and the residential premises assigned with number 114. Thereafter he further divided the residential premises into
3 portions. The middle portion of the property baring 115 being a vacant site measuring East to West; 23 feet and O.S.No.1669/2021 4 North-South 45 feet and the middle of the residential premises in the property bearing No.114 measuring 15 ft x 31 feet was Gifted in favour of Smt. Saradamma the mother of the plaintiff's vendor under a registered Gift Deed, dated: 30-06-1957. Said Smt.Sharadamma, in turn sold an extent of 11.6 feet x 45 feet in favour of her sisters Smt.Vishalakshmamma under the registered Sale Deed dated: 14.09.1961. Smt.Sharadamma and Smt.Vishalakshmamma intended to exchange their property thereby entered into exchange Agreement and executed registered exchange deed, dated: 28-05-1966, thereby got exchanged the properties each other standing in their names by virtue of said exchange deed Smt. Sharadamma became owner of 2/3rd share in the property measuring 31 ft x 45 ft amount to 31ft x 30 ft in property No.114. One Shakuntalamma owner of the residential premises in property bearing No.115 requested Smt.Sharadamma to sell the southern portion of the suit schedule property in her favour measuring extent of 7.5 ft x 31 ft in her favour situated on the northern side of her O.S.No.1669/2021 5 property. Smt.Sharadamma sold an extent of East to West: 31 feet, North-South: 7.5 feet in favour of Smt.Sharadamma dated: 07-02-1979. Smt.Sharadamma and Smt.Shakuntalamma have agreed to leave an extent of 5x 45 feet as passage for ingress and agrees towards western side of their respective properties. Smt.Sharadamma bequeathed her property in favour of plaintiff vendor Smt.P.S.Vijayalalakshmi under Will dated:
30-04-1991. After demise of Smt.Sharadamma the vendor of the plaintiff Smt.Vijayalakshmi became absolute owner of schedule property. She had executed registered Sale Deed and sold the suit schedule property in favour of the plaintiff. The defendant who is jealous of plaintiff having property acquired towards northern side of the suit schedule property with an intention to harass, encroach and knock off valuable property of the plaintiff causing inconvenience to the plaintiff and forcibly started pull down the structure including common wall situated towards northern side of the defendants property and a common stair case on the southern portion of the suit O.S.No.1669/2021 6 schedule property obstructing the plaintiff from using stair case to approach his terrace. The defendants is waiting for an opportunity to demolish structure i.e. on 05-03-2021 when the plaintiff and his family members were out of station without intimating them started to demolish the structure with the help of their henchmen and money power, later plaintiff objected the same. Since the plaintiff is having right and interest with common wall and stair case. The defendant is bent upon to demolish the common wall as well as stair case, The very act of the defendant is illegal. Hence approached this Court seeking permanent injunction against the defendants restrained them from demolishing the common wall and stair case so also prayed for granting permanent injunction against the defendants from interfering into the peaceful possession and enjoyment of the plaintiff over the common wall and stair case. During pendency of the suit plaintiff got amended the plaint and sought for declaration relief declaring that plaintiff is having easementary right over the roof of the defendant O.S.No.1669/2021 7 to reach his terrace with the help of the stair case, therefore prayed for decree the suit in favour of the plaintiff against the defendants.
3. After service of summons, the defendants appeared before the court through their counsel and filed written statement. The brief facts of the written statement are as under.
There is no cause of action to the suit. The cause of action shown in the plaint is imaginary and not sustainable. The suit schedule property is not described properly and it is non existent. The contentions of the plaintiff that title of his vendors to have purchased the suit schedule property and they are all matters of record. The plaintiff be put to strict proof of the same as the same not admitted by these defendants. Regarding acquisition of title by the plaintiff in respect of the suit schedule property and the documents referred by him in plaint is a matter of record it is for the plaintiff to establish the same. These defendants do not accept the averments made in respect of his title as correct.
O.S.No.1669/2021 8 Therefore plaintiff be put to strict proof of the same. These defendants being owners of property situated towards southern side of the suit schedule property having acquired under registered sale deed for valuable consideration and are in actual possession and enjoyment of the said property. Now with an intention to construct house they are intended to damage the existing structure including the staircase that exists in a portion of their property as it belongs to them and situated well within the portion purchased by them and is meant only for their usage. There was no occasion for the same and moreover any such usage would invage the privacy of the defendants. Therefore the contentions of the plaintiff that defendants are obstructing the plaintiff from using terrace or accessing the terrace over the plaintiff ground floor portion being the suit schedule property does not arise at all. Therefore the claim of the plaintiff is baseless, plaintiff is not entitled for the relief sought in the suit. The very suit itself is not maintainable prayed for dismissal of the suit with exemplary costs. After amendment of the plaint O.S.No.1669/2021 9 the defendants have filed additional written statement denying all averments stated in the amended plaint and contended that plaintiff never used the staircase situated on the southern end of the defendants property, he has not acquired any kind of easementary right over the said stair case muchless over the defendant's terrace. The suit is not maintainable with seeking relief of declaration. Hence prayed for dismissal of the suit of the plaintiff with exemplary cost.
4. On the basis of the above pleadings, materials and documents, five issues and one additional issue have been framed. :
1. Whether the plaintiff proves possession over the schedule property as on the date of suit?
2. Whether plaintiff proves that defendants are demolishing the common stair case and southern side common wall of the suit schedule property without due process of law?
O.S.No.1669/2021 10
3. Whether plaintiff proves that he is having right of easementary over the roof of defendant to reach his terrace with the help of stair case?
4. Whether plaintiff is entitled for the relief sought in the suit?
5. What order or decree.?
Additional Issue:
1] Whether the defendants prove that the suit is not maintainable?
5. In order to prove these issues, plaintiff himself got examined as P.W.1 and got marked 69 documents as Ex.P-1 to 69. On the other hand, 1 st defendant herself got examined as D.W.1 and got marked 7 documents as Ex.D- 1 to 7 and closed their side evidence, hence case is posted for argument.
6. Heard the arguments of both sides. Perused pleading, evidence and documents relied by both parties.
7. My findings to the above issues are as follows :
Issue No.1 : In the affirmative,
O.S.No.1669/2021
11
Issue No.2 : In the affirmative,
Issue No.3 : In the affirmative,
Issue No.4 : In the affirmative,
Issue No.5 : As per final order
Addl.Issue No.1 : In the negative.
REASONS
8. ISSUE No.1: It is the case of the plaintiff that, he is the absolute owner in possession of suit schedule property bearing Municipal No.92/2 (old No.114)situated at 2nd main road, Sheshadripuram, Bangalore, measuring East to West: 26 feet, North to South: 22 ½ feet along with 5 feet common passage measuring 5 x 45 feet running North to South together with 5 x 69 feet common passage to be used along with Smt.Shakuntalamma (neighbouring at the time of purchasing schedule property) for ingress and egress from the 2 nd main road, together with 4.5 squares RCC roofed building thereon constructed out of brick and cement red oxide flooring, jungle wood doors and windows together with water and sanitary amenities. He has acquired the said property O.S.No.1669/2021 12 under registered sale deed, dated: 08-02-2008 from its vendor for valuable consideration. The khata of the said property got changed in his name and he is paying tax to the concerned authority. These facts have been denied by the defendants in the written statement and contended that it is the averments of the plaint that pertaining to acquisition of title by the vendors from whom the plaintiff claims to have purchased the suit schedule property and they are all matters of record and the plaintiff is put to strict proof of the same as these defendants are not admitted in full regarding acquisition of title by the plaintiff in respect of suit schedule property the documents referred to in the para-9 regarding acquisition of title by the plaintiff in respect of suit schedule property through the documents referred is a matter of record and it is for the plaintiff to establish the same and these defendants do not accept the said averments as correct and therefore the plaintiff is put to strict proof of the same. To prove the contentions of the plaintiff, he himself got examined as PW-1 and in his O.S.No.1669/2021 13 affidavit filed in the form of examination-in-chief he has reiterated the plaint avements. In support of his contentions he has relied 68 documents as Ex.P-1 to P-
68. Ex.P-1 is the Kandayam paid receipt, Ex.P-2 to 4 are the property Tax receipts, Ex.P-5 & 6 are the Electricity Bills, Ex.P-7 & 8 are the Water supply bills, all these documents supports the contention of the plaintiff to establish his possession over the suit schedule property as on the date of suit. These documents have not been disputed by the defendants. Further Ex.P-9 is the certified copy of Sale Deed, dated:8-2-2008, Ex.P-10 is the certificate issued by Sri.Subramanyeshwara Co-operative Bank stating that the plaintiff had availed loan by deposit of title deeds of suit schedule property. Ex.P-11 is the Simple Mortgage executed in favour of Shri.Subramaneshwara Co.operative Bank, Ex.P-12 is the Certified copy of sale deed, dated 4-11-1941, Ex.P-13 is the Certified copy of Sale deed, dated: 30-06-1957, Ex.P- 14 is the Certified copy of Gift Deed,dated: 30.06.1950, Ex.P-15 is the certified copy of Exchange deed, O.S.No.1669/2021 14 dt.28.05.1966, Ex.P-16 is the certified copy of registered Will dated: 30-04-1991, Ex.P-17 is the Family Tree of Suryanarayana Shastry, all these documents shows flow of plaintiff's title ijn respect of suit schedule property. The recitals of these documents discloses about the previous nature of suit schedule property and defendant's property. The Ex.P-18 is Certified copy of GPA, Ex.P-19 is the Certified copy of letter of reply by BBMP, Ex.P-20 is the Khata Certificate, Ex.P-21is the Katha extract, Ex.P-22 is the certified copy of answer by BBMP , Ex.P-23 is the certified copy of Katha Extract by BMP, Ex.P-24 is the certified copy of Katha Uttar, Ex.P-25 & 26 are the Certified copy of complaint & acknowledgement, Ex.P-27 is the certified copy of complaint to Deputy Commissioner of Police, Ex.P-28 is the certified copy of complaint to Commissioner of Police, Ex.P-29 is the certified copy of complaint to Assistant Executive Engineer, BBMP. Bangalore, Ex.P-30 is the certified copy of Complaint to Assistant Executive Engineer, Bangalore, Ex.P-31 is the Complaint to Assistant Executive Engineer, BWSSB, O.S.No.1669/2021 15 Malleshwaram, Bangalore, Ex.P-32 is the certified copy of Gift Deed, dated: 30-06-1957, Ex.P-33 is the certified copy of Sale Deed,dated: 14-09-1961, Ex.P-34 is the Certified copy of Sale Deed, dated: 7-2-1979, Ex.P-35 is the Affidavit under section 65-B of Indian Evidence Act, Ex.P- 36 is the Receipt issued by Photographer, Ex.P-37 to 57 are the Photographs and C.D. Ex.P-58 is the certified copy of Deed of Absolute Sale dt: 04-11-2010, Ex.P-59 is the certified copy of Deed of Release dt.24.12.2014, Ex.P-60 to 68 are the photos. On perusal of contents of the said documents one point is clear that plaintiff has acquired suit schedule property under registered sale deed, dated: 08-02-2008 from his vendor for valuable consideration. Though the defendants in their written statement initially contended that they are not admitting the ownership of plaintiff and acquisition of title over the suit schedule property and plaintiff be put to strict proof of the said contentions. But in their further pleading they have admitted the fact that their property is situated towards southern side of the suit schedule property and O.S.No.1669/2021 16 there exists common wall between two properties. In the course of cross-examination of PW-1, the defendants have categorically admitted the fact of plaintiff had purchased the suit schedule property under registered sale deed from his vendor by way of making suggestions. Further the defendants have not made single suggestion to deny the title of the plaintiff as well as his possession in respect of the suit schedule property. On the contrary they have tried to elicit from the mouth of PW-1 about contents of the sale deed executed in his favour. The very conduct of the defendants clearly goes to show that they have implidely admitted title of the plaintiff and his possession over the suit schedule property further they have contended that their property is situated towards southern side of the suit schedule property. The very recitals of Ex.P-9 Sale deed executed by Smt.P.S.Vijayalakshmi in favour of plaintiff dated:
08-02-2008 discloses that he had purchased suit schedule property for valuable consideration. That even on behalf of defendant one witness examined to prove their O.S.No.1669/2021 17 contentions, in the entire evidence of D.W.1, no effort has been made to deny the contents of Ex.P-9 and ownership as well as possession of the plaintiff over the suit schedule property. The other documents relied by plaintiff clearly goes to show that in pursuance of Sale Deed as per Ex.P-9 the plaintiff got change khata in his name and he is paying tax to the concerned authority. All these documents clearly goes to show that plaintiff is in possession and enjoyment of the suit schedule property as on the date of suit. The learned counsel for the defendants in his arguments contended that since the document relied by the plaintiff are not the originals and they are all certified copies they themselves being secondary evidence, the plaintiff has not laid foundation in his plaint for leading secondary evidence, therefore no reliance can be placed on those documents for deciding the issue in question. Admittedly all the documents relied by the plaintiff have been marked in the presence counsel for defendants, they have not raised any objections while marking the documents, so having consented for marking O.S.No.1669/2021 18 the documents and without raising single objection kept quite at this belated stage trying to raise objections and contending that no relayance can be placed on those documents does not holds good. More over this is not a suit for declaration of title nor the defendants have seriously disputed the title of the plaintiff in respect of the suit schedule property. So the contentions of the learned counsel for the defendants about secondary evidence appears to be unacceptable. Taking into consideration of all these facts and circumstances one point is clear that plaintiff is able to prove his possession over the suit schedule property as on the date of suit with cogent and convincing evidence. No reason is available to disbelieve the same. Therefore, plaintiff has proved this issue, accordingly I have answered it in the affirmative.
9. Issue No.2 & 3: Both the issues are inter related and connected to each other to avoid repetition, I have taken them jointly for discussion. It is the case of the plaintiff that, he is having right of easement over roof O.S.No.1669/2021 19 of defendants to reach his terrace with the help of staircase existing towards southern side of the defendants house. This right has been exercised by his vendors also now the defendants are demolishing the common staircase and southern side common wall of the suit schedule property without due process of law.
These facts have been denied by the defendants in their written statement contended that though there is a common wall exist between property of the plaintiff and defendants, but the plaintiff has no right of whatsoever nature over the stair case situated towards southern side of the defendants property nor the plaintiff had ever used said stair case to reach is terrace. The existing stair case absolutely belongs to defendants and plaintiff never had occasion of using said stair case to reach his terrace. The claim of the plaintiff is illegal, bias, the defendants have purchased their property with an intention to demolish existing old building and rebuilt a new house on it. The plaintiff had evil eye over said property asked the defendant to sell it to him which has not been considered O.S.No.1669/2021 20 by the defendants. Therefore he has filed instant suit on false ground and prayed for rejecting the claim of the plaintiff. To prove the case of the plaintiff as already stated above he himself got examined as PW-1, in the affidavit filed in the examination-in-chief he has reiterated the plaint averments and he has relied several documents. On perusal of contents of Ex.P-9, 12 to 18 are the documents related to the flow of title of the plaintiff's property as well as they refers to the defendants property also. Though the defendants have denied the contentions of the plaintiff that the existing stair case is meant for common use of plaintiff and defendants. That on verification of documents relied by plaintiffs one point is clear that earlier both the properties having only one unit and owned by single person and it has been divided in portions. Out of which one portion has been sold in favour of plaintiff under registered sale deed, dated: 8-2-2008 as per Ex.P-9, another portion was Gifted in favour of defendants vendor's vendor, later she had sold it in favour of vendor of the defendant under the O.S.No.1669/2021 21 registered sale deed and defendants acquired said property under the registered sale deed, dated:
29-11-2018. It is admitted fact that suit schedule property includes right of 5" common passage measuring 5 x 48 running north to south together with 5 x 69 feet common passage to be used along with Smt.Shakunthalamma i.e. vendor of the defendants. It is the specific case of the plaintiff that he himself and his vendors were using common stair case situated towards southern side of the defendants property to have an access to his terrace through the terrace of defendants since from more than 40 years. This fact has been denied by the defendants and try to contend that defendants property having Mangalore tile roof, so there was no occasion to have access to the terrace of plaintiff through alleged common stair case and roof of the defendants. If this argument is taken for consideration then there was no occasion to have a stair case to the defendant's property because no one will have stair case to reach the Mangalore tiled roof arguments seems to be reasonable.
O.S.No.1669/2021 22 Though the sale deed executed in favour of defendants refers that it had Mangalore tiled roof, in fact it was an RCC roof same has been categorically admitted by DW-1 in the course of cross-examination. Admittedly the property of defendants had RCC roof much prior to their acquisition. Even the defendants have not produced document before the Court exactly on which date roof of their property has been changed to RCC. Probably at the time of putting RCC roof the stair case might have been constructing same has been used by both tenants in common argument seems to be reasonable. Further the contents of Ex.P-12 clearly reveals that suit schedule property and defendants property was previously havijng one unit only subsequently devision taken place and one portion has been acquired by plaintiff under registered Sale Deed another portion has been acquired by the defendant. Even this fact has been clearly admitted by defendants in the written arguments filed by them. That after division of property taken place, a common passage has been left for usage of both the parties to have excess O.S.No.1669/2021 23 to their respective terrace. That the said common passage reaches up to the end of southern portion of the defendants house, thereafter it blocks the entry with the northern wall of adjacent property the said passage is giving excess to reach the stair case situated towards southern end of the defendants property. So it is meant for common usage of plaintiff as well vendor of the defendants. The photographs relied under Ex.P-67 clearly gives picture about closure of southern side entry to the suit schedule property as well as property of the defendants. Since the stair case is situated abutting to the southern wall of defendants property and northern wall of its adjacent property. If at all there was no intension of allowing plaintiff to use said stair case then there would be no question of giving opportunity for plaintiff to make use of common passage up to the southern end of the defendants property, because admittedly house property of the plaintiff is situated towards northern side of the defendants property since it is clearly evident that there is no excess from southern O.S.No.1669/2021 24 side of defendants property as it can be seen from Ex.P-67 photograph, so considering these facts one can come to conclusion that the plaintiff is having right of usage of common passage up to the southern end of defendants property naturally said right is reserved to make use of stair case argument seems to be reasonable.
10. That as per the admission of D.W.1 the defendants have obtained licence to demolish their existing building about 3 years prior to filing of the suit and they have kept quite without disclosing about it to the plaintiff, all of a sudden in the month of March 2021 they have started demolishing the structure without intimating to the plaintiff. The D.W.1 in the course of cross-examination categorically admitted that they have not given notice to the plaintiff about demolition of structure so also it is admitted fact that the concerned authority before issuing demolition order or construction permission to the defendants have not issued notice to the plaintiff. Admittedly there is common wall between the property of the plaintiff and defendants also the right O.S.No.1669/2021 25 of common passage is involved under these circumstances it is duty of the statutory authority before taking any action in respect of the said common wall and common passage and other rights an opportunity of hearing ought to have given to the adjoining owner, but is has not been followed in this case. It is the case of the plaintiff that the defendants in hurriedly manner demolished the structure, the very conduct of the defendants clearly goes to show that they are intended to hide the actual situation available on the spot thereby trying to take undue advantage. If the structure would have been kept intact till disposal of the suit it would have been helped the Court to ascertain true facts of the case and existing rights of the parties to the sit arguments seems to be reasonable. As already discussed above the property of the plaintiff and defendants have been divided out of one unit held by common owner, so before division takes place there was common usage of stair case, and tenements of the said property were making use of it for their purpose. That after division is O.S.No.1669/2021 26 taken place said stair case continued for common usage of both the tenements with the arguments seems to be reasonable. Therefore the right of easement of necessity has been acquired by the plaintiff from his vendor contention probabalise the case of the plaintiff.
What is an Easement by Necessity?
[An easement by necessity is a common type of easement appurtenant. An easement by necessity is created by law, meaning it is not created by a specific promise or agreement between neighbors, but the law implies its existence to achieve just results.] [ Generally, a Court will recognize an easement of necessity if the following essential elements of easements are met:
At some time, both parcels of land were joined together or were owned by the same owners; subsequently, the property was divided, and the property owner sold a portion of the land;
O.S.No.1669/2021 27 Different individuals obtained ownership of different parcels;
Because of the division, one parcel was created that was accidentally landlocked; and The individuals whose land is landlocked can only reasonably and practicably access their property by going through the other individual's property.]
11. That the defendants have not admitting the fact that property was originally having one unit with stair case felicity. Subsequently, it has been divided denying the right of one of the owner of divided portion appears to be unacceptable. Admittedly, plaintiff has solar facility and over tank over his terrace it requires service and maintenance for which he has to be provided access the documents placed on record shows that he is having the only one access i.e., through the common stair case existing towards southern side of the defendants property. Though the defendants in the course of evidence tried to an effort to establish that O.S.No.1669/2021 28 plaintiff has another access to his terrace through the opening stated to be available on his terrace. But except making suggestion to PW-1 nothing is brought on record. Even the PW-1 has denied the suggestion made in this regard. The defendants have set up this plea in the course of evidence only it has not pleaded nor proved. So the defendants without making any arrangement to safeguard the right of the plaintiff to have access to his terrace if allowed to demolish the existing structure and to construct new building it will definitely obstruct the right of the plaintiffs and it is nothing but infringement of plaintiff's existing right arguments seems to be reasonable. Merely because there is no reference with regard to alleged usage of common stair case access through terrace of the defendants in the sale deed of the plaintiff it does not amount that he has no right at all. That for ascertaining the right of parties in respect of immovable properties its previous history and flow of title acquired to be verified and the rights exercised and enjoyed by the parties have to be taken into O.S.No.1669/2021 29 consideration. The documents relied by both parties clearly goes to show that properties of plaintiff as well as defendants have been divided from one unit. Therefore the right attach to main property will continue with the divided portion and each have to take care of rights of the others. Taking into consideration of all these facts and circumstances and evidence as well as documents relied by both parties it is quite clear that plaintiff is able to prove that he is having right of easementary to reach is terrace with the help of existing stair case situated towards southern side of the defendants property and very conduct of the defendants and contention set up by them in their written statement clearly goes to show that they are hurriedly and without following the appropriate procedure trying to demolish the structure as well as common stair case it will cause irreparable loss to plaintiff arguments holds good. No reason is available to deny the same. In my view plaintiff has proved both the issues, accordingly I have answered issue No.2 and 3 in the 'affirmative'.
O.S.No.1669/2021 30
12. Additional Issue No.1: According to the defendants the suit of the plaintiff only for right of easement without relief of declaration is not maintainable, hence plaintiff is not entitle for the relief sought in the suit, so suit is liable to be dismissed and prayed for dismissal of the suit. In this regard the learned counsel for the defendants has vehemently argued and contended that without seeking the declaration relief the suit in the present form is not maintainable. As already discussed in the above issues there is no serious dispute with regard to the title of the plaintiff's property. On the contrary the D.W.1 in her affidavit filed in the form of examination-in-chief as well as well as in the course of cross-examination in an unequivocal term categorically admitted the ownership of the plaintiff over the suit schedule property. The only thing disputed is about existence of easementary right of plaintiff over stair case and right of passing through the roof of defendants to reach the plaintiffs' terrace has been denied, since the parties have acquired their O.S.No.1669/2021 31 properties out of one property by virtue of devision so immediately after division takes place one property ownner who is having right of access is required give way to the another who is having property towards remote side admittedly the stair case used before devisionof property is situated towards southern side of the said property after division it has fallen to the share of vendor of the defendants and plaintiffs share is situated towards northern side. So the plaintiff will have right of access through stair case situated towards southern side of the property obviously he is required to pass through defendants roof. The right of plaintiff access to passage was reserved till southern end. The very intention to such reservation of right of passage gives presumption that it has been given to exercise right of using stair case and roof to reach terrace of the plaintiff. Such being the case there is no necessity to seek declaration of ownership in respect of plaintiff's property. More over defendant is not claimed any right over the plaintiff's property nor they are denying title of O.S.No.1669/2021 32 the plaintiff. Such being the case the contention of the defendants that suit is not maintainable without seeking relief of declaration does not holds water, defendants have failed to prove this issue, accordingly I have answered it in the 'negative'.
13. Issue No.4: For various reasons discussed in the issue No.1 to 3 and additional issue No.1, it is quite clear that, plaintiff is able to prove his possession over the suit schedule property as on the date of suit also he is able to prove existence of common stair case and his right to have access through roof of the defendants to reach is terrace. Though the defendants have denied the claim of the plaintiff but miserably failed to disprove the contentions of the plaintiff and establish the contentions set up by them in the written statement. Therefore if injunction order as well as declaration of easementary right is not granted in favour of plaintiff great injustice will caused to him. That due to change of circumstances and situation if the defendants intended to make use of their property full pledged they are entitle to do so, but O.S.No.1669/2021 33 they have to take of plaintiffs existing right also. If the defendants wants to get construct new house by demolishing old building they can do so by providing alternative arrangement for the plaintiff. That taking into consideration of all these facts and circumstances it is quite clear that the plaintiff has proved that he is entitled for the relief sought in the suit, no reason is available to deny the same, hence I have answered it in the 'affirmative'.
14. Issue No.5 :- In the result, I proceed to pass the following;
ORDER The suit of the plaintiff is decreed with costs.
It is declared that plaintiff is having right of easement over roof of the defendant to reach the terrace of the plaintiff with the help of staircase exist towards southern side of the defendants property.
O.S.No.1669/2021 34 The defendants are hereby restrained by way of perpetual injunction from demolishing the common stair case and southern common wall of the suit schedule property without due process of law.
Draw the decree accordingly.
[Dictated to the Judgment writer, transcribed & computerized by him, corrected on computer and signed by me then pronounced in the Open Court, dated this the 8th day of November, 2021] (MALLIKARJUNA) XIV Addl. City Civil Judge Bangalore.
ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
P.W.1 : Sri.H.M.Rajesha List of documents marked on behalf of the plaintiff/s:
Ex.P-1 : Kandayam paid receipt
Ex.P-2 to 4 : Property Tax receipts
Ex.P-5 & 6 : 2 Electricity Bills
Ex.P-7 & 8 : Water supply bills
Ex.P-9 : Certified copy of Sale Deed, dated: 8-2-2008
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Ex.P-10 : Certificate issued by Sri.Subramanyeshwara Co.op.bank
Ex.P-11 : Simple Mortgage
Ex.P-12 : Certified copy of sale deed dated 4-11-1941
Ex.P-13 : Certified copy of Sale deed, d: 30-06-1957
Ex.P-14 : Certified copy of Gift Deed,dated: 30.06.1950
Ex.P-15 : Certified copy of Exchange deed, dt.28.05.1966
Ex.P-16 : Certified copy of registered Will dated: 30-04-1991
Ex.P-17 : Family Tree of Suryanarayana Shastry
Ex.P-18 : Certified copy of GPA
Ex.P-19 : Certified copy of letter of reply by BBMP
Ex.P-20 : Khata Certificate
Ex.P-21 : Katha extract
Ex.P-22 : Certified copy of answer by BBMP
Ex.P-23 : Certified copy of Katha Extract by BMP
Ex.P-24 : Certified copy of Katha Uttar
Ex.P-25 & 26 : Certified copy of complaint & acknowledgement
Ex.P-27 : Certified copy of complaint to Deputy Commissioner of
Police
Ex.P-28 : Certified copy of complaint to Commissioner of Police
Ex.P-29 : Certified copy of complaint to Assistant Executive
Engineer, BBMP. Bangalore
Ex.P-30 : Certified copy of Complaint to Assistant Executive
Engineer, Bangalore
Ex.P-31 : Complaint to Assistant Executive Enngineer, BWSSB,
Malleshwaram, Bangalore.
Ex.P-32 : Certified copy of Gift Deed, dated: 30-06-1957
Ex.P-33 : Certified copy of Sale Deed,dated: 14-09-1961
Ex.P-34 : Certified copy of Sale Deed, dated: 7-2-1979
Ex.P-35 : Affidavit under section 65-B of Indian Evidence Act
Ex.P-36 : Receipt issued by Photographer
Ex.P-37 to 57 : Photographs and C.D.
Ex.P-58 : Certified copy of Deed of Absolute Sale dt: 04-11-2010
Ex.P-59 : Certified copy of Deed of Release dt.24.12.2014
O.S.No.1669/2021
36
Ex.P-60 to 68 : Photos
List of witnesses examined on behalf of the defendant/s:
D.W.1 : Smt.Padma Priya List of documents marked on behalf of the defendant/s :
Ex.D-1 : Photograph Ex.D-2 : Sale Deed,dated: 29-11-2018 Ex.D-3 : Approved building plan Ex.D-4 : Affidavit under Section 65-B of Indian Evidence Act Ex.D-5 to 7 : Photographs and one C.D. XIV Addl. City Civil Judge Bangalore. O.S.No.1669/2021 37