Bangalore District Court
Messrs Jade Inc vs Vidya Harish Sinhji R Rana on 1 December, 2025
KABC010131922012
IN THE COURT OF THE X ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-26).
Dated this the 1st day of December, 2025.
Present
Sri Vijaya Kumar Rai, B.Com., LL.B.,
X Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.1343/2012
Plaintiff: 1) MESSRS JADE INC
A Partnership Firm registered
under the Indian Partnership Act
having its place of work at
No.201, 'A' Block, Century Park
Apartments, 48, Richmond Road
Bangalore-560 025, herein represented
by Managing Partner-Mr.Devendranath.
2) Mr.Devendranath
s/o R. Balaji Rao
Aged about 48 years
r/at No.201, 'A' Block
Century Park Apartments
48, Richmond Road
Bangalore-560 025.
(By Sri S.V.Giridhar, Adv.)
Vs.
Defendant: Mrs.Vidya Harish Sinhji R Rana
w/o Late Harish Singhji Rana and
presently known as w/o C.V.S. Ravi
Major in age, r/at No.1/3-2 "Eshaan"
Chico Square, Hutchins Road
St.Thomas Town, Bangalore-84 .
(By Sri Abhinav, R., Adv.)
Date of institution of the suit 15.02.2012
2 O.S.No.1343/2012
Nature of the suit For permanent prohibitory
injunction
Date of the commencement 20.01.2017
of recording of evidence
Date on which the judgment 01.12.2025
Pronounced
Total duration Years Months Days
13 09 16
(Vijaya Kumar Rai)
X Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This suit is filed by the plaintiffs for an order of permanent prohibitory injunction to restrain the defendant from doing any act in the common area, more specifically in the set back area, either from digging or putting up any construction or structure of any kind in the suit schedule residential condominium.
2. The case of the plaintiffs in brief is as hereunder:-
The plaintiff No.1 is a partnership firm registered under the Indian Partnership Act and is engaged in business of developing immovable properties for residential purposes and it is duly represented by its Managing Partner who is the plaintiff No.2 herein. The plaintiff No.2, being a Managing Partner of the plaintiff No.1 is also owner of two apartments bearing PH No.10 and PH No.11 on 3rd Floor of the suit schedule residential condominium known as "Jade Eshaan". The defendant is the 3 O.S.No.1343/2012 erstwhile owner of the suit schedule property. The first plaintiff entered into a joint development agreement with the defendant vide agreement dated 06.10.2004 and simultaneously the defendant has executed a GPA in favour of plaintiffs to carry out the functionalities described in the joint development agreement. A formal agreement dated 29.09.2009 also registered before the Sub Registrar. Thereafter the plaintiffs have put up 11 independent residential apartments on the ground floor, first floor and second floor with penthouses. Consequent upon the said joint development agreement, first plaintiff owned Flat No.2, 3, 6, 8 & 9 and the second plaintiff possessed and had right to sell the Flat No.1, 4, 5, 7 and penthouse No.1 & 2, which is enumerated in the settlement agreement dated 25.09.2009. The Flat No.3 is situated on the north-western corner of the residential condominium. The garden areas are computed and will encompass undivided rights of all owners of individual units which would mean that the said owners of these three apartments on ground floor will have no additional ownership other than that is already conferred to them in the form of undivided right in the plaint schedule property which is in proportion to the ownership of the apartments. Therefore, the defendant will not have any exclusive independent right over the said setback area to any kind of alteration or changes. But, without the permission of other 4 O.S.No.1343/2012 flat owners, the defendant has tried to dig a huge pit on the north western corner of the residential condominium and the pit was so deep that she almost threatened to push the retaining compound wall and also retaining basement wall. When the plaintiffs have questioned, the defendant was kept saying that she wanted to plant some new bushes and shrubs, but over a period of time, the dig did not look like it was for the purpose of planting plants and shrubs. It was seemingly for the purpose of some kind of new construction or facility, which the first defendant wanted exclusive and independently for her. Her act is per se illegal and breach of the rights of other owners of the apartment and amounts to interference with the right of other owners for which the plaintiff has issued a letter. The defendant did not stop the work and therefore instituted this suit seeking these reliefs.
3. Pursuant to the suit summons issued by this Court, the defendant entered appearance and filed her written statement. In the written statement, she has denied the alleged work said to be made by her as claimed by the plaintiffs. She has pleaded that she was the absolute owner and in possession of the property bearing No.1/3, 5th Cross measuring 123×79 feet in which the defendant and plaintiffs have agreed to construct a residential condominium and entrusted the work to the plaintiff by joint development agreement dated 29.09.2009 with a right to sell 5 O.S.No.1343/2012 55% of undivided interest. The construction put up by the plaintiffs was substandard for which a case is also instituted before the Consumer Forum which is pending for consideration. Thereafter, the defendant was constrained to cancel the GPA dated 29.09.2009 executed in favour of the plaintiff No.2. The JDA does not in any manner confer ownership or any right over the property to the plaintiffs. The defendant has in no manner even tried to exert any independent or exclusive right over the north-western portion of the plaint schedule property by digging or causing any trouble to other occupants of the residential condominium. In fact, all that the defendant herein did was to repair already existing gate leading to the common passage, which was imperative for the safety of the residential condominium in the case of fire emergency or even clear the drainage if need arises and maintain the garden. It was the bounden duty of the plaintiffs to have provided quality construction also catering to the safety of the residents of the residential condominium, it was the lapses on the part of the plaintiffs, which required the defendant herein to fix the gate that too with the consent of all other residents of the condominium. In fact, the defendant and other residents of the condominium had to pool-in money and carry out various repair work, such as fixing the gate, swimming pool and various other works. Therefore, not 6 O.S.No.1343/2012 a single resident has even raised a little finger against the defendant and hence not joined with the plaintiffs in instituting the suit even after 12 years. On these contentions, the defendant sought for dismissal of the suit.
4. On the basis of the above pleadings this Court has framed the following issues:-
1) Whether the plaintiffs prove that the plaintiffs and all the owners of individual units have an undivided right over the common area/garden area and set back area situated in the ground floor of the suit schedule property in proportion to their ownership right in the apartment?
2) Whether the plaintiffs prove that defendant has tried to dig a huge pit on the north western corner of the suit schedule residential condominium by violating the co-ownership rights of the other apartment owners as contended by them?
3) Whether the plaintiffs prove that the pit dug by the defendant was so deep that it had threatened to push the retaining compound wall and also retaining the basement wall and thereby dangerous to the suit schedule property?
4) Whether the defendant proves that the joint development agreement does not confer co-
ownership rights to the plaintiffs to the common area?
7 O.S.No.1343/2012
5) Whether the description of the suit schedule property is sufficient and correct?
6) Whether the suit for injunction simplicitor is maintainable without seeking the relief of declaration of title?
7) Whether the plaintiffs are entitled for the reliefs sought in the suit?
8) What order or decree?
5. In support of the case of the plaintiffs, the plaintiff No.2 is examined as PW1 and produced Ex.P1 document. PW1 is subjected to cross-examination on behalf of the defendant and got marked Ex.D.1 & 2. The defendant has not chosen to lead evidence.
6. Heard the argument of the learned counsel appearing for the defendant. Plaintiff has not advanced the arguments.
7. Findings of this Court on the above issues are as hereunder:-
Issue No.1 : Does not arise for consideration Issue No.2 : In the negative Issue No.3 : In the negative Issue No.4 : Does not arise for consideration Issue No.5 : In the negative 8 O.S.No.1343/2012 Issue No.6 : In the negative Issue No.7 : In the negative Issue No.8 : As per final order, for the following:
REASONS
8. Issues No.2 & 3:- It is an admitted fact that the defendant was the owner of the property bearing No.1/3, 5th Cross, Hutchins Road, Bangalore measuring east-west 123 feet and north-south 79 feet. It is also not in dispute that the plaintiffs and defendant have entered into a joint development agreement for the construction of flats in the suit schedule property and accordingly, the plaintiffs have put up 11 independent residential apartments with penthouses pursuant to the joint development agreement. The main grievance urged by the plaintiffs is that the defendant has tried to dig a huge pit on the north-western corner of the residential condominium in the plaint schedule property and the pit was so deep that it almost threatened to push the retaining compound wall and also the retaining basement wall. The plaintiffs have further pleaded that when the plaintiffs have questioned, she kept saying that she wanted to plant some new bushes and shrubs and over a period of time, the digging did not look like it was for the purposes of planting plants or shrubs and it was seemingly for the purpose to put up some kind of construction or facility to the defendant and she wanted 9 O.S.No.1343/2012 exclusively and independently for her, which is per se illegal by violating the undivided rights of the other co-owners of the flat over the common area/garden area and setback area situated in the ground of the suit schedule property in proportion to their ownership right in the apartment and therefore plaintiffs have approached this court seeking the relief of injunction.
9. Section 10 of the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972 imposes an obligation to the promoter to take steps for formation of Co-operative Society/company as soon as minimum number of the persons required to form a Co-operative Society or a Company have taken the flats and thereafter the common areas shall be managed by the co-operative society or company so formed. The Act further is intended to retain an undivided interest in the common areas and facilities which are to be used and owned by all such owners of the flat jointly. Therefore, even in the present case, the parties should have taken steps to form a society or company as required under the provisions of Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972. The evidence on record shows that the same is not Implemented and therefore there is dispute between the parties. But, formation of the society or company is outside the scope in 10 O.S.No.1343/2012 this suit as this is a suit filed for bare injunction. Hence the court is required to consider whether any of the civil rights of the plaintiffs is infringed by the alleged act said to be committed by the defendant in the suit schedule property.
10. The specific stand taken by the plaintiffs is that the defendant has tried to dig a huge pit on the north western corner of the residential condominium and it was so deep that it had threatened to push the retaining compound wall and also retaining basement wall and thereby dangerous to the suit schedule property and by violating the ownership rights of other apartment owners. Admittedly, other apartment owners who have already occupied this residential flats have not joined with the plaintiffs. The plaintiffs alone approached this court. Though the plaintiffs have stated that the plaintiff No.1 is a partnership firm, during the course of cross-examination of PW.1, he has admitted that the plaintiff No.1 partnership firm is dissolved. Therefore, the plaintiff No.1 is not in existence. Still admittedly plaintiff No.2 is the owner of some of the flats and therefore the court is required to consider whether his civil rights are infringed.
11. When the plaintiffs are made serious allegations of digging of the pit which is in the nature of a threat to the existence of retaining compound wall and basement wall, the defendant has pleaded that the defendant has only carried out the repair of an 11 O.S.No.1343/2012 already existing gate leading to the common passage, which was imperative for the safety of the residential condominium in case of fire emergency or even clear the drainage if need arises and maintain the garden which required the defendant herein to fix the gate that too with the consent of all other residents of condominium and the defendant and other residents of the condominium had to pool-in money and carry out various repair works such as fixing the gates, swimming pool and other common works. In this regard, in the cross-examination of PW1 dated 16.01.2025, he has testified that the defendant has constructed a gate in the month of February 2012. He has also admitted that the gate so installed has not caused any inconvenience to other apartment owners. In this regard, he has admitted as hereunder:-
"It is true that the gate installed by the defendant opens only to her apartment. It is true that this gate is not causing any inconvenience to other apartment owners. Witness volunteers that it is a breach of security. Other apartment owners have not raised any security concern to us".
The above evidence given by the plaintiffs clearly shows that the defendant has only put up a gate which opens only to her apartment.
12. One of the contention raised by the plaintiffs during the course of cross-examination is that the gate so put up by plaintiffs 12 O.S.No.1343/2012 has resulted in breach of security. This is not pleaded by the plaintiffs and it is not the case of the plaintiffs that the work carried out by the defendant has affected the security and therefore instituted the suit. Even otherwise, he has admitted that the other apartment owners have not raised any security concern by the installation of the gate. The plaintiffs have not even stated that how the installation of this gate would affect the security. Therefore, this stand taken by the plaintiffs is also not helpful to maintain the suit.
13. The other contention raised by the plaintiffs is that the wall is broken down due to the construction of the gate. But, there is nothing on record to show that any damage is caused to any of the wall including compound wall. The plaintiffs have not even able to demonstrate it by producing a photograph. If the wall is broken, certainly the other apartment owners would have complained the same. Therefore, the damage said to be caused to the wall by putting up the gate is also not established.
14. It is well settled law that even if an area is concerned as common area, each of a co-owner has a right of enjoyment of it unless it affects the right of other co-owner. The evidence available on record only shows that the defendant has put up a gate. Even if it is constructed without the consent of the plaintiffs and other co-owners, unless it affects the right of the plaintiffs or it 13 O.S.No.1343/2012 infringes any civil right, it will not give a cause of action to the plaintiff to sue. In fact, PW1 has admitted that the gate so installed opens only to her apartment. The plaintiffs have failed to show that the defendant is prevented from putting up any such gate. None of the rights of the plaintiffs are infringed by the action of the defendant. There is nothing on record to show that the defendant has tried to dig a huge pit and such a work is threatening to any of the wall or safety of the building constructed in the suit schedule property. Therefore, issues No.2 & 3 are answered in the negative.
15. Issues No.1 & 4:- The plaintiffs have taken up a contention that all the apartment owners have undivided right over the common area/garden area and setback area. On the other hand, the defendant has taken up a contention that the joint development agreement does not confer ownership rights to the plaintiffs over the common area. This is a suit for bare injunction. Considering the fact that issues No.2 & 3 are answered in negative through which the plaintiffs have maintained the suit, it is not necessary to record any finding in this suit for injunction in respect of issues No.1 & 4. Therefore, issues No.1 & 4 does not arise for consideration.
16. Issue No.5:- The description given in the plaint is the entire suit schedule property. The plaintiffs have not given the 14 O.S.No.1343/2012 description of the common area or garden area in which the defendant said to have put up construction. Therefore, the description given by the plaintiffs is insufficient to consider the question of infringement of the civil right of the plaintiffs in respect of the common area/set back area/garden area claimed by the plaintiffs. Accordingly, issue No.5 is answered in the negative.
17. Issue No.6:- One of the contention raised by the defendant is that the suit for injunction simplicitor is not maintainable. There are several issues including non-formation of the society or company as required under Section 10 of the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972. Therefore, when the plaintiffs have claimed undivided right over the property, having considered the object of the above Act, in the present suit, the plaintiffs should have sought for declaratory relief. This is not done. Therefore, Court cannot decide the question of undivided rights of the parties in the absence of the sale deeds executed in respect of all the Apartments. The same can be ascertained in a comprehensive suit by considering all the sale deeds pertaining to the apartment owners. Therefore, in a suit for bare injunction, the rights of the parties cannot be decided. Hence, issue No.6 is answered in the negative. 15 O.S.No.1343/2012
18. Issue No.7 & 8:- In view of the answer given to issues No.2 & 3 in the negative, the court has held that none of the civil rights of the plaintiffs are infringed by the alleged act said to be committed by the defendant. Therefore, the plaintiffs are not entitled for the relief of injunction. Consequently, issue No.7 is answered in the negative and the following order is passed:-
ORDER Suit is dismissed with costs.
Draw decree accordingly.
(Dictated to the Dictaphone and Speech to Text App, carried out corrections by the Senior Sheristedar, print out taken and then pronounced in the Open Court on this the 1st day of December, 2025) (Vijaya Kumar Rai) X Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiffs:
PW.1 : Devendranath List of documents exhibited for plaintiffs:
Ex.P1 : JDA List of witnesses examined for the defendant:
Nil List of documents exhibited for defendant:
Ex.D.1 : Copy of legal notice
Ex.D2 : Paper publication
X Addl. City Civil & Sessions Judge,
Digitally signed
VIJAYA Bangalore.
by VIJAYA
KUMAR RAI B
KUMAR Date:
RAI B 2025.12.02
13:04:03 +0530