Bangalore District Court
In C.Venkateshan vs Krishna Murthy on 14 September, 2015
IN THE COURT OF THE XI ADDL.CITY CIVIL JUDGE,
BANGALORE CITY
Dated this the 14th day of September 2015.
PRESENT: S.V.KULKARNI, B.Com., LLB(Spl)
XI Addl.City Civil Judge, B'lore city.
O.S.No.2443/2000 c/w O.S.2354/2001
C.C.H.8
Plaintiff in C.Venkateshan,
both S/o C.Channappa Naidu,
O.S.2443/00 & Aged about 49 years,
O.S.2354/01: R/at No.10/3,
New cross road,
Chikkamavalli,
Bangalore - 560 004.
(By Sri.MN, Advocate)
: Vs :
Defendantin Krishna Murthy,
both S/o Venkatachalam,
O.S.2443/00 & Aged about 45 years,
: O.S.2354/01: R/at Old No.4,
New No.89,
New cross road,
Chikkamavalli,
Bangalore - 560 004.
(Sri.VBS, Advocate)
Date of the institution of suit in 04.04.2000
O.S.No.2443/2000:
2 O.S No.2443/2000 c/w
O.S.No. 2354/2001
Date of the institution of suit in 02.04.2001
O.S.No.2354/2001:
Nature of the suit in both Permanent injunction
O.S.2443/2000 &
O.S.2354/2001:
Date of the commencement of 12.02.2011
recording of the evidence in
O.S.No.2443/2000 :
Date of the commencement of 26.07.2010
recording of the evidence in
O.S.No.2354/2001 :
Date on which the judgment 14.09.2015
was pronounced :
Total duration: Year/s Month/s Day/s
In O.S.No.2443/2000: 15 05 10
In O.S.No.2354/2001: 14 05 12
XI Addl.City Civil Judge,
B'lore city.
JUDGMENT
The plaintiff in O.S. No.2443/2000 has filed a suit against the defendant seeking the relief of permanent injunction restraining the defendant by himself or anyone else claiming through or under the defendant from interfering with peaceful possession and enjoyment of the suit schedule property including common passage measuring 5"x56" of the open space that run from West-East on southern portion of abutting northern portion of suit schedule property and for other relief including the cost of the suit.
3 O.S No.2443/2000 c/wO.S.No. 2354/2001 Plaintiff has described the suit schedule property as per description shown in the annexed schedule of plaint, which read a under:
SCHEDULE All that piece and parcel of the property bearing No.3, Municipal Division No.54, New cross Road, Chikkamavalli, Bangalore-4 consisting of a ground and first floor and bounded on;
East by: private property West by: New cross road, North by: Jayalakshmamma's property South by: Rangappa's street.
Measuring east to west-31.6'+ 29/2 and north to south-21 feet and this property hereinafter referred as suit schedule property.
2. The case of the plaintiff as averred in the plaint briefly stated as follows:-
The plaintiff is the absolute owner of northern portion of premises bearing No.3 Municiple Division No.53, New Cross Road,Chikkamavalli, Bangalore-4 consisting of ground and first floor measuring east-west 31.6/29 feet and north- south 21 feet and specifically described in the schedule herein. Plaintiff having purchased this property from Smt. Jayalakshmamma,W/o late B.Narayan Rao under the sale deed dated: 2/7/1990 which has been duly registered in the office of the Sub-Registrar, Basavanagudi, Bangalore and 4 O.S No.2443/2000 c/w O.S.No. 2354/2001 under this sale deed at page No.7, the vendor covenanted that, "vendor of the property hereby agreed to extend the south for free movement of men and materials by the Purchaser and those persons or all are permitted / authorised persons/ tenants may approach passage to reach the upstairs existing on the above suit schedule property which has been sold to purchaser through this Sale deed. The vendor has hereby agreed to preserve the southern side wall as common use by the purchaser and to retain the same for the use of purchaser whenever the vendor proposes to demolish his portion. After the purchase of northern portion of suit schedule property, the plaintiff was making use of common passage measuring 5"x56" and open space that runs from west-East on the abutting southern portion of suit schedule property which connects common passage measuring 5 feet from south to north on the eastern side of abutting southern portion of suit schedule property which leads to the stair case of plaintiff's first floor and the first floor of the south portion of suit schedule property which is situated in the middle between northern and southern portion of said property on the eastern side. Plaintiff also stated that he has produced the rough sketch map showing the situation of common passage and it is to be treated as annexure A and this open passage situated on the eastern and southern side of the said abutting southern portion of suit schedule property was retained by the vendors and was being used by the plaintiff and his vendor for ingress and egress of the suit schedule property and was also used as 5 O.S No.2443/2000 c/w O.S.No. 2354/2001 common parking area for their vehicles. This is the only passage for the plaintiff, which is being used by him for ingress and egress for his property and plaintiff was using this common passage right from the date of purchase ie., 2/7/1990 and his vendor never objected for the use and enjoyment of the plaintiff of this common passage and even in fact in the sale deed dated: 2/7/1990 vendor has covenanted with the plaintiff regarding this common passage shall be used by the plaintiff and as such it was main approach passage to reach the upstairs existing on the above said property which has been sold to the plaintiff ie., through sale deed dated:2/7/1990. Though the katha in respect of suit schedule property still stands in the name of plaintiff's vendor, till this day plaintiff is paying tax in the name of his vendor and plaintiff relied upon xerox copy of tax paid receipt and also stated that since all the original documents are with the Insurance company, hence, the plaintiff has raised loan by mortgaging the property and pledged the original documents, hence, he has produced the copies of documents and plaintiff further stated that defendant has purchased the southern side portion of the suit schedule property from the vendor of plaintiff recently and after purchase of property by defendant, defendant now is harassing the plaintiff regarding use of common passage and caused obstruction to the plaintiff and his tenants not to park the vehicles in the common passage and asserting that the said common passage exclusively belongs to defendant and as such he is denying the plaintiff's right to use the 6 O.S No.2443/2000 c/w O.S.No. 2354/2001 common passage existing towards southern side. In fact, the vendor of plaintiff has sold the northern portion of suit schedule property in favour of plaintiff by virtue of sale deed dated: 2/7/1990 and vendor of the plaintiff had allowed the plaintiff to use the common passage for free movement of men and materials by the purchaser and it is only approach passage to reach upstairs existing on the above said property which has been sold by the vendor in favour of his purchaser and now the defendant is obstructing for plaintiff's use and enjoyment and defendant along with his henchmen tried to trespass on the southern side passage of the said property on 1/4/2000 and tried to demolish the staircase existing on the suit schedule property of the plaintiff to reach upstairs and though the plaintiff made earnest efforts to persuade the defendant nor to cause any obstruction, but, the defendant did not heed to the request of plaintiff. On the contrary, defendant had shown adamant hostile attitude and defendant if demolished the staircase as threatened to block the common passage wherein plaintiff and his tenants will have no ingress and egress and of-course to reach the suit schedule property and thereby will be put to irreparable loss and injury. The Plaintiff approached the police station intending to lodge police complaint against the defendant , wherein plaintiff lodged police complaint before Kalasipalya police station on 1/4/2000 against the defendant herein. But, the police authorities instead of extending police help, they advised the plaintiff to approach the civil court since the matter is civil in nature. Hence, the plaintiff alleging the 7 O.S No.2443/2000 c/w O.S.No. 2354/2001 cause of action in para-5 of the plaint, has filed this suit for perpetual injunction against the defendant.
3. Defendant in response to suit summons appeared in this case, through counsel and filed his written statement contending that the suit filed by the plaintiff seeking relief of permanent injunction from interfering with peaceful possession and enjoyment of common passage measuring 5"x 56" open space running from West to East on the southern portion abutting to northern portion connecting to common passage measuring 5" from north-south on the eastern side abutting southern portion of suit schedule property which leads to the staircase of the plaintiff as plaintiff claims for other consequential relief is not maintainable and suit is liable to be dismissed. There is no common passage or any such thing available so as to claim relief as prayed in this case. Plaintiff has deliberately made it appear before this court that making common passage measuring 5'x26" and that it is open space that runs from west-east abutting southern portion made it believe on the basis of rough sketch as if there is common passage and defendant denied the cause of action to file the suit wherein no cause of action is arisen for plaintiff to file this suit since there is no common passage measuring 5"x56". Defendant denied the description of plaint-schedule and defendant in para-7 of his written statement stating that the property of defendant is bearing No.12 and the boundaries of his property is towards north of the property of Smt. Nachiammal towards 8 O.S No.2443/2000 c/w O.S.No. 2354/2001 south part of property No.12 and towards the east is K.P.S Guptha's property and towards the west there is private property. The property of Smt. Nachiammal bears No.9/4. Ramgappa Galli, New cross road, Chikkamavalli, Bangalore. The schedule in respect of the property of Smt. Nachiammal is to be taken into consideration in terms of schedule given in the sale deed under which it has been conveyed. Hence, the suit is bad for non-joinder of proper and necessary party. The plaintiff is not entitled for any reliefs. There is no common passage as alleged by the plaintiff and the open passage is the property of Smt. Nachiammal and this defendant. Hence, in the circumstances, this suit is liable to be dismissed exemplary costs.
4. Based upon these pleadings of the parties, the following issues have been framed on 19/6/2003:-
O.S.2443/2000
1. Whether the plaintiff proves the existence of the common passage measuring 5' x 56'?
2. Whether he further proves that he has got the right to use the common passage ?
3. Whether he further proves that the defendant is obstructing him from using the common passage by parking vehicles?
4. Whether he is entitled to the injunctions prayed for ?
5. What order or decree ?9 O.S No.2443/2000 c/w
O.S.No. 2354/2001
5. In order to prove the above issues, the plaintiff himself is examined as PW.1 and got marked Ex.P.1 to P.9 as documentary evidence and also examined two witnesses as PW.2 and 3 and closed his side and defendant is examined as DW.1 and in his evidence, documents Ex.D.1 to D.6 are came to be marked and with this evidence, defendant's evidence came to be closed. Thereafter, the suit is posted for arguments.
6. The very plaintiff in O.S.No.2443/2000 has filed another suit in 2354/2001 for the relief of permanent injunction restraining the defendant or any other person claiming under him from interfering with peaceful possession and enjoyment of the suit schedule property from the plaintiff and to restrain the defendant from putting up construction over the second floor of the premises purchased by him as it is highly impossible for common passage to bear the entire load on his southern portion of the property adjacent to the schedule premises.
7. Since these two suits are filed between same parties and though they are tried independently, but, the counsel for the plaintiff filed clubbing application in order to club O.S.No.2354/2001 and after hearing both sides on I.A.No.13, wherein counsel for defendant submitted no objections to I.A.No.13 and accordingly I.A.No.13 filed by the plaintiff came to be allowed on 23/7/2014 and thereby subsequent suit filed 10 O.S No.2443/2000 c/w O.S.No. 2354/2001 by the plaintiff in O.S.No.2354/2001 has been clubbed with the suit in O.S.No.2443/2000.
8. Plaintiff has described the suit schedule property in the annexed plaint schedule which reads as follows:
SCHEDULE All that piece and parcel of the property bearing No.3, Municipal Division No.54, New cross Road, Chikkamavalli, Bangalore-4 consisting of a ground and first floor and bounded on;
East by: private property West by: New cross road, North by: Jayalakshmamma's property South by: Rangappa's street.
Measuring east to west-31.6'+ 29/2 and north to south-21 feet and this property hereinafter referred as suit schedule property.
9. The case of the plaintiff is that he is the absolute owner of northern portion of premises bearing No.3 Municipal Division No.53, New Cross Road,Chikkamavalli, Bangalore-4 consisting of ground and first floor measuring east-west 31.6' + 29'/2 feet and north-south 21 feet and specifically described in the schedule herein. Plaintiff having purchased this property from Smt. Jayalakshmamma,W/o late B.Narayan Rao under the sale deed dated: 2/7/1990 which has been duly registered in the office of the Sub-Registrar, Basavanagudi, Bangalore as document No.963/1990-91 at pages No.107-104, 11 O.S No.2443/2000 c/w O.S.No. 2354/2001 the vendor covenanted that, "vendor of the property hereby agreed to extend the south for free movement of men and materials by the Purchaser and those persons or all are permitted / authorised persons/ tenants may approach passage to reach the upstairs existing on the above suit schedule property which has been sold to purchaser through this Sale deed. The vendor has hereby agreed to preserve the southern side wall as common use by the purchaser and to retain the same for the use of purchaser whenever the vendor proposes to demolish his portion". After the purchase of northern portion of suit schedule property, the plaintiff was making use of common passage measuring 5"x56" and open space that runs from west-East on the abutting southern portion of suit schedule property which connects common passage measuring 5 feet from south to north on the eastern side of abutting southern portion of suit schedule property which leads to the stair case of plaintiff's first floor and the first floor of the south portion of suit schedule property which is situated in the middle between northern and southern portion of said property on the eastern side. Plaintiff also stated that he has produced the rough sketch map showing the situation of common passage and it is to be treated as annexure A and this open passage situated on the eastern and southern side of the said abutting southern portion of suit schedule property was retained by the vendors and was being used by the plaintiff and his vendor for ingress and egress of the suit schedule property and was also used as common parking area for their vehicles. This is the only passage for the plaintiff 12 O.S No.2443/2000 c/w O.S.No. 2354/2001 which is being used by him for ingress and egress for his property and plaintiff was using this common passage since the date of his purchase ie., 2/7/1990 and this being the fact, defendant had purchased the southern side portion of property from the very same vendor recently and defendant recently after his purchase started harassing the plaintiff in all conceivable ways and is enimically ill disposed towards plaintiff and when defendant started obstructing the plaintiff and his tenants to park their vehicle in the common passage and defendant asserted his exclusive right over and denied the plaintiff's right to enjoy the common passage and hence, plaintiff constrained to file this suit against the defendant by filing police complaint on 1/4/2000 in O.S.No.2443/2000 before additional City Civil Judge, Bangalore in Cch16 praying for permanent injunction and plaintiff has filed interim application under order 39 Rules 1 and 2 of C.P.C wherein the court was pleased to grant an order of injunction in that suit and when such being the case, defendant who has no manner of right, title or interest unnecessarily now meddling with the property of the plaintiff, wherein the suit schedule property and the property purchased by defendant are adjacent to each other and southern side wall is common for all and it is load bearing wall and schedule building and building in the occupation of the defendant was constructed more than 55 years back and due to passage of time, it is developed many cracks and the said wall is not strong , wherein defendant after obtaining sanction plan, licence and without obtaining necessary permission and now he is trying to put up 13 O.S No.2443/2000 c/w O.S.No. 2354/2001 construction on the second floor over his property and entire load wall fall on the common wall which is common to both plaintiff and defendant and if defendant puts up proposed construction, wherein road bearing common wall will not bear load since the building is already 55 years old and will not with-stand the additional construction since cracks have already developed in the building and defendant is likely to proceed with construction and plaintiff approached the corporation authority and also police department, but, his efforts went in vain and defendant who has stored the building materials have been bent upon the building, the second floor construction and started work with effect from second April,2001 and if defendant raised construction of second floor putting entire load from the common wall and in such circumstances, plaintiff and his family members will be put to loss and much hardship will be caused to them and he filed police complaint against defendant before Kalasipalya police station on 1/4/2000 and also before corporation office and they did not helped the plaintiff and they directed the plaintiff to approach the civil court and hence, plaintiff ahs alleged the cause of action one arose to him to file this suit on 29/3/2001 when defendant has stored the building materials near the suit schedule premises and engaged the neighbours for putting up construction and hence, plaintiff is constrained to file the suit by presenting the complaint on 2/4/2001.
10. Defendant appeared and filed written statement denying the plaint allegations in toto and also contended that 14 O.S No.2443/2000 c/w O.S.No. 2354/2001 suit is bad for non-joinder of proper and necessary parties and defendant is not the owner of the property towards southern side as mentioned in the suit and defendant denied the cause of action as alleged by plaintiff dated: 29/3/2001 and defendant also denied that, he dumped the building materials near the suit schedule property and engaged the neighbours for constructing the second floor on the northern portion of the plaintiff adjacent to plaintiff's property on the common load bearing wall. Hence, defendant denied the allegations of plaint and it is further contended that, towards south of the property of plaintiff, property that belongs to Smt.Nachimmal. The property of plaintiff, is the property that belongs to Smt. Nachiammal and property of plaintiff and property of Smt. Nachiammal is bifurcated by a wall and this wall is conveyed by registered sale deed executed by Sri. H. Nagaraj and H.Bhanu Murthy and as such Smt. Nachiammal is in possession and enjoyment of the entire property as absolute owner thereof in pursuance of registered sale deed in her favour. The defendant is the owner of the property bearing No.12 measuring 10feet North-south and 21 feet east-west with the property and open space belonging to Smt. Nachiammal and the defendant and towards north of the property of defendant and Smt. Nachiammal, is the property of plaintiff which consists of ground floor and first floor and defendant had denied the claim of plaintiff and also denied the entire plaint allegations and defendant further denied the description of suit schedule property by plaintiff and defendant also denied that plaintiff is the owner of northern portion of property 15 O.S No.2443/2000 c/w O.S.No. 2354/2001 bearing No.3, Municipal division No.53 new cross road, Chikkamavally, Bangalore and it is the only property in possession of plaintiff and that property is a new cross road bearing No.3 and mentioning of northern portion by the plaintiff is deliberate and overt act. The measurement of property East-west 31 feet and 6 inches + 29.5 feet and north to south 21 feet are incorrect and plaintiff is called upon to prove the measurement and as such defendant has denied his knowledge that plaintiff has purchased this property from Smt. Jayalakshmamma under the sale deed dated: 2/7/1990 and defendant also denied the allegations that the sale deed recitals dated: 2/7/1990 defendant was permitted to enjoy the open space and also enjoyed the common passage and defendant had denied the allegations of the plaint in toto and also denied that plaintiff is having right to use common passage and also to use the passage measuring 5x 26 feet in order to reach his first floor premises and defendant contended that there is no passage or portion of any property ie., available for ingress and egress by any person or by the plaintiff and when there is no existence of any common passage hence, claim of alleged right is baseless and defendant also denied the averment of plaint that plaintiff used to part his vehicle and it is further contended that plaintiff is dabbling the court by filing the suits one after the another and litigating and also monetarily though police and other persons bringing in influence etc., Hence, the suit filed by the plaintiff is malafide and it is filed with an unjust claim and there is no right that subsists with the plaintiff to file the suit and defendant further 16 O.S No.2443/2000 c/w O.S.No. 2354/2001 stated that he along with Smt. Nachiammal have filed comprehensive suit in O.S.No.1985/2001 which is pending for adjudication before Additional City Civil Judge, City Civil Court, Bangalore and in that suit, there is an interim order of injunction granted. Hence, the suit is liable to be dismissed with exemplary costs directing the plaintiff to pay charges and costs for initiating and filing a false suit against defendant.
11. Based upon these pleadings of the parties, the following issues have been framed on 12/10/2009:-
1. Whether the plaintiff proves that the southern side wall of the suit schedule property is a common load bearing wall and the same has become weak ?
2. Whether the plaintiff proves that the defendant is attempting to put up construction on the 2nd floor of his property and that the common wall will not withstand the load of such new construction ?
3. Whether the plaintiff proves that proposed construction by the defendant on the 2nd floor of his property would lead to collapse of the suit schedule property ?
4. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for ?
5. What order or decree ?
12. In order to prove the above issues, parties have adduced their respective oral and documentary evidence, wherein plaintiff has been examined as P.W.1 and got marked documents at Ex.P1 to 5 in this case and closed his side and 17 O.S No.2443/2000 c/w O.S.No. 2354/2001 thereafter, defendant has given his evidence by examining himself as D.W.1 and in the evidence of D.W.1, Ex.D1 to 32 are marked. With this evidence, defendant's side evidence is closed and thereafter, this suit is posted for arguments.
13. Heard the arguments of both sides and posted this suit for judgment. The learned advocate for the defendant has relied upon the following authorities:
(1) INDIAN LAW REPORTS-1963, page 814 (Andanappa Irasangappa Malaka Shetti and another Vrs BAsappa Kamalappa Kolhar.) (2) AIR 2005 SC 236 (Junstiniano Antao and others vs Smt. Bernadettee B. Pereira) (3) AIR 1989, KAR.117 (Soni Samaratamal Bhuraj & others Vs. P.B.Nagireddy & others) (4) AIR 1992 Kar 181 (Baburao Yashvantrao Jadhav Vs. Shamrao Khandi Jadhav) (5) AIR 1951 SC 247 (1951) SC4 431 (Raja Braja Sundar Deb & another Vs. Moni Behara & others)
14. On appreciation of oral and documentary evidence adduced by both parties in both the suits and after considering citations furnished by plaintiff and defendant in both suits and after perusal of entire oral, documentary evidence and contentions raised by both sides, I answer the above issues as follows:
18 O.S No.2443/2000 c/wO.S.No. 2354/2001 O.S.No.2443/2000 Issue No.1 In affirmative Issue No.2: In affirmative Issue No.3: In affirmative Issue No.4 In affirmative Issue No.5 The suit filed by the plaintiff against defendant deserves to be decreed for the following O.S.No.2354/2001 Issue No.1 In affirmative Issue No.2: In affirmative Issue No.3: In affirmative Issue No.4 In affirmative Issue No.5 The suit filed by the plaintiff against defendant deserves to be decreed for the following REASONS
15. Issue No.1 and 2 of O.S.No.2443/2000 and Issue No.1 and 2 in O.S.No.2354/2001:- It is the specific case of the plaintiff in O.S.No.2443/2000 that he is the absolute owner of northern portion of premises bearing No.3, Municipal Division No.53, New Cross Road, Chikkamavalli, Bangalore-4 consisting of ground floor and first floor premises measuring east-west 31.6ft., /29 feet and north- south 21 feet , wherein he has purchased this property from its previous owner Smt. Jayalakshmamma wife of Late 19 O.S No.2443/2000 c/w O.S.No. 2354/2001 B.Narayan Rao under registered sale deed dated 2.7.1990, which has been duly registered in the office of Sub Registrar , Basavanagudi, Bangalore and it is the case of the plaintiff that under sale deed dated 2.7.1990, his vendor Smt. Jayalakshmamma while executing the sale deed in para No.76 of the sale deed covenanted that the vendor of the property here had agreed to extend this south for free movement of men and materials by the purchaser and those persons are permitted/ authorized persons/tenants as a main approach passage to reach the upstairs existing on the above schedule property, which has been sold to the purchaser through the sale deed. Hence, the vendor of the property has hereby agreed to preserve the southern side wall as common for use of the purchaser and to retain the same for the use and purchaser whenever the vendor proposes to demolish the said wall towards his portion after the purchase of the northern portion of schedule property and plaintiff was making use of the common passage measuring 5 X 26 feet of the open space that runs from west to east on the abutting the southern portion of schedule property, which connected common passage measuring 5 feet from south to north on the eastern side of the abutting southern portion of schedule property, which leads to staircase to the plaintiffs first floor and hence, plaintiff has filed this suit against defendant seeking for permanent injunction alleging that the defendant, who is the purchaser of property No.12 under sale deed from the very vendor and it is also case of the plaintiff that the parents of 20 O.S No.2443/2000 c/w O.S.No. 2354/2001 the defendant have purchased the property towards southern side from H.Nagaraj and H.Bhanu Murthy under sale deed and defendant is obstructing the plaintiff using the common passage and also defendant causing obstruction in using the southern open space, wherein the right of enjoyment and use of passage measuring 5 X 26 ft., by the plaintiff was since many years and the right of use of passage and to use the common space was given in the sale deed dated 2.7.1990 and as such, plaintiff alleging cause of action dated 1.4.2000 when defendant has caused obstruction for using the common passage and also objected to use the common southern space for parking of vehicles of plaintiffs and his tenants. Hence, plaintiff approached jurisdictional Police Station by filing complaint on 1.4.2000 and hence, plaintiff has filed this suit by presenting the plaint on 3.4.2000 and thereafter, plaintiff filed another suit in O.S.No.2354/2001 against the very defendant on 2.4.2001 for the relief of permanent injunction not to interfere with the peaceful possession and enjoyment of schedule property i.e., property bearing No. 3, Municipal Division No.53, New Cross Road, Chikkamavalli, Bangalore -4 wherein in connected suit, plaintiff prayed for injunction against defendant not to put up any construction over the 2nd floor as the schedule property is having common wall and the said building constructed more than 55 year ago and due to passage of time, the common wall has developed many cracks and it is constructed with mud and water and it does not take much load bearing to raise any further construction on the said wall and hence 21 O.S No.2443/2000 c/w O.S.No. 2354/2001 plaintiff in this suit contended that defendant started to constructed the above 2nd floor premises and plaintiff also alleged that the defendant interfering in the peaceful possession and enjoyment of the schedule property including common passage measuring 5' X 56' of the open space that runs from east-west on the southern portion of the building abutting northern portion of schedule property and defendant, who has no manner of right, title and interest unnecessarily meddling with the property of plaintiff and the property purchased by the plaintiff and defendant are adjacent to each other and southern side wall is common for use by both the parties and it is lad bearing wall. Hence, plaintiff has filed this subsequent suit in O.S.No.2354/2001 on the cause of action dated 29.3.2001 when defendant stored the building material over the schedule property and also engaged labourers for putting construction on 2nd floor on the southern portion of property.
16. The defendant appeared and denied the case of the plaintiff in toto and also denied the pleadings made out by the plaintiff and on the contrary, defendant admits that his parents have purchased the property towards southern side under two sale deeds as per Ex.D.1 and Ex.D.2 and defendant further contended that his parents have purchased the property as mentioned in Ex.D.1 from its previous vendors namely H.Nagaraj and Sri. H.Bhanu Murthy, wherein his parents have purchased the property as mentioned in Ex.D.1 in respect of schedule "A" and "B"
22 O.S No.2443/2000 c/wO.S.No. 2354/2001 properties under this sale deed dated 28.2.1990 and defendant also contended that he has purchased the property bearing No.12 situated at Yellappa Street at Chikkamavalli, Bangalore City (Old No.37) (25 X 26) and measuring 21 ft east-west and 10 ft., north-south having Mangalore tiled roofing built house in the year 1930 under sale deed dated 7.6.1995 executed by H.Nagaraj and Sri. H.Bhanu Murthy in his favour and defendant denied that the southern open space kept for common house by plaintiff and other purchasers by the original owner/vendor of plaintiff and also denied that plaintiff and his tenants are having right to use open space on the southern side and also right of enjoyment of passage measuring 5 X 26 ft., as ingress and egress for the plaintiff's property and on the contrary, defendant denied the right of the plaintiff of using the common passage and also southern open space for parking of vehicles by plaintiff and his tenants and defendant contended that the suit filed by the plaintiff without any cause of action and as such, defendant resisted both the suits.
17. The plaintiff in both the cases has given evidence of affidavit filed in lieu of examination-in-chief, wherein plaintiff in O.S.No.2443/2000 deposed by filing affidavit evidence and in connected suit, P.W.1 deposed through an affidavit evidence filed as examination-in-chief and on perusal of chief examination of P.W.1, wherein P.W.1 deposed by reiterating the facts as stated in pleadings and P.W.1 refer to the sale deed dated 2.7.1990 in respect of the right of enjoyment of 23 O.S No.2443/2000 c/w O.S.No. 2354/2001 southern open space, which was kept for common enjoyment by the vendor in respect of both the properties sold in favour of plaintiff and defendant respectively and in another case, P.W.1 also deposed that southern wall was kept as common, which was consisting of old construction of more than 55 years ago and now defendant attempting to construct over 2nd floor premises and if the defendant raises further construction on the southern common wall, wherein the said common wall would not support load bearing the further construction as the said wall has suffered many cracks and also it is old construction, it could not bear the wait of further construction made on the 2nd floor and on the contrary, there is likelihood of collapse of the southern wall due to excess construction load and hence, plaintiff/P.W.1 in both cases deposed relying upon cause of action dated 1.4.2000 and in connected suit, cause of action dated 29.3.2001 as defendant collected and jumped building materials over the schedule property and also engaged labourers for putting up construction on the southern portion of property abutting to plaintiff's property on the common load bearing wall and thereby endangering the property belongs to plaintiff and in all likelihood the common wall i.e., southern wall made collapse. Hence, plaintiff deposed in both the cases and got marked documents Ex.P.1 to P.9 in main case ( Ex.P.5 document not marked and jumped at the time of marking of document) in main suit and P.W.1 got marked documents Ex.P.1 to P.5 in connected suit i.e., O.S.No.2354/2001 . Hence, P.W.1 relying upon his evidence 24 O.S No.2443/2000 c/w O.S.No. 2354/2001 and documents marked through him from Ex.P.1 to P.9 and Ex.P.1 to P.5 in connected suit, pray for grant of decree for permanent injunction in both the cases against defendant.
18. The counsel appearing for defendant in main suit cross examined to P.W.1 , P.W.1 admits that he is not residing in the property bearing No.3, Municipal Division No.53 (Northern side property) and P.W.1 denied that there is no nexus between suit schedule property and the property purchased by defendant's mother, but P.W.1 admits that these two properties are divided by common wall and P.W.1 admits that the defendant has not caused any interference in respect of the roof of the building and also in respect of middle wall (common wall) of the properties and P.W.1 admits that the schedule property is placing towards west and the main door of schedule property is not towards Rangappa Street and P.W.1 admits that there is no separate staircase in his property to reach first floor premises and P.W.1 admits that the defendant's property is not a corner property and P.W.1 admits that in the map confronted to him, he admits that ABCD portion is property No.3 identified by P.W.1 and this sketch map is marked as Ex.D.1 and P.W.1 denied that there is no nexus between schedule property and defendant's property and P.W.1 stated that he has got right of enjoyment of using the passage as shown in Ex.D.1, it is marked at Ex.D.1(a) and plaintiff stated that this passage marked at Ex.D.1(a), it is kept for the passage for enjoyment of the owners of both the houses for himself and that of defendant 25 O.S No.2443/2000 c/w O.S.No. 2354/2001 and P.W.1 stated that in Ex.D.1 there is open space, which was meant for passage and in which, the defendant has constructed a toilet after informing the plaintiff and P.W.1 further stated that there is staircase in the said passage and P.W.1 admits that in Ex.P.1 sale deed there is no mention of passage by the owners and P.W.1 admits that when his vendor Smt. Jayalakshmamma had sold the schedule property at that time, the property sold in favour of defendant was not yet sold by vendor and P.W.1 denied that the vendor of the property, which she did not retained the right of enjoyment after she executed sale deed in favour of defendant and she did not authorized the plaintiff of using the passage after she sold the property to defendant and P.W.1 stated that he did not informed the sale of property by his vendor Smt. Jayalakshmamma in favour of defendant and P.W.1 stated that as he had no knowledge of sale deed executed in respect of southern portion by his vendor. Hence, he could not raised objections and P.W.1 admits that he has not issued any notice even after he came to know about the sale deed executed by Smt. Jayalakshmamma in favour of defendant and he did not caused any notice issued to defendant's vendor in respect of the alleged passage and right of enjoyment over the said passage and P.W.1 admits that he has not challenged the sale deed of defendant and P.W.1 admits that he has not challenged the sale deed held by defendant in respect of property No.12 purchased by the defendant from its previous owners. P.W.1 admits that in the first floor of the property bearing No.3 there is one tenant residing therein and there is 26 O.S No.2443/2000 c/w O.S.No. 2354/2001 entrance from the western side, but P.W.1 stated that there is way to reach first floor through the said passage and P.W.1 stated that he has produced rough sketch map showing the passage and P.W.1 also stated that when he has purchased the property at that time vendor has given sketch map and he retained to produce the said sketch map in the suit and P.W.1 stated that the defendant caused obstruction for his tenant not to use the passage for ingress and aggress and accordingly, he has filed police complaint against defendant and P.W.1 admits that he has not produced the acknowledgments for having given police complaint and P.W.1 admits that there is 3 ft passage exists in hi kitchen, room and bathroom in his house. However, P.W.1 denied that the aid 3 ft., passage was left for construction of staircase in order to reach first floor premises and P.W.1 admits that in Ex.P.6, map towards eastern side, there is demarcation "open to sky" and this sketch map is identified by the witness and accordingly, it is marked at Ex.P.6 and P.W.1 stated that he has not written any particular in Ex.P.6 by ink writing and P.W.1 further denied the suggestion that he has filed this false suit only to extract money from the defendant and he further denied that the affidavit contents filed by him as evidence are false.
19.P.W. 1 recalled by the counsel for plaintiff and further examined on 15.4.2015, wherein P.W.1 got produced two documents as he has produced certified copy of sale deeds dated 28.2.1990 and another sale deed dated 5.3.1990 and these two documents are marked by recalling P.W.1 as per 27 O.S No.2443/2000 c/w O.S.No. 2354/2001 Ex.P.8 and P.9 and counsel for defendant cross examined P.W.1 again on 22.6.2015, wherein P.W.1 admits that he has obtained Ex.P.8 and P.9 from Sub Registrar office, but he denied that these two documents Ex.P.8 and P.9 are having no concerned or nexus with the suit schedule property and P.W.1 admits that there is change of number assigned to schedule property as its old number is 8 and he do not know the present number assigned to the schedule property and P.W.1 admits that Ex.P.8 and P.9 are consisting of documents in respect of same building existed adjoining the schedule property and he denied the suggestion that there exist a staircase inside the house and witness identified Ex.D.10 and Ex.D.11 and admission regarding the existence of building and P.W.1 further admits that he has furnished the original plan issued by the corporation P.W.1 denied that Ex.P.6 is not approved plan as signed by any authority. However, he denied Ex.P.6 is created document. Hence, P.W.1 has denied the other suggestion made to the witness.
20. The defendant has given his evidence in main suit as he is examined as D.W.1 through an affidavit evidence filed under Order 18 Rule 4 of CPC, wherein D.W.1 stated that he is the owner of property, which is on the southern side, wherein the said two properties are different properties with different title and possession and there is no access for entering inside the property in any manner whatsoever and D.W.1 stated that the property which came to be purchased is from H.Nagaraj and Sri. H.Bhanu Murthy by his mother Smt. Nechammal 28 O.S No.2443/2000 c/w O.S.No. 2354/2001 and K.M.Venkatachalam and the said two properties are produced by his parents for valuable consideration and accordingly, the vendor has executed sale deed conferring right, title and possession in respect of the property on the southern side and hence, D.W.1 stated that he has purchased the portion of property bearing No. 12, Yellappa street, Chikkamavalli, Bangalore through an another sale deed and D.W.1 stated that plaintiff had purchased property bearing No.3, but he is not in a possession as he has let out the said property and he is living elsewhere and D.W.1 stated that the purchaser and those persons orally permitted and authorized persons/tenants as a main approach passage to reach the upstairs existing on the property and D.W.1 stated that after sale of property, the said right has been extinguished and as such, there is no common passage of 5 ft., from south-north from the eastern side of the abutting southern portion of the schedule property, which leads to staircase leading to plaintiff' first floor of the southern portion of schedule property, which is situated in middle between northern and southern portion of the said property on the eastern side and this fact is incorrect. D.W.1 also stated that the open space situated on the eastern and southern side abutting southern portion was retained by the vendor and which are being used by the plaintiff and his vendor for ingress and egress and D.W.1 stated that the vendor of the plaintiff has sold the property and at that time, there was no objections raised by the plaintiff in the sale deed executed in his favour, there is no such averment or recital and hence, D.W.1 denied the allegations 29 O.S No.2443/2000 c/w O.S.No. 2354/2001 made in the suit by the plaintiff. Hence, D.W.1 stated that there is no relief that is sought for and as such, plaintiff' suit filed for bare injunction is not maintainable. Hence, D.W.1 denied the case of the plaintiff and also laid rebuttal evidence and he relied upon documents Ex.D.1 to Ex.D.6 and got marked through his evidence and the said documents are certified copy of sale deed dated 28.6.1993 and KEB demand bills from Ex.D.2 to Ex.D.5 and one receipt for having paid electricity bills is marked at Ex.D.6. Hence, D.W.1 by his oral evidence in main suit coupled with Ex.D.1 to Ex.D.6 pray for dismissal of the suit.
21. The counsel for the plaintiff cross examined D.W.1 in this case on 1.3.2014, wherein D.W.1 admits that his parents name is K.M.Venkatachalam and Smt. Nachammal and D.W.1 denied his acquaintance of one Smt. Jayalakshmamma and even he denied his acquaintance with the husband of Smt. Jayalakshmamma namely B.Narayana Rao and D.W.1 admits that the Smt. Jayalakshmamma was the previous owner of the properties purchased by the plaintiff and his parents and D.W.1 stated that his parents had purchased the property from H.Nagaraj and Sri. H.Bhanu Murthy and D.W.1 admits that plaintiff had purchased property under sale deed dated 2.7.1990 and he has verified the documents produced by the plaintiff in this suit and D.W.1 admits that his parents have purchased property from H.Nagaraj and Sri. H.Bhanu Murthy on 8.6.1995 and he has read over the contents of Ex.P.1 and it is questioned to D.W.1 about is there 30 O.S No.2443/2000 c/w O.S.No. 2354/2001 any fault in the contents of Ex.P.1, for which D.W.1 stated that it is for the plaintiff to look into the recitals of the sale deed as he is purchaser. He admits that Ex.D.6 is the building in existence, which plaintiff and his parents have purchased different portion in that property, wherein the northern portion belongs to plaintiff and southern portion belongs to hi parents and Ex.P.6 pertains to ground floor and above the ground floor, there exists first floor and in Ex.P.6, there is common passage existed towards south of his property and in Ex.P.6, towards east there exists a staircase, wherein in Ex.P.6, witness admits after seeing sketch map regarding existence of common load bearing wall and he further stated that the said common wall exists up to his property and this is common road bearing wall shown in the sketch Ex.P.6 and accordingly, it is marked by red ink for identification purpose and witness D.W.1 also admits that there is staircase leading from east, it is marked by red ink, but D.W.1 denied that the staircase shown in Ex.P.6 is meant for plaintiff's use to reach first floor and P.W.1 stated that there are two staircases in existence, wherein one staircase leads to the house of plaintiff and another leads to his property and staircase marked by blank ink is leading to his property in Ex.P.6 and red ink marked in Ex.P.6, which leads the plaintiff' property and he admits that both the property are facing towards west and D.W.1 admits that there is no passage or way to the plaintiff towards west to reach the first floor premises of schedule property. D.W.1 admits that plaintiff had purchased northern portion of property as per Ex.P.1 prior to his sale deed and he 31 O.S No.2443/2000 c/w O.S.No. 2354/2001 do not know the recitals of sale deed on page No.7 and D.W.1 denied his knowledge that whether vendor of the plaintiff have given right of enjoyment of existing passage, staircase existed in the building in favour of plaintiff and according to D.W.1, the plaintiff got written these recitals executed in Ex.P.1 obtained from his vendor and witness admits the recitals of Ex.P.1, which are contained in page No.7 of the sale deed Ex.P.1 and he admits that he has not disputed these recitals one contained in Ex.P.1 and even he has not made efforts to ascertain about these recitals and also he has not obtained any rectification deed executed through his vendor and he has not filed any suit against plaintiff challenging the sale deed Ex.P.1 regarding recitals of page no.7 and D.W.1 denied the suggestion regarding information and obstruction on 1.4.2000 to the plaintiff and his tenants in regard to using of common passage and also there was quarrel took place on 1.4.2000 and D.W.1 voluntarily stated that on 1.4.2000 his mother was washing the clothes and at that time, plaintiff was passing through the passage at that time some altercations have taken place between plaintiff and his mother and he do not know whether plaintiff had filed complaint on 1.4.2000 before Kalasipalyam Police Station as per Ex.P.4 and he admits that in the ground floor and on the northern half portion, there are tenants occupying the premises belonging to plaintiff and D.W.1 admits that on 1.4.2000, he was effecting repairs to the room owned by him and at that time, plaintiff came and obstructed and prevented him from effecting any repair and for that instant, a complaint came to be lodged by the 32 O.S No.2443/2000 c/w O.S.No. 2354/2001 plaintiff against him. Now D.W.1 confronted with the statement dated 14.4.2000 given by him before the Police Station, wherein he has identified the said statement including his signature on it. Hence, this copy of statement made by D.W.1 before Police Station dated 14.4.2000 is marked at Ex.P.7. D.W.1 denied that he has no right, title and interest in the southern side passage of his parents property and also D.W.1 denied that he has no right to object for the eastern side staircase, which is meant for plaintiff's use to reach his first floor portion. According to witness D.W.1 stated that his vendor had orally instructed him that he has got right in the southern portion and also in eastern side staircase and D.W.1 stated that he accompanied his parents to the Sub Registrar office on the date of registration of sale deed and he admits that in the recitals at Ex.D.1(b), his parents vendor did not executed sale deed authorizing his parents of exclusive house and occupation of southern passage and also eastern staircase and the sketch map Ex.D.1 is already marked in the evidence of D.W.1 and sale deed is also marked as Ex.D.1. Hence, with the consent of both the counsel, the mistake noticed regarding document, which are marked at Ex.D.1. However, it is corrected in the evidence of D.W.1, wherein sketch, which I marked at Ex.D.1 is remarked as Ex.D.1(b) and D.W.1 admits that he has shown the existence of eastern side staircase in sketch Ex.D.1(b) and D.W.1 admits that towards south-east of passage after passage towards east, it is purchased by him from his vendor different persons and the property purchased by him as shown in Ex.D.1, after the 33 O.S No.2443/2000 c/w O.S.No. 2354/2001 passage is not concerned to Smt. Jayalakshmamma and D.W.1 admits that he has purchased that property ( property No.12) from H.Nagaraj and Sri. H.Bhanu Murthy and in Ex.D.1(b), this property exists towards south -east of passage and it is marked at Ex.D.1(c) and D.W.1 denied that Smt. Jayalakshmamma had not executed any deed authorizing his vendors to have the passage of enjoyment to reach the property purchased by him as per Ex.D.1(c) and he identified Ex.D.1(b) and there is no reference in the sale deed by the letters "ABCD" and according to these recitals, there is a way to reach Ex.D.1(c) property, but D.W.1 has not produced any sketch annexed to Ex.D.1(b) in this case and witness after going through Ex.D.1(b), he cannot say whether his parents vendor have given right of passage to reach Ex.D.1(c) property and he do not know the date of sale deed executed by H.Nagaraj and Sri. H.Bhanu Murthy in favour of his parents and likewise, he do not know the date of execution of sale deed and execution of Ex.D.1(c) property and D.W.1 undertakes to produce original sale deed and accordingly, he is further cross-examination was deferred and thereafter D.W.1 further examined on 21.6.2014, wherein he got marked certain documents, they are certified copy of sale deed dated 4.9.1995 executed by H.Nagaraj and another in favour of his parents and it is marked at Ex.D.7 and certified copy of sale deed dated 1.9.1995 executed by H.Nagaraj and another in his favour it is marked at Ex.D.8 and sketch map produced by him is marked at Ex.D.7. The counsel for the plaintiff objected for marking of this sketch as produced by D.W.1 on the ground 34 O.S No.2443/2000 c/w O.S.No. 2354/2001 that it is not signed by defendant's vendor on the sketch map and also it is not part of sale deed Ex.D.7 and Ex.D.8 and D.W.1 further cross examined on 14.8.2014, wherein he got marked some documents and witness stated that the documents which are marked in his evidence in main case as per Ex.D.1 to Ex.D.8 and in connected suit as per Ex.D.1 to D.32 and D.W.1 produced three tax paid receipts issued by BBMP and they are marked as per Ex.D.9 to Ex.D.11.
22. The counsel for plaintiff cross examined D.W.1 on 18.9.2014, wherein D.W.1 admits that property owned by him and schedule property might be 8 years old building and walls of his building and that of schedule property are constructed by use of mud and mutter and he further admits that the building is not so strong on, it is old construction and the portion towards southern side and that of plaintiff is towards northern side and these two properties are divided by common wall and D.W.1 admits that as on today, the property having ground floor and first floor and his portion of building consisting of ground floor and first floor and plaintiff's construction is also ground floor and first floor and he do not know if any construction is raised above, the first floor whether the common wall will not bear the load of construction and he cannot say if 2nd floor construction is raised over the existing building and due to weakness of the common wall and age old of the building, the construction will not stand due to old age of construction and building may collapse at any time and D.W.1 denied that he made attempts to raise the construction 35 O.S No.2443/2000 c/w O.S.No. 2354/2001 of property on the southern side and he denied that he has stored the building materials to raise construction of 2nd floor in the year 2001 and D.W.1 admits that he knew for what relief the plaintiff has filed this suit against him and D.W.1 admits that " it is true if I am restrained from raising any construction of proposed 2nd floor, I will not be put to any hardship". But D.W.1 denied the suggestion that he has admitted the construction of 2nd floor building over the existing wall and for which, the plaintiff has filed this suit and D.W.1 in his further cross-examination recorded in the form of question and answer stated that he has no intention of raising any construction of 2nd floor at present and in near future of 20 years and D.W.1 stated that he has raised construction in the near future of coming years.
23. After appreciation of the evidence placed on record, wherein the plaintiff has filed these two suits against defendant for the relief of permanent injunction restraining defendant from causing any obstruction or interference in the plaintiff's use and enjoyment of suit passage measuring 5'/26' as ingress and egress to reach his first floor premises and plaintiff also prayed for injunction not to cause any obstruction to make use of southern space, which is kept for common use for parking of vehicles and it is the case of the plaintiff that southern wall, which divided the properties is a common wall and the vendor of the property had preserved this common wall for enjoyment of both the purchasers and if construction 36 O.S No.2443/2000 c/w O.S.No. 2354/2001 is raised, there is damage to the common wall ( southern wall). Hence, plaintiff prayed for injunction relief.
24. After considering the oral and documentary evidence, wherein these two suits are tried separately, wherein in both the suits plaintiff and defendant have given evidence and relied upon Ex.P.1 to P.9 and Ex.P.1 to P.6 by the plaintiff and defendant side documents Ex.D.1 to D.6 and Ex.D.7 to Ex.D.32 are came to be marked , wherein on perusal of the sale deed Ex.P.1 on page No.7 relied by the plaintiff (certified copy of sale deed) marked through P.W.1 as plaintiff had taken back original sale deed, wherein the recitals of Ex.P.1 clearly shows that wherein the vendor of plaintiff Smt. Jayalakshmamma had agreed to extend the south portion for free movement of men and materials by the purchaser or those persons orally permitted/authorized person, tenant as main approach passage to reach the upstairs existed on the above settled property and vendor also agreed to preserve the southern side wall as common for the use by the purchaser and to reach the same for the use of purchaser whenever the vendor proposed to demolish his portion of common wall. Hence, on perusal of recitals of Ex.P.1, wherein vendor of the plaintiff has clearly permitted the plaintiff to make use of southern portion and also plaintiff has got right to make use of eastern side staircase by passing through the existing passage measuring 5/26 as these two properties which were originally belongs to Smt. Jayalakshmamma wife of B.Narayana Rao, wherein 37 O.S No.2443/2000 c/w O.S.No. 2354/2001 plaintiff has purchased under Ex.P.1 northern portion from Smt. Jayalakshmamma as per Ex.P.1, and whereas the defendant's parents have purchased the property under Ex.D.1 from 2nd purchaser namely H.Nagaraj and Sri. H.Bhanu Murthy and defendant has purchased property premises no.12 measuring 21/10, which is extreme property situated at extreme distance of southern side property purchased by defendant's parents. On perusal of Ex.D.1 wherein this sketch map shows the situation of northern and southern portion. which sold under Ex.P.1 and Ex.D.1 in favour of plaintiff and defendant's parents. Admittedly there is passage measuring by 5/26 and as per Ex.D.1 marked in connected suit, the defendant parents have purchased the property from their vendors namely H.Nagaraj and Sri. H.Bhanu Murthy , the property measuring as per Ex.D.1 to the extent of east-west on the eastern side 28.9 ft., and 26 ft., on the Southern side and north-south 21 ft., and totally measuring about 450 square feet including Madras Tarsi house and brick wall and schedule "B" property in respect of property bearing old No.7 and 8 and new No.9 situated at Rangappa Street and this property measuring 26/2 X 26, it is measuring 450 square feet it was built up in the year 1930 and the house is of madras tarse road and brick walls and red oxide and schedule "C" property in respect of property bearing old No.7 and 8 new No.9 situated at Rangappa Street, Chikkamavalli and under this schedule "C" property measures of undivided share in the area of 28.9. + 26/2 X 26 and this also 450 square feet and consisting of Madras Tarsi house constructed by brick wall and red oxide 38 O.S No.2443/2000 c/w O.S.No. 2354/2001 and Ex.D.1 is dated 8.6.1995 and as per Ex.p.6 and as compared to Ex.D.3 and comparison of Ex.D.1, wherein D.W.1 himself in his statement made before the Police Station has clearly admitted before the concerned Police Station on 14.4.2000 regarding common passage measuring 5' X 26' and also admitted that they were parking vehicles in the southern open space and D.W.1 has given this statement on 14.4.2000. Hence, considering Ex.P.7 and coupled with sketch map Ex.D.1, Ex.D.6 and Ex.D.3 and by considering the Ex.P.1 the sale deed which is first sale deed executed by Smt. Jayalakshmamma in favour of plaintiff selling northern portion of property wherein northern portion and southern portion are old construction of more than 60 years old, wherein plaintiff purchased northern portion and defendant's parents have purchased southern portion and these two properties are divided by middle common wall as shown in the rough sketch map, which is admitted by D.W.1 and hence, the plaintiff is having right of enjoyment of common passage existed in the old building for access as ingress and egress and also right to use eastern staircase and plaintiff also having right of enjoyment of south open space for parking of vehicles and hence, it is proved and established by the plaintiff that he has got right of enjoyment and also southern common wall is old construction, it does not bearing load of construction any further over 2nd floor as it is old and appearing in the cracks in the said wall. Hence plaintiff's case deserves to be accepted in view of recitals in Ex.P.1. Accordingly, I answer Issue No.1 and 39 O.S No.2443/2000 c/w O.S.No. 2354/2001 2 in O.S.No.2443/2000 are in affirmative and issue No.1 and 2 in O.S.No.2354/2001 are also answered in affirmative.
25. Issue No.3 and 4 in both the suits: The plaintiff has filed O.S.No.2443/2000 alleging cause of action dated 1.4.2000 on specific allegations that on 1.4.2000 while defendant tried to demolish the staircase and obstructed the plaintiff and his tenant from using the common passage used for ingress and egress to the schedule property and plaintiff approached the jurisdictional Police Station by lodging complaint against defendant on 1.4.2000 and thereafter on the basis of complaint lodged by the plaintiff before The Sub- Inspector of Police, Kalasipalyam Police Station on the very day, wherein the police authorities have enquired into matter and called the defendant on 14.4.2000, wherein the defendant appeared before the Police Sub Inspector of Kalasipalyam Police Station, wherein defendant has given undertaking by giving statement on 14.4.2000 admitting the existence of common passage existed in the building and also the said passage is meant for common use by both the purchasers of the properties on the northern portion and southern portion and as such, plaintiff alleged cause of action dated 1.4.2000 in the main suit while defendant tried to demolish staircase and plaintiff in connected suit alleged cause of action to file the subsequent suit in O.S.No.2354/2001 alleging cause of action dated 29.3.2001 when defendant dumped the building materials near the schedule premises and also engaged labourers or workers for putting up construction of the 2nd floor 40 O.S No.2443/2000 c/w O.S.No. 2354/2001 on the southern portion of property, which is adjacent to the plaintiff's northern side property purchased by him on the common load bearing wall ( southern wall) , which causing endangering the property belonging to the plaintiff and also if the proposed construction is raised on the existing southern wall, the said wall should not bear the said wall of further construction . Hence, plaintiff in connected suit alleged cause of action dated 29.3.2001 of the clubbing of the suits on the application filed by the plaintiff, wherein the counsel for the plaintiff cross examined P.W.1 in O.S.No.2443/2000, wherein D.W.1 in his cross-examination clearly admits that the schedule property i.e., building purchased by his parents including himself in respect of property No.12 and purchase of property by the plaintiff, wherein the said building was aged about 80 years of old and the wall of that building are constructed by use of mud and mortar and building is not so strong as it is very old construction and D.W.1 also admits that the property dividing as northern and southern portion is by common wall, wherein the existing building is consisting of ground floor and first floor, wherein plaintiff's building and that of defendant is also consisting of ground plus one and D.W.1 denied his knowledge that if any construction is raised above, the first floor way the common wall (southern wall) will not bear the load of construction and D.W.1 stated that he cannot say, if 2nd floor construction is raised over the existing building and due to weakness of the common wall and due to age old of the building, the construction will not lie due to old age construction and building may likely to collapse and in 41 O.S No.2443/2000 c/w O.S.No. 2354/2001 further cross-examination D.W.1 admits that "It is true if I raising any construction of proposed 2nd floor, I will not be put to any hardship" and D.W.1 denied the suggestion that he attempted to construct 2nd floor building on the existing construction, for which, plaintiff has filed the suit and D.W.1 stated that at present, he has no intention to raise the construction of 2nd floor on the existing building and D.W.1 has not denied the statement given by him before concerned Police Station, which is marked at Ex.P.7. On the contrary, P.W.1 admits his signature and also the statement made by him before Police Station on 14.4.2000 and it is admitted fact that the plaintiff has purchased the northern side property from its previous owner Smt. Jayalakshmamma on 2.7.1990 and in the sale deed the vendor has given the right of usage of the passage to reach the upstairs existing on the schedule property and also vendor had agreed to preserve the southern side wall as common wall and admittedly the building, which was constructed about 60 years ago and plaintiff has purchased northern half portion as per Ex.P.1 and defendant's parents have purchased southern half portion from its previous owners consisting of southern portion , wherein the building purchased was having ground plus one and though defendant has obtained sale deed in respect of his property No.12, which is consisted of 21/10 ft., situated in the vicinity of the property purchased by his parents and admittedly the building was consisting of very old construction and southern wall was preserved is common wall and plaintiff and his tenants have the right to use common passage measuring 42 O.S No.2443/2000 c/w O.S.No. 2354/2001 5/26ft., and also the southern open space was meant for common usage and though the sale deed standing in the name of parents of defendant as per Ex.D.1, wherein the sale deed came to be executed by H.Nagaraj and Sri. H.Bhanu Murthy on 8.6.1995 in favour of defendant's parents and on the contrary, the sale deed held by plaintiff dated 2.7.1990 is the earliest sale deed, wherein the original owner Smt. Jayalakshmamma had allowed the plaintiff, who was purchaser of northern side portion of property to make use of the passage as ingress and egress to his purchased portion of property (northern side), wherein Smt. Jayalakshmamma and her children have sold the property ( southern side) in favour of H.Nagaraj and Sri. H.Bhanu Murthy under sale deed dated 22.9.1990 in favour of H.Nagaraj and Sri. H.Bhanu Murthy, but in turn have sold the southern side property in favour of the parents of defendant under Ex.D.1 and D.W.1 has purchased the portion of property measuring 21/10 ft., as per Ex.D.2 sale deed from H.Nagaraj and Sri. H.Bhanu Murthy under this sale deed on 7.6.1995, which is subsequent sale deed and D.W.1 has produced Ex.D.3 sketch map and he has also got marked Ex.D.4 to show the location of property No.3 belongs to plaintiff, property No.4 belongs to defendant's parents and property No.12 belongs to defendant herein and property No.12 is abutting K.P.S.Guptha's property and property No.12 purchased by defendant is abutting Yellappa Street and property No.3 and 4 are abutting Rangappa Street and though defendant contended that in the sale deed Ex.D.1, the vendors have executed southern side portion of property 43 O.S No.2443/2000 c/w O.S.No. 2354/2001 and defendant has relied upon Ex.D.1 schedule, wherein as per the schedule of property as mentioned in the sale deed Ex.P.1, wherein under Ex.D.1, schedule A.B and C properties have been sold each property i.e., schedule A.B.C properties measuring 460 square feet and in this Ex.D.1, the construction of house is consisting of Madras Tarsi having brick walls and red oxide and the vendor of defendant's parents have sold A.B.C schedule properties under Ex.D.1 on 8.6.1995 and previously, this property No.3 and 4 belongs to Smt. Jayalakshmamma . Hence, the constructed building was having old building and due to the old age of the building, wherein the existing construction is standing on the southern common wall constructed with mud and mortar and if any construction is raised, the said common wall cannot bear the construction load if any further new construction is raised on the 2nd floor and it is also likelihood of endanger the property, wherein the said building is not constructed on RCC columns, but it is having very old construction more than 60 years old and as such, the apprehension of the plaintiff that if defendant attempting to construct any further construction above the 2nd floor, wherein there is danger to common wall and it does not bear the load of construction and is more probable in view of the existing facts brought on record in respect of the building purchased by the respective parties and D.W.1 himself admits that the existing building belongs to original owner Smt. Jayalakshmamma was constructed in the year 1930 as it was Madras Tarsi roofing house. Though counsel for defendant relying upon certain decisions contended 44 O.S No.2443/2000 c/w O.S.No. 2354/2001 that bare injunction suits filed by the plaintiff are not maintainable, wherein plaintiff ought to have filed declaratory suits in order to seek declaration in respect of his easementary right of passage as per Sec.13 of Easementary Act and also contended that plaintiff should get declaration of his easementary rights in respect of alleged passage and also in respect of usage of southern open space for parking of vehicles and as such, it is contended that suit is not one for declaratory of easementary rights and hence, bare suit for injunction is not tenable. On the contrary, the counsel for the plaintiff rebutted this contention of defendant's counsel contending that plaintiff has purchased property northern side portion as per Ex.P.1 on 2.7.1990 from its previous owner Smt. Jayalakshmamma and sale deed recitals on page No.7 of Ex.P.1, wherein vendor herself given right to plaintiff to make use of the passage and also vendor herself kept as common wall ( southern wall ) of the property and plaintiff's sale deed is the first sale deed executed by vendor on 2.7.1990 and whereas the sale deed of the defendant and his parents are after lapse of 5 years from Ex.P.1 i.e, on 8.6.1995 and plaintiff need not filed the suit for easementary rights, wherein plaintiff is purchaser of property as per Ex.P.1 on 2.7.1990 and vendor herself has given right of usage of passage and also common wall and as per admission of P.W.1, the south open space for the existing property is kept for common usage and D.W.1 also given undertaking in Ex.P.7 that himself and plaintiff will uses the common open space for parking of vehicles and D.W.1 in Ex.P.7 as unequivocally admits that he will not cause 45 O.S No.2443/2000 c/w O.S.No. 2354/2001 any interference in parking the vehicles by plaintiff and his tenants in the open space and hence, counsel for plaintiff contended that there is no need to file declaration suits for claiming easementary right of passage or by way prescription, but plaintiff claiming his rights on the basis of sale deed recitals dated 2.7.1990 and hence, counsel for plaintiff in his rebuttal arguments contended that suit for bare injunction I maintainable after hearing the rival arguments on this contention, wherein it is admitted fact that the plaintiff has purchased northern side property as per sale deed Ex.P.1 from original owner Smt. Jayalakshmamma and defendant' parents have purchased the southern portion from their previous vendor namely H.Nagaraj and Sri. H.Bhanu Murthy as per sale deed dated 8.6.1995 and northern and southern portion divides the property by common wall ( southern wall) and said building having staircase facility to reach first floor and P.W.1 admits the situation of the building existence of common passage exists of property No.3, 4 and property No.12 as shown in Ex.D.1 and also rough sketch map is marked during the cross-examination of P.W.1 and plaintiff has filed complaints regarding the raising of construction by the defendant before the concerned Police Station and also filed objections on 2.4.2001 before the corporation authorities as per Ex.P.4 and Ex.P.5 marked in the connected suit and D.W.1 admits Ex.P.6 sketch map, wherein it depicts the situation of property No.3 and 4 and also it further shows the existence of staircase to reach first floor and as such, in view of admission of D.W.1, wherein plaintiff has proved his right of passage as ingress and 46 O.S No.2443/2000 c/w O.S.No. 2354/2001 egress of common passage measuring 5/26 ft., and also proved that there exists common wall dividing the property, which is preserved as common wall for the use of purchasers of southern and northern portion of property and hence, the plaintiff, who is a first purchaser of the property of the northern side property from it sol owner Smt. Jayalakshmamma and as such, plaintiff need not file any suit for declaratory relief of any easementary rights. On the contrary, plaintiff had already given right of common enjoyment of passage and preservation of southern wall as common wall in his title deed in Ex.P.1 dated 2.7.1990. Hence, the contention of counsel for defendant has to be negatived that bare suit for injunction is not maintainable in the absence of any declaratory relief and on the contrary, suit filed by the plaintiff for injunction relief are perfectly maintainable as plaintiff claiming rights as per Ex.P.1. Hence, plaintiff has established his case in both the cases as against defendant and as such, plaintiff has proved the cause of action to maintain both the suits against defendant and defendant cannot object the plaintiff's use of common passage and also he has no right to construct any further construction on the existing common wall and if defendant is allowed to construct raising the further construction above 2nd floor, wherein the common wall ( southern wall could not bear the load of construction and it is danger to property and the said wall as already appearing cracks due to age old constructing and as such, the defendant be restrained from raising any further construction of the property. Hence, plaintiff has made out cause of action as 47 O.S No.2443/2000 c/w O.S.No. 2354/2001 alleged in both the suits and after considering the case as alleged by the plaintiff, wherein this court has granted interim order after filing of the suit by the plaintiff, wherein interim order is still subsisting during pending of these two suits and there is interim order granted in O.S.No.2354/2001 and interim temporary injunction granted in favour of plaintiff on 4.4.2001 will subsisting during pendency of the suit and defendant did not filed any application for vacating this interim order and as such, considering the facts and circumstances of the cases and also after appreciation of oral and documentary evidence, I hold that plaintiff has establish his case and also proved the cause of action and as such, plaintiff is entitled for the relief of permanent injunction as prayed for and suits filed by the plaintiff for bare injunction relief are maintainable and as such, with these observations, I hold that defendant causing obstruction for the plaintiff and his tenants for using common passage and for parking of vehicles and defendant is attempting to construction over the common wall. Issue No.3 and 4 in O.S.No.2354/2001 are proved by the plaintiff and as such, he is entitled for the relief of permanent injunction as prayed for. Accordingly, Issue No.3 and 4 in both the suits are answered in affirmative.
26. Issue No.5 in both the cases: In view of my findings submitted on Issue No.1 to 4 of main suit and Issue No.1 to 4 of connected suit, wherein the suit filed by the plaintiff against defendant herein deserves to be decreed with costs. Hence, I proceed to pass the following:-
48 O.S No.2443/2000 c/wO.S.No. 2354/2001 ORDER The suit filed by the plaintiff in O.S.No.2443/2000 is decreed with costs against defendant and connected suit O.S.No.2354/2001 filed by the plaintiff also decreed with costs against the defendant herein in respect of the subject matter of the suit, one described in the schedule of the plaint in respective suits.
It is further ordered and decreed that the defendant, his agents, servants or anybody claiming under him are restrained by grant of injunction restraining him not to cause any obstruction or interference to the plaintiff from enjoying his northern portion of property including common passage measuring 5/26 ft., and also not to cause any obstruction or interference for use of southern open space for parking of vehicles by himself and his tenants and also not to cause any obstruction for usage of common passage leading to staircase of the plaintiff's first floor and defendant is restrained not to demolish the staircase of the plaintiff's first floor and not to cause any damage to the common wall(southern wall) by grant of permanent injunction.
Defendant is restrained by grant of injunction not to raise further construction above the common wall above the 2nd floor, which causes endanger to property already in existence as the common wall would not bear the load of further construction if raised over and above 2nd floor construction 49 O.S No.2443/2000 c/w O.S.No. 2354/2001 due to age old of building. Hence, defendant is restrained by grant of permanent injunction as prayed in both the suits.
Draw decree accordingly.
Keep original copy of judgment in O.S.No.2443/2000 and copy of the judgment be kept in O.S.No.2354/2001 for record purpose.
{Dictated to the Judgment writer , transcribed by her, corrected and then pronounced by me in open court this 14th day of September , 2015.} (S.V.Kulkarni) XI Addl.City Civil Judge Bangalore city.
ANNEXUERE List of witnesses examined for plaintiff in O.S.2443/2000 & 2354/2001 :-
P.W.1 C.Venkateshan List of documents exhibited for plaintiff O.S.2443/2000 :-
Ex.P1 Certified copy of Sale deed
dated:2/7/1990
Ex.P2 Tax paid receipt
Ex.P3 Endorsement issued by Corporation
Ex.P4 Copy of police complaint
dated:1/4/2000
50 O.S No.2443/2000 c/w
O.S.No. 2354/2001
Ex.P5 Not marked
Ex.P6 Copy of sketch
Ex.P7 Copy of statement
Ex.P8 Certified copy of sale deed
Ex.P9 Certified copy of sale deed
List of documents exhibited for plaintiff O.S.2354/2001 :-
Ex.P1 Certified copy of Sale deed
dated:2/7/1990
Ex.P2 Certified copy of Tax paid receipt
Ex.P3 Endorsement given by BBMP
Ex.P4 Copy of police Complaint
dated:1/4/2000
Ex.P5 Office copy of complaint given to Asst.
Revenue Officer
List of witnesses examined for defendant in O.S.2443/2000:
D.W.1 C.Venkateshan List of witnesses examined for defendant in O.S.2354/2001:
D.W.1 Krishnamurthy List of documents exhibited for plaintiff in O.S.2354/2001:-
Ex.D1 Original Sale deed dated: 4/9/1995
Ex.D2 Sale deed dated: 01/09/1995
51 O.S No.2443/2000 c/w
O.S.No. 2354/2001
Ex.D3 Sketch map in respect of suit
schedule property
Ex.D4 Sketch map in respect of suit
schedule property
Ex.D5 Endorsement given by BBMP dated:
20/8/1996
Ex.D6 Tax paid receipt dated: 16/8/1996
Ex.D7 Notice give by corporation
dated:20/8/1996
Ex.D8 Tax Revision Petition given by CCB
dated: 26/6/1998
Ex.D9 Tax paid receipt dated:27/3/2000
Ex.D10 to 31 22 Photographs in respect of suit schedule property Ex.D32 C.D. XI ADDL.CITY CIVIL JUDGE, BANGALORE CITY 52 O.S No.2443/2000 c/w O.S.No. 2354/2001 53 O.S No.2443/2000 c/w O.S.No. 2354/2001 O.S.2354/2001