Karnataka High Court
Mr S Padmasankar vs Ms Adeline Priyadarshini Sebastian on 23 July, 2012
Author: A.S.Bopanna
Bench: A S Bopanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 23RD DAY OF JULY 2012
BEFORE
THE HON'BLE MR. JUSTICE A S BOPANNA
R.F.A. NO.1895/2010
Between :
1. Mr. S.Padmasankar
S/o late T. Sundaram
Aged about 69 years
Resident of at No.2B
Lotus Court Apartments
Banaswadi Road
Banglaore-560 033.
2. Mrs. Kamala Padmasankar
W/o Mr. S Padmasankar
Aged about 67 years
Resident of at No.2B
Lotus Court Apartments
Banaswadi Road
Banglaore-560 033. ... Appellants
(By Sri Sanjay Krishna, Adv.)
And :
1. Ms. Adeline Priyadarshini Sebastian
D/o Professor David K Sebastian
Aged about 41 years
Resident of No.1-B
Lotus Court Apartments
No.1. M.E.G. Officer's Colony
Bangalore-560 033.
2. Mr. P.R. Mujumdar
S/o Ramachandra N
Aged about 57 years
Residing of No.3B
2
Lotus Court Apartments
Banaswadi Road
Bangalore-560 033.
3. Lotus Court Apartments Owners Association
Lotus Court Apartment
No.1 M.E.G. Colony
Bangalore - 560 033
Represented by its
President Mr.Rangaraj .. Respondents
(By Ms. P Anu Chengappa, Adv. for C/R1
R2, R3- Served)
This R.F.A. is filed under Section 96 CPC, against the
Judgment and decree dated 26.08.2010 passed in O.S.
9036/2007 on the file of the XXXVII-Addl. City Civil and
Session Judge, Bangalore, decreeing the suit for declaration
and injunction.
This appeal having been reserved for judgment,
coming on for pronouncement this day, the Court
pronounced the following :
JUDGMENT
The defendant Nos.1 and 4 in O.S.No.9036/2007 are before this Court in this appeal assailing the judgment and decree dated 26.08.2010 passed in the said suit. The plaintiff therein instituted the suit seeking for a declaration that the defendant Nos.1 and 4 are not entitled to park their vehicle/vehicles in the suit schedule 'B' parking place. The plaintiff had also sought for relief against the third defendant for 3 restoration of the facilities and for consequential relief of injunction. The trial Court has decreed the suit by the impugned judgment.
2. During the course of consideration, the parties are referred to in the same rank as assigned to them before the trial Court for the purpose of convenience and clarity.
3. The plaintiff's case in brief is that she purchased the Flat bearing No.1B in the multi storeyed building known as 'Lotus Court' along with a private garden and a car parking space under the sale deed dated 09.01.2004. The said purchase was from the previous owner of the Flat who had purchased the same under the sale deed dated 12.05.1993. Prior to the same, an agreement dated 31.01.1992 was entered into between her Vendors and the Developers with regard to the development of the property. The defendant No.4 is the owner of the flat bearing No.2B in the same apartment building. The first defendant is the husband of the fourth defendant, while the second and third 4 defendants are the office bearer and the Association of the apartment owners respectively.
4. The dispute essentially is relating to the parking space which is mentioned in schedule B to the suit. The plaintiff claims that her predecessor in title had purchased the Flat along with a private garden and the parking space in the basement of the building. The same was accordingly transferred to the plaintiff when she purchased the same from her vendor. According to the plaintiff, though she is the rightful owner of the parking space, considering that she regarded the defendant Nos.1 and 4 as part of the family as she was a single woman, had permitted them to use the parking space on mutual understanding. However, the defendant Nos.1 and 4 are stated to have exhibited different intentions by ultimately claiming to be the owners of the parking space. The plaintiff has further referred to several incidents where she was sought to be cornered with the help of the other residents of the apartment. In that regard, it is also contended that she 5 was harassed in that direction even for the basic amenities for a comfortable living. She has therefore instituted the suit for the relief as claimed therein.
5. The defendants on being served with the suit summons appeared and disputed the claim of the plaintiff. The fact that she is the owner of Flat No.1B is not in dispute. However, the claim of the plaintiff for the car park in the basement is denied. It is contended that even from the document under which the plaintiff claims right, it can only be an open space and not in the basement. It is also denied that the fourth defendant's parking space is behind that of the plaintiff's parking space. The allegation that the Flat Owners Association was supporting the defendant Nos.1 and 4 and harassing the plaintiff is also denied. The defendants have referred to the sale deed under which they purchased the Flat wherein the car parking space in the basement has been mentioned. It is their case that the parking spaces are serially numbered and it is not one behind the other as there would be no ingress or egress. 6 The defendant Nos.1 and 4 have also referred to the manner in which they had treated the plaintiff with love and affection. Though several other aspects have been adverted, the sum and substance is that they are also claiming right to the same car parking space to which the plaintiff has laid claim. Therefore, they have sought for dismissal of the suit.
6. The second as well as the third defendant also filed their separate written statement and they have also denied that the plaintiff is the owner of the car parking space as claimed by her. In fact the written statement adverts in detail to deny all the allegations made by the plaintiff against the Association.
7. Keeping in view the rival contentions, the Court below framed as many as six issues for its consideration which read as hereunder:
ISSUES
1. Whether the Plaintiff proves that she has got absolute right to park her car in B-Schedule Property which is in the basement?7
2. Whether the Defendant No.1 & 4 proves that they have got right and title to park their vehicles in B-Schedule Property?
3. Whether the Plaintiff proves obstruction made by the Defendants No.1 & 4 in parking of her car in B-Schedule Property?
4. Whether the Plaintiff is entitled for the relief of issue of direction to the 3rd Defendant to restore all the facilities for which she is entitled?
5. Whether the Plaintiff has got cause of action to file the suit?
6. What order or Decree?
8. In order to discharge the burden cast on the parties, the plaintiff examined herself as PW.1 and relied on the documents at Exhs.P1 to P38. The first defendant examined himself as DW.1 and relied on documents at Ex.D1 to D21. The Court below on analysing the evidence has held Issue Nos.1 and 3 to 5 in the affirmative in favour of the plaintiff and held Issue No.2 in the negative against the defendant and accordingly decreed the suit.
9. Heard Mr. Sanjay Krishna, learned counsel for defendant Nos.1 and 4 and Ms.Anu Chengappa, learned 8 counsel for the plaintiff and perused the appeal papers including the records received from the Court below.
10. At the outset, it is to be noticed that though the Court below has decreed the suit in its entirety including the direction to the third defendant to restore the facilities and permit the plaintiff to use the same, the said defendant has neither challenged the judgment and decree to that effect by filing appeal nor has the third defendant appeared in this appeal and assailed the findings that are rendered against them. Hence, the scope for consideration in the instant appeal is limited to the aspect relating to the parking space and the dispute in that regard between the plaintiff on one side and defendant Nos. 1 and 4 on the other.
11. The Apartment block known as 'Lotus Court' has sixteen Flats but has only ten parking spaces is the admitted position. The same has therefore lead to the dispute between the parties herein, since both the plaintiff and defendants are claiming ownership for an independent parking space in the basement. The 9 plaintiff undoubtedly has purchased the Flat under the sale deed dated 09.01.2004 (Ex.P1) from her predecessors in title. The vendors of the plaintiff were the first owners of the Flat in question from the initial stage of development of the property. They had entered into an agreement dated 31.01.1992 (Ex.P4) with the builder. Pursuant thereto the sale deed dated 12.05.1993 (Ex.P28) was executed in favour of the vendors of the plaintiff. In that context, the plaintiff derived title to the Flat and the appurtenant facilities thereto for which the vendors had right as per the terms agreed between the developers and the vendors. The defendant No.4 also entered into an agreement to build and purchased the Flat under the sale deed from the developers in similar fashion as done by the vendors of the plaintiff. In that regard, the agreement to build dated 05.07.1993 (Ex.D1), agreement to sell dated 05.07.1993 (Ex.D2) and deed of sale dated 20.08.1993 (Ex.D3) were entered into. In the light of the said documents, the nature of right created in favour of the 10 vendors of the plaintiff and the defendant No.4 respectively would have to be noticed.
12. In that background, the learned counsel for defendant Nos.1 and 4 referred to the relevant portions in the above noticed documents to point out the discrepancies and to contend that the plaintiff at best can only claim for an open car parking space and not the covered car parking space in the basement. It is no doubt true that as pointed out by the learned counsel from the sale deed dated 09.01.2004 (Ex.P1) whereunder the plaintiff has purchased the property from the predecessors in title, the Schedule 'C' refers to the details of the Flat, private garden and open car parking space. The recital however refers to it as the covered parking space. The agreement to build dated 31.01.1992 (Ex.P4) in favour of the vendor of the applicant in fact describes it as covered parking space to be constructed in 'C' schedule. But, the same document in its body would refer to it plainly as car parking space and in fact one of the covenants states 11 that it is without parking space. The covenant No.12 however provides that the covered/uncovered car parking space is to be purchased at an additional cost. The sale deed dated 12.05.1993 (Ex.P28) in favour of the vendors of the plaintiff would again refer to it in Schedule-C as car parking space without qualifying it as either covered, uncovered or in the basement.
13. In view of the above and due to the said discrepancies in the plaintiff's sale deed dated 09.01.2004, she has secured a rectification deed dated 06.01.2009 (Ex.P.26) to rectify and indicate the same as covered car parking space. The said document in my view cannot be taken into consideration as the same has come into existence subsequent to filing of the suit. However, the documents executed in favour of the Vendors of the plaintiff referred to supra will have to be looked into notwithstanding the discrepancies therein, keeping in perspective the documents relied on by the defendant Nos. 1 and 4 so as to notice whether the indication in the documents of the defendants is so 12 categorical that the documents relied on by the plaintiff is to be discarded insofar as the car parking space. In that regard the agreement to build dated 05.07.1993 (Ex.D1) in favour of the fourth defendant would no doubt indicate in its C-Schedule that the apartment bearing No.2B is with covered parking space. The very same document in its Covenant No.1 refers only as parking space specified in Schedule-C and the schedule would describe it. But, Covenant No.9 again provides that the 4th defendant has agreed to purchase the covered/uncovered car parking space for additional cost. The agreement of sale dated 05.7.1993 (Ex.D2) does not refer to the car parking space in the schedule as it does not contain Schedule-C.
14. The above aspects would indicate that both the sets of documents relied upon by the plaintiff and the defendant Nos.1 and 4 shows discrepancies in describing the parking space, but both sets indicate that it is to be acquired at extra cost. Hence, the claim on other aspects will have to be noticed. The plaintiff 13 has therefore relied on the receipts dated 20.08.1992 (Ex.P.32) and dated 22.05.1993 (Ex.P.33) to contend that the Vendor of the plaintiff has paid additional amount towards parking space. The learned counsel for the defendant Nos.1 and 4 has seriously disputed such claim contending that when the price and the facilities are indicated in the sale deed itself, the payment of additional price for the parking space does not arise. The learned counsel for the defendants would therefore contend that, at best it could be considered as payment for the garden area and for the additional area of the Flat, since the area was earlier indicated as 1100 sq.ft. but what has been ultimately conveyed is 1130 sq.ft. area. Despite such contention, the probability of such payment for the parking space cannot be ruled out unless there is unassailable rebuttal.
15. As noticed above, both sets of documents i.e., the agreement in favour of the Vendor of the plaintiff and also in favour of defendant No.4 contains a covenant that the parking space would be provided at 14 additional cost. Though the receipt at Ex.P.33 could be accepted as a payment for the additional area of the Flat as it makes a reference to that effect, the receipt at Ex.P.32 cannot be assumed as the payment for the exclusive garden. Firstly, there is no such reference to that effect in the receipt. Secondly, the covenant in the agreement refers only to the additional payment regarding car parking space and the Garden space has been consistently mentioned as a part of the sale and sale consideration in respect of the Vendors of the plaintiff is higher than what is indicated in the documents of the defendant.
16. That being the position, the payment under receipt at Ex.P.32 is towards extra payment, though that is towards car parking space has not been specifically mentioned. Apart from the said documents, Ex.P.34 also refers to extra payment towards parking space. The plaintiff being the subsequent purchaser has relied on the same as represented to her by her Vendors. The defendant Nos.1 and 4 on the other hand 15 being the direct purchasers from the developer will have first hand knowledge. Hence, what is stated by the defendants on that aspect will assume importance to remove the cloud of confusion of conflicting covenants and mis-description in the different documents. In that direction, the cross-examination of D.W.1 relied on by the learned counsel for the plaintiff becomes relevant on this aspect. That portion of the cross-examination reads as hereunder:
"Ex.D1 it is not mentioned that my parking slots is the 3rd one as one enters from the side road. In case of allotment of parking slot extra payment has to be made to the builders. I have made extra payment to the builder. I have produced the document to show that I have made extra payment to the builder. It is false to suggest that I have not produced any documents to show that I have made extra payment to the builder. I have not made separate extra payment to the builder."
(emphasis supplied) Further in answer to the question posed by the learned counsel for the plaintiff, DW.1 has stated that there is 16 no other parking place earmarked other than in the basement. The above admissions of DW.1 read with the relevant covenant in the agreements in favour of both the vendors of the plaintiff and that of defendant No.4 would indicate that the case put forth by the plaintiff that her vendor had paid the extra amount by relying on the receipt cannot be brushed aside. Further, DW.1 who had tendered evidence on behalf of the defendant No.4 has asserted that he has paid the extra amount and has produced the documents which is contrary to the position available on record as no such documents are produced. In such situation, when the plaintiff is the subsequent purchaser and has raised the contention regarding the extra payment made as represented to her by her vendor, it would probabilise the contention.
17. The plaintiff has further relied on the communication dated 15.09.2003 (Ex.P36) addressed by the developer to the power of attorney holder of the vendor of the plaintiff. The said communication clarifies 17 that the parking space is allotted to Flat No.1B in 'Lotus Court' and describes the location of the same. The learned counsel for the defendant Nos.1 to 4 however commented upon the said document and the letter dated 08.01.2007 (Ex.P35) as projecting an incorrect position. Though Ex.P35 could be considered as a document not being of an undisputed point of time and even if discarded, the communication dated 15.09.2003 (Ex.P.36) is at a point prior to the purchase of the Flat by the plaintiff on 09.01.2004. If that is kept in perspective, it would disclose that the plaintiff while purchasing the Flat has made enquiries and her vendor had secured clarification with regard to the position as it existed when the plaintiff purchased the Flat. The defendants on the other hand have relied on two letters dated 18.11.2003 (Ex.D16) and (Ex.D17) said to have been written by the Power of Attorney holder of the Vendors of the plaintiff. Despite relying on the same, the defendants have not placed any material to indicate which was the other car parking space allotted even if they contend that what was allotted is not the one 18 which is the subject matter of the suit. Hence, the contention of the learned counsel for the defendants that the reference to the car parking space in all the documents is to an open car parking space and it is situated elsewhere and not the one in the basement cannot be accepted. In such circumstance, the reliance on a stray sentence in the E-mail (Ex.D18) cannot be understood out of context.
18. The cumulative effect of the documents on record and the evidence, more particularly the admissions of DW.1 if taken into consideration, while the matter is to be decided from the touchstone of preponderance of probabilities, the case put forth by the plaintiff would have to be accepted as more probable. In that light a perusal of the impugned judgment passed by the Court below would indicate that it has taken into consideration the oral as well as the documentary evidence available on record. On reappreciation of the evidence, the finding therein cannot be said to be 19 perverse when the conclusion is similar to the one arrived by this Court.
19. Before parting, it is also to be noticed that, though the injunction issued against the third defendant with regard to providing amenities has not been called in question, the learned counsel for defendant Nos.1 and 4 repeatedly alleged that the plaintiff taking advantage of the same is not even paying the maintenance charges for the common amenities. Though no opinion need be expressed in that regard, it is necessary for me to observe that the plaintiff should also realise that community living, more particularly in apartment blocks would call for mutual cooperation. The plaintiff owes a duty to contribute for the common amenities like all other residents and she should also realise that the Courts would aid only those who approach with clean hands. If unnecessary litigations are created due to non-cooperative attitude, the plaintiff will ultimately stand to loose. Hence, the injunction granted with regard to providing the amenities would 20 mean, the same is subject to the plaintiff paying the maintenance charges which is legally due and is being borne by the other similarly situated residents/owners of the Flats in the apartment block.
In the result, the appeal fails and the same is dismissed with the above observations. Parties to bear their own costs in the peculiar facts and circumstances of the case.
Sd/-
JUDGE Akc/bms