Bangalore District Court
Rukhsana Rahmath vs Yogendra Kulkarni on 15 September, 2025
KABC010167332021
IN THE COURT OF THE LII ADDL. CITY CIVIL & SESSIONS
JUDGE, BANGALORE (CCH-53)
Dated this the 15th day of September, 2025
PRESENT
Sri.Gangappa Irappa Patil, B.A., LL.B. (Spl.).,
LII Addl. City Civil & Sessions Judge,
Bangalore.
O.S.No.4275/2021
Plaintiff: Rukshsana Rahmath
Daughter of K.Mohammed Ali,
Aged about 63 years,
Residing at Palm Springs, Flat 6-G01,
16th Main, 7 C Cross, 4 B block,
Koramangala, Bangalore 560034.
Represented by her General Power of
Attorney Holder Ms.Samar Hafeez
Daughter of Rukshsana Rahmath
Aged about 35 years,
Residing at Palm Springs, Flat 6-G01,
16th Main, 7 C Cross, 4 B block,
Koramangala, Bangalore 560 034.
(By BRK Law Partners)
2
OS No. 4275/2021
Judgment
Vs.
Defendants: 1 Yogendra Kulkarni,
Major,
Father's name not known to the
plaintiff, Residing at Palm Springs, Flat
No.6-S01, 16th Main, 7 C Cross, 4 B
block, Koramangala,
Bangalore 560 034.
2 Shweta Kadaba,
Major,
Father's name not known to the
plaintiff, Residing at Palm Springs, Flat
No.6-S01, 16th Main, 7 C Cross, 4 B
block, Koramangala,
Bangalore 560 034.
(By K.G.R., Advocate for Defendants)
Date of institution of the suit: 13.08.2021
Nature of the suit: Suit for injunction
Date of commencement of 25.07.2022
recording of evidence:
Date on which Judgment was 15.09.2025
pronounced:
Duration 04 Years 01 month 02 days
3
OS No. 4275/2021
Judgment
JUDGMENT
This suit is filed by the plaintiff under Order VII Rule 1 R/w Sec.26 of CPC, praying to pass judgment and decree against the defendants as follows;
a) Permanent injunction restraining the defendants from putting up any further constructions in Block 6;
b) of mandatory injunction directing the defendant to demolish and remove all the illegal alterations made by them on the schedule property and to restore the property to its original specifications;
c) of mandatory injunction directing the defendants to engage professionals to carry out an assessment of the structural safety and stability of Block 6 and restore the block to status quo ante;
d) of permanent injunction restraining the defendants and people claiming under them from interfering with the access to the common area located in Schedule 'A' of the property to the plaintiff and her family;
e) and such other relief that this court deems fit.
SCHEDULE A PROPERTY All that piece and parcel of Block 6 of the Palm Springs Apartment situated on the 16th Main, 7 'C' Cross, 4 B block, Koramangala, Bangalore 560034 and is bounded as follows:
4OS No. 4275/2021 Judgment East by : Hanumaiah's Land West by : Kolimatti Gundappa's Land North by : Kathaypalya Portion Ejipura Boundary South by : Kolimatti SCHEDULE B PROPERTY All that piece and parcel of anything about the ceiling of Block 6 of the Palm Springs Apartment situated on the 16th Main, 7 'C' Cross, 4 B block, Koramangala, Bangalore 560034 and is bounded as follows:
East by : Hanumaiah's Land
West by : Kolimatti Gundappa's Land
North by : Kathaypalya Portion Ejipura Boundary
South by : Kolimatti
2. It is averred by the plaintiff that both the parties are owners and residents in Block 6 of the Palm Springs apartment.
The plaintiff resides in the apartment bearing number No.6-G01 located on the ground floor whereas the defendants reside in the apartment bearing number No.6-S01 located on the second floor in Block 6. They are the joint owners of the common areas in the complex, which means that other than their own apartment, the owners have joint access and possess joint ownership to the common areas, no structural changes or 5 OS No. 4275/2021 Judgment modifications can be made to the common areas without the approval of authorities. For one reason or another, the defendants have engaged in unlawful construction activities in Block 6 on the second floor and the terrace without the knowledge or consent of the Palm Springs Owner's Association (the "Association) and the other apartment owners of Palm Springs Apartments (hereafter referred to as "Apartment Owners"), including the plaintiff.
3. It is further averred by the plaintiff that the defendants have created an opening through the ceiling in the common area leading up to the terrace, and have taken over the terrace of Block 6 by overhauling it and consequently hampered the structural integrity of the building in the process. The defendants have demolished a portion of the ceiling of the building by cutting through the steel and reinforced cement concrete structure of the ceiling in order to create access to the roof top of Block 6. Defendants have added a metal spiral staircase connecting the second floor of Block 6 to the rooftop of Block 6 in order to create an easier access to the terrace specifically to defendants.
4. It is further averred that the defendants have then taken over the common terrace area by constructing an additional room, by raising walls and installing a roof over load 6 OS No. 4275/2021 Judgment bearing pillars and walls. The defendants have installed tile flooring on one half of the terrace and the rest has been finished with brick flooring. The defendants have further gone on to personalize the common area by building a covered porch, installing a washbasin; an electric motor pump for the exclusive use of the residents of apartment No.6-S01 that belongs to the defendants.
5. It is further averred by the plaintiff that defendants have continued to engage in unauthorized and illegal works till recently, where defendants began performing tiling work and when they began construction of a heavy cement divider on the terrace. Slowly but steadily, defendants are making attempts to illegally occupy common area belonging to all the owners of the Apartment. When the defendants began their tiling and construction of heavy cement divider on the terrace, lot of waste fell on the plaintiff's house, and it was only when she went up to the second floor, did she realize that the true nature of the prior activities carried on by the defendants. However, none of the owners were aware that a 'rooftop lounge' was being created by the defendants to prevent the other residents and owners from accessing the terrace.
6. The plaintiff submits that even though the defendants have taken great pain to personalize the area, the rooftop of 7 OS No. 4275/2021 Judgment Block 6 is part of the common area/ common facility in which all the Apartment Owners of Block 6 have an undivided right, title and interest and which is designated for the common use of all the residents of Block 6. This has also been explicitly specified in Schedule "C" to sale deed that has been executed by all Apartment Owners of Block 6 specifically in sub-rule 2 of rule 25 of the bye-laws of Palm Springs Owners' Association (hearafter referred to as "Bye-Laws") where it states that "The purchaser shall keep the common areas, open space, parking areas, passages, lift, staircases, lobbies...etc., in the building free from obstruction or encroachment: and in a clean and orderly manner: "By unilaterally carrying out the aforementioned Works, without the knowledge or consent of the Association and the Apartment Owners and obtaining requisite permission from the appropriate statutory authorities, the defendants have encroached upon the common areas and facilities of Block 6 and have thereby infringed upon the rights of all the Apartment Owners including the plaintiff.
7. Therefore, the plaintiff submits that the defendants have substantially altered the structural design of Block 6 in violation of the aforementioned provisions. The works carried by the defendants have also consequently altered the design and external appearance of the Apartment Complex as a whole. By increasing the height and altering the structure of the ceiling 8 OS No. 4275/2021 Judgment and the terrace of Block 6, the building is no longer in conformity with the standard design and uniform height of the other blocks in the apartment complex and is also not in conformity with the original sanctioned plans for the building. The defendants have violated covenants entered into by them under the sale deed executed in their favour for the Apartment No.6-S1 in Block 6. Additionally, according to Clause 6 (a) of the sale deed executed by the residents with the builder, all the owners are bound "not to raise any construction in addition to the said Apartment". Further, in terms of Clause 6(1) of the sale deed, they are bound "not to decorate the exterior of the said building and/or the said Apartment otherwise than in a manner specified by the said developer or the said Association".
8. The plaintiff submits that the works that were carried out by the defendants are not in accordance with the sanctioned plan of the building and further, they have not obtained the requisite permissions, licenses or approvals from statutory and local authorities for the same. The plaintiff has through various communications repeatedly objected to the works undertaken by the defendant. Further, the plaintiff has also made several complaints to the Association and has raised the matter in the annual general meeting of the Association. However, the legitimate grievances of the plaintiff regarding the unlawful construction carried on by the defendants were 9 OS No. 4275/2021 Judgment summarily dismissed. The plaintiff sent a legal notice demanding the defendants to comply with the rules and to discontinue all the construction activities being carried on by them and remove all the illegally altered items in Block 6. But the defendants through their learned counsel decided that it be best to revert with false counter allegations against the plaintiff and by denying the existence of the illegal structure completely. With no alternative plaintiff has preferred this suit to rid itself from the encroachment attempts made by the defendants. Hence, the present suit is being filed for bare injunction.
9. The cause of action arose when the defendants through their learned counsel denied even the existence of the illegally built structure(s) and fixture(s) and consequently there was no wrong done and there was nothing to be removed or fixed in the building in order to bring it back into its original specifications. No other suit or any other petition has been filed by plaintiff regarding the same cause of action. Hence this suit.
10. On summons being served the defendants appeared through their counsel and filed the Written Statement. In the W.S. the defendants have contended that the suit filed by the plaintiff is not maintainable either on facts or on the points of law and therefore may be liable to be dismissed in limine. The defendants prays that this court to name and refer to the plaint 10 OS No. 4275/2021 Judgment definitions, namely 'Association', 'Apartment Owners' in the same context as mentioned in the plaint, in order to avoid any confusion.
11. The plaintiff has strangely not referred to Palm Springs Apartment Block No.6 in her plaint as schedule `A` property, in spite of giving the description of the same Palm Springs Apartment Block No.6 to constitute the Schedule 'A' property of the plaint. Due to this duel description of the same property in the plaint s Palm Springs Apartment Block No.6 and also as the schedule 'A property, the defendants seek leave of this court to refer the 'Palm Springs Apartment Block No.6', 'block No.6', as 'Schedule A Property' in their present written statement, in order to not further perpetuate the confusion.
12. The defendants have allegedly created a 'rooftop lounge' and a room, by allegedly encroaching the Schedule 'A' Property's terrace to create a personal space for themselves, by violating the BBMP Building Guidelines, bye-laws of the Association and collective rights (undivided shares) of 'Apartment Owners", more so, the plaintiff's right under the sale deed, the defendants have allegedly removed the external access to prevent the 'Apartment Owners' from accessing the terrace,....etc., are all false and vexatious allegations made by the plaintiff due to which reason, the defendants out rightly deny 11 OS No. 4275/2021 Judgment the above mentioned allegations and further humbly pray that this court may kindly be pleased to put the plaintiff to the strict proof of the same. Further the plaint averments in the paras are totally bald and vague as they do not state any material and necessary details, which clearly demonstrates that the plaintiffs present suit is filed without any lawful cause of action.
13. Further, due to constant dampness, the defendant's Apartment started to develop fungi and algae on it's walls leading to viral infections to the defendants and their children. Hence the defendants decided to have the ceiling repaired to avoid further deterioration of the defendant's Apartment. The defendants intimated the Association during December 2019 about their pitiful state and as the officers of the Association were convinced, the defendants were allowed to do water proofing works on the terrace of the defendants Apartment, so that the water leakage to the defendant's Apartment could be stopped. Accordingly the defendants did water proofing works to the terrace above their Defendant's Apartment roof/ceilling and installed further water resistant tiles on the terrace.
14. On 09.08.2020, during the monthly Association Committee meeting, the defendants raised their objections to plaintiff's above mentioned illegal encroachments and works, due to which reason; there were serious arguments between 12 OS No. 4275/2021 Judgment the plaintiff and the defendants. The plaintiff and her GPA Holder got unreasonably wild in the Association meeting and vowed to take revenge against the defendants. The plaintiff has not produced any document along with her plaint to prove her authority to plead and represent the other Apartment Owners. The present suit is thus liable to be dismissed even on this count also. The plaintiff has not mentioned any date as the cause of action to file the present suit against the defendants, as in reality; there is no cause of action accruing to the plaintiff to either file or maintain the present suit against the defendants. Further due to the reason that such illegal and bizarre prayers cannot be granted to any litigant, much less to the plaintiff, the plaint is liable to be rejected.
15. All of the Apartment Owners of the Schedule A Property are entitled to the common areas of the Schedule A Property, due to which reason, the prayer (d) as sought by the plaintiff is unlawful perse and is sought in order to legalize the encroachments made by the plaintiff into the common area of the Schedule A Property. As the plaint prayers at Sl.No. "a" to "d" are illegal perse, and inequitable, the defendants humbly pray this court to out rightly reject the plaint and dismiss the suit in the interest of justice and equity. Wherefore, it is hereby prayed that this court be pleased to reject the said application, 13 OS No. 4275/2021 Judgment with cost, in the interest of justice and equity. Hence, the defendants have prays to dismiss the suit.
16. On the basis of the above pleadings, the following Issues are framed by my Predecessor-in-office:-
1. Whether the plaintiff proves that the owner of Palm Springs Apartments have joint access and possess joint ownership to the common areas and they cannot make any structural change or modification to the common area without the approval of authorities?
2. Whether the plaintiff proves that the defendants have engaged in unlawful construction activities in Block No.6 on the second floor and terrace without the knowledge or consent of the Palm Springs Owners Association and the other apartment owners including plaintiff as alleged in the suit plaint?
3. Whether the plaintiff proves that the defendants have made constructions, modification and structural alterations in Block No.6 on the second floor by violating the covenants entered into by them under the Sale Deed executed in their favour for the Apartment No.6-S01?
4. Whether the plaintiff is entitled for the reliefs of permanent injunctions as prayed for?14
OS No. 4275/2021 Judgment
5. Whether the plaintiff is entitled for the reliefs of mandatory injunction as prayed for?
6. What order or decree?
17. After framing of the Issues, the case was posed for recording evidence. In order to prove the case, daughter of the plaintiff examined herself as PW1 and marked the documents as Ex.P1 to Ex.P.13 and the first defendant examined himself as DW1 and produced and marked the documents as Ex.D1 to Ex.D.20.
18. Heard arguments on both sides and perused records.
19. Having done so, this court answers the aforesaid Issues as follows:-
Issue No.1 : Partly in the affirmative
Issue No.2 to 5 : In the Negative
Issue No.6 : As per the final order for
-the following:
REASONS
20. ISSUE NO.1 TO 5 : Since these Issues are inter related to each other, they are taken up simultaneously so as to avoid repetition of facts.
15OS No. 4275/2021 Judgment This suit is filed by the plaintiff seeking Permanent injunction restraining the defendants from putting up any further constructions in Block 6 and also for mandatory injunction directing the defendant to demolish and remove all the illegal alterations made by them on the schedule property and to restore the property to its original specifications and for mandatory injunction directing the defendant to engage professionals to carry out an assessment of the structural safety and stability of Block 6 and restore the block to status quo ante; and for permanent injunction restraining the defendant and people claiming under them from interfering with the access to the common area located in Schedule 'A' of the property to the plaintiff and her family.
21. The daughter of the plaintiff examined herself as PW.1 and she got marked the documents as Ex.P1 to Ex.P.13 and deposed that she and other owners of the Palm Spring Apartments are joint owners of the common area in the complex and the owners have joint access and possess joint ownership to the common area, and no structural changes or modifications can be made to the common area without approval of the authorities. When things stood thus, the defendants have engaged in unlawful construction activities in Block 6 on the second floor and terrace without the knowledge or consent of the other owners. They created an opening 16 OS No. 4275/2021 Judgment through the ceiling in the common area leading up to the terrace. They demolished a portion of the ceiling of the building by cutting through the steel and reinforced cement concrete structure of the ceiling in order to create access to the rooftop of Block 6. They added metal spiral staircase connecting the second floor of Block 6. they have taken over the common terrace area by constructing an additional room by raising walls and installing a roof over the load bearing pillars and walls. The defendants have continued to engage in unauthorized and illegal works till recently, where defendants began performing tiling work and when they began construction of a heavy cement divider on the terrace. Slowly the defendants are making attempts to illegally occupy common area belonging to all the owners of the Apartment. They made structural alterations to the terrace, which can impact the strength of the building. In support of her case the PW. 1 has marked 13 documents.
22. On the other hand the first defendant is examined himself as DW. 1. During the course of cross-examination PW. 1 admits some documents, which are marked as Ex.D.1 to 9.
23. DW. 1 deposes that due to constant dampness, the defendant's Apartment started to develop fungi and algae on it's walls leading to viral infections to the defendants and their 17 OS No. 4275/2021 Judgment children. Hence the defendants decided to have the ceiling repaired to avoid further deterioration of the defendant's Apartment. The defendants intimated the Association during December 2019 about their pitiful state and as the officers of the Association were convinced, the defendants were allowed to do water proofing works on the terrace of the defendants Apartment, so that the water leakage to the defendant's Apartment could be stopped. Accordingly the defendants did water proofing works to the terrace above their Defendant's Apartment roof/ceilling and installed further water resistant tiles on the terrace. They have denied the allegations of the plaintiff and prays to dismiss the suit filed by the plaintiff.
24. On analysis of the evidence adduced by both the parties, it discloses that both the parties have not shown that the terrace portion is exclusively belongs to anyone of the parties or the particular resident of the said Apartment. In the absence of proof to show the terrace is exclusively belongs to a particular owner of the Apartment, then as per the provision of Karnataka Apartment Ownership Act, the terrace portion is to be for common usage of all inhabitant of the Apartment. All the inhabitant of the Apartment are having equal rights to use the said terrace. This fact has been admitted by the defendant.
18OS No. 4275/2021 Judgment
25. Further , here in the present case the defendant contends that the Apartment is 20 years old and the defendants stay on the top floor, ie the second floor, over which the terrace of the building lies, during the July 2019 to November 2019 due to incessant rains, the defendants apartment started to leak due to which reason, the defendants started to experience electric grounding problems, ceiling damage and peeling of the ceiling and wall paints of the apartment. Further due to constant dampness , the defendants` apartment started to develop fungi and algae on its walls leading to viral infections to the defendant`s and their children. Hence, the defendants decided to have the ceiling repaired to avoid further deterioration of the defendant`s apartment and this contention is supported with the documents as admitted by the plaintiff in the cross examination as per Ex.D. 3, 4 and Ex.P.14 and 15.
26. On perusal of the said photographs and on analysis of the evidence adduced before this court , discloses that whatever the act done by the defendant is to protect his floor and to protect the entire building from leakage problem. The tiling of the terrace or installing roof over the terrace do not amounts to violation of building bylaws as held in the decision of the Hon`ble High Court of Karnataka in WP No. 22305 of 2016 in the case of Ram Murthy vs. BBMP and others.
19OS No. 4275/2021 Judgment
27. Here in the present case the plaintiff has alleged that the defendant is engaged in ulawful activities and violated the BBMP building guidelines and by-laws of the Apartment. If that is the case the plaintiff ought to have made the representation before the BBMP for violation of the building bye law. But no evidence is forthcoming that the plaintiff has approached the BBMP authorities complaining the act of the defendant . Hence, under such circumstances, it shows that the plaintiff has not come up before this court with clean hands seeking the equitable relief of injunction. Moreover when the terrace portion is for the use of the owners of the Apartment, under such circumstances no injunction can be granted against other Apartment owners. Every apartment owner is having every right to use the terrace portion. What ever the act done by the defendant is for the interest of building and to protect his building from the leakage. Under such circumstances the contentions raised by the plaintiff is not tenable in the eye of law.
28. The plaintiff also admits that the other flat owners in the other portion of their terrace have done tiles work on the terrace, but the plaintiff has not made any allegations against other flat owners in the building. On perusal of Ex.D. 5 it shows that the old wooden trunk has been kept in the parking area of the Apartment, which is admitted by the plaintiff herself. That 20 OS No. 4275/2021 Judgment common passage has been used as her exclusive portion. Further on perusal of Ex.D.6 to 9 it shows that the plaintiff admits that she has installed gates and Ex.D. 7 shows that the plastic roofing is installed and also Ex.D. 8 shows the gate is installed by the plaintiff is admitted by her self, she also made some alterations for her usage. As being the fact the plaintiff cannot blame the defendant for the work done by him to protect his premises and the entire Apartment which is not amounts to violation of building bylaws as stated above. When the plaintiff herself has not come up with clean hands before this court, she cannot claim any relief as prayed by her in the present suit. Further on plain reading of plaint averments, shows that the description of the suit schedule property is not properly mentioned. Hence she is not entitled for any relief as prayed in the plaint.
29. Further, the plaintiff has filed application u/sec. 340 of Cr.P.C. and prays to initiate proceedings against the defendant for giving false evidence. As discussed above the plaintiff has not made out any case to grant the relief as sought by her. Hence, it can be said that she has not made out any case to proceed against the defendant for initiating proceedings u/Sec 340 of Cr.P.C. Hence the said application is not tenable in the eye of law. The same is rejected.
21OS No. 4275/2021 Judgment
30. Therefore, Issue No.1 is answered partly in the affirmative and Issue No.2 to 5 answered in the Negative.
31. POINT NO. 2:- In view of the aforesaid reasons this court passed the following:-
ORDER The suit filed by the plaintiff is hereby dismissed. No order as to cost.
Draw decree accordingly.
The application filed by the plaintiff u/sec. 340 of Cr.P.C. is hereby rejected.
(Dictated to the Sr.Shr/SGI, script thereof is corrected, signed and then pronounced by me in the open court on this 15th day of September, 2025).
(Gangappa Irappa Patil) LII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiff:
P.W.1 Samar Hafeez List of the documents marked for the plaintiff:
Ex.P.1 GPA dated 10.08.2021.
Ex.P.2 Khatha Certificate dated 29.11.2010.
22
OS No. 4275/2021
Judgment
Ex.P.3 Khatha Extract dated 29.11.2010
Ex.P.4 Internet downloaded E-mail dated 29.10.2021.
(Marked to subject to objection on account non production of certificate u/s. 65B of Evidence Act.) Ex.P.5 Internet downloaded letter dated 09.07.2020. (Marked to subject to objection on account non production of certificate u/s. 65B of Evidence Act.) Ex.P.6 Internet downloaded WhatsApp Messages (3 pages.) (Marked to subject to objection on account non production of certificate u/s. 65B of Evidence Act.) Ex.P.7 One CD.
Ex.P.8 On pen drive (Marked subject to objection.) Ex.P.9 Memorandum of Association Ex.P.10 Certified copy of affidavit of P.S.Nayak. Ex.P.11 Certified copy of letter dated 01.05.2001. Ex.P.12 Certified copy of Extraordinary Body Meeting dated
05.06.2001 including bye-law (3 sheets).
Ex.P.13 Certified copy of plan.
List of the witnesses examined for the defendants:
D.W.1 Yogendra Kulkarni List of the documents marked for the defendants:
Ex.D.1 to Photos 9 Ex.D.10 Certified copy of order sheet in O.S.No.4002/2023 23 OS No. 4275/2021 Judgment Ex.D.11 Certified copy of plaint in O.S.No.4002/2023 Ex.D.12 One Photo Ex.D.13 One CD Ex.D.14 Khatha certificate dated 26.03.2005 Ex.D.15 Khatha Extract dated 26.03.2005 Ex.D.16 Property tax receipt for the year 2023-24 Ex.D.17 One Photo Ex.D.18 One CD Ex.D.19 True copy of the floor plan of apartment belonging to defendant.
Ex.D.20 True copy of ground floor plan of the apartment belonging to plaintiff.
(Gangappa Irappa Patil) LII Addl. City Civil & Sessions Judge, Bengaluru.
24 OS No. 4275/2021 Judgment Judgment pronounced in the open court (vide separate order) ORDER The suit filed by the plaintiff is hereby dismissed.
No order as to cost.
Draw decree accordingly. The application filed by the plaintiff u/sec. 340 of Cr.P.C. is hereby rejected.
LII Addl. City Civil & Sessions Judge, Bengaluru.