Bangalore District Court
H N Balakrishna vs Jagannath Naidu on 23 October, 2025
1
O.S. No.26319/2022
KABC0A0033802022
IN THE COURT OF THE LXXIV ADDL. CITY CIVIL AND
SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU.
(CCH-75)
Dated this 23rd Day of October 2025
PRESENT:
Sri.PRAKASH CHANNAPPA KURABETT, B.Sc., LL.B.,(Spl.),
74th Addl. City Civil and Sessions Judge, Bengaluru.
ORIGINAL SUIT No.26319/2022
PLAINTIFFS: 1 Sri.H.N.BALAKRISHNA,
S/o.Late.Sri.D.Neelakanta Rao,
aged about 53 yrs,
No.185/8, New No.51,
"Sneha Apartment", 1st Floor,
3rd Cross, Behind Adarsha College,
Devanathachar Street,
Chamarajpet, Bengaluru-18.
2 Smt.SHARADA.M.N.,
W/o.Sri.H.N.Balakrishna,
aged about 51 yrs,
No.185/8, New No.51,
"Sneha Apartment", 1st Floor,
3rd Cross, Behind Adarsha College,
Devanathachar Street,
2
O.S. No.26319/2022
Chamarajpet, Bengaluru-18.
REP BY: Sri.K.S.SREEKANTHA, Advocate.
V/S
DEFENDANTS: 1 Sri.JAGANNATH NAIDU,
aged about 70 yrs,
R/at.Flat No.201, 2nd Floor,
Property bearing No.185/8,
New Municipal No.51, 7th Cross,
Devanathachar Street,
Behind Adarsha College,
5th Main, Chamarajpet,
Bengaluru-560018.
2 Smt.POORNIMA JAGANNATH NAIDU,
W/o.Sri.Jagannath Naidu
aged about 68 yrs,
R/at.Flat No.201, 2nd Floor,
Property bearing No.185/8,
New Municipal No.51, 7th Cross,
Devanathachar Street,
Behind Adarsha College,
5th Main, Chamarajpet,
Bengaluru-560018.
REP BY: Sri.V.B.SHIVAKUMAR, Advocate.
Date of Institution of the suit 03.08.2022
Nature of the Suit (Suit on pro-note, suit
DECLARATION & MANDATORY
for declaration and possession, suit for
INJUNCTION
injunction, etc.)
Date of the commencement of recording
30.05.2023
of the Evidence
3
O.S. No.26319/2022
Date of pronouncement of Judgment 23.10.2025
Total duration Year/s Month/s Day/s
03 02 20
JUDGMENT
This is a suit filed by the plaintiffs against the defendants seeking declaration declaring that the plaintiffs and other co-owners are having all right to enter the terrace floor portion and the gate kept to enter in the terrace floor portion is illegal and unlawful without having any right, title and interest over the same and also for mandatory injunction directing the defendants to remove the gate kept which is entering into the terrace of schedule 'A' property and to deliver the vacant possession and handing over the vacant possession by removing the gate, failure on the part of the defendants, this court may be demolished the illegal compound wall by the defendants same through court machinery at the cost of the defendants and put the plaintiffs and co-owners permitting them to enter the terrace floor portion and costs.
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O.S. No.26319/2022
2. The brief facts averred in the plaint that the plaintiffs are the joint and absolute owners of schedule 'B' property having purchased from Smt.H.Sathyavathi under registered sale deed dated 15.4.2020 and katha stands in the names of the plaintiffs and paid upto date tax to the concerned department accordingly. Originally the schedule property belongs to Sri.V.Mohana Naidu having purchased from Smt.Kanamma and others under registered sale deed. On 27.5.1999 the said Sri.V.Mohana Naidu intended to develop the schedule 'A' property in the residential building consisting of five apartments as per the sanctioned plan dated 10.10.1996. But, without having any legal right, title and interest from the original owner the defendants obtained the registered sale deed on 8.5.2000 consisting of two units in the second floor. The defendant is only entitled to purchase one unit as per the sanctioned plan and the building constructed encroaching the area of second floor is fully violative and the sale deed obtained by the defendants in respect of other portion of the second floor is void. As per 5 O.S. No.26319/2022 the terms and conditions of the sanctioned plan dated 10.10.1996 the said Sri.V.Mohana Naidu has constructed the residential apartment consisting of 4 Units. But, as per the sanction plan, 'Schedule-A was consisting only four apartments. The second floor was constructed in two apartments by violating the sanctioned plan and license in the name of Sri.V.Mohana Naidu. At the time of purchasing schedule 'B' property the plaintiffs mortgaged the property by way of memorandum relating to deposit of title deeds.
3. Further plaintiffs have averred that in the month of June and July 2021, the defendants strongly obstructed to enter the terrace floor including the plaintiffs and also other co-owners. Thereby the plaintiffs got issued the legal notice dated 27.7.2021. The said notice has been served to them, but they failed to comply nor reply to the said notice. The plaintiff approached the jurisdictional police and gave a complaint. At the time of investigation the IO of the concerned police station, insisting them to produce their title 6 O.S. No.26319/2022 document for verification, but the defendants utterly failed to produce the same before the Investigation Office for verification. The plaintiff No.2 is suffering from major health issue; i.e., Blood Cancer from November 2022 which is in the advanced stage. Hence, it is the right of the plaintiffs to seek terrace floor rights as per the registered sale deed dated 15.4.2021. Hence, the plaintiffs are having right to enter the terrace floor inclusive rights of other co-owners. The defendants have no right to obstruct the entry of the plaintiffs and other co-owners to the terrace floor. On these and other grounds stated in the plaint, plaintiffs prays to decree the suit and grant the relief of declaration and mandatory injunction as prayed for.
4. Pursuance to issuance of suit summons the defendants have appeared and contested the suit by filing written statement.
5. The defendants have filed written statement contending that the suit of the plaintiffs is not maintainable 7 O.S. No.26319/2022 either in law or on facts. There is no cause of action against these defendants. Both the reliefs sought in the plaint are barred by limitation. Not only barred by limitation, but also such a relief cannot be granted as the said possession of the property inclusive of the existing gate and ingress and egress to the terrace floor was not available to the plaintiff not only from the date of purchase, but prior to the purchase by her predecessors-in-title; consequently. The said relief either in the form of a easementary right or a right which the vendor of the plaintiffs and the predecessors of the vendor of plaintiffs had waived their right and therefore the reliefs are estopped from it being granted. The plaintiff is trying to be bitten by certain spurious Acts under taken by her spontaneously which was offered.
6. Further they have contended that originally the property belonged to one Sri.V.Mohana Naidu who purchased the same under a registered sale deed dated 7.3.1996 purchased house property bearing No.185/8, 8 O.S. No.26319/2022 Chamarajpet, Bengaluru, measuring 30 X 60 ft. Sri.V.Mohana Naidu on 10.10.1996 approach BBMP for construction of a building and accordingly constructed a building on the property. On such construction that he undertook he constructed vertical buildings on the property as many as five tenement residential units have been constructed by him. On 18.5.2000 2nd defendant purchased one residential unit bearing flat No.301, 2 nd floor. Thereafter Sri.V.Mohana Naidu had conveyed the property in favour of Smt.K.Roopalekha. Smt.K.Roopalekha who purchased the property from Sri.V.Mohana Naidu on 3.5.2000 executed registered sale deed in favour of defendant's daughter Smt.Lakshmi Jagannath Naidu on 11.5.2022. Smt.Lakshmi Jagannath Naidu purchased one unit constituting a residential unit flat No.202 in the 1 st floor. The 1st defendant became the owner of one premises which came to be executed by Sri.V.Mohana Naidu on 11.11.1999. What was conveyed by Sri.V.Mohana Naidu in favour of Sri.Nagaraj Venkatesh Murthy is one residential apartment unit at 9 O.S. No.26319/2022 No.101, Ground Floor. The property was provided with north rear gate marked and enclosed in the plan and other common facilities like staircase, electrical, water, sewerage connections. Sri.Nagaraj Venkatesh Murthy conveyed the property that he purchased flat No.101 in the ground floor in favour of 1st defendant.
7. Further they have contended that 1st defendant became the owner of the said property. Thereafter the said property came to be gifted in favour of Smt.Lakshmi Jagannath Naidu. Smt.Shobha Jagannath Naidu, daughter of Sri.Jagannath Naidu under a sale deed dated 8.5.2000 purchased one residential unit bearing flat No.302, 2 nd floor of the property. Therefore the entire building with units constituting 4 in numbers are in the respective title and possession of the respective title owners who do not have any grievances. No other owners of the respective residents apartment of premises have raised any objections as that of the plaintiffs. Even before the purchaser of residents unit 10 O.S. No.26319/2022 Smt.Sathyavathi did not claim of terrace are the demand of gate. It is only the plaintiffs made there litigating attempts after purchase. When there is an abandonment, vendors of the plaintiff did not ask for similar reliefs and were enjoying the property till it is sold to the plaintiffs, plaintiffs cannot make up a new case for seeking the relief. Sri.V.Mohana Naidu on 27.5.1999 the property in favour of Smt.Sathyavathi. What Smt.Sathyavathi purchased is flat No.201, 1st floor, which is conveyed in favour of plaintiffs. Smt.H.Sathyavathi did not raise her grievance from the date of purchase and occupation on 27.5.1999 she enjoyed the premises. What was conveyed by Smt.H.Sathyavathi in favour of plaintiff is dated 15.4.2021, on the date whatever amenities, facilities and enjoyment including the areas mentioned in the schedule that was in the possessive right of Smt.H.Sathyavathi was conveyed on 15.4.2021. While conveying the said premises, it was conveyed and what was not available in the registered sale deed is dated 27.5.1999 was intentionally included, such as terrace, 11 O.S. No.26319/2022 staircase, etc. Therefore, the document is a tampered document at the instance of the plaintiff and Smt.H.Sathyavathi. As such right that was not available to Smt.H.Sathyavathi cannot be a right that could be available to the plaintiffs. On these and other grounds stated in the written statement, defendants pray to dismiss the suit.
8. On the basis of the pleadings of the parties, my Predecessor in office has framed the following:-
ISSUES
1. Whether the plaintiffs prove that they are having right over the terrace floor of the building?
2. Whether plaintiffs prove that defendants illegally and unlawfully kept the gate preventing them from entering into the terrace floor?
3. Whether the plaintiffs are entitled for the relief of perpetual prohibitory and mandatory injunction as prayed for?
4. What order or decree?12
O.S. No.26319/2022
9. Plaintiffs in order to substantiate the case, 2 nd plaintiff has given evidence before the court as P.W.1 and got marked Ex.P.1 to P.17 documents.
10. The defendants in order to rebut the evidence and to substantiate his contention, 1st defendant has given evidence before the court as D.W.1 and got marked Ex.D.1 to D.34 documents.
11. Heard the arguments and perused the materials placed on record. The learned counsel for the plaintiffs has submitted written arguments. The learned counsel for the defendants has submitted written arguments.
12. The learned counsel for the plaintiffs has filed memo along with the following citations:-
1. M.F.A. No.5063/2022 between Sri.Abdul Aleem v/s Skyline Manor Owners Apartments.
2. M.F.A. No.1764/2025 between Smt.A.Earkai Vani v/s Sri.A.Ambedkar.13
O.S. No.26319/2022
3. R.F.A. No.1809/2013 between M/s.Sandra Lesley Ann Bartels v/s Paul Manoharan Moses.
13. The learned counsel for the defendants has filed memo along with the citation reported in AIR 2019 SC 3654 between Dr.S.Kumar and others v/s Ramalingam.
14. My answer to the aforesaid issues are as under:-
Issue No.1: In the Affirmative, Issue No.2: In the Affirmative, Issue No.3: In the Affirmative, Issue No.4: As per the final order, for the following:-
REASONS
15. ISSUE Nos.1 TO 3: All these three issues are interrelated, they have been taken up for consideration together.
16. In brief it is the case of the plaintiff that the plaintiffs are the joint and absolute owners of schedule 'B' property having purchased from Smt.H.Sathyavathi under 14 O.S. No.26319/2022 registered sale deed dated 15.4.2020 and katha stands in the names of the plaintiffs and paid upto date tax to the concerned department accordingly. Originally the schedule property belongs to Sri.V.Mohana Naidu having purchased from Smt.Kanamma and others under registered sale deed. On 27.5.1999 the said Sri.V.Mohana Naidu intended to develop the schedule 'A' property in the residential building consisting of five apartments as per the sanctioned plan dated 10.10.1996. But, without having any legal right, title and interest from the original owner the defendants obtained the registered sale deed on 8.5.2000 consisting of two units in the second floor. The defendant is only entitled to purchase one unit as per the sanctioned plan and the building constructed encroaching the area of second floor is fully violative and the sale deed obtained by the defendants in respect of other portion of the second floor is void. As per the terms and conditions of the sanctioned plan dated 10.10.1996 the said Sri.V.Mohana Naidu has constructed the residential apartment consisting of 4 Units. But, as per 15 O.S. No.26319/2022 the sanction plan, 'Schedule-A was consisting only four apartments. The second floor was constructed in two apartments by violating the sanctioned plan and license in the name of Sri.V.Mohana Naidu. At the time of purchasing schedule 'B' property the plaintiffs mortgaged the property by way of memorandum relating to deposit of title deeds.
17. Further it is the case of the plaintiff that in the month of June and July 2021, the defendants strongly obstructed to enter the terrace floor including the plaintiffs and also other co-owners. Thereby the plaintiffs got issued the legal notice dated 27.7.2021. The said notice has been served to them, but they failed to comply nor reply to the said notice. The plaintiff approached the jurisdictional police and gave a complaint. At the time of investigation the IO of the concerned police station, insisting them to produce their title document for verification, but the defendants utterly failed to produce the same before the Investigation Office for verification. The plaintiff No.2 is suffering from major health 16 O.S. No.26319/2022 issue; i.e., Blood Cancer from November 2022 which is in the advanced stage. Hence, it is the right of the plaintiffs to seek terrace floor rights as per the registered sale deed dated 15.4.2021. Hence, the plaintiffs are having right to enter the terrace floor inclusive rights of other co-owners. The defendants have no right to obstruct the entry of the plaintiffs and other co-owners to the terrace floor.
18. On the other hand, the defendants contend that there is no cause of action against these defendants. Both the reliefs sought in the plaint are barred by limitation. Not only barred by limitation, but also such a relief cannot be granted as the said possession of the property inclusive of the existing gate and ingress and egress to the terrace floor was not available to the plaintiff not only from the date of purchase, but prior to the purchase by her predecessors-in- title; consequently. The said relief either in the form of a easementary right or a right which the vendor of the plaintiffs and the predecessors of the vendor of plaintiffs 17 O.S. No.26319/2022 had waived their right and therefore the reliefs are estopped from it being granted. The plaintiff is trying to be bitten by certain spurious Acts under taken by her spontaneously which was offered.
19. Further they contend that originally the property belonged to one Sri.V.Mohana Naidu who purchased the same under a registered sale deed dated 7.3.1996 purchased house property bearing No.185/8, Chamarajpet, Bengaluru, measuring 30 X 60 ft. Sri.V.Mohana Naidu on 10.10.1996 approach BBMP for construction of a building and accordingly constructed a building on the property. On such construction that he undertook he constructed vertical buildings on the property as many as five tenement residential units have been constructed by him. On 18.5.2000 2nd defendant purchased one residential unit bearing flat No.301, 2nd floor. Thereafter Sri.V.Mohana Naidu had conveyed the property in favour of Smt.K.Roopalekha. Smt.K.Roopalekha who purchased the 18 O.S. No.26319/2022 property from Sri.V.Mohana Naidu on 3.5.2000 executed registered sale deed in favour of defendant's daughter Smt.Lakshmi Jagannath Naidu on 11.5.2022. Smt.Lakshmi Jagannath Naidu purchased one unit constituting a residential unit flat No.202 in the 1 st floor. The 1st defendant became the owner of one premises which came to be executed by Sri.V.Mohana Naidu on 11.11.1999. What was conveyed by Sri.V.Mohana Naidu in favour of Sri.Nagaraj Venkatesh Murthy is one residential apartment unit at No.101, Ground Floor. The property was provided with north rear gate marked and enclosed in the plan and other common facilities like staircase, electrical, water, sewerage connections. Sri.Nagaraj Venkatesh Murthy conveyed the property that he purchased flat No.101 in the ground floor in favour of 1st defendant.
20. Further they contend that 1st defendant became the owner of the said property. Thereafter the said property came to be gifted in favour of Smt.Lakshmi Jagannath 19 O.S. No.26319/2022 Naidu. Smt.Shobha Jagannath Naidu, daughter of Sri.Jagannath Naidu under a sale deed dated 8.5.2000 purchased one residential unit bearing flat No.302, 2 nd floor of the property. Therefore the entire building with units constituting 4 in numbers are in the respective title and possession of the respective title owners who do not have any grievances. No other owners of the respective residents apartment of premises have raised any objections as that of the plaintiffs. Even before the purchaser of residents unit Smt.Sathyavathi did not claim of terrace are the demand of gate. It is only the plaintiffs made there litigating attempts after purchase. When there is an abandonment, vendors of the plaintiff did not ask for similar reliefs and were enjoying the property till it is sold to the plaintiffs, plaintiffs cannot make up a new case for seeking the relief. Sri.V.Mohana Naidu on 27.5.1999 the property in favour of Smt.Sathyavathi. What Smt.Sathyavathi purchased is flat No.201, 1st floor, which is conveyed in favour of plaintiffs. Smt.H.Sathyavathi did not raise her grievance from the date 20 O.S. No.26319/2022 of purchase and occupation on 27.5.1999 she enjoyed the premises. What was conveyed by Smt.H.Sathyavathi in favour of plaintiff is dated 15.4.2021, on the date whatever amenities, facilities and enjoyment including the areas mentioned in the schedule that was in the possessive right of Smt.H.Sathyavathi was conveyed on 15.4.2021. While conveying the said premises, it was conveyed and what was not available in the registered sale deed is dated 27.5.1999 was intentionally included, such as terrace, staircase, etc. Therefore, the document is a tampered document at the instance of the plaintiff and Smt.H.Sathyavathi. As such right that was not available to Smt.H.Sathyavathi cannot be a right that could be available to the plaintiffs.
21. In order to substantiate the contentions taken by the plaintiffs, the 2nd plaintiff has given evidence before the court as P.W.1. She has reiterated all the facts which has been averred in the plaint. In order to corroborate her oral 21 O.S. No.26319/2022 evidence she has produced Ex.P.1 Uttara patra, Ex.P.2 Khatha certificate, Ex.P.3 Khatha extract, Ex.P.4 Form 15, Ex.P.5 C/C of sale deed dated 16.3.1966 executed by Basappa in favour of Srinivasalu Naidu, Ex.P.6 C/C of the sale deed dated 7.3.1996 executed by Kannamma and others in favour of V.Mohan Naidu, Ex.P.7 C/C of sale deed dated 27.5.1999 executed by V.Mohan Naidu in favour of Satyavati, Ex.P.8 Copy of office notice dated 4.8.2021, Ex.P.9 Reply given by defendant dated 27.07.2021, Ex.P.10 Copy of OPD assessment sheet to show that the plaintiff was suffering from ill health (Cancer), Ex.P.11 Prescription, Ex.P.12 (i to xii) 12 Photographs with CD, Ex.P.13 Endorsement issued by the bank, Ex.P.14 C/C of sale deed dated 15.4.2021 along with 65B certificate, Ex.P.15 EC, Ex.P.16 Katha certificate and Ex.P.17 Katha extract.
22. On the other hand, in order to substantiate the contention of the defendants one of the defendant; i.e., defendant No.1 has given evidence before the court as 22 O.S. No.26319/2022 D.W.1. He has produced Ex.D.1 C/C of registered sale deed dated 7.3.1996, Ex.D.2 C/C of registered sale deed dated 18.5.2000 executed by Sri Mohana Naidu in favour of Shobha Jagannatha Naidu, Ex.D.3 C/C of registered sale deed dated 18.5.2000 executed by Sri Mohan Naidu in favour of Dr.Poornima Jagannatha Naidu, Ex.D.4 C/C of registered sale deed dated 18.5.2000 executed by Mohan Naidu in favour of Smt.Rupalekha, Ex.D.5 Original Housing Register Form for the year 1998 to 2001, Ex.D.6 Certificate issued by the BBMP dated 5.5.2001, Ex.D.7 Certificate issued by the BBMP dated 30.3.2001, Ex.D.8 to 10 Copies of notices dated 24.3.2001 issued by the BBMP, Ex.D.11 Original katha for the year 2000 issued by the BBMP, Ex.D.12 Official Memorandum issued by the KPTCL dated 18.12.2002, Ex.D.13 Katha certificate dated 6.11.2013, Ex.D.14 Katha extract dated 6.11.2013, Ex.D.15 Original katha dated 11.11.2013, Ex.D.16 C/C of sale deed dated 4.10.2019 executed by Nagaraju Venkatesh Murthy in favour of Jagannatha Naidu, Ex.D.17 Original katha 23 O.S. No.26319/2022 certificate dated 28.11.2019, Ex.D.18 Original katha extract dated 25.9.2019, Ex.D.19 Original katha certificate dated 25.09.2019, Ex.D.20 Original katha extract dated 25.9.2019, Ex.D.21 Original katha certificate dated 9.9.2020, Ex.D.22 Original katha extract dated 9.9.2020, Ex.D.23 C/C of gift dated 11.12.2019, Ex.D.24 C/C of tax paid receipt for the year 2019-20, Ex.D.25 Original copy of Uttar Pathra dated 14.11.2019, Ex.D.26 C/C of absolute sale deed dated 11.5.2022 executed by K.Rupalekha in favour of Lakshmi Jagannatha Naidu, Ex.D.27 C/C of tax paid receipt for the year 2022-23, Ex.D.28 Original Uttara Pattra dated 29.6.2022, Ex.D.29 EC for the years from 2004 to 2022, Ex.D.30 Original Endorsement dated 11.5.2022, Ex.D.31 Certificate u/S 63(4)(c) of BSA, 2023, Ex.D.32 Tax paid receipt for the year 2019 to 2025 and Ex.D.33 & 34 Certificate u/S 63 (4)(c) of BSA - 2 Nos.
23. During the course of cross-examination of P.W.1 he has deposed as under:
24
O.S. No.26319/2022 'ನಿಶಾನೆ ಪಿ-2 ಕ್ರಯಪತ್ರದಲ್ಲಿ ಈ ಸ್ಟೇರ್ ಕೇಸ್ಬಗ್ಗೆ ನಮೂದಿಸಿಲ್ಲ ಎಂದರೆ ಸರಿ.
ನನಗೆ ಫಸ್ಟ್ಫ್ಲೋರ್ ಒನರ್ ಶಿಪ್ಇರುತ್ತದೆ ಎಂದರೆ ಸರಿ.
ಪ್ರತಿವಾದಿ-1 ಮತ್ತು 2 ಇವರು 2 ನೇ ಮಹಡಿಯಲ್ಲಿ ವಾವಾಗಿರುತ್ತಾರೆ ಎಂದರೆ ಸರಿ. ಪ್ರತಿವಾದಿ-1 ಮತ್ತು 2 ಇವರಿಗೆ ಹೋಗಿ ಬರಲು ಒಂದೇ ಸ್ಟೇರ್ ಕೇಸ್ ಇದೆ ಎಂದರೆ ಸರಿ.
1 ಮತ್ತು 2 ನೇ ಪ್ರತಿವಾದಿಯರು ತಮ್ಮ ರಕ್ಷಣೆಗಾಗಿ ಗ್ರಿಲ್ಗೇಟ್ ಅಳವಡಿಸಿಕೊಂಡಿದ್ದಾರೆ ಎಂದರೆ ಸರಿ.
24 ವರ್ಷಗಳ ಹಿಂದೆ ಕಾರ್ಪೋರೇಶನ್ರವರು ಕಟ್ಟಡ ಕಟ್ಟಲು ಅನುಮತಿ ನೀಡಿದ್ದರು ಎಂದರೆ ಸರಿ. ನಾನು ಕಟ್ಟಡವನ್ನು ಖರೀದಿ ಮಾಡುದಕ್ಕಿಂತ ಮೊದಲು ಅದರಲ್ಲಿರುವ ಸೌಲಭ್ಯ ತಿಳಿದುಕೊಂಡು ಖರೀದಿಸಿದ್ದೇನೆ ಎಂದರೆ ಸರಿ. ನಾನು ಸತ್ಯವತಿಯಿಂದ ಖರೀದಿ ಮಾಡುವ ಪೂರ್ವದಲ್ಲಿ ಕಟ್ಟಡದಲ್ಲಿರುವ ಸೌಲಭ್ಯಗಳ ತಿಳಿದು ಖರೀದಿಸಿದ್ದೇನೆ ಎಂದರೆ ಸರಿ.'
24. D.W.1 has been much cross-examined and he has deposed as follows:-
'ಸದರಿ ಕಟ್ಟಡವನ್ನು 1997 ರಲ್ಲಿ ಮೋಹನ್ ನಾಯ್ಡು ರವರು ಕಟ್ಟಿರುತ್ತಾರೆ ಎಂದರೆ ಸರಿ. 1 ಮತ್ತು 2 ನೇ ವಾದಿಯರು ತಮ್ಮ ಹಿಂದಿನಮ ಾಲೀಕರಾದ ಸತ್ಯವತಿಯವರಿಂದ ಶುದ್ಧ ಕ್ರಯಪತ್ರ ದಿನಾಂಕ 15-4-2021 ರ ಮೂಲಕ ಕ್ರಯಕ್ಕೆ ತೆಗೆದುಕೊಂಡಿರುತ್ತಾರೆ ಎಂದರೆ ಸರಿ. ನಿಶಾನೆ ಪಿ-14 ರ ಕ್ರಯಪತ್ರ ದಿನಾಂಕ 15-4-2021 ರಲ್ಲಿ ಅನುಸೂಚಿ-ಬಿ ಸ್ವತ್ತಿನಲ್ಲಿ ಪ್ಲಾಟಿಗೆ ಸಂಬಂಧಪಟ್ಟ ಸಾಮಾನ್ಯ ಸೌಲಭ್ಯ, ಕಾಮನ್ ಏರಿಯಾ, ಟೆರೆಸ್, ಸ್ಟೇರ್ ಕೇಸ್, ಎಲೆಕ್ಟ್ರಿಕಲ್, ವಾಟರ್ ಸೆವರೇಜ್ ಇತ್ಯಾದಿಗಳು ಎಂದು ನಮುದಿಸಲಾಗಿದೆ ಎಂದರೆ ಸರಿ.25
O.S. No.26319/2022 ನಿಡಿ-2 ಶುದ್ಧ ಕ್ರಯಪತ್ರ ದಿನಾಂಕ 18-5-2000 ಇದು 302 ಮನೆಗೆ ಸಂಬಂಧಪಟ್ಟ ಕ್ರಯಪತ್ರವಿರುತ್ತದೆ ಎಂದರೆ ಸರಿ.
ನನ್ನ ಮಗಳು ಈ ದಾವೆಯಲ್ಲಿ ಪಕ್ಷಕಾರಳಿರುವುದಿಲ್ಲ ಎಂದರೆ ಸರಿ. ನಿಡಿ-2 ಶುದ್ಧ ಕ್ರಯಪತ್ರ ದಿನಾಂಕ 18-5-2000 ರಲ್ಲಿ ಶೋಭಾ ಜಗನ್ನಾಥ್ನಾಯ್ಡು ರವರಿಗೆ ಟೆರೆಸ್ಸಿನ ಸಂಪೂರ್ಣ ಮಾಲೀಕತ್ವವನ್ನು ನೀಡಲಾಗಿರುವುದಿಲ್ಲ ಎಂದರೆ ಸರಿ. ಸದರಿ ಶೋಭಾ ಜಗನ್ನಾಥ್ ನಯ್ಡ ರವರು ನನಗೆ ಈ ನ್ಯಾಯಾಲಯದಲ್ಲಿ 302 ಮನೆಗೆ ಸಂಬಂಧಪಟ್ಟ ಸಾಕ್ಷ್ಯ ನೀಡಲು ಯಾವುದೇ ಅಧಿಕಾರ ನೀಡಿಲ್ಲ ಎಂದರೆ ಸರಿ.
ಲೈಸೆನ್ಸ್ ಮತ್ತು ಸ್ಯಾಂಕ್ಷನ್ ಪ್ಲಾನ್ ಪ್ರಕಾರ ಕಟ್ಟಡದಲ್ಲಿ ಲಿಫ್ಟ್ ನ್ನು ಅಳವಡಿಸುವ ಯಾವುದೇ ಶರತ್ತು ಇರಲಿಲ್ಲ ಎಂದರೆ ಸರಿ. ಮನೆ ನಂ.302 ರ ಶುದ್ಧ ಕ್ರಯಪತ್ರದ ಖಂಡಿಕೆಯಂತೆ ನಾನು ಮಾಲೀಕರಾಗಿರುವುದಿಲ್ಲ ಮತ್ತು ನನಗೆ ಈ ನ್ಯಾಯಾಲಯದ ಮುಂದೆ ಸಾಕ್ಷಿ ನುಡಿಯಲು ಅಧಿಕಾರವಿರುವುದಿಲ್ಲ ಎಂದರೆ ಸರಿ.'
25. Perusal of the material available on record it clearly goes to show that the terrace is considered common property and is owned collectively by all apartments owners not occupier of the top floor owners/residents have the right to use the terrace for common purposes like walking, drying clothes, or relaxation, provided its done safely and without exclusive claims developer or any person cannot legally sell or grant exclusive rights to the terrace to the individual 26 O.S. No.26319/2022 owners unless explicitly stated in the building plan and approved by the authorities. Terrace are generally treated as common areas similar to stair cases hallways and lobbies. Any one owners cannot be presently locked or blocked. The plaintiffs are successfully proved their joint possession, ownership, usage of terrace floor and stair case as per their sale deeds at Ex.P.14.
26. On perusal of the record from the material available on record would show that no doubt the plaintiffs have produced number of documents. It is settled principle of law that the parties to the suit has to lead evidence in consonance to their pleadings. The court cannot countenance the evidence led without pleadings. The evidence of DW.1 contrary to his defence taken in the written statement has no value in the eye of law. The said evidence is not helpful to him to substantiate his defence.
27. In view of my aforesaid findings, I hold that plaintiffs proved that the plaintiffs and other co-owners are 27 O.S. No.26319/2022 having all right to enter the terrace floor portion and the gate kept to enter in the terrace floor portion is illegal and unlawful without having any right, title and interest over the same and also the plaintiffs entitle for the defendants to remove the gate kept which is entering into the terrace of schedule 'A' property and to deliver the vacant possession and handing over the vacant possession by removing the gate, failure on the part of the defendants, this court may be demolished the illegal compound wall by the defendants same through court machinery at the cost of the defendants and put the plaintiffs and co-owners permitting them to enter the terrace floor portion. Therefore, the plaintiff is entitled for declaration that the plaintiffs and other co-owners are having all right to enter the terrace floor portion and the gate kept to enter in the terrace floor portion is illegal and unlawful without having any right, title and interest over the same and also entitled for the defendants to remove the gate kept which is entering into the terrace of schedule 'A' property and to deliver the vacant possession and handing 28 O.S. No.26319/2022 over the vacant possession by removing the gate, failure on the part of the defendants, this court may be demolished the illegal compound wall by the defendants same through court machinery at the cost of the defendants and put the plaintiffs and co-owners permitting them to enter the terrace floor portion. Therefore, Plaintiffs as absolute owners is in possession of the suit 'B' property. Defendant has no manner of right, title, interest or possession over the suit 'B' property. Therefore, they have no right to interfere with plaintiff's possession and enjoyment of the suit 'B' property. Therefore, plaintiff is entitled for declaration and mandatory injunction against defendants. I have perused the citations relied on by the learned counsel for the plaintiffs. The citations relied on by the learned counsel for the plaintiffs are aptly applicable to the facts and circumstances of the present case in hand. Accordingly, I answer Issue Nos.1 to 3 in Affirmative as plaintiffs are entitled for the relief of declaration and mandatory injunction.
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28. ISSUE No.4: In view of the aforesaid reasoning and answer to the issues, I proceed to pass the following:-
ORDER Plaintiffs' suit is decreed.
Plaintiff is declared the plaintiffs and other co-owners are having all right to enter the terrace floor portion and the gate kept to enter in the terrace floor portion is illegal and unlawful without having any right, title and interest over the same.
Further it is hereby directed the defendants to remove the gate kept which is entering into the terrace of schedule 'A' property and to deliver the vacant possession and handing over the vacant possession by removing the gate, failure on the part of the defendants, this court may be demolished the illegal compound wall by the defendants same 30 O.S. No.26319/2022 through court machinery at the cost of the defendants and put the plaintiffs and co-owners permitting them to enter the terrace floor portion No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer directly on computer, corrected and then pronounced by me in the open court on this the 23 rd day of October, 2025).Digitally signed by
PRAKASH PRAKASH CHANNAPPA
CHANNAPPA KURABETT
Date: 2025.10.24
KURABETT 13:12:59 +0530
(PRAKASH CHANNAPPA KURABETT)
LXXIV Addl. City Civil & Sessions Judge, Mayohall Unit, City Civil Court, Bengaluru. (CCH - 75) SCHEDULE 'A' PROPERTY (ENTIRE PROPERTY) All that piece and parcel of the Immovable Property bearing No.185/8, New Municipal No.51, 7th Cross, Devanathachar Street, Behind Adarsha College, 5th Main, Chamarajpet, Bengaluru-560018 measuring East to West: 30 Feet and North to South: 60 Feet in all measuring 1800 Sq.Ft., and bounded on the:31
O.S. No.26319/2022 East by: Raghupathy's House;
West by: Jayamma's House;
North by: Road; and on
South by: Private Property.
SCHEDULE 'B' PROPERTY
All that piece and parcel of the Residential Flat No.201, in 1st Floor consisting of 2 BHK, having PID No.46-24-51/2, constructed on Schedule 'A' Property bearing No.185/8, New No.51, 'Sneha Apartment', 3rd Cross, Devanathachar Street, Behind Adarsha College, 5th Main, Chamarajpet, Bengaluru, with Super Built up area of 850 Sft., along with proportional undivided interest in land measuring 41 Square Feet inclusive of Car parking besides Vehicles parking area in the Central bay facing North near the gate marked in the Annexed Plan as No.2 and other common facilities like all Common areas, terrace, staircases, electrical, water sewerage connections etc., ANNEXURES LIST OF WITNESS EXAMINED FOR THE PLAINTIFFS:
P.W.1 - Smt.Sharada.M.N. LIST OF DOCUMENTS MARKED FOR THE PLAINTIFFS:
Ex.P.1 - Uttara patra
Ex.P.2 - Khatha certificate
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O.S. No.26319/2022
Ex.P.3 - Khatha extract
Ex.P.4 - Form 15
Ex.P.5 - C/C of sale deed dated 16.3.1966 executed
by Basappa in favour of Srinivasalu Naidu Ex.P.6 - C/C of the sale deed dated 7.3.1996 executed by Kannamma and others in favour of V.Mohan Naidu Ex.P.7 - C/C of sale deed dated 27.5.1999 executed by V.Mohan Naidu in favour of Satyavati Ex.P.8 - Copy of office notice dated 4.8.2021 Ex.P.9 - Reply given by defendant dated 27.07.2021 Ex.P.10 - Copy of OPD assessment sheet to show that the plaintiff was suffering from ill health (Cancer) Ex.P.11 - Prescription Ex.P.12 (i to xii) - 12 Photographs with CD Ex.P.13 - Endorsement issued by the bank Ex.P.14 - C/C of sale deed dated 15.4.2021 along with 65B certificate Ex.P.15 - EC Ex.P.16 - Katha certificate Ex.P.17 - Katha extract.33
O.S. No.26319/2022 LIST OF WITNESS EXAMINED FOR THE DEFENDANTS:
D.W.1 - Sri.Jagannath Naidu LIST OF DOCUMENTS MARKED FOR THE DEFENDANTS:
Ex.D.1 - C/C of registered sale deed dated 7.3.1996 Ex.D.2 - C/C of registered sale deed dated 18.5.2000 executed by Sri Mohana Naidu in favour of Shobha Jagannatha Naidu Ex.D.3 - C/C of registered sale deed dated 18.5.2000 executed by Sri Mohan Naidu in favour of Dr.Poornima Jagannatha Naidu Ex.D.4 - C/C of registered sale deed dated 18.5.2000 executed by Mohan Naidu in favour of Smt.Rupalekha Ex.D.5 - Original Housing Register Form for the year 1998 to 2001 Ex.D.6 - Certificate issued by the BBMP dated 5.5.2001 Ex.D.7 - Certificate issued by the BBMP dated 30.3.2001 Ex.D.8 to 10 - Copies of notices dated 24.3.2001 issued by the BBMP Ex.D.11 - Original katha for the year 2000 issued by the BBMP 34 O.S. No.26319/2022 Ex.D.12 - Official Memorandum issued by the KPTCL dated 18.12.2002 Ex.D.13 - Katha certificate dated 6.11.2013 Ex.D.14 - Katha extract dated 6.11.2013 Ex.D.15 - Original katha dated 11.11.2013 Ex.D.16 - C/C of sale deed dated 4.10.2019 executed by Nagaraju Venkatesh Murthy in favour of Jagannatha Naidu Ex.D.17 - Original katha certificate dated 28.11.2019 Ex.D.18 - Original katha extract dated 25.9.2019 Ex.D.19 - Original katha certificate dated 25.09.2019 Ex.D.20 - Original katha extract dated 25.9.2019 Ex.D.21 - Original katha certificate dated 9.9.2020 Ex.D.22 - Original katha extract dated 9.9.2020 Ex.D.23 - C/C of gift dated 11.12.2019 Ex.D.24 - C/C of tax paid receipt for the year 2019- 20 Ex.D.25 - Original copy of Uttar Pathra dated 14.11.2019 Ex.D.26 - C/C of absolute sale deed dated 11.5.2022 executed by K.Rupalekha in favour of Lakshmi Jagannatha Naidu Ex.D.27 - C/C of tax paid receipt for the year 2022- 23 35
O.S. No.26319/2022 Ex.D.28 - Original Uttara Pattra dated 29.6.2022 Ex.D.29 - EC for the years from 2004 to 2022 Ex.D.30 - Original Endorsement dated 11.5.2022 Ex.D.31 - Certificate u/S 63(4)(c) of BSA, 2023 Ex.D.32 - Tax paid receipt for the year 2019 to 2025 Ex.D.33 & 34 - Certificate u/S 63 (4)(c) of BSA - 2 Nos.
PRAKASH Digitally signed by PRAKASH
CHANNAPPA KURABETT
CHANNAPPA Date: 2025.10.24 13:13:32
KURABETT +0530
(PRAKASH CHANNAPPA KURABETT)
LXXIV Addl. City Civil & Sessions Judge, Mayohall Unit, City Civil Court, Bengaluru. (CCH - 75) 36 O.S. No.26319/2022