Bangalore District Court
Sri.N.M.Munirathnam vs Sri.M.Varadarajan on 18 September, 2015
IN THE COURT OF THE XXIV ADDL.CITY CIVIL &
SESSIONS JUDGE BANGALORE CITY (C.C.H.No.6)
This the 18th day of September, 2015
Present: Sri. S.SRIDHARA,
B.Sc.,LL.B.,
th
24 Addl. City Civil & Sessions Judge,
Bangalore City.
O. S. No.3194/2006
PLAINTIFF: Sri.N.M.Munirathnam,
Aged about 74 years,
S/o Late Muniswamy Gownder,
R/at No.28, Old No.27,
1st Floor, III Cross,
Vivekanandanagar,
Maruthisevanagar Post,
Bangalore-560 033.
(By Sri.G Nandakumar, Advocate)
Vs.
DEFENDANT: Sri.M.Varadarajan,
Aged about 70 years,
S/o Late Muniswamy Gownder,
R/at No.28, Ground Floor,
Old No.27/2, III Cross,
Vivekanandanagar,
Maruthisevanagar Post,
Bangalore-560 033.
( By Smt.V.Gangabai, Advocate)
Date of institution of the suit: 21-04-2006
2 O.S 3194/2006
Nature of the suit: Declaration & Injunction
Date of commencement of 10-11-2009
recording of evidence:
Date on which Judgment was 18-09-2015
pronounced:
Duration: Days Months Years
20 04 09
JUDGMENT
The instant suit filed by the plaintiff against the defendant is one for declaration to declare that the plaintiff has exclusive right to use D-1 Door in the ground floor to go to stair case to reach to his first floor portion and terrace of the first floor which is in between D & E of the common passage facing North, which is morefully and particularly shown in the 'B' schedule; for permanent injunction restraining the defendant, his legal heirs, his men, agents, servants, or anybody acting on his behalf of in trust under him from in any way using or interfering with the plaintiff's peaceful possession and enjoyment of the said D-1 Door i.e. 'B' schedule property and also for costs and such other relief. 3 O.S 3194/2006
2. (a) The plaintiff has stated that the property bearing present Municipal Corporation No.27, New No.28, formerly plat No.33 & 42 formed out of Sy.No.82/2 of Lingarajpuram, Kasaba Hobli, Bangalore North Taluk, Bangalore, presently situated at 3rd Cross, Vivekanandanagar, Maruthisevanagar Post, Bangalore, i.e. Corporation Ward No.86, Old Corporation Division No.74, was jointly purchased by the plaintiff and defendant and became the owners by virtue of the sale deed dated 20.05.1965. The said property measures East to West 32 feet and North to South 75 feet.
b) Plaintiff also further stated that, the said property was partitioned between the plaintiff and defendant by virtue of a registered partition deed dated 4.7.1988. Plaintiff further stated that the said property was partitioned by metes and bounds as per the existing structure. He further stated that in the front portion i.e., facing north, there is a house premises called the main building consisting of ground and first floor. In the 4 O.S 3194/2006 said partition deed the portion of the property belongs to the plaintiff and defendant is described as Schedule 'A' Item No.1 & Schedule 'A' Item No.2 belongs to the plaintiff. Similarly Schedule 'B' Item No.1 & Schedule 'B' Item No.2 belongs to the defendant. Plaintiff has specifically stated that along with the partition deed sketch showing the demarcation of the property is also registered. He also further stated that for the sake of convenience and easy identification of the portions of the property belongs to the plaintiff and defendant, the respective portions are marked in the sketch which is enclosed to the registered partition deed in red, blue and green colour.
c) According to the plaintiff, the property belongs to him is marked in red colour. The portion belongs to the defendant is marked in blue colour. The common passage is shown in green colour. According to the plaintiff, ground floor portion marked in blue colour and noted as 'B' Schedule Item No.1 of the main front 5 O.S 3194/2006 building and Schedule 'B' Item No.2 of the rear portion belongs to the defendant. The 1st floor portion marked in red colour and noted as Schedule 'A' Item No.1 of the main front building and Schedule 'A' Item No.2 of the rare portion belongs to the defendant.
d) Plaintiff also stated that the front portion main building was constructed on the property measuring 29 feet X 37.9 feet (front portion facing the road). The rare portion measuring approximately 32 X 27.5 feet, came to be divided into two portions i.e., western side measuring east-west on the northern side 16 feet and southern side 14.6 feet, North to South on the eastern side 20.3+1-6+4-3 feet, on the western side 24.6 feet with building was allotted to the share of the plaintiff. Similarly the eastern side rare portion which is a vacant land measuring east-west on the northern 13 feet, southern side 14.6 feet, north to south on the eastern side 27.3 feet and on the western side 20.3+1-6+4-3 was allotted to the share of the defendant. 6 O.S 3194/2006
e) Plaintiff also further stated that, as per the said portion plaintiff and defendant have take possession of their respective portion of the properties and are in peaceful possession and enjoyment of the same and they have also perfected their title by getting the katha of their respective portions bifurcated and they are paying property taxes etc.
f) According to the plaintiff in the said partition deed it is made clear that, terrace portion above the 1st floor of the main building is common for both plaintiff and defendant. In the said partition deed it is also made it clear that, the passage in front of the main building and on two other side are common. He further stated that for the sake of convenience and understanding, common passage is demarcated by the letters ABCDEFGHIJA.
g) Plaintiff also stated that, the said portion ABCDEFGHIJA which are common passage is to be used 7 O.S 3194/2006 in common by the plaintiff and defendant. It is also not in dispute that, the stair case is common for the plaintiff and defendant. Further for the use of the stair case, plaintiff and defendant have got two independent doors, one door which is meant for exclusive use of the plaintiff, situated in the passage D & E and marked as D-1 Door, which is morefully shown in the plaint 'B' Schedule. Similarly the other door is meant for exclusive use of the defendant which is situated inside the ground floor to go to the stair case and the same is marked as D-2 door. Plaintiff also stated that, the porch area i.e., ABCD is also common for the plaintiff and defendant. In the said common porch area it is exclusively for the plaintiff to park his vehicles.
h) He further stated that, though the defendant is fully aware, that he has no manner of right, title, claim or interest to use D-1 door to go to the stair case, yet the defendant unlawfully interfering and disturbing the plaintiff's peaceful possession & enjoyment of D-1 door, 8 O.S 3194/2006 facing north adjoining the common passage. D-1 door situated in between the points D & E of the common passage is also shown in the sketch.
i) Plaintiff also further stated that, defendant has no manner of right title, claim or interest over door D-1 as the same exclusively belongs to the plaintiff and his family. Similarly plaintiff has no manner of right over door D-2 belongs to the defendant. Hence, plaintiff filed the suit for the relief of declaration, that door D-1 in the ground floor as shown in the sketch to go to 1st floor exclusively belongs to the plaintiff and defendant has no manner of right over door D-1.
j) Plaintiff also further stated that even though the defendant is fully aware of the fact that D-1 door belongs to the plaintiff, yet the defendant and his family members, unlawfully interfering with plaintiff's peaceful possession and enjoyment of D-1 door.
9 O.S 3194/2006
k) In Para.16 & 17 of the plaint, plaintiff also pleaded the interference of the defendant. In Para-18 plaintiff also pleaded cause of action and accordingly praying this Court to decree the suit as prayed for. 3 The plaint schedule reads as follows:
SCHEDULE 'A' All that piece and parcel of main building mentioned in the Registered partition deed dated 4.7.1988 as Schedule 'A'- Item No.1 bearing property No.27, New No.28 (New No. 1st f;ppr 27/3) situated at 3rd cross, Vivekanandanagar, Corporation Ward No.74, Bangalore formerly situated in between Thomas Town and Jayabharathinagar, Bangalore bounded as East by: Private Property;
West by: Private Property;
North by: Road;
South by: Private property.
SCHEDULE 'B'
D-1 Door situated in the ground floor
facing North adjoining to common passage which is shown and marked in the sketch annexed hereto as in between D & E on the North side of the main building (Schedule 'A' 10 O.S 3194/2006 Item No.1 and Schedule 'B' Item No.1 properties) bounded as East by: Main building wall;
West by: Main building wall;
North by: Common Passage;
South by: Staircase and another door
which is D-2 door
belonging to the defendant
to reach to stair case.
4 a) The defendant filed his written statement where
in the defendant in his written statement admitted the purchase of the property by the plaintiff and defendant on 20.5.1965. The defendant in his written statement also admitted the partition of the property by virtue of the registered partition deed dated 4.7.1988.
b) The defendant further contended that, "the above said property was partitioned by metes and bounds, as per existing structure. In front portion i.e., facing north, there is a house premises which is known as main building, consisting of ground and first floor. In the said partition, the portion of property belonging to plaintiff and defendant is described as Schedule 'A' Item 11 O.S 3194/2006 No.1 and Schedule 'A' Item No.2 belonging to plaintiff.
Similarly Schedule 'B' Item No.1 and Schedule 'B' Item No.2 belonging to defendant. Along with the partition deed, sketch showing the demarcation of the property is also registered. For sake of convenience and easy identification of the portion of property belonging to plaintiff and defendant, the respective portions are marked in the sketch annexed to registered partition deed in red, blue & green colour" is partly correct and the plaintiff has not clearly explained and also suppressed certain facts as such he is called upon to prove the plaint averments as set out in Para.5 of the plaint.
c) Defendant further contended that the documents which were furnished as per Para.6 of the plaint was not at all given to the defendant as such defendant has contended that he has no comment about Para.6 of the plaint.
12 O.S 3194/2006
d) The defendant further contended that, the "ground floor portion marked in Blue colour and noted as Schedule 'B' Item No.1 of the main front building and Schedule 'B' Item No.2 of the rear portion is belonging to defendant. So also the first floor portion marked in red colour and noted as Schedule 'A' Item No.1 of the front building and Schedule 'A' Item No.2 of the rear portion belongs to the plaintiff. That the front portion main building was constructed on the property measuring 29X37 feet 9 inches (front portion facing road). The rear portion measuring approximately 32X27 feet 5 inches came to be divided into two portions that is western side measuring East to West on the north side 16 feet and on south side 14 feet 6 inches and North to South on the east 20-3+1-6+4-3, on the west 24-6 with building was allotted to the share of plaintiff. Similarly, eastern side of the rear portion which is vacant land measuring East to West on the north side 13 feet and on the south side 14 feet 6 inches, North to South on the 13 O.S 3194/2006 eastern side 27-3 and on the western side 23-3+1-6+4- 3 was allotted to the share of defendant" is not correct and accordingly the defendant called up on the plaintiff to prove the plaint averments at Para.8 & 9.
e) Defendant further contended that, "As per the above said partition, the plaintiff and 1st defendant have taken possession and enjoyment of the same and have perfected their title by getting khatha of their respective portions bifurcated and are paying necessary corporation taxes" is hereby accepted as true and correct. But subsequent events were not described by the plaintiff and also further contended that plaintiff had acted in violation of the partition deed.
f) The defendant further contended that "In the above said partition, it is made very clear that the terrace portion above the 1st floor of the main building is common for both plaintiff and defendant, so also in the said partition, it is made clear that the passage in front 14 O.S 3194/2006 of the main building and on two other sides are common." is accepted as true, but contended that "However for the sake of convenience and easy understanding, the said common passage portion is marked in alphabetical round as ABCDEFHIJA is not within the knowledge of this defendant as the plaintiff has not served any sketch to the defendant and as such the defendant has stated that he has no comment with regard to Para.11 of the plaint and accordingly called upon the plaintiff to prove the same.
g) The defendant further contended that no sketch was provided to the defendant by the plaintiff as shown in plaint paras Para.11, 12, 13, 14, 15, 16, 17 & 18 are not accepted as true and this defendant has no comments over the same as the plaintiff has not given/served any sketch to this defendant.
h) The defendant further contended that the plaintiff has not approached this Court with clean hands. 15 O.S 3194/2006 The defendant has already filed a original suit bearing No.15254/2006 and an interim order was passed by the Court (CCH-22) and the same is in force. The plaintiff in violation of the corporation zonal rules and regulations has raised three storied building and opened a door to his building from the common terrace which belongs to both the plaintiff and the defendant as such plaintiff is not entitled for the relief as prayed for.
i) Defendant also stated that suit is not properly valued and Court fee paid by the plaintiff is not sufficient. Defendant also further contended that, the plaintiff has suppressed the fact that the defendant has already filed a case bearing O.S.No.15254/2006 and in which the Hon'ble City Civil Judge has passed a temporary injunction and which is pending for adjudication. As a counter blast to this case, the plaintiff has come up with the above suit by suppressing the facts and suggesting the falsehood. The defendant also contended that, plaintiff has sought for the relief of 16 O.S 3194/2006 declaration, but he has not paid proper Court fee. The claim of the plaintiff is not supported by any document and accordingly praying for dismissal of the suit with exemplary cost.
5. The defendant also filed additional written statement, wherein he has contended that he filed a suit in O.S.15254/2006, wherein he has obtained an order of status quo against the plaintiff in this case. There is criminal case pending between the parties for adjudication. Plaintiff has not approached the Court with clean hands. Plaintiff is not entitled for relief of declaration and permanent injunction. The defendant in the additional written statement denied the measurement of the properties that were allotted to plaintiff and defendant. The defendant also further contended that out of the two doors, inside door is exclusively meant for use of the defendant. the other door which is situated facing the common passage is common for plaintiff and defendant and there is no 17 O.S 3194/2006 exclusive door for the plaintiff which the plaintiff calls it as D-2 door. He also resisted the suit on several other grounds and prays for dismissal of the suit with costs.
6. Based on the above pleadings of the parties, my learned predecessor has framed the following issues:
1. Is the door denoted by letter D-1 in the sketch appended to plaint and lying between points 'D' and 'E' and facing the common passage "ABCDEFGHIJA" exclusively meant for plaintiff's use?
2. Is defendant entitled to use said door D1 to reach the terrace through stair case?
3. Is the alleged interference true?
4. To what reliefs are the parties entitled?
7. In support of the case of the plaintiff, the power of attorney holder of the plaintiff is examined as PW.1 and got marked Exs.P.1 to P.4. Ex.P.5 is marked in the cross-examination of PW.1 and accordingly closed the evidence of the plaintiff. The power of attorney holder 18 O.S 3194/2006 of the defendant is also examined as DW.1 and got marked Ex.D.1 to D.5. Ex.D.1 is also marked in the cross-examination of PW.1 by confronting the same.
8. Heard both sides and perused the records.
9. My findings on the above issues are:
Issue No.1: Negative.
Issue No.2: Affirmative.
Issue No.3: Negative.
Issue No.4: As per the final order
for the following;
REASONS
10. Issue No.1 & 2: Since these two points are
interlinked with each and require common discussion of facts, they are taken together for discussion to avoid repetition of facts.
11. When the plaintiff pleads that the door denoted by the letters in the sketch appended to the plaint, which is lying between the point 'D' and 'E' and facing the common passage 'ABCEDFGHIJK" exclusively meant for 19 O.S 3194/2006 plaintiff's use, the entire burden is on the plaintiff to prove issue No.1.
12. Similarly when the defendant contended that he is entitled to use the said door D-1 to reach the terrace through the staircase, the entire burden is on the defendant to prove issue No.2.
13. In support of the case of the plaintiffs, he relied upon Ex.P.1 to P.5. Ex.P.1 is the power of attorney executed by the plaintiff in favour of his son to depose before this Court and for other purposes shown in Ex.P.1.
14. Ex.P.2 is the certified copy of the registered partition deed dated 4.7.1988 executed between the plaintiff and defendant, wherein the plaintiff is shown as first party and defendant is shown as second party. The recital of Ex.P.2 clearly indicates that the plaintiff and defendant jointly purchased the vacant site measuring about 75X32 feet, out of which a portion of the site 20 O.S 3194/2006 measuring 10X32 feet was taken over by the Corporation for the expansion of the road and after acquisition the measurement of the vacant site was reduced to 65X32 feet etc.
15. Ex.P.2 further discloses that the plaintiff and defendant jointly put up construction in the site that was purchased by the plaintiff and defendant as per the sale deed dated 20.5.1965 and further indicates that the plaintiff and defendant equally contributed the fund to put up construction in the vacant site. In this partition deed Ex.P.2, the first party i.e. the plaintiff in this case was allotted 'A' schedule property, which consists of 'A' schedule item No.1 and 'A' schedule item No.2. Similarly the second party i.e. the defendant in this case was also allotted 'B' schedule property, which consists of 'B' schedule item No.1 and 'B' schedule item No.2. The contents of Ex.P.2 is crystal clear that the parties to the partition deed agreed to the contents of registered partition deed and also agreed that they will not reopen 21 O.S 3194/2006 the same in any Court of Law in future and in any circumstances.
16. On careful perusal of Ex.P.2 the partition deed, it is relevant to extract the relevant portion of the partition deed at para-6 and same reads as follows:
IT IS FURTHER AGREED between the above said parties that the passage measuring 3 feet in width and 65 feet in length situated towards the western side leading from the main road, as well as the common passage measuring 3 feet in width and 14 feet 6 i8nches in length situated towards the southern side, both common passages marked in the green colour shall be common passages for the properties mentioned in schedule 'A' and 'B' and both the above said parties shall be at full liberty to use the same for ingress and egress purposes. It is also agreed between the parties that the gates as well as the open space in front of the stair case from the ground floor up to the terrace all marked in green colour shall be common for use of both the parties and the terrace about the first floor shall also be common to both the parties. The terrace above the first floor shall be common for both the parties each party having equal share in the same. The parties hereby specifically agree that no party shall object in any manner in future in the use of the said common passage, gates, open space, 22 O.S 3194/2006 staircase, which have been agreed to be used in common. Since the terrace is common the above said parties shall bear the expenditure jointly towards the maintenance of the same in the event of any damage to terrace and the same will be borne equally and the parties hereby agree not to put up construction of the building in the terrace of the first floor.
17. On careful perusal of Ex.P.2, there is no mention in the partition deed stating that the door, which is now claimed by the plaintiff as per D-1, is not meant for the exclusive use and enjoyment of the plaintiff excluding the defendant. On the other hand, D-1 door is situated in the common passage, wherein plaintiff and defendant have got right to use the said D-1 door and defendant is also entitled to reach the terrace of the first floor through the door D-1 and the staircase. On careful perusal of the schedule mentioned in Ex.P.2, 'A' schedule property, which was allotted to the first party i.e. plaintiff is demarcated in red colour as per the sketch appended to the partition deed. Similarly the share that was allotted to the defendant i.e. second 23 O.S 3194/2006 party, which is morefully shown in the 'B' schedule in Ex.P.2 is demarcated by giving blur colour and it appears that respective parties were put in possession of their respective shares. The contents of Ex.P.2 further indicate that the common passage and common utility area in the entire building is demarcated by showing it in green colour.
18. Ex.P.3 as discussed earlier is the sketch that was prepared and appended to the partition deed Ex.P.2. Ex.P.3 and Ex.P.5 both are the sketches and both are one and the same document. But only difference is, in Ex.P.3, there is no demarcation of any of the property including common passage by giving any of the alphabetical letters. The red portion shown in Ex.P.5 is given to the share of N.M.Munirathnam the plaintiff in this case. The blue portion was allotted to Varadarajan- the second party i.e. defendant in this case. The gates, open space in front of the gate, staircase, passage, 24 O.S 3194/2006 terrace and all other common areas for both the properties is demarcated by giving green colour.
19. On perusal of Ex.P.5 sketch, the doors are shown at point D-1 and D-2 and it appears that both these doors are in the ground floor itself. Door D-1, which is now claimed by the plaintiff in this case, is also situated in the common passage. So, in view of the specific recital found in the partition deed Ex.P.2 and in view of the specific demarcation of the properties in the sketch Ex.P.5, now the plaintiff cannot claim exclusive right over the door, which is shown in the common passage as D-1. This is also in view of the fact that no exclusive right was given to the plaintiff in this case in the partition deed Ex.P.2 reserving D-1 door for the exclusive use and enjoyment of the plaintiff to the exclusion of defendant in this case.
20. Ex.P.4 is the orders passed by BMP dated 17.7.1989, wherein khatha in respect of the property of 25 O.S 3194/2006 the plaintiff and defendant was bifurcated as per the contents of Ex.P.4.
21. The defendant also relied upon the documentary evidence Ex.D.1 to D.5. Ex.D.1 is the photograph showing the existing state of affairs in the terrace of the first floor. Ex.D.2 is the power of attorney given by the defendant authorising the power of attorney holder to do all deeds and things shown in Ex.D.1 and also authorised the power of attorney holder to depose in this case. Ex.D.3 is the letter issued from BESCOM on 6.8.2014 in favour of the defendant for having supplied power connection in respect of RR No.5EEH 24499- 24501. Ex.D.4 is the certified copy of the plan showing the proposed construction of first and second floors in the property bearing site No.27. Similarly Ex.D.5 is the certified copy of the plan showing the proposed construction in the ground floor, first floor, second floor and third floor portion of the defendant in the very same site No.27. In my opinion Ex.D.3 to D.5 are not at all 26 O.S 3194/2006 relevant to determine the real question in controversy between the parties in this case.
22. The power of attorney holder of the plaintiff is examined as PW.1 and he has virtually reiterated the plaint averments in his chief examination affidavit. However in para-12 of the affidavit, the power of attorney holder of the plaintiff goes to the extent of saying that one door, which is meant for the exclusively use of plaintiff, situated in the passage between the points 'D' and 'E' and is demarcated by the letter D-1 and same is morefully shown in the 'B' schedule. However there is no such recital in Ex.P.2 to show that exclusive right was given to the plaintiff to use and enjoy D-1 door, which is situated in the points 'D' and 'E', that too in the common passage. There is no basis for the plaintiff to mention the same in the chief examination affidavit.
23. Further PW.1 in his cross-examination specifically admitted that there is no mention in the sketch annexed 27 O.S 3194/2006 to the partition deed Ex.P.2 mentioning the doors D-1 and D-2 in the portion of the property, which is morefully shown at points ABCD and E. PW.1 in his cross-examination specifically admitted that the door shown as D-1 in the sketch is not mentioned in the partition deed Ex.P.2 and same is also not marked in the sketch that was annexed to the partition deed Ex.P.2. Similarly he also admitted that there is no mention of the door D-2 in the registered partition deed Ex.P.2 or in the sketch that was appended to the partition deed Ex.P.2. He also specifically admitted that there is no mention in the partition deed Ex.P.2 stating that D-1 is exclusively meant for use and enjoyment of the plaintiff. He also specifically admitted in the cross-examination that in the partition deed Ex.P.2 there is also recital stating that the terrace of the first floor is meant for common use of the brothers i.e. plaintiff and defendant. A specific suggestion is also made in the cross- examination of PW.1 by suggesting that there is mention 28 O.S 3194/2006 in the partition deed Ex.P.2 to the effect that D-1 door was meant for the common use of the brothers and this suggestion is denied by PW.1 in his cross-examination. It is also worth to mention at this stage itself that D-1 door is also located in the common passage, which is meant for common use and enjoyment of the plaintiff and defendant.
24. The power of attorney holder of the defendant is examined as DW.1, wherein he has reiterated the written statement averments. The power of attorney holder of defendant has specifically stated in para-7 of the chief examination affidavit that the relief sought for by the plaintiff is not supported by any documents. He also specifically stated in para-2 of the chief examination affidavit that the door which faces the common passage, is common for both the plaintiff and defendant and this door is now claimed by the plaintiff for use and enjoyment by showing door D-1 in the plaint 'B' schedule.
29 O.S 3194/2006
25. On careful perusal of the entire cross-examination of DW.1, nothing worth is elicited in the cross- examination to show that D-1 door was meant for exclusive use and enjoyment of the plaintiff. Nothing worth is also elicited in the cross-examination of DW.1 to show that defendant is not entitled to use the said door D-1 to reach the terrace portion through the staircase. In addition to that, there is no recital as such in the partition deed Ex.P.2 and admittedly Ex.P.2 was acted upon and the parties were put in possession of their respective shares and accordingly khatha was bifurcated in their respective names as per the endorsement given by the Corporation authorities, which is produced and marked as per Ex.P.4.
26. He also admitted the fact that his father as well as the plaintiff affixed the signature in the sketch Ex.P.5, which is a part and parcel of the partition deed Ex.P.2. He also admitted in his cross-examination that the green colour portion is meant for common use and enjoyment 30 O.S 3194/2006 of the plaintiff and defendant. A strange suggestion is made in the cross-examination of DW.1 by suggesting that door D-1 shown in the sketch Ex.P.5 is meant for the occupants of the first floor and this suggestion is denied by DW.1 in his cross-examination and also stated that D-1 door is also a common door meant for common use and enjoyment of the plaintiff and defendant.
27. However DW.1 in his cross-examination denied the suggestion that even if the D-1 door is locked, they have no impediment to go to the terrace portion through door D-2. However DW.1 admitted in his cross-examination that even if D-1 door is locked, the defendant and his family members can reach the terrace portion, but however he has stated that there is no impediment for the defendant and his family members to go to the terrace portion, but the plumbers and others have to go through the common door D-1 only.
28. On careful perusal of the material available on record, it is an undisputed fact that the plaintiff and 31 O.S 3194/2006 defendant jointly purchased the site on 20.5.1965 measuring 75X32 feet. It is also not in dispute that they have partitioned their property i.e. vacant area and constructed area by virtue of the partition deed Ex.P.2 and the property that was allotted to the plaintiff and defendant is clearly demarcated in the sketch Ex.P.3 (Ex.P.5). It is also not much in dispute that the property that was allotted to the plaintiff is shown in red colour and the property that was allotted to the defendant is shown in blue colour. However the common passage and common utility area is shown in green colour. The real dispute and real controversy between the parties is only with regard to use and enjoyment of the one of the doors D-1, which is situated in the common passage and which is now claimed by the plaintiff in the plaint 'B' schedule. There is no mention of doors D-1 and D-2 in the sketch that was appended to the partition deed and same is marked in this case as per Ex.P.3. As discussed earlier, in Ex.P.2 partition 32 O.S 3194/2006 deed, no exclusive right is given to the plaintiff in respect of D-1 door.
29. The relationship between the parties is not in dispute. The plaintiff and defendant are own brothers and their relationship was strained to such an extent that the defendant also filed a suit in O.S.15254/2006 before Mayo Hall Unit and plaintiff in this case also field this suit in O.S.3194/2006.
30. On careful perusal of the material available on record, the plaintiff failed to establish before the Court that the door denoted by the letter D-1 in the sketch appended to the plaint, which is lying in between points 'D' and 'E' and facing the common passage "ABCDEFGHIJA" is exclusively meant for plaintiff's use. However the defendant proved before the Court that since D-1 door is also situated in the common passage, defendant is entitled to use the door D-1 to reach the terrace portion through the staircase. Accordingly I 33 O.S 3194/2006 answer Issue No.1 in the 'negative' and issue No.2 in the 'affirmative'.
31. Point No.3: The plaintiff failed to prove that the door denoted by the letter D-1 in the sketch appended to the plaint, which is lying in between points 'D' and 'E' and facing the common passage "ABCDEFGHIJA" is exclusively meant for plaintiff's use. Defendant also establishes the fact that he is entitled to use the said door D-1 to reach the terrace portion through the staircase. When such being the case, the question of interference by the defendant does not arise. Accordingly I answer issue No.3 in the 'negative'.
32. Issue No.4: In view of the findings on issue No.1 to 3, I proceed to pass the following:
ORDER The instant suit filed by the plaintiff against the defendant is hereby dismissed.34 O.S 3194/2006
Taking into consideration the relationship of the parties, there is no order as to costs.
(Dictated to the Judgment Writer, computerized by her, then corrected, signed and pronounced by me in Open Court on this the 18th day of September, 2015).
(S.SRIDHARA) XXIV ADDL.CITY CIVIL & SESSION JUDGE, BANGALORE CITY.
ANNEXURE List of witnesses examined for the plaintiff:
P.W.1: M.Pandiyan List of documents marked for the plaintiff:
Ex.P.1: Special Power of Attorney Ex.P.2: Certified copy of the Partition Deed Ex.P.3: Certified copy of the Sketch Ex.P.4: Khatha Bifurcation certificate Ex.P.5: Sketch
List of witnesses examined for the defendant:
D.W.1: Sendil Kumar List of documents marked for the plaintiff:
Ex.D.1: Photo
Ex.D.2: Special Power of Attorney
Ex.D.3: Letter
Ex.D.4 & 5: Sketch
(S.SRIDHARA)
XXIV ADDL.CITY CIVIL &
SESSION JUDGE,
BANGALORE CITY.