Bangalore District Court
(1) Mr. J. Sathiananda Paul vs (1) M/S. Sai Associates on 3 December, 2019
IN THE COURT OF THE LXXII ADDL. CITY CIVIL
& SESSIONS JUDGE AT MAYO HALL
BENGALURU, (CCH73)
Present:
Sri.AbdulRahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 3rd day of December, 2019.
O.S.No.27312/2012
Plaintiffs: (1) Mr. J. Sathiananda Paul,
(Since deceased)
By Legal representatives
1(a) Mrs. Millicent Paul,
Aged abut 68 years,
Widow of late J. Sathiananda Paul,
Presently residing at
No.15, Nandi Durga Road,
Jayamahal Extension,
Bangalore560 046.
1(b) Mrs. Aparna Miriam,
Aged abut 44 years,
Daughter of late J. Sathiananda Paul,
Presently residing at
No.15, Nandi Durga Road,
Jayamahal Extension,
Bangalore560 046.
2 OS No.27312/2012
1(c) Mr. Ashwin Paul,
Aged abut 38 years,
Son of late J. Sathiananda Paul,
Presently residing at
No.15, Nandi Durga Road,
Jayamahal Extension,
Bangalore560 046.
(2) Mrs. J. Subashini,
D/o Late John Jayapaul,
Aged about 63 years,
R/at #15, Nandidurga Road,
Jayamahal Extension,
Bengaluru560 046.
[By Sri.H.B.Uday Kumar Advocate]
V/s
Defendants: (1) M/S. Sai Associates,
A registered partnership firm
Having its office at #2, Q.No.3rd Street,
Narayanapillai Street,
Bengaluru560 001.
By Mr. Suresh Babu (partner)
(2) Mr. Suresh Babu,
Builder and developer,
"Sai Elegant",
No.1/6, Subbaraju Road,
Maruthi Seva Nagar,
Bengaluru 560 033.
[By Sri. K.M.A.Peres Advocate)
3 OS No.27312/2012
Date of Institution of the suit
06.12.2012
Nature of the (Suit or pronote, suit
for declaration and possession, suit Injunction Suit
for injunction, etc.)
Date of the commencement of
recording of the Evidence. 27.10.2018
Date on which the Judgment was
03.12.2019
pronounced.
Year/s Month/s Day/s
Total duration 06 11 27
LXXII ADDL.CITY CIVIL AND SESSIONS
JUDGE,
Mayohall Unit: Bengaluru.
JUDGMENT
This suit is filed by the Plaintiffs against the Defendants for the relief of Permanent Injunction, restraining them from putting up any construction in the 4th floor or above in the Suit Schedule Property and to issue mandatory injunction to 4 OS No.27312/2012 demolish/remove illegal construction of the 4 th floor of the Scheduled Property.
2. Facts of the Plaintiffs case are as under:
It is the case of the Plaintiffs that, original Plaintiff No.1 and the Plaintiff No.2 are the brother and sister interse. They are the owners of the property bearing No.4, situated at Cassurina Street, Bengaluru , totally measuring 3060 +125 Sq.Feet. Original Plaintiff No.1 is having 60% and Plaintiff No.2 is having 40% share in the said property. During the pendency of this suit, original Plaintiff No.1 died, leaving behind him Plaintiff Nos.1 (a) to No.1(c).
The Defendants being the developers approached the Plaintiffs to develop the scheduled property by constructing residential apartment with ratio of 50% each. The Plaintiffs agreed to the terms of the Defendants to convey 50% of the undivided share, right and interest in the scheduled property. And further agreed that in the event of any further construction, being permitted by the 5 OS No.27312/2012 sanctioning authorities at a later date, the same shall be carried out by the parties, in the same ratio.
The Plaintiffs entered into a Registered Joint Development Agreement on 08.08.2011, with the other owners of two more properties, who had mutually decided to merge their property, lying behind the property of the Plaintiffs. The said owners are Mr. S. Karunakaran, having property No.5, and Mr. Syed Iqbal and his daughters Miss. Seema Parveen, Miss. Reshma Parveen and Lubana Siddiq, having property No.5A. All the three properties were merged into one single property and numbered as property No.5, having total measurement of 5549Sq.feet.
A Partnership Deed was registered on 24.03.2011 at the instance of the Defendant No.2, in a fradulent manner with a vested interest, with the Plaintiffs and all the other owners, in the name of M/s. Ashwin Enterprises, with all the owners as partners.
As per the Joint Development Agreement, the Defendants were to carry out the construction work 6 OS No.27312/2012 of ground floor, first floor, 2 nd floor and 3rd floor on getting approved the sanctioned plan by the competent authorities. Accordingly, sanctioned plan was got approved for construction of the ground level floor, 1st level floor, 2nd level floor and the 3rd level floor. Further the Defendants have stealthily got created supplementary agreement on 25.01.2012. Thus, the Defendants inorder to make wrongful gains started taking up construction over and above the 3rd level floor, which is against the terms of the Joint Development Agreement. Being aggrieved by the same, the present suit was filed by the Plaintiffs against the Defendants. But the Defendants have taken up construction of the 4 th level floor for which the Plaintiffs have sought for the relief of mandatory injunction to demolish the said illegal construction. Hence, the Plaintiffs are constrained to file the present suit.
3. Suit summons were issued to the Defendants. Defendants have appeared through their counsel on 05.03.2013 and have filed their Written Statement on 05.04.2013.
7 OS No.27312/20124. The Defendants by filing their Written Statement have denied that Joint Development Agreement dtd.08.08.2011 was made at their instance, so also they have denied that the owners of the property Nos. 4, 5, 5A have formed a partnership firm under the name M/s. Ashwin Enterprises at their instance. But further contends that, as per the Joint Development Agreement dtd.08.08.2011 and registered GPA dtd.08.08.2011, the Defendant No.2 has obtained building construction permission from the competent authorities and have takenup the constructional work. Thereafter, a supplement agreement was entered into between the parties on 25.01.2012. The Plaintiffs have allowed the Defendants to carry out the construction work and at the fag end of the completion of the construction work, have filed this present suit, inorder to harass them. There is delay, latches and acquiescence on the part of the Plaintiffs, so the relief claimed by the Plaintiffs do not survive for their consideration. Hence prayed to dismiss the suit of the Plaintiffs.
8 OS No.27312/20125. On the basis of the above said pleadings, my Learned predecessor in office, has framed the following issues on 24.10.2016 as under:
ISSUES
1. Whether the Plaintiffs prove that they are the absolute owners in lawful possession and enjoyment of the suit property, as on the date of the suit?
2. Whether the Plaintiffs prove that Defendants are interfering with their legitimate share in the 4th Floor and the Defendant started to put up 4th Floor by passing the joint development agreement dated 08.08.2011 as alleged?
3. Whether the Plaintiffs are entitled for relief claimed in the suit?
4. What decree or order?
Additional Issues framed as per Orders dt:22.07.2019
1) Whether the Plaintiffs prove that Defendants have taken up illegal th construction of the 4 floor and above 9 OS No.27312/2012 floors, during the pendency of the suit, which is required to be demolished/remove, as prayed for?
2) Whether the suit of the Plaintiff is bad for misjoinder and nonjoinder of proper and necessary parties, as contended by the Defendants in Para No.25 of their Written Statement?
3) Whether the Plaintiffs have properly valued the suit plaint and have paid Court Fee as per Law?
6. The Plaintiffs inorder to prove their case, have got examined Plaintiff No.2 as PW1 and got marked 35documents as ExP1 and ExP35. PW.1 was cross examined on behalf of the Defendants on 19.01.2019, 11.03.2019 and 07.09.2019.
On the contrary, the Defendants have examined one Syed Iqbal as DW.1 and got marked four documents as Ex.D.1 to Ex.D.4. DW.1 was cross examined on behalf of the Plaintiffs on 24.06.2019.
Heard the Learned Counsels for the Plaintiffs and the Defendants, respectively. The Learned Counsel for the Plaintiffs have filed written 10 OS No.27312/2012 submissions and has relied upon eight decisions namely., 1) (2010) 2 SCC 27 Priyanka Estates International Private Limited and Others V.s State of Assam and Others; 2) AIR 1965 Calcutta 148 Krishna Kali Mallik V/s Babulal Shaw and Others;
3) (2004) 8 SCC 733 Friends Colony Development Committee V/s State of Orissa and Others; 4) AIR 1985 Delhi 293 Onkar Nath V/s Ram Nath and Others; 5) (1997) 6 SCC 370 Manju Bhatia and Another V/s New Delhi Municipal Council and Another; 6) (2010) 3 SCC 470 Sheshambal V/s Chelur Corporation Chelur Building; 7) AIR 1992 SC 700 Ramesh Kumar V/s Kesho Ram; and 8) AIR 1975 SCC 1409 Pasupuleti Venkateswarlu V/s The Motor and General Traders.
On the contrary, Learned Counsel for the Defendants has filed written synopsis and has relied upon five decisions namely., 1) AIR 2008 SCC 2033 Anathulla Sudhakar V/s P. Buchi Reddy (dead) and others; 2) Delhi High Court; in Prakash Rattan Lal V/s Mankey Ram on 19 January, 2010; 3) Mirza Sattar Baig V/s Tajuddin (High Court of Mysore) dt.28.06.1963; 4) Narayan Shet V/s Narayan 11 OS No.27312/2012 ShettyILR 1988 KAR 3035; and 5) Subhadra Bai Annaji V/s Susheelabai & Others1983 (2) Kant LJ
377. I have carefully gone through the written synopsis furnished by the Learned Counsels, representing the Plaintiffs and the Defendants, respectively. So also I have gone through the dictum of law laid down by the Hon'ble High Court and the Supreme Court, in the decisions relied by the parties.
7. The suit was initially allotted to CCH21. The case was transferred to CCH20 on 21.02.2015, by virtue of notification No PPS(CCC) 68/2014 dated 01.12.2014. Thereafter the same was transferred to this Court on 16.08.2018, by virtue of a notification No ADMI(A) 413/2018 dated 31.07.2018 of the Principal City Civil and Sessions Judge, Bangalore.
12 OS No.27312/20128. My findings on the above said issues are as under:
Issue No.1 : In the Affirmative; Issue No.2 : In the Affirmative; Addl. Issue No.1 : Partly in the Affirmative; Addl. Issue No.2 : In the Negative; Addl. Issue No.3 : In the Affirmative;
Issue No.3 : In the Affirmative; Issue No.4 : As per final order for the following :R E A S O N S:
9. As per the contentions of the Plaintiffs and the Defendants, the undisputed facts are as under:
That the property bearing No.4 measuring 3060 +125 SqFeets, situate at Cassurina Street, Bengaluru, belongs to the Plaintiffs; the property bearing No.5, situate at Cassurina Street, Bengaluru, belongs to one S. Karunakaran; property bearing No.5A, situate at Cassurina Street, Bengaluru, belongs to Mr. Syed Iqbal; Miss. Seema Parveen; Miss. Reshma Parveen and Miss. Lubana Siddique; all the owners of these three properties have got amalgamated their properties into one property, as property No.5, situate at Cassurina 13 OS No.27312/2012 Street, Bengaluru, measuring 5,549Sq.feets. The said owners have entered into a Deed of Partnership on 24.03.2011 and have executed Joint Development Agreement on 08.08.2011, in the name of M/s. Ashwin Enterprises, with the Defendant No.2, as per Ex.P.1 and also executed GPA on 08.08.2011.
10. ISSUE NO.1:
The Plaintiffs have produced the certified copy of the Joint Development Agreement at Ex.P.1. On careful perusal of this document, it is seen that, the owners of the three properties have mutually decided to develop the amalgamated property into a multistoreyed apartment building and further mutually decided to engage the services of the Defendant No.2. This aspect can be seen as per Ex.P.1, Page No.4, Para No.5, which reads as under:
"AND WHEREAS the parties herein as Partners of the said proposed Firm have mutually decided to give in for Joint Development of the Firm's Property, i.e., the Schedule Property for developing the same into a multistoreyed Apartment building and further mutually decided to 14 OS No.27312/2012 engage the services of the Second Party herein who is a Developer for the development of the Firm's Property on the terms and conditions mutually agreed upon".
Further as per Ex.P.1, it can be seen that the Defendant No.2 has agreed to construct an apartment building consisting of stilt/basement floor comprising of car parking space, ground floor, 1st floor, 2nd floor and 3rd floor in the Suit Schedule Property. This aspect can be seen as per Ex.P.1, Page No.6, Para No.1, Line Nos.1 to 4, which reads as under;
".....upon the Schedule 'A' Property and to develop the same and also have an Apartment building consisting of stilt/basement floor comprising of car parking space, Ground Floor, First Floor, Second Floor and Third Floor constructed subject to the terms of this Agreement. ...".
Further the parties have agreed to have sharing ratio as per ClauseV of Ex.P.1, which reads as under;
15 OS No.27312/2012V. SHARING OF BUILT AREA;
"1. In consideration of the Owner agreeing to convey fifty percent (50%) of the undivided share, right, title and interest in the Schedule 'A' Property to the Developer or its nominee/s, the Developer agrees to construct and deliver to the Owner 50% (fifty percent) of the super built up saleable area subject to availability of F.A.R. under the sanctioned plan together with the said proportionate undivided share in the land, car parking space, electric and proportionate undivided share in the land, car parking space, electric and generator room in the stilt floor (hereinafter referred to as the Owner's Allocation) for the absolute use and/or benefit and ownership of the Owner.
3. The Developer shall be entitled to fifty percent(50%) of the remaining super built up saleable area subject to availability of the F.A.R. under the sanctioned plan together with the Developer's proportionate undivided share in the land, car parking space, electric, generator room in the stilt floor and the entire terrace floor (hereinafter referred to as the Developer's Allocation). The Developer shall be entitled to hold or sell,gift, lease or otherwise dispose off his 16 OS No.27312/2012 share of the constructed area alongwith fifty (50%) percent of the undivided interest in the land comprised in the Schedule 'A' Property in any manner as he deems fit and shall be entitled to all income, gains, capital appreciation and benefit of all kinds of description accruing, arising therefrom. The Developer shall be entitled to retain the unsold undivided right, title and interest in the land with proportionate constructed area and dispose off the same as and when the Developer desires or deal with the same in any manner. The Developer shall be entitled to retain its fifty (50%) percent of undivided share, right, title and interest in the Schedule 'A' Property either in whole or in several shares in his name or in any of his nominee/s name as the Developer may deem fit without affecting the rights of the Owner of his share of undivided and constructed area".
As per the said terms, PartyNo.1 of Ex.P.1 i.e., the owners will be having 50% share of the super built up saleable area and the Defendant No.2, being the developerthe Party No.2 of Ex.P.2, will be having 50% share of the super built up saleable area, subject to availability of FAR, under the sanctioned plan, together with the proportionate 17 OS No.27312/2012 undivided share in the land, car parking space, electric and generator room in the stilt floor.
11. The Learned Counsel for the Defendants would contend that, since the Plaintiffs have filed this present suit in their personal capacity, not as a partners of M/s. Ashwin Enterprises and since the property shown by them is part of the Suit Schedule Property, so the said property is not identifiable and the Plaintiffs cannot file the suit against the Defendants, muchtheless in their personal capacity.
On the contrary, the Learned Counsel for the Plaintiffs would contend that, the object of creating a partnership firm under the name M/s. Ashwin Enterprises was only to see that, the owners of three properties shall come up on one platform and shall develop the property by constructing a building apartment over it, with the services of the Defendant No.2. Further contends that, the Plaintiffs are the cosharers of the said property, so they are in joint Possession of the same.
18 OS No.27312/201212. Coming to the ocular evidence more specifically cross examination of PW.1 at Page No.13, Para No.3, which reads as under;
"M/s. Ashwin Enterprises consist of 4 partners. The 1st partner consist of myself and my brother Sathyanand Paul, 2nd partner is S. Karunakaran, the 3rd partner is Mr. Syed Iqbal and his 3 daughters Miss. Seema Parveen, Miss. Reshma Parveen, Miss. Lubana Siddique and 4th partner is Mr. Suresh Babu. The name of Mr. Suresh Babu appears as a partner in the register of M/s. Ashwin Enterprises, a registered partnership firm. It is true to suggest that my brother Mr. J. Sathiananda Paul has expired. He has died on 14.08.2014. The 3 rd partner Mr. S. Karunakara is the owner of the property bearing No.5, situate at Cassurina street, consisting of 1587.11 sq.ft. The 4th partner Mrs. Syed Iqbal and his 3 daughters are the owners of the property bearing No.5A. Cassurina street, consisting of 500 sq. ft. The Defendant No.2 clubbed all of these 4 partners for construction of a building. Witness volunteers that we all the 4 partners never had a meeting together as a partnership firm".19 OS No.27312/2012
As per this evidence, Plaintiff has admitted that, the partnership firm M/s. Ashwin Enterprises consists of four partners, the first partner consists of herself and her brotherthe Plaintiff No.1; the 2 nd partner is S. Karunakaran; the 3 rd partner is Syed Iqbal and his three daughters and the 4 th partner is Mr. Suresh Kumarthe Defendant No.2. Further PW.1 contends that, Defendant No.2 club all the four partners for the construction of building.
Further the cross examination of DW.1, at Page No.5, Para No.1, which reads as under;
" It is true to suggest that in order to get constructed the said apartment, we have formed a partnership unit. We all the partners have entered into a partnership deed, but I do not remember the date on which we have entered into it. There are 3 partner in the said partnership firm".
As per this, DW.1, who is the 3 rd partner as per PW.1, has admitted that partnership Unit was formed, inorder to construct the apartment, over the Suit Schedule Property.
20 OS No.27312/2012Thus, as per the oral and documentary evidence, it can be said that the owners of the three properties have got amalgamated their respective properties into one property and have entered into a contract with the Defendant No.2, for construction of a building apartment over the amalgamated property. Thus, the Possession of the Plaintiffs being the joint owners, cannot be ruledout, as contended by the Learned Counsel for the Defendants.
13. The Learned Counsel for the Defendants would contend that, the Defendants have denied the ownership of the Plaintiffs over the Suit Schedule Property, so the present suit for the relief of Permanent Injunction without claiming the relief of Declaration is not maintainable. Further the Learned Counsel has placed his reliance on the decision of the Hon'ble Apex Court in the case of Anathulla Sudhakar V/s P. Buchi Reddy (dead) and others reported in AIR 2008 SCC 2033, wherein it is held that, 21 OS No.27312/2012 "Suit for injunction simplicitor is maintainable, when there is interference in the peaceful enjoyment and possession of the Plaintiff and when clouds of title have not been raised in other words, title of the Plaintiff is not challenged, with cogent evidence".
Further held at para No.21(a) to (d) as under;
"(a) Where a cloud is raised over the Plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy.
Where the Plaintiffs title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Whether there is merely an interference with the Plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of Vacant 22 OS No.27312/2012 sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar). Whether the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But 23 OS No.27312/2012 such cases are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration; merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. the court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the Plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case".
Apply the above preposition of law to the instant case, it can be said that thought the Defendants have denied the ownership of the Plaintiffs over the Suit Schedule Property, but they are not putforthing their ownership over the Suit Schedule Property, in counter to the claim of the Plaintiffs. Further the Defendant No 2 is deriving the title to the extent of 50% of his share in the builtup undivided share in the Suit Schedule Property, through the owners of the ammalgamated property bearing No 5, of which the Plaintiffs are 24 OS No.27312/2012 also the coowners. So the contention of the Defendants that since they have denied the ownership of the Plaintiffs over the Suit Schedule Property, so the present suit filed by the Plaintiffs, without seeking the relief of Declaration, is not maintainable does not hold water and there is no stuff in such contention of the Defendants.
14. Further the Defendants contend that since the Defendant No 2 has constructed a residential house over the Suit Schedule Property and since the Plaintiffs and other owners of the Amalgamated Property have delivered the possession of their respective properties, infavour of the Defendants, so the Plaintiffs are not in possession of the Suit Schedule Property. When the Plaintiffs are not in possession of the Suit Schedule Property, they are not entitle for the relief of Injunction against the Defendants. The Learned Counsel for the Defendants has relied upon the decision of the Hon'ble High Court of Karnataka in the case of Narayan Mukund Shet Vs Narayan 25 OS No.27312/2012 Nagesh Shetty, reported in ILR 1988 Page 3035, wherein it is held that, "Injunction cannot be granted infavour of the Plaintiff, inrespect of the Property, who is not in actual possession of the said property".
15. It is an undisputed fact that the Plaintiffs and the other owners of the adjoining properties have got amalgamated the property as Suit Schedule Property, under the deed of Partnership and all the partners have authorized the Defendant No 2 to construct a building apartment over the Suit Schedule property under Joint Development Agreement dated 08.08.2011ExP1 and by executed a GPA dated 08.08.2011 infavour of the Defendant No 2. Execution of Joint Development Agreement and execution of GPA both dated 08.08.2011, will not take away the ownership rights and joint possession of the Plaintiffs, over the Suit Schedule Property, at the most. it can be said that the Plaintiffs are the tenants in common with the other Partners, under the Partnership deed dated 24.03.2011. So it cannot be said that the Plaintiffs 26 OS No.27312/2012 have lost the possession over the Suit Schedule property. On the contrary they are the Joint owners in joint Possession of the Suit Schedule Property. Though the Plaintiffs are not in possession of the Suit Schedule Property, their possession over the Suit Schedule Property will be treated as Symbolical possession of the Suit Schedule property or constructive possession and such possession is good in law. So the contention of the Defendants that the Plaintiffs are not in possession of the Suit Schedule Property, holds no water.
Thus the Plaintiffs have proved that they are in possession and enjoyment of the Suit Schedule Property, as on the date of filing of this suit.
HENCE, I ANSWER ISSUE NO 1 IN THE
AFFIRMATIVE.
16. ISSUE NO 2 & ADDL ISSUE NO 1:
Since both these issues are interlinked with each other and inorder to have effective discussion of both these issues, so the said issues are taken for joint discussion.
27 OS No.27312/2012As per the contention of the Plaintiffs that, the Defendant No.2, who is the builder and developer under the Defendant No.1 firm has undertaken to construct a building apartment consisting of stilt floor, ground floor, 1st floor, 2nd floor and 3rd floor. But the Defendant No.2 has taken up construction of the 4th level floor of the said building and further contends that, the said construction taken up by the Defendant No.2 is in violation of the sanctioned plan, approved by the competent authorities.
17. The Plaintiffs have produced Sanctioned Plan at Ex.P.35. On perusal of the said document, it is seen that the BBMP authorities have sanctioned the plan submitted by the owners of the property bearing No.5, situate at Cassurina Street, Bengaluru, for taking up construction of a building consisting of stilt floor, ground floor, 1st floor, 2nd floor and 3rd floor, on 05.08.2011.
Further as per ExP.1Joint Development Agreement dated 08.08.2011, more specifically at Page No 5, Para No 2, which reads as under:
28 OS No.27312/2012"2. The owner has this day delivered possession of the portions of the Schedule 'A' Property to the Developer for the purpose of development and hereby undertake to deliver the vacant possession of the remaining portions within one month from the date of execution of this Joint Development Agreement. The Owner hereby irrevocably and exclusively permits and authorises the Developer to enter upon the Schedule 'A' Property and to develop the same and also have an Apartment building consisting of slilt/basement floor comprising of car parking space, Ground Floor, First Floor, Second Floor and Third Floor constructed subject to the terms of this Agreement. However it is made clear that the authority so granted shall not be construed as delivery of possession in part performance of any Agreement of Sale under Section 53A of the Transfer of Property Act."
So even this document speaks that the Defendant No 2 has undertaken to have construction of Stilt/basement, Ground level floor, 29 OS No.27312/2012 First level floor, Second level floor and Third level floor.
18. Coming to the ocular evidence, more specifically, the Cross examination of PW1 at Page No 15, Para No 1, which reads as under:
"It is true to suggest that the Joint Development Agreement was inrespect of the entire area measuring 5549 Sq ft. It is true to suggest that Ashwin Enterprises has executed Registered General Power of Attorney infavour of the Defendant No 2 inrespect of the entire area measuring 5549 Sq ft. It is true to suggest that as per the entire area measuring 5549 Sq ft., residential building consisting of flats is erected, on obtaining necessary construction permission from the concerned authorities. Witness volunteers that the said construction permission was for construction of ground level floor, 1st level floor, 2nd level floor and 3rd level floor, consisting of 15 flats. The said building is known by the name "High Splendor"
under Ashwin Enterprises. It is true to 30 OS No.27312/2012 suggest that the said Joint Development Agreement and Registered General Power of Attorney is valid as on today. I do not remember whether I have produced the said General Power of Attorney. I have seen the said General Power of Attorney. I know the contents of the said document."
This evidence clearly shows that the Defendant No 2 has under taken to takeup construction upto third level floor and building construction permission was obtained till third floor, consisting of 15 flats.
Further as per the Cross examination of PW1 at Page No 31, Para Nos 2 & 3, which reads as under:
"4 flats are there in 5th level floor of the apartment. I do not know who are the owners of the said flats and who are in possession of the respective flats in the 5th level floor of the apartment. I am aware about execution of registered Sale Deeds infavour of the purchasers of the flats situated on the 4th level floor and 5th level floor of the apartment."31 OS No.27312/2012
"It is true to suggest that we the Plaintiffs are not in possession of the 4th level floor and 5th level floor of apartment".
As per this suggestions made on behalf of the Defendants to PW1, it goes to show that even the Defendants admit that there is construction of 4 th and 5th level floor.
Further as per the Cross examination of DW1, at Page No 4, last but 3 lines, which reads as under:
".... The said apartment consists of 5 level floors including the slilt floor (Basement floor) and one penth house on the last floor. There are 26 flats in the said apartment."
DW1 contents that totally five floor have been constructed by the Defendant No 2, consisting of 26 flats.
Further as per the Cross examination of DW1, at Page No 10, Para No 5, which reads as under:
"It is true to suggest that Defendant No 2 has constructed 5th and 6th level floor of the High Rise Splendor Apartment. I have not received any share in the sale consideration amount for having sold 32 OS No.27312/2012 the flats at the 5th and 6th level floor of the High Rise Splendor Apartment, by the Defendant No 2. I do not know whether the Plaintiffs have received any share in the sale consideration amount for having sold the flats at 5 th and 6th level floor of the High Rise Splendor Apartment, by the Defendant No 2."
As per this evidence, DW1 admits that the Defendant No 2 has constructed 5 th and 6th level floor and has sold the flats situate at 5 th level floor and 6th level floor.
19. It is relevant to observe here that neither the Defendant No 1 nor the Defendant No 2 have stepped into the witness box, they have kept themselves away from it. The conduct of the Defendants can be gathered from such acts of the Defendants. Further the Defendants have led the evidence of one of the Joint owner of the Suit Schedule Property, who is the third partner under the Partnership Deed dated 24.03.2011. And he has admitted that the Defendant No 2 has 33 OS No.27312/2012 constructed 6 level floor, consisting of totally 26 flats.
20. Further the Plaintiffs have produced the Notice issued by the BBMP authorities U/Sec 308 of KMC Act, at ExP3. As per this document, the owners of the Property bearing No 5, have been directed to produced the Approved building construction plan.
Further the Plaintiffs have produced the Confirmation Order passed by the authorities of BBMP dated 21.12.2016 U/Sec 321(3) of the KMC Act at ExP4. As per this document it is seen that the BBMP authorities have directed the Defendant No 2 to demolish the construction taken up in deviation with the approved building construction plan, else it will be demolished by the BBMP authorities and the cost incurred for such demolition, will be recovered, as per law.
21. Thus the above said Oral and documentary evidence goes to show that the Defendant No 2 has obtained Building construction 34 OS No.27312/2012 permission to construct stiltfloor/basement floor, Ground Floor, First Floor, Second Floor and Third Floor, but he has constructed upto 6 floors, which is in sheer violation of the approved plan and which is also in violation of the terms of Joint Development Agreement dated 08.08.2011ExP1. It is not only the case of breach of contract but also it is a case of breach of the obligation undertaken to erect the building in accordance with building regulations and failure to truthfully inform the warranty of title and other allied circumstances.
Thus the Plaintiffs have proved that the Defendants have interfered with their legitimate share in the 4th floor and the defendant has takenup construction of the 4th and the above floor, in violation of the terms of Joint Development Agreement dated 08.08.2011. HENCE, I ANSWER ISSUE No.2 IN THE AFFIRMATIVE.
22. Further the Plaintiffs have brought on record that the Defendants have takenup construction of four and above floor, quite in violation of the Building construction Sanction 35 OS No.27312/2012 PlantExP35, which amounts to illegal construction, as it is in deviation of the approved sanction plan.
As per the ocular evidence, more specifically the cross examination of PW1 at Page No 29, Para No 4, which reads as under:
"As on the date of filing of this suit, the construction of the 4th level floor and 5th level floor was going on. We have complained about the construction of the 4th level floor and 5th level floor, to the BBMP, for the 1 st time through our Advocate as per ExP9Legal Notice."
As per this evidence it is seen that the Plaintiffs contend that the construction of 4 th and 5th level floor was going on at the time of filing this suit and the same was intimated to BBMP authorities as per ExP9.
ExP9 Legal notice is dated 30.06.2016, wherein it is contended that 5th and 6th level floor work construction is takenup by the Defendant No 2, illegally.
Further as per the Cross examination of DW1 at Page No 5, Para No 4, which reads as under:
36 OS No.27312/2012"In the Joint Development Agreement myself, Sathyanand Paul and one Karunakaran were the partners who had entered into the said agreement. As per the said agreement I was to receive 3 flats, situate one on the ground level floor, two on the 1st level floor. The said apartment was constructed about 78 years back. Possession of said 3 flats were given to me about 5 years back".
As per this evidence, it can be seen that the construction of the said apartment is completed in the year 2012 and flats are given to DW1 in the year 2015.
Thus the ocular as well as documentary evidence goes to show that, the construction of the apartment is completed after filing of this suit. So the Plaintiffs have proved that the Defendants have takenup the illegal construction of the 4th floor and above floors, during the pendency of the suit.
37 OS No.27312/201223. With regard to demolition of the building.Forth level floor, fifth level floor and Sixth level floor of the Apartment.
Coming to the ocular evidence, more specifically, cross examination of PW.1, at Page No.29, Para No.3, which reads as under;
"I do not remember as to what is the super built up area constructed by the Defendant No.2, in the Suit Schedule Property. I do not remember as to what is the built up area of the 4th level floor constructed in the Suit Schedule Property.
Witness volunteers that, the Plaintiffs are claiming 50% share in the 4th level floor of the building constructed in the Suit Schedule Property, as per the Joint Development Agreement. There are 4 flats in the 4th level floor. I do not know as to in whose name khata pertaining to the 4th level floor of the building is standing. 4 Car parking slots have been allotted for the inhabitants of the 4th level floor. I do not know who is in possession of the flats in the 4th level floor of the apartment. I have personally visited the 4th level floor of the apartment".38 OS No.27312/2012
As per this evidence, PW.1 contends that there are four flats in 4th level floor, but she does not know the built up area of the 4 th level floor, to whom it is sold and whose name is appearing in the katha pertaining to the said flats, so also who are in Possession of the said flats.
Further as per the cross examination of PW.1, at Page No.16, Para No.2, Line Nos.7 to 16, which reads as under;
"..........The building constructed by the Defendant No.2 is ready and fit for occupation of human dwellings. Witness volunteers that Defendant No.2 has put up extra 3 floors as 4th level floor, 5th level floor and 6th level floor, having totally 22 flats instead of 15 flats as agreed under the Joint Development Agreement. It is false to suggest that for the 1st time I have stated today with regard to existence of 22 flats instead of 15 flats. It is true to suggest that I have not pleaded the above fact in my suit plaint".
As per this evidence, it is seen that PW.1 admits that the building constructed by the Defendant No.2 is fit for human dwelling and Defendant No.2 has put up three extra floors as 4 th 39 OS No.27312/2012 floor, 5th floor and 6th floor, having totally 22flats instead of 15flats.
So the Plaintiffs admit that the flats situated on 4th floor and above floors have been occupied by the other inhabitants from the Defendant No.2 and those persons residing in the said flats.
24. Secondly, the Plaintiffs have produced Encumbrance certificate inrespect of the Suit Schedule Property at Ex.P.2. On close perusal of the said document, it is seen that flats formed in the apartment, are sold to various persons, by virtue of Registered Sale Deeds.
25. Thirdly, the Plaintiffs have produced the documents, wherein it can be seen that on the objection of the Plaintiffs, the BBMP authorities have issued notice U/Sec. 308 of KMC Act to the owners of the building as per Ex.P.3. On enquiring, confirmation order is passed U/Sec. 321(3) of the KMC Act, by the BBMP authorities calling upon the owners including the builderthe Defendant No.2 to demolish the deviated constructions, which are 40 OS No.27312/2012 constructed inviolation of sanctioned plan as per Ex.P.4. Further the Plaintiffs have admitted through PW.1 that matter is seized before the KAT, the said evidence can be seen as per the cross examination of PW.1, Page No.31, Para No.1, which reads as under;
"It is true to suggest that the matter is stayed before the KAT".
Now when the matter is stayed before the competent authority dealing with the action taken up by the BBMP authorities U/Sec. 321 of KMC Act, under such circumstances, this Court cannot probe into the matter, as the jurisdiction will lie with the said authorities U/Sec.443 of KMC Act.
26. Fourthly, the real controversy inbetween the Plaintiffs and the Defendant No.2 can be found out in the ocular evidence, as per the cross examination of DW.1, at Page No.6, Para No.4, which reads as under;
"Defendant Nos.1 and 2 have developed the said property. It is true to suggest that Defendants have not delivered the Possession of 41 OS No.27312/2012 the said 4 flats to the Plaintiff No.1(a) and Plaintiff No.2.
Defendant No.2 is in Possession of all the 4 flats, of which he has kept vacant two flats situate on the ground level floor and he has given two flats situate on the 1 st level floor on rental basis on lease. I do not know the terms of the said lease".
As per this evidence, it is seen that the Defendant No.2 had to give four flats to the Plaintiffs on developing the said property, which the Defendant No.2 has not given the same, and has retained the same with him.
The Plaintiffs have also produced the application filed by the present DW.1 in O.S.No.25343/2013 at Ex.P.32 as well as filed Ordersheet of O.S.No.25343/2013, application at I.A.No. U/Or. 39 Rue 1 and 2 CPC in O.S.No.25343/2013 at Ex.P.34. On perusal of all these documents, it can be said that the present Plaintiffs under M/s. Ashwin Enterprises have filed a suit for specific performance of the Joint Development Agreement dtd.08.08.2011 and the GPA dtd.08.08.2011 inrespect of the very Suit 42 OS No.27312/2012 Schedule Property. The said suit is for a comprehensive relief then, the relief sought for by the Plaintiffs in this suit. Under such circumstances, it can be said that even this Court cannot mould the relief and award the relief as prayed for by the present Plaintiffs in O.S.No.25343/2013, as the said suit is pending for its adjudication.
27. The Learned Counsel for the Plaintiffs would contend that, illegal construction of the 4 th floor and the above floors have been takenup by the Defendant No.2, during the pendency of this suit, it is the subsequent events, which the Court can take noteoff while disposing the matter. The Learned Counsel for the Plaintiffs has placed his reliance on two decisions of the Hon'ble Apex Court 1) in the case of Ramesh Kumar V/s Keshava Ram; reported in AIR 1992 SC 700; wherein it is held that;
"The normal Rule is that the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis., but 43 OS No.27312/2012 this is subject to an exception that, whenever a subsequent of fact or of law, has a material impact on the entitlement of the parties, the relief if can be moulded, such moulded relief can be offered, as the Court is not precluded from taking cautions, cognizance of the subsequent events, leading to moulding of the relief".
2. In the case of Pasupuleti Venkateshvarlu V/s The Motor and General Traders; reported in AIR 1975 SC 1409; wherein it is held that;
"Subsequent event having impact over rights of the parties, cognizance of new development is required to be taken by the Courts of Law".
Though the construction taken up by the Defendant No.2 in respect of 4th level floors and above floors in the Suit Schedule Property, is assuming to be the during the pendency of this suit, then also this Court cannot consider the same as the proceedings takenup U/Sec. 321 of KMC Act, are seized with the KAT authorities, under 443 of the said Act.
44 OS No.27312/2012Secondly, the Plaintiffs under M/s. Ashwin Enterprises have filed a suit at O.S.No.25343/2013, basing their claim on the Joint development Agreement dtd.08.08.2011 seeking the relief of specific performance against the Defendant No.2. So, if any relief by moulding is given by this Court, then it will be against the spirit of the suit O.S.No.25343/2013 which is pending on the file of the Hon'ble City Civil & Sessions Judge, (CCH74), Bengaluru, for its adjudication.
28. Further the Learned Counsel for the Defendants would contend that, there is a delay, latches and acquiescence on the part of the Plaintiffs to claim the relief of mandatory injunction of demolition of 4th level floor and above floors in the Suit Schedule Property, by the Defendant No.2. The Learned Counsel for the Defendants has relied upon the decision of the Hon'ble High Court of Karnataka, in the case of Subhadra Bai Annaji V/s Susheela Bai and Others; reported in (1983) 2 K.L.J. 377; wherein at Para No.27, the Hon'ble High Court is pleased to observe as under;
45 OS No.27312/2012"27. In fact, the Plaintiffs have not taken any steps to get a commissioner appointed to examine the stage at which the building construction stood when the suit was instituted. They have not examined any witness to show as to the stage they did not press the application for temporary injunction and they did not take steps, to show that there was substance in the plaint averments, would go to show that in all probability, the building was completed when the Plaintiffs approached the Court. That being so, even assuming that Defendant 1, being a coowner, constructed a building in the open space, it is obvious that the coowners stood by and allowed her to construct making her believe that she had right to construct and thereby waived their rights. As pointed out in the different rulings, cited above, including the ruling of this Court, unless the Plaintiffs are prompt and diligent in exercising their rights, they cannot be granted the discretionary remedy of mandatory injunction".
Considering the evidence both ocular and documentary on record, equity liens infavour of the 46 OS No.27312/2012 Defendants. On the other hand, such equity even is to be extended to the Plaintiffs by directing the Defendants to allot the respective share to the Plaintiffs, in the constructed area.
29. Further the Learned Counsel for the Plaintiffs has relied upon the decision reported in (1997) 6 SCC 370; wherein the Hon'ble Apex Court, has held that;
"Building constructed by builder inviolation of Municipal Regulations resulting in demolition of flats of top four floors, allottees/owners of the demolished flats, having not been informed by the builder about the illegal construction and not given notice of Caveat emptor, the builder is liable to pay damages including the amount paid by the allottees".
Applying the above principles of Law in the instant case at hand, it will be just and proper to direct the Defendant No.2 to allot 50% share, as agreed by him under the JDA dtd.08.08.2011, to the owners in the 4th floor and above floors, provided that the said construction is regularized by the BBMP Authorities, at his own cost, subject to 47 OS No.27312/2012 decision of the matter, before the KAT Authorities and subject to decision of the suit O.S.No.25343/2013, pending on the file of the Hon'ble City Civil & Sessions Judge, (CCH74), Bengaluru.
Having observed so, I ANSWER ADDL. ISSUE No.1 PARTLY IN THE AFFIRMATIVE.
30. ISSUE NO.3 AND ADDL. ISSUE No.2:
Since both the issues are interlinked with each other inorder to avoid repetition, both the issues are taken for common discussion.
The Defendants contend that the present suit filed by the Plaintiffs is bad for misjoinder of Defendant No.1 as party to this suit and is bad for nonjoinder of Ashwin enterprises and the owners and occupants of the flats in the apartment constructed in the Suit Schedule Property.
Coming to the ocular evidence more specifically the cross examination of PW.1, Page No.19, Para No.4, which reads as under;48 OS No.27312/2012
"I know the coowners of the High Splendor building, situated in the Suit Schedule Property. I have not made the said coowners as party to this suit as well as I have not made Ashwin Enterprises as party to this suit. The 4th level floor is assessed to the BBMP authorities. It is standing in the name of the Defendant No.2 in the records of the BBMP authorities".
As per this evidence, it is seen that a suggestion is made from the side of the Defendants to the PW.1 that, the coowners as well as the M/s Ashwin Enterprises have not been made as party to this suit.
The Learned Counsel for the Plaintiffs would contend that, the Plaintiffs have filed the present suit for the relief of Injunction as against the breach of obligation undertakings by the Defendant No.2 to erect the building inaccordance with the Building Regulations. The Learned Counsel for the Plaintiffs would contend that, such a suit is maintainable even for the relief of Injunction because there is a invasion of right to and enjoyment of the property of 49 OS No.27312/2012 the Plaintiffs, by illegal acts of the Defendant No.2, in illegally taking up construction over it. The Learned Counsel for the Plaintiffs has placed his reliance on the decision of the Hon'ble High Court of Calcutta in the case of Krishna Kali Mallik V/s Babu Shaw & Others; reported in AIR 1965 Cal. 148, wherein it is held that;
"If the Defendant construct a building according to a plan, which is illegal, the adjoining owner has the right to ask for an Injunction, because there is a invasion of right to and enjoyment of property by the illegal construction and the Defendant owes an obligation to the Plaintiff to obey the Law".
Considering the act undertaken by the Defendant No.2 of constructing the 4 th level floor and above floors and considering the rights of the Plaintiffs, I am of the considered opinion that the Plaintiffs can file a suit for the relief of Permanent Injunction, against the Defendant No.2. I find support to my above view, as per the decision in Solomons V/s R.Gertzenstein; reported in (1954) 2 QB 243; wherein it is held that;
50 OS No.27312/2012"The duties imposed by the London Building Acts were imposed primarily for the protection of a particular ascertainable class viz., the persons in a building, those persons would have a right to an action for damages for a breach of statutory duty notwithstanding that the statue also impose penalties for such breaches".
Having observed so, since the present suit is filed by the Plaintiffs for the relief of mandatory injunction against the Defendant No.2, impleading the Defendant No.1 as the partnership firm of the Defendant No.2, such impleading of Defendant No.1, is not a misjoinder, though the Defendant No.1 might not be the necessary party, but it will be a proper party to this suit.
The occupants or the allottess or the owners of the flats in the 4th level floor or above level floors of the building, will not become either the necessary parties nor the proper parties, as this suit is based to enforce the obligation casted on the Defendant No.2.
51 OS No.27312/2012Hence, I ANSWER ISSUE NO.3 IN THE AFFIRMATIVE AND ADDL. ISSUE NO.2 IN THE NEGATIVE.
31. ADDL. ISSUE NO.3;
The Defendant No.2 has contended that, the present suit filed by the Plaintiffs has not been properly valued and the Court Fee paid by them, is in correct.
As observed earlier since the Plaintiffs are having the right to file a suit for injunction against the Defendants for their act of invasion, by not following the obligations, casted upon them, by the BBMP Authorities, under such circumstances, the Plaintiffs have rightly valued the Suit Plaint and have paid the Court Fee, as per Law.
Hence, I ANSWER ADDL. ISSUE NO.3 IN THE AFFIRMATIVE.
32. ISSUE No.4:
Plaintiffs have shown that there is interference in their peaceful possession and enjoyment over the Suit Schedule Property, from the side of the 52 OS No.27312/2012 Defendant No 2, as he has taken up the construction of the 4th level floor and the above floors in violation of the terms of Joint Development Agreement dtd.08.08.2011, though the Plaintiffs might not be entitle for the relief of mandatory injunction, as claimed by them, but certainly they will be entitle for their respective shares, in the construction made by the Defendant No.2 subject to certain limitations.
Thus, I proceed to pass the following:
ORDER Suit of the Plaintiffs is Decreed, in Part, with costs.
The relief of mandatory injunction claimed by the Plaintiffs is hereby rejected.
In the consequences, the Plaintiffs will be entitle to have their respective share in 4th level floor and above floors constructed by the 53 OS No.27312/2012 Defendant No.2, as per the terms of the Joint Development Agreement dtd.08.08.2011, subject to the decision of the KAT authorities, on the proceedings taken up by the BBMP Authorities U/Sec. 321 of KMC Act as well as subject to the decision of the Hon'ble City Civil & Sessions Judge in O.S.No.25343/2013, pending for its adjudication.
Draw decree accordingly.
(Dictated to the Judgment Writer directly on computer system, computerized by her and print out taken by her, after correction, signed and pronounced by me in the open court on this the 3rd day of December, 2019.) [AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) 54 OS No.27312/2012 SCHEDULE:
All that piece and parcel of the Residential Immovable property bearing BBMP New No.5, (before merging No.4, Old No.10) Cassurina Street, Bengaluru, BBMP Ward No.80, PID No.80 325 (new ward No.91) Measuring 3060+125 Sq.ft out of 5549 Sq.ft bounded on:
East by : Pettigrew Street; West by : Cassurina Street; North by : Premises No.14/10 and Premises No.159 Cavalry Road (Kamaraj Road);
South by : Premises No.6 & 8 Cassurina Street.
[AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73) 55 OS No.27312/2012 ANNEXURES: LIST OF WITNESSES EXAMINED FOR THE PLAINTIFS:
PW.1: Smt. Subashini. J.
LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS:
Ex.P.1: Joint Development Agreement. Ex.P.2: Encumbrance certificate. Ex.P.3: Notice issued by the BBMP Authorities. Ex.P.4: Copy of the confirmation order passed by the BBMP.
Ex.P.5 & 5(A): Reply notice along with postal envelop.
Ex.P.6 & 6(A) & 6(B): Endorsement, scrutiny note with postal envelope.
Ex.P.7 & 7(A): Order passed by the Appellate Authority with postal envelope.
Ex.P.8: Copy of the written Complaint dt.09.01.2016.
Ex.P.9: 9(A) to Ex.P.9(G): Legal notice dt.30.03.2016 alongwith 3 postal receipts and 4 postal acknowledgements.
Ex.P.10 to Ex.P.31: 20 positive photographs with C.D. Ex.P.32: Certified copy of I.A.No.13 with affidavit, objections and vakalathanama in O.S.No.25343/2013.
Ex.P.33: Certified copy of entire ordersheet in O.S.No.25343/2013.56 OS No.27312/2012
Ex.P.34: certified copy of I.A. filed alongwith affidavit.
Ex.P.35: Copy of approved construction plan.
LIST OF WITNESSES EXAMINED FOR THE DEFENDANT:
DW.1: Mr. Syed Iqbal.
LIST OF EXHIBITS MARKED FOR THE DEFENDANT:
Ex.D.1: Register extract maintained by District Registrar, Shivajinagar, Bengaluru. Ex.D.2: Registered Power of Attorney Holder dtd.08.08.2011.
Ex.D.3: Katha certificate. Ex.D.4: Katha extract.
[AbdulRahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH73).