Bangalore District Court
Vijayalakshmi vs The Vijayalakshmi Apartments ... on 2 January, 2024
KABC010233302017
IN THE COURT OF THE LII ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-53)
Dated this the 2nd day of January, 2024
PRESENT
Sri.B.G.Pramoda, B.A.L., LL.B.,
LII Addl. City Civil & Sessions Judge,
Bangalore.
O.S.N o.6564/2017
Plaintiff : Smt.Vijayalakshmi
W/o S.Lokesh Reddy,
Aged about 55 years,
R/at No.89/3, Sri.Raja Rajeshwari
Nilaya, Kaggadasapura Village,
Sri.C.V.Raman Nagar Post,
Bengaluru - 560093.
(By Sri.H.R.Ananthakrishna Murthy, Advocate)
-V/S-
Defendant: The Vijayalakshmi Apartments
Association,
S.C.T. Vijayalakshmi Apartments,
Located at No.49/2, 4th Cross,
Abbaiah Reddy Layout,
Kaggadasapura, C.V.Raman
Nagar Post, Bengaluru-560093.
Rep. by its Secretary.
2 O.S.No.6564/2017
Date of institution of the suit: 22.09.2017
Nature of the suit: Injunction
Date of commencement of 23.07.2021
recording of evidence:
Date on which Judgment was 02.01.2024
pronounced:
Duration: Yea Years Months Day
06 03 10
JUDGMENT
The plaintiff has filed the present suit under Order VII Rule 1 read with Sec.26 of CPC, praying for the relief of permanent injunction order restraining the defendant from interfering upon the suit schedule property or objecting the entry of others.
2. The brief facts of the case of the plaintiff as averred in the suit plaint are as follows:-
The plaintiff was the absolute owner of land bearing Sy.No.49/2, situated at Kaggadasapura village, K.R.Puram Hobli, measuring 21 guntas. The said land has been converted for non-agricultural residential purposes by an order of Deputy Commissioner. The SCT Builders and Developers represented by one Sri. K.A.Subramanya, has entered into an agreement dated 02.12.2002 with the plaintiff to develop the said property. The terrace is not the 3 O.S.No.6564/2017 subject matter of the joint venture agreement and the plaintiff is entitled to retain the portion. The plaintiff has entered into a lease agreement with M/s.Hutchison Essar South Limited on 27.01.2006 with respect to terrace area in the building comprising of ground and 4 upper floors, known as Vijayalakshmi Apartments i.e. suit schedule property. The lessee was permitted to do all the acts mentioned in the lease deed. The supplementary lease has been executed on 22.5.2017. The defendant has no right in or over the terrace in the schedule to the plaint. As the plaintiff has leased the same in favour of Vodafone. But the same is being used by them ever since the lease. The lessee has a right to continue to be in possession of the property. The defendant's association is trying to prevent the officials of the Vodafone to utilize the terrace portion, wherein they have erected an unit. The defendant is trying to object the use of the terrace portion by the tenant of the plaintiff. The defendant has no right to interfere with the possession of the plaintiff. The defendant individually and jointly is trying to prevent the officials of the lessee on 12.9.2017. The plaintiff is bound to protect the lessee's possession. Hence, the plaintiff has stated that cause of action has arose for her to file the suit. Hence, the plaintiff has prayed to decree the suit.4 O.S.No.6564/2017
3. After service of the suit summons, the defendant's association has appeared through its counsel and filed its written statement. The defendant in the written statement has specifically denied all the averments made in the suit plaint and also denied the allegations made in the suit plaint against it. The defendant's association in the written statement has further contended that the plaintiff had entered into a Joint Development Agreement dated 02.12.2002 with K.A.Subramanyaa in respect of the property bearing Sy.No.49/2 of Kaggadasapura village, measuring 21 guntas of land. The defendant's association in the written statement has further contended that they have also entered into an GPA. In terms of Joint Development Agreement and GPA, the developer had put up 64 apartments as per plan and additional 8 flats in the terrace illegally without any plan over the said property. The said illegal 8 flats / houses have been shared between plaintiff and developers equally at 4 flats each without any proper documents. Hence, the defendant's association was not able to get the occupancy certificate. The defendant's association in its written statement has further contended that the developer sold away all his 32 flats to the intending purchasers and they are in lawful possession and enjoyment of the said flats. The plaintiff has sold away 27 flats to intending purchasers and they are in possession of 5 O.S.No.6564/2017 the said flats. The plaintiff and her family members are in possession of the remaining 5 flats and out of 4 illegal Pent houses allotted to the share of the plaintiff, she has sold 3 and has retained one of the same. The defendant's association in its written statement has further contended that since the Apartments are constructed in the site which was owned by the plaintiff, in terms of the Joint Development Agreement all the common areas such as roof, stair cases, areas, playground areas, terrace areas, lobbies, passages. lift areas, park etc. is owned by all the Flat owners and fall within the definition of common areas under the Apartment ownership Act. The defendant's association in its written statement has further contended that the present Flat owners have formed the M/s.Vijayalakshmi Apartments Owner's Association, which is registered under the Karnataka Society Registration Act. The said association is represented by its Secretary and it has the Managing Committee. The plaintiff is the erstwhile owner of the land and who is only the owner of the remaining 6 Flats and she is one among the other flat owners has without the knowledge and permission of the defendant association claims to have illegally entered into a Lease Agreement with M/s. Hutchison Essar South Limited company for installation of Tower on the roof terrace which is the common area of the building which is 6 O.S.No.6564/2017 owned jointly by all the Flat owners and now she is illegally claiming to be collecting the rents, which plaintiff has no right to do so. The defendant's association in its written statement has further contended that they have made multiple representations to the plaintiff to get the Tower removed. The said installation emits radiations that are harmful of the health of the residents of the building and being in a common area poses electrical hazard to the defendant members/Flat owners. They have installed a Generator in the common terrace area next to the water tank which is also reducing the life of the building due to the constant vibrations. The defendant's association in its written statement has further contended that the plaintiff without vacating the said M/s. Hutchison Essar South Limited, and removing the said Tower now claims to have malafidely entered into a Renewal of the lease in 2017. As per the Rules and Regulations and Bye-Laws of the Association, the defendant association has stopped the plaintiff and her alleged Lessees from having any access to the Roof/Terrace Areas as per law. The defendant's association in its written statement has further contended that the plaintiff has no right to install the Mobile Tower and Generator and they have no right to use the Terrace exclusively at her own whims and fancies without the approval and permission of the Defendant Association.
7 O.S.No.6564/2017The defendant's association in its written statement has further contended that the plaintiff is receiving huge rents of Rs.75,000/- per month and she is not even depositing the said rents to the association for maintenance of the common areas and if such an illegal act is permitted to be done by one Flat owner tomorrow the other occupants will also get other mobile service providers to install their towers at their whims and fancies and the defendant will not be in a position to question them. The defendant's association in its written statement has further contended that the plaintiff has not come before the court with clean hands and she is not entitled for the relief of injunction as prayed for in the suit plaint. On these among other grounds, the defendant No.3 has prayed to dismiss the suit filed by the plaintiff.
4. Based upon the pleading of both the parties, following 4 issues came to be framed by learned predecessors and the same was posted the matter for evidence.
ISSUES
1. Whether plaintiff proves her lawful possession over the suit schedule property, as on the date of filing of suit?
2. Whether plaintiff proves that the defendant is interfering with peaceful 8 O.S.No.6564/2017 possession and enjoyment of plaintiff over the suit property illegally?
3. Whether plaintiff is entitled for reliefs, as prayed for?
4. What order or decree?
5. The plaintiff in order to prove her case has adduced the oral evidence of her power of attorney holder as P.W.1. P.W.1 has produced 12 documents and got them marked as Ex.P.1 to P.12 and closed her side. Then the matter was posted for evidence of the defendants. On behalf of the defendant association, oral evidence of its secretary was adduced as D.W.1. Defendant has produced 13 documents and got them marked as Ex.D.1 to Ex.D.13. Thereafter, the matter was posted for arguments.
6. Heard the arguments of Learned counsel for the plaintiff and Learned counsel for the defendant. The Learned counsel for the plaintiff has filed his written arguments. Perused the pleadings, oral and documentary evidence adduced on behalf of both the parties, written arguments and other materials on record.
7. Having done so, my answer to the aforesaid issues are as follows:
9 O.S.No.6564/2017 Issue No.1 : In the Negative
Issue No.2 : In the Negative
Issue No.3 : In Partly Affirmative
Issue No.4 : As per final order,
for the following :
REASONS
8. ISSUES NO.1 to 3: These three issues are
interrelated to each other and as such, they are taken together for discussion to avoid repetition of facts.
The plaintiff has filed the present suit for the relief of permanent injunction order restraining the defendants from entering upon the suit schedule property or objecting the entry of others. Since the plaintiff is claiming the relief of permanent injunction order restraining the defendant from entering upon the suit schedule property, the burden is upon the plaintiff to prove her lawful possession over the suit schedule property to prove the interference of the defendant with her peaceful possession and enjoyment over the suit schedule property. The suit schedule property as per schedule is terrace portion of the property comprising of ground floor plus 4 upper floor known as Vijayalakshmi Apartments situated in land bearing Sy.No.49/2, situated at Kaggadasapura village, K.R.Puram 10 O.S.No.6564/2017 Hobli, measuring 21 guntas. The plaintiff in order to prove her possession over the suit property and to prove interference of the defendant with her peaceful possession and enjoyment over the suit property has adduced the oral evidence of her power of attorney holder as P.W.1. P.W.1 is none other than the husband of the plaintiff.
9. P.W.1 in his examination-in-chief filed by way of affidavit has deposed that the plaintiff was the owner of the land bearing Sy.No.49/2, situated at Kaggadasapura village, K.R.Puram Hobli, measuring 21 guntas of land and the said land has been converted for non-agricultural residential purpose. P.W.1 in his examination-in-chief has further deposed that the plaintiff has entered into an agreement with SCT Builders and Developers represented by one Sri. K.A.Subramanya to develop the property by an agreement dated 02.12.2002 and the terrace is not subject matter of joint venture agreement and the plaintiff is entitled to retain the portion. P.W.1 in his examination-in-chief has further deposed that the plaintiff has entered into lease agreement dated 27.01.2006 with M/s.Hutchison Essar South Limited company and the subject matter of the lease is a portion of terrace area in the building comprising of ground and 4 upper floors, known as Vijayalakshmi Apartments. The supplementary lease has been executed 11 O.S.No.6564/2017 on 22.5.2017. P.W.1 in his examination-in-chief has further deposed that the defendant has no right in and over the terrace in the schedule to the plaint. It is the duty of the plaintiff to keep the lessee's possession undisturbed. P.W.1 has further stated in Chief examination that the defendant's association is trying to prevent the officials of the Vodafone to utilize the terrace portion and the defendant has no right to interfere with the possession of the plaintiff over the suit schedule property. P.W.1 in his examination-in-chief has further deposed that the defendant individually and jointly tried to prevent the officials of the lessee on 12.09.2017 and prevented the workers of lease from carrying out maintenance and repairing work. P.W.1 in his examination- in-chief has further deposed that even though several persons have purchased several apartments from the plaintiff or the developers, the terrace portion belongs to the owner only and it is upon the plaintiff to erect further construction on the terrace. The defendant association has no right, title, interest or possession in and over the terrace. P.W.1 in his examination-in-chief has further deposed that the defendant without giving any written notice to the owner of the property or to the developers have formed association by name Vijayalakshmi apartment. All the acts done by the association is contrary to law and cannot be looked into.
12 O.S.No.6564/201710. P.W.1 apart from adducing his oral evidence has produced certain documents. Ex.P.1 is the original GPA executed by the plaintiff in favour of P.W.1. Ex.P.2 is the certified copy of the Sale Deed dated 14.12.2021 executed by one Nagaraj and others in favour of the plaintiff with respect to Sy.No.49/2, measuring 21 guntas of Kaggadasapura village. Ex.P.3 is the encumbrance certificate of the Sy.No.49/2 from 01.04.2002 to 31.03.2004. In the said document there is reference about Ex.P.2 Sale Deed. Ex.P.4 is the encumbrance certificate of Sy.No.49/2 from 01.04.2004 to 29.07.2021. Ex.P.5 to P.11 are the RTCs of the Sy.No.49/2 from the year 2014-15 to 2020-21. The name of the plaintiff is shown as the owner in occupation of the said property. Ex.P.12 is the certified copy of mutation bearing No.12/2001-02 effected in the name of the plaintiff as per the Sale Deed dated 14.12.2021.
11. The defendant is the association of owners of the flats of the apartment constructed in Sy.No.49/2. The defendant in its written statement has not disputed the fact that the plaintiff was the owner of the land bearing Sy.No.49/2 situated at Kaggadasapura village measuring 21 guntas of land. Further the defendant has also not disputed the fact that the plaintiff has entered into JDA with K.A.Subramanya in respect of the said property and also 13 O.S.No.6564/2017 not disputed the fact of execution of registered Joint Development Agreement dated 02.12.2002 and execution of GPA. Further the Sale Deed produced by the plaintiff at Ex.P.2 and mutation entry and the RTCs of Sy.No.49/2 property produced by the plaintiff are also sufficient to prove that Sy.No.49/2 measuring 21 guntas was purchased by the plaintiff and plaintiff was the owner of the property.
12. Though the plaintiff has contended that she has entered into registered Joint Development Agreement dated 02.12.2002 with SCT Builders and Developers, the plaintiff has not produced the copy of said Joint Development Agreement. But the defendant's association in the written statement have admitted the execution of Joint Development Agreement in between plaintiff and SCT Builders on 02.12.2002. D.W.1 in his cross-examination has also admitted that the plaintiff with intention to develop Sy.No.49/2 has entered into Joint Development Agreement on 02.12.2002. Further the defendant has also not disputed the fact that in view of said Joint Development Agreement the xerox copy of Joint Development Agreement dated 02.12.2002 was confronted to P.W.1 during the course of his cross-examination. The same was marked as Ex.D.1 during the course of cross-examination of P.W.1. The defendant has also not disputed the fact that as per terms 14 O.S.No.6564/2017 of Ex.D.1 Joint Development Agreement, the plaintiff has executed copy of the said GPA. But during the course of cross-examination of P.W.1, the said document was confronted and it was marked as Ex.D.2. The defendant has not disputed the fact that Sy.No.49/2 has been converted for non-agricultural residential purpose and apartment consisting of several flats is constructed in the said property.
13. The plaintiff in the suit plaint has not specifically mentioned the terms and conditions of the Joint Development Agreement and GPA produced at Ex.D.1 and D.2. The plaintiff in the suit plaint has not specifically pleaded regarding the share given to her in the flats constructed by the developer in Sy.No.49/2. According to the defendant, 64 flats were formed by the developer in the apartment as per plan. The said fact is not pleaded in the suit plaint. P.W.1 in his cross-examination has stated that 32 flats was given to the plaintiff and builders has retained 32 flats. Hence, it is clear that 64 flats were constructed in the apartment. It is the allegation of the defendant that 8 more flats have been illegally constructed in the terrace and the said pent houses have been shared between the plaintiff and developers equally. When the said suggestion was put to P.W.1 during the course of cross-examination he 15 O.S.No.6564/2017 has stated that the builders has constructed the said 8 flats and he has admitted that 4 flats out of the 8 flats were given to her and 4 flats were retained by the builders. P.W.1 in his cross-examination has stated that he do not know regarding non-giving of occupancy rights by BBMP on account of illegal construction of 8 flats in the apartment. The defendant has not produced any document to show that the defendant's association or any of its members have given complaint to BBMP about illegal construction of 8 flats by the developers in the terrace.
14. P.W.1 in his cross-examination has stated that 4 flats which were retained by the plaintiffs were given on rent. P.W.1 in his cross-examination has further stated that he do not know who are looking after maintenance of common area in the apartment. P.W.1 in his cross- examination has further stated that he do not know to whom his tenants are giving maintenance charges of the tenanted flats. P.W.1 in his cross-examination has admitted that as per the Ex.D.3 to D.6 Sale Deeds, the flats were sold to different persons. He has also admitted in the cross- examination that the remaining flats were also sold in the same manner as mentioned in Ex.D.3 to D.6 Sale Deeds. When it was suggested to P.W.1 during the course of cross- examination that in the Sale Deeds produced at Ex.D.3 to 16 O.S.No.6564/2017 D.6 and other Sale Deeds, the terrace area is shown as common area. P.W.1 has replied that he do not know about the same. P.W.1 in his cross-examination has further stated that at the time of filing of the suit, defendant's association is in existence. P.W.1 in his cross-examination has further stated that he do not know when the plaintiff has leased the terrace to M/s.Hutchison Essar South Limited company. P.W.1 in his cross-examination has further admitted the execution of agreement dated 22.05.2017 and the agreement dated 27.01.2006 and the agreement dated 21.07.2006. The said documents were got marked as Ex.D.7 to D.9 during the course of cross-examination of P.W.1 15 photos were confronted to P.W.1 during the course of cross-examination and P.W.1 has admitted that in the said photos the machineries installed are visible. Hence, the said photos are marked together as Ex.D.10. P.W.1 in his cross-examination has further stated that the lease holder have also installed big generator in the terrace. P.W.1 in his cross-examination has further stated that he is not paying any maintenance charge to the defendant's association. P.W.1 in his cross-examination has denied the suggestion put to him that his tenants frequently visiting the terrace for the purpose of maintenance. He has also denied the suggestion put to him that children were playing in the terrace of the apartment.
17 O.S.No.6564/201715. It is the contention of the defendant that the plaintiff has got no absolute right over the terrace portion as she has already sold the flats fallen to her share to different persons including the terrace area, common area and car parking area. It is the contention of the defendant that out of the 4 illegal pent houses allotted to the share of the plaintiff, she has sold three flats and retained one. Further according to the defendant, since the apartment is constructed in the site which was owned by the plaintiff, in terms of Joint Development Agreement common area such as roof, staircase, lift area, terrace area etc is owned by all the flat owners under the Apartment Ownership Right Act and the plaintiff does not have any exclusive right over the same. Further according to the defendant, the plaintiff who was the erstwhile owner of the entire land is now the owner of remaining 6 flats only and she is one among the other flat owners. It is also the contention of the defendant association that the plaintiff without knowledge and permission of it who has got right to manage and control the affairs of the same, has illegally entered into agreement with M/s.Hutchison Essar South Limited company for installation of the tower on the roof of the terrace which is common area of the building and which is owned jointly by all the flat owners. Further according to the defendant association, the plaintiff has no right to use the Terrace 18 O.S.No.6564/2017 exclusively at her own whims and fancies without the approval and permission of the Defendant Association. The defendant's association in its written statement has further contended that the installation of Mobile Tower and Generator in terrace portion emits radiations that are harmful of the health of the residents of the building and being in a common area poses electrical hazard to the defendant members/Flat owners. Further according to the defendant association, they have installed a Generator in the common terrace area next to the water tank which is also reducing the life of the building due to the constant vibrations. Further according to the defendant association, the plaintiff without vacating the said M/s. Hutchison Essar South Limited, and removing the said Tower now claims to have malafidely entered into a Renewal of the lease in 2017. As per the Rules and Regulations and Bye-Laws of the Association, the defendant association has stopped the plaintiff and her alleged Lessees from having any access to the Roof/Terrace Areas as per law. Further according to the defendant association, the plaintiff has no right to install the Mobile Tower and Generator and they have no right to use the Terrace exclusively at her own whims and fancies without the approval and permission of the Defendant Association. The aforesaid contentions taken by the defendant association in the written statement are also 19 O.S.No.6564/2017 stated by D.W.1 in his examination-in-chief filed by way of affidavit. D.W.1 is none other than the secretary of defendant association. Hence, entire examination-in-chief of D.W.1 is not reproduced herein to avoid repetition of facts.
16. D.W.1 apart from adducing his oral evidence has produced certain documents. Ex.D.1 is the xerox copy of JDA and Ex.D.2 is the xerox copy of GPA. Ex.D.3 to 6 are the Sale Deeds. Ex.D.7 to 9 are the agreements and Ex.D.10 is the photos were got marked during the course of cross-examination of P.W.1. D.W.1 has produced certified copy of the resolution dated 18.10.2017 of the association at Ex.D.11. Ex.D.12 is the certified copy of bye-laws of the association. Ex.D.13 is the certificate of registration of defendant's association.
17. As per Ex.D.1- JDA, the plaintiff has agreed to give the entire schedule land for construction of the buildings as per the plan and the second party agreed to give and handover and deliver 35 % of the building to the first party and the second party has a right to retain 65% of the building to the share of the plaintiff after construction. Further it is agreed that the plaintiff has retained suit 'C' schedule property building to her share. In JDA, there is no mention regarding giving exclusive right over the terrace 20 O.S.No.6564/2017 portion to the plaintiff. P.W.1 in her evidence stated that terrace portion is not subject matter of joint venture agreement. P.W.1 in her cross-examination has admitted the fact that in JDA and in GPA there is recitals stating that the owner of the apartment has right with respect to the terrace portion. In the JDA, there is no specific recital regarding how the terrace portion of the apartment has to be utilized. As it is rightly contended by the Learned counsel for the defendant exclusive right over the entire terrace portion is not given to the plaintiff. Further the plaintiff has not produced any document to show that after execution of the JDA and after construction of the apartment there is an agreement between herself and the building stating that she is having exclusive right over entire terrace portion of the apartment. As such, the contention of the plaintiff that she is having exclusive right over the entire terrace portion of the apartment cannot be acceptable one. The flats constructed in the apartment were distributed between the plaintiff and the builders as per terms of JDA.
18. Some of the flats which were alloted to the share of the plaintiff were sold by her. Further the builder has sold all the flats fallen to his share. P.W.1 during the course of her cross-examination has admitted the exclusive of Ex.D.3 to 6 Sale Deeds executed by her to 21 O.S.No.6564/2017 different persons pertaining to the flats allotted to plaintiff in the apartments. I have perused the recitals of the said Sale Deed. As per the said Sale Deed, rights are given to the purchasers to use staircase, passages, lift and common areas in the building for ingress and egress and use to all times and for all purposes (in common with all other persons entitled, permitted or authorized to similar rights) and to permit others to use the same for such purposes. It is also mentioned in the Sale Deed that the purchaser shall keep the common areas, open spaces, common passage of the terrace, common parking, staircases, lobbies etc., free from obstructions and clean and orderly manner and shall not encroach on any common areas. Nowhere in the said Sale Deeds there is specific recitals stating that the terrace portion of the apartment is exclusively belonging to the plaintiff and the purchasers have no manner of right, title or interest over the terrace portion and they should not interfere with the right of plaintiff in using the terrace portion. The Sale Deeds executed by the plaintiff with respect to the flats allotted to her share are also not helpful to the plaintiff to prove her contention that she has got exclusive right over the terract portion of the apartment.
19. In Ex.D.2/GPA executed by the plaintiff in favour of the K.A.Subramanyaa there is no mention 22 O.S.No.6564/2017 regarding retaining of exclusive right by the plaintiff with respect to the terrace area situated on the apartment. Further during the course of cross-examination of D.W.1, nothing has been elicited by way of admission about the exclusive right of the plaintiff over the terrace area. D.W.1 has denied the suggestion put to him that as per JDA the plaintiff has retained her right with respect to the terrace. As it is stated earlier, there is no such mention in the JDA. During the course of cross-examination of D.W.1, the suggestion was put to him by showing Ex.D.12 photos that in the said photos it can seen that the children are playing on the terrace and the existence of T.V. antennas on the terrace. D.W.1 has denied the said suggestion put to him. D.W.1 has stated in his cross-examination that the owners of the flats are using the terrace portion. They use lift and staircase in order to go to terrace, to dry the clothes, to install dish T.V. antennas, for the purpose of walking, for the purpose of playing by the children in terrace area. D.W.1 has admitted the said suggestion. By putting the said suggestion, the plaintiff has admitted the fact that the owners of the different plats constructed in Vijayalakshmi apartment have been using terrace area for different purposes. The plaintiff alone is not using the terrace area exclusively. Since many persons have purchased flats in the apartments constructed in Sy.No.49/2 from the plaintiffs 23 O.S.No.6564/2017 and the builders, they have got right to use the common terrace area situated on the apartment for different purposes as suggested by P.W.1 to D.W.1 during the course of cross-examination and for the purpose stated by the defendant association in the written statement.
20. The plaintiff in the present suit has sought for the relief of permanent injunction order restraining the defendant or anybody claiming under them from interfering upon the suit schedule property or objecting the entry of others, defendant's association, several owners of the flats situated in the Vijayalakshmi apartment. Since the plaintiff has already sold some of the flats fallen to her share and since the plaintiff is holding some flats in the apartment, she will also become the owner of the apartment which are retained by her. The plaintiff and the apartment owners are governed under Karnataka Apartments Act 1972. Sec.3(b) of the said act provides for the definition of APARTMENT OWNERS. According to the said section, "apartment owners" means the person or persons owning an apartment and an undivided interest in the common areas and facilities in the percentage specified and established in the declaration. The definition of Association of Apartment owners is provided u/Sec.3(d) of the said act. According to the said section, "Association of Apartment owners" means 24 O.S.No.6564/2017 all of the apartment owners acting as a group in accordance with the bye-laws and declaration. In view of definition of apartment owner, each owner of the flats are having undivided share in common area.
21. The definition of common area and facilities is also provided under the said act. As per Sec.3(f) of the said act "Common areas and facilities" unless otherwise provided in the declaration or lawful amendments thereto, means, the land on which the building is located, the foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stairways, fire- escapes, entrances and exits of the building. Thus it is clear from the said definition that common areas also include the terrace area or roof area.
22. As per Sec.6 of the act, each apartment owner shall be entitled to an undivided interest in the common areas and facilities in the percentage expressed in the declaration. It is also provided that the common area and facilities shall remain undivided and no apartment owner or any other person shall bring any action for partition or division of any part thereof, unless the property has been removed from the provisions of the said act. Thus from the said section, it is clear that each apartment owner shall be 25 O.S.No.6564/2017 entitled to an undivided interest in the common area. As such, all the apartment owners are entitled to use the common area including the terrace portion. As such, the plaintiff who is the owner of some of the flats also cannot exclusively claim right over the terrace area. The plaintiff has no right to use entire terrace by herself. The other flats owners have their undivided interest to use and enjoy the terrace area. As such, the plaintiff cannot restrain the defendant association or its members or any of the flat owners from using the terrace portion of the property. The plaintiff will get no legal right to restrain the other owners of the flats from entering into the terrace area and from using the terrace area.
23. Further as it is discussed earlier, there is no mention in the Sale Deed executed by the plaintiff to the purchaser of the flats belonging to her or there are no mention in JDA and GPA to the effect that all exclusive right over terrace area is retained by plaintiff alone. As such, the suit filed by the plaintiff for the relief of permanent injunction restraining the defendant or other owners from entering into the suit schedule property i.e. terrace area is not maintainable. The plaintiff will not be entitled for the relief of permanent injunction order restraining the defendants from entering upon the suit schedule property.
26 O.S.No.6564/2017The plaintiff has failed to prove her exclusive lawful possession over the suit schedule property as on the date of institution of the suit.
24. Since the plaintiff will not became the exclusive owner of the suit schedule property, the plaintiff will get no right to lease out the terrace portion individually to any other persons. The plaintiff has to obtain the previous consent or permission of other apartment owners or defendant association before leasing out any portion of the terrace to any other persons. In the present case the some portion of the terrace area was leased out by the plaintiff on 27.01.2006 to M/s.Hutchison Essar South Limited. This fact is also admitted by the D.W.1 in the cross-examination. The defendant association has not objected to the said lease. No suit was filed against the lessee or against the defendant regarding leasing out of terrace portion by the plaintiff. At the time of executing the said lease deed defendant association was not formed. The defendant association has not produced any document to show that they have issued notice to the plaintiff regarding lease deed dated 27.04.2016. But the plaintiff has renewed the lease deed as per Ex.D.7. As on the date of said lease deed, the defendant association was in existence. The plaintiff has obtained the permission of the defendant association or has 27 O.S.No.6564/2017 not obtained the consent of any apartment owner for renewal of lease.
25. Ex.D.8 lease deed is for the period of 15 years from 20.07.2016. The same is supported by supplementary lease agreement dated 22.05.2017. The period of lease will come to an end after lapse of 15 years from 27.01.2006. It will expire on 27.01.2021. Even though as on the date of filing of the suit, the lease period was in existence, as of now the lease period is expired. The lessee has no right to continue in the leased premises after the expiry of lease period. The plaintiff has not extended the lease period by executing another lease agreement with respect to the suit premises. As it is discussed earlier, the plaintiff has no exclusive right over the terrace portion. However the plaintiff has leased out the schedule premises immediately after the construction of the apartment. Now the lease period is expired. As it is discussed earlier, the other owners of the flats situated in the apartment are also having rights over the terrace portion of the apartment. Further they are having right to utilize the terrace portion of the apartment for many purposes. Further it is also discussed and held above that terrace portion of the apartment is the common area to be utilized by all the owner of the flats situated in the apartment. The plaintiff will get no exclusive 28 O.S.No.6564/2017 right over the terrace portion and the plaintiff cannot lease out the schedule premises without the consent of the other owners of the flats and the defendant association. If the temporary injunction order as prayed for by the plaintiff is granted restraining the defendants from entering into the suit schedule property or objecting the others from entering the suit schedule property, the owners of the flats will be put to irreparable hardship and inconvenience. Since the lease period is already completed, the principle of equity also cannot be exercised in favour of the plaintiff so as to grant injunction order to protect the lessee from enjoying the leased premises till expiry of lease period. If the permanent injunction order is granted in favour of the plaintiff, there is possibility of the plaintiff leasing out the schedule premises or entire terrace portion to some other persons or there is possibility executing the another lease deed in favour of existing lessee by extending the period of lease. The plaintiff cannot do the same without the consent or permission of the defendant. As such, I am of the opinion that the relief of permanent injunction order as prayed for by the plaintiff cannot be granted. The alleged interference of the defendant with the schedule premises cannot be considered as illegal. The plaintiff has to terminate the lease of the schedule premises in accordance with law or in accordance with the terms of lease agreement. The lessee 29 O.S.No.6564/2017 have no right to continue in the lease premises after the expiry of lease period. As such, I am of the opinion that the plaintiff has failed to prove Issues No.1 and 2. Accordingly, I answer Issues No.1 and 2 in Negative.
26. It is already discussed and held above that the plaintiff has failed to prove her exclusive possession and enjoyment over the suit schedule premises. Further it is also discussed and held above that the plaintiff has failed to prove the illegal interference of the defendant with her alleged exclusive possession and enjoyment over the suit schedule premises. Further when the plaintiff is not in exclusive possession and enjoyment of the suit schedule property, the question of interference of the defendant as alleged by the plaintiff with her possession over the suit property does not arises. When the plaintiff has failed to prove her possession and interference of the defendant with respect to the suit schedule property, the equitable discretionary relief of permanent injunction order as prayed for by the plaintiff cannot be granted. As such, the plaintiff is not entitled for the relief as prayed for and the suit filed by the plaintiff is deserves to be dismissed. As stated earlier, the admitted photographs produced by the plaintiff shows that her lessee has installed towers in some portion of the suit schedule property. The lease period is already 30 O.S.No.6564/2017 completed. If the defendant's association restrained the lessee from entering into the terrace premises and prevented them from maintaining the equipment and machineries before termination of lease period, I am of the opinion that the lessee who have came in lawful possession of the suit property may be put to irreparable hardship and loss. As such, I am of the opinion that some protection is required to the lessee from this court. Hence, I am of the opinion that the plaintiff may be directed to terminate the lease with respect to the suit schedule premises within the period of 6 months and till then the defendant's association can be directed not to obstruct the lessee or its employees from entering into the suit schedule property for the purpose of maintaining and repairing the instruments and machineries installed by them in the terrace portion for the said period of 6 months. As such, I am of the opinion that even though the suit filed by the plaintiff is deserves to be dismissed, order of injunction for limited period for the purpose as discussed earlier, can be granted in the interest of justice. Accordingly, I answer Issue No.3 in Partly Affirmative.
27. Issue No.4:- For the discussions made above in issues No.1 to 3, I proceed to pass the following:
31 O.S.No.6564/2017ORDER The suit filed by the plaintiff under Order VII Rule 1 read with Sec.26 of CPC is hereby Partly decreed.
The defendant association or any of its members or any other persons acting on their behalf are hereby restrained by way of injunction order from obstructing the lessee of the plaintiff or any of its officials or employees from entering into the suit premises for the purpose of maintenance or repairing work of the equipments and machineries installed in the suit premises for the period of 6 months from the date of this order.
The plaintiff is hereby directed to terminate the lease pertaining to the suit property within the period of said 6 months. The lessee should not install any other equipments or machineries in the suit schedule property during the said period No order as to costs.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her, corrected and then pronounced by me in the open court on this the 2nd day of January, 2024).
Digitally signed by PRAMODA PRAMODA B G BG Date: 2024.01.19 15:32:49 +0530 (B.G.Pramoda) LII Addl. City Civil & Sessions Judge, Bengaluru. 32 O.S.No.6564/2017 ANNEXURE
List of the witnesses examined for the plaintiff:
P.W.1 S.Lokesh Reddy List of the documents marked for the plaintiffs :
Ex.P.1 Original GPA
Ex.P.2 Certified copy of Sale deed dated 14.12.2001
Ex.P.3 Certified copy of E.C. of Sy. No.49/1
Ex.P.4 Certified copy of E.C. of Sy. No.49/2 from
01.04.2004 to 29.07.2021
Ex.P.5 RTC of Sy. No.49/2 of Kaggadasanapura village
for the year 2020-21
Ex.P.6 RTC of Sy. No.49/2 of Kaggadasanapura village
for the year 2019-20
Ex.P.7 RTC of Sy. No.49/2 of Kaggadasanapura village
for the year 2018-19
Ex.P.8 RTC of Sy. No.49/2 of Kaggadasanapura village
for the year 2017-18
Ex.P.9 RTC of Sy. No.49/2 of Kaggadasanapura village
for the year 2016-17
Ex.P.10 RTC of Sy. No.49/2 of Kaggadasanapura village
for the year 2015-16
Ex.P.11 RTC of Sy. No.49/2 of Kaggadasanapura village
for the year 2014-15
Ex.P.12 Certified copy of Mutation No.12/2001-02
List of the witnesses examined for the defendant:
D.W.1 Sri.Prasanth Unukkassery R.S. 33 O.S.No.6564/2017 List of the documents marked for the defendant:
Ex.D.1 Xerox copy of JDA
Ex.D.2 Xerox copy of GPA
Ex.D.3 Sale Deed dated 08.06.2012
Ex.D.4 Sale Deed dated 30.05.2013
Ex.D.5 Sale Deed dated 29.06.2012
Ex.D.6 Sale Deed dated 19.02.2015
Ex.D.7 Lease agreement dated 22.05.2017
Ex.D.8 Agreement dated 27.01.2006
Ex.D.9 Agreement dated 21.07.2006
Ex.D.10 15 photos
Ex.D.11 Certified copy of resolution dated 15.10.2017.
Ex.D.12 Certified copy of byelaw.
Ex.D.13 Certified copy of registration of society dated
09.04.2008.
Digitally signed by
PRAMODA PRAMODA B G
BG Date: 2024.01.19
15:32:58 +0530
LII Addl. City Civil & Sessions Judge,
Bengaluru.
34 O.S.No.6564/2017
35 O.S.No.6564/2017