Bangalore District Court
Sri. A.S. Padmnabha vs Sri. A.S. Nagaraja Gupta on 8 April, 2019
IN THE COURT OF THE LXXII ADDL. CITY CIVIL &
SESSIONS JUDGE AT MAYO HALL BENGALURU,
(CCH-73)
Present:
Sri.Abdul-Rahiman. A. Nandgadi,
B.Com, LL.B., (Spl.,)
LXXII Addl. City Civil & Sessions Judge, Bengaluru.
Dated this the 8th day of April, 2019.
O.S.No.27334/2012
Plaintiff:- Sri. A.S. Padmnabha,
Aged about 46 years,
S/o Late A.K. Sathyanarayana Gupta,
Presently R/at No.372, 50 feet Road,
Hanumanthanagar,
Bengaluru-560019.
[By Sri.Prakash Shetty & Associates-
Adv]
V/s
Defendants:- 1. Sri. A.S. Nagaraja Gupta,
Aged about 47 years,
S/o late A.K. Sathyanarayana Gupta,
2. Smt. A.N. Sudha,
Aged about 41 years,
W/o A.S. Nagaraja Gupta,
Both are R/at No.1, 1st Cross,
Sameerapura, K.G. Nagar,
Bengaluru-19.
[By Sri. M.N. Gupta- Adv.)
2 OS No.27334/2012
Date of Institution of the suit 11.12.2012
Nature of the (Suit or pro-note, suit
for declaration and possession, suit Permanent Injunction
for injunction, etc.) Suit
Date of the commencement of
recording of the Evidence. 21.11.2016
Date on which the Judgment was
pronounced. 08.04.2019
Year/s Month/ Day/s
s
Total duration 06 03 27
LXXII ADDL.CITY CIVIL AND SESSIONS JUDGE,
Mayohall Unit: Bengaluru.
JUDGMENT
This suit is filed by the Plaintiff against the Defendant for the relief of Permanent Injunction, inrespect of the Suit Schedule Property. 3 OS No.27334/2012
2. Facts of the Plaintiff case are as under:
It is the case of the Plaintiff that, he and the Defendant No.1 are the brothers interse and Defendant No.2 is the wife of Defendant No.1. He is the absolute owner in actual, physical, lawful possession and enjoyment of the 1st floor and half portion in the 2nd floor and 50% undivided share in the land of the property, bearing present Municipal No.1, PID No.49- 21-1, Old No.14/1, 1st Cross, Sameerapura, Gavipura, Guttahally, Kempegowda Nagar, Bengaluru-18, measuring East to West; on the western side 42-feet, on the Southern side 21.6-feet and North to South; on eastern side 55-feet, on the western side 50-feet, which is described as suit schedule property. The suit schedule property was acquired by his father, in his lifetime. His father died on 30.03.2006. Further it is contended that, the legal heirs of his father have entered into a partition as per the Registered Partition Deed dtd.06.12.2006. The duplicate copy of the said Partition Deed was given in the custody of the Plaintiff and the original was given to the Defendant No.1. As 4 OS No.27334/2012 per the said Partition Deed item No.1 and 2 of the 'C' schedule property therein was allotted to him. Katha was transferred in his name, by virtue of the said Partition Deed. His mother died on 27.03.2012 and after her death, item No.2 of the schedule property was sold after obtaining his signature, by the 1st Defendant, Plaintiff's share in the said sale proceed was not given by the Defendant No.1. On insisting the Defendant No.1 to return the said share in the sale consideration amount, the Defendants started troubling his tenants, inducted by him in the 1st floor of the suit schedule property. Plaintiff resisted the illegal acts of the Defendants, but invain. Hence, the Plaintiff was constrained to file the present suit.
3. Suit summons were served to the Defendants. Defendant No.1 and 2 have appeared through their counsel on 09.01.2013. Both the Defendants have filed their Written Statement denying all the contents of the suit plaint and further specifically contended that, the Defendant No.1 is the 5 OS No.27334/2012 owner of the ground level floor of the suit schedule property, by virtue of the Registered Partition Deed dtd.06.12.2006. Under the said Partition Deed the Plaintiff got changed the katha of the 1st level floor, which is assigned to him, as Municipal No.1/1 and the Katha of the ground floor fallen to the share of the Defendant was assigned as Municipal No.1. Further it is specifically mentioned in the said Partition Deed at para No.8 of page No.6, that the terrace and outside staircase of the item No.1 of the schedule property therein, are kept in common inbetween the Plaintiff and the Defendant No.1. Except terrace and outside staircase, the Plaintiff has no right in the ground floor and the 1st Defendant has no right in the 1st floor. Further it is specifically contended that, Plaintiff's tenants have no right to park any vehicle in the open space of the ground floor, which is allotted to the 1st Defendant. The said open space is not kept in common between the Plaintiff and the 1st Defendant. Further the Plaintiff had filed an original suit at O.S.No.7822/2012 and might have withdrawn the 6 OS No.27334/2012 same as he could not get an order of injunction. On withdrawal, he has filed the present similar suit to harass the Defendants. Hence, prayed to dismiss the suit of the Plaintiff.
4. On the basis of the above said pleadings, my Learned predecessor in office, has framed the following issues on 08.09.2014 as under:
ISSUES
1. Does the Plaintiff prove his lawful possession and enjoyment over the suit schedule property?
2. Does the Plaintiff prove the alleged interference by the Defendant?
3. To what decree or order?
5. The Plaintiff inorder to prove his case has got examined his wife/P.A.Holder Smt. A.P.Padmalatha as PW1 and got marked eleven documents as Ex.P.1 to Ex.P.11. On 06.03.2019, Learned Counsel for the Defendants submitted that, the Defendants have no evidence, hence evidence of the Defendants, is taken as no Evidence.
7 OS No.27334/2012
6. The suit was initially allotted to CCH-21. The said matter was transferred to CCH-20 on 28.01.2015 as per Notification bearing No.PPS(CCC)68/2014 dtd.01.12.2014. Thereafter the case was transferred to this Court on 21.08.2018, by virtue of a notification No ADM-I(A) 413/2018 dated 31.07.2018 of the Principal City Civil and Sessions Judge, Bangalore.
7. My findings on the above said issues are as under:
Issue No 1 : In the Negative;
Issue No 2 : In the Negative;
Issue No 3 : As per final order for the
following
:R E A S O N S:
8. ISSUE NO. 1: As per the pleadings of both the parties, the admitted facts from both the sides are that, the suit schedule property originally belonged to the father of the Plaintiff and the Defendant No.1, by name A.K. Sathyanarayana Gupta. He died on 30.03.2006, as per Ex.P.6. The mother of the Plaintiff and the Defendant No.1 by name S. Suguna, died as 8 OS No.27334/2012 per Ex.P.5. Further there was Partition inbetween the heirs of A.K. Sathyanarayana Gupta on 06.12.2006 as per the Deed of Partition-Ex.P.2. As per the said Partition, ground level floor of Municipal No.1, PID No.49-23-1, Old No.14/1, 1st Cross, Sameerapura, Gavipura Guttahally, Kempegowda Nagara, Bengaluru, with a built up area of 1,000-Sq. feet together with 50% undivided share, which is shown as Item No.1 in schedule B property, has fallen to the share of A.S.Nagaraja Gupta-Defendant No.1. And the first floor of Municipal No.1, PID No.49-23-1, Old No.14/1, 1st Cross, Sameerapura, Gavipura Guttahally, Kempegowda Nagara, Bengaluru, with a built up area of 1200-Sq. feet together with 50% undivided share, which is shown as Item No.1 in schedule C property, has fallen to the share of A.S.Padmanabha-Plaintiff. The Plaintiff has produced Ex.P.2, Deed of Partition dtd.06.12.2006. As per the said Partition Deed, schedule B properties mentioned therein, has fallen to the share of A.S.Nagaraja-the Defendant No.1, wherein item No.1 is the Ground Floor of the property bearing 9 OS No.27334/2012 Municipal No.1. And the schedule C property therein is fallen to the share of the Plaintiff, wherein item No.1 is the First Floor in the property bearing Municipal No.1. On careful perusal of this document, it is seen that at Clause No.8 of the said document, there is mention about the Terrace and outside staircase of item No.1 to be enjoyed commonly by the Plaintiff and the 1st Defendant. Apart from this, specific portion of the suit schedule property, no portion is shown as the portion to be utilized jointly by the Plaintiff and the Defendant No.1. Further the Plaintiff has produced katha extract dtd.17.07.2007, in respect of property Municipal No.1/1, which is shown to be standing in the name of the Plaintiff, Ex.P.4 is the katha certificate pertaining to the property bearing Municipal No.1/1, PID No.49-23-1/1, standing in the name of the Plaintiff. Further PW.1 who is the P.A.Holder of Plaintiff as per Ex.P.1, has contended in her cross- examination at page No.7, Line Nos.6 to 18, which reads as;
10 OS No.27334/2012
"...........It is true to suggest that BBMP authorities have effected mutation in respect of the said Partition Deed and has allotted property No.1/1, to the property fallen to the share of my husband-Plaintiff and the property No.1 to the property fallen to the share of the Defendant No.1. It is true to suggest that BBMP authorities have passed the orders allocating respective numbers to the properties fallen to the Plaintiff and the Defendant No.1, as 1/1 and 1, respectively, as per its Order bearing No.DA.Ward 49 KTR 82/2006-07, dtd.09.04.2007. It is true to suggest that as per Ex.P.3, katha extract and Ex.P.4-katha certificate, the number of the property allotted to my husband is shown as 1/1".
Thus, the Ground Floor of the main property is given Municipal No.1 and the first Floor of the said main property is given Municipal No.1/1. Further PW.1 has also admitted in her cross-examination at page No.7, para Nos.2 to 6, that as per Clause No.8 of Ex.P.2 Partition Deed the terrace and the outside staircase only are kept in common inbetween her husband-the Plaintiff and the Defendant No.1. Further she contend 11 OS No.27334/2012 in her cross examination that, the present suit is filed in respect of the property No.1/1 and not in respect of the property belonging to the Defendant No.1 i.e., Municipal No.1. Further she has admitted in her cross examination at page No.8, para No.1 that her husband and the Defendant No.1 have made constructions on the second level floor of the said house to the extent of half share each, by constructing two Units, wherein one unit is occupied by the Plaintiff and the other by the Defendant No.1. Further PW.1 has admitted in her cross examination at page No.8, para No.2 that first floor is in occupation of her husband and the ground floor is in occupation of Defendant No.1. They have inducted tenants in the units constructed on the second level floor.
9. Most importantly, on perusal of Ex.P.2, Partition Deed dtd.06.12.2006, Ground floor fallen to the share of Defendant No.1 consists of 1100-Sq.feet and the first floor fallen to the share of the Plaintiff 12 OS No.27334/2012 consists of 1200-Sq.feet, which is also admitted by PW.1 in her cross examination at page No.8, para No.4.
10. By keeping in view, the above oral and documentary evidence on record, on scrutiny of the pleadings of the Plaintiff, wherein the Plaintiff has contended that there was an interference from the side of the Defendants to his tenants on the count of parking of the vehicles by his tenants. Admittedly, the ground floor is allotted to the Defendant No.1, which measures 1100-Sq.feet. The Plaintiff has failed to prove that the said ground floor consist of a parking area, secondly, the said parking area is not included within 1100-Sq.feet and thirdly, that the said parking area is to be enjoyed jointly by the Plaintiff and the Defendant No.1. In the absence of any cogent evidence from the side of the Plaintiff, it will be very difficult for this Court to issue an order of injunction, as sought for by the Plaintiff. On failure of the Plaintiff to prove the same, Plaintiff is not at all entitle for any order of injunction much-the-less, against his own brother that 13 OS No.27334/2012 too in respect of the property which is admittedly fallen to the share of the Defendant No.1, as per Ex.P.2- Partition Deed dtd.06.12.2006.
11. Further the learned counsel for the Defendants would contend that filing of the present suit is a second attempt on the part of the Plaintiff as Plaintiff had filed original suit at O.S.No.7822/2012, before the City Civil Court, Bengaluru. Since no any interim order is granted, the said suit was got withdrawn by the very Plaintiff, against the very Defendants, in respect of the very suit schedule property. On careful perusal of the oral evidence-cross examination of PW.1 page No.9, para No.2 wherein PW.1 has admitted that Plaintiff had filed O.S.No.7822/2012 before the City Civil Court, Bengaluru, since the Defendant No.1 consented to leave the parking area in common, the said suit was got withdrawn. Moreover, on close scrutiny of the said evidence, it can be seen that even summons were not served upon the present Defendant No.1, in that suit. 14 OS No.27334/2012 Further there is no material before this Court to say that the suit filed by the Plaintiff at O.S.No.7822/2012 is on the basis of the same cause of action for which, the present suit is filed. Under such circumstances, it cannot be held that this is the second attempt on the part of the Plaintiff against the Defendants in filing the present suit.
12. The Learned Counsel for the Defendants would contend that, the present suit filed by the Plaintiff is in respect of Municipal No.1, PID.No.49-23- 1, which is the property allotted to the Defendant No.1 under Ex.P.2-Partition Deed dtd.06.12.2006, further contends that injunction in respect of the said property cannot be granted at-all. On careful perusal of the said contentions as well as the documentary evidence on record, it is seen that the partition is effected as per Ex.P.2 on 06.12.2006. The present suit is filed on 11.12.2012 and as per Ex.P.3 and Ex.P.4, which have come into existence after filing of this suit, wherein original property bearing Municipal No.1 is bifurcated 15 OS No.27334/2012 into two parts as per Ex.P.2-Partition Deed dtd.06.12.2006, as First Floor renumbered as 1/1, having PID No.49-23-1/1, and the Ground Floor which is renumbered as 1, having PID No.49-23-1. There is no any document on record, to show as to when this bifurcation has taken place, whether such bifurcation has taken place prior to filing of this suit or subsequent to the filing of this suit. So in the absence of any evidence, it cannot be said that as on the date of filing of this suit, the property which was bifurcated into two parts, were allotted the said numbers. In the absence of such cogent evidence, the contentions of the Learned Counsel for the Defendant cannot be accepted at all.
13. Thus, intoto it can be said that the Plaintiff has failed to prove that parking area attached to the original property exists, the said parking area was kept in common inbetween the Plaintiff and the Defendant No.1, which is not the part and parcel of the area- Ground Floor, measuring 1100-Sq.feet, allotted to the 16 OS No.27334/2012 Defendant No.1, as per Ex.P.2-Parition Deed dtd.06.12.2006. Under such circumstances, Plaintiff is not at all entitle for any order of injunction against the Defendants, much-the-less as claimed by him in this suit. Hence, I answer Issue No.1 in the NEGATIVE.
14. ISSUE NO.2: The Plaintiff has pleaded in para Nos.7 to 10 of the suit plaint that, on demand of the share in the sale proceeds, the Defendant No.1 has started troubling tenants. On 28.10.2012, the Defendants have threatened his tenants, not to park their vehicles in the parking area of the Plaintiff, the said tenants are intending to vacate the premises, for the said reason. On 28.10.2012 itself, he has rushed to the police station to lodge a complaint, wherein the said police advised him to approach the Civil Court. Further PW.1 in her cross examination at page No.9, para No.4, has stated as under;
"It is true to suggest that Defendants have not caused any interference in enjoyment of the house, located at first 17 OS No.27334/2012 level floor. Witness volunteers that Defendants have trying to interfere in our enjoyment of the space, left on the ground level floor for parking area".
Further PW.1 has deposed at page No.10, para No.1 as;
"Leaving of space on the ground level floor-parking area is mentioned in Ex.P.2-Partition Deed. It is false to suggest that there is no mention about parking area in Ex.P.2. Witness volunteers that there is mention of terrace and 50% land in the Partition Deed-Ex.P.2".
Thus, as per the said evidence, it can be said that Plaintiff is claiming that he is having parking area on the ground level floor, which is mentioned in Ex.P.2 on the basis of a mention about 50% of land. On careful perusal of Ex.P.2-Partition Deed, there is no such recital as to the enjoyment of parking area by the Plaintiff on the ground level floor. Further, there is a mention about the recital as to having of 50% undivided share in the land. The said recital will not make entitle the Plaintiff to claim parking area on the ground level floor as the entire ground level floor is 18 OS No.27334/2012 allotted to the Defendant No.1, as per Ex.P.2, except the terrace and the outside staircase. Thus the Plaintiff has failed to prove that there exists a parking slot belonging to him, located on the ground level floor, which is in his use and occupation, which he has received the said right, under Ex.P.2.
15. In para No.10 of the suit plaint he has contended that, the Defendants have created a big scene by threatening the tenants. The Plaintiff has not led any evidence to this effect. If the cause of action pleaded by the Plaintiff is carefully perused, it is seen that there was an interference by the Defendants on 28.10.2012 as alleged, but there is no any evidence either documentary or oral to that effect. It appears that the cause of action pleaded by the Plaintiff is an illusory cause of action. Hence, in the absence of any proof of interference, apprehension leading to injury to the Plaintiff, it cannot be said that Plaintiff has proved the interference by the Defendants, as required. Since the act to be apprehended by the Plaintiff and intended by the Defendants, must be such that, if completed, 19 OS No.27334/2012 give a ground for action. There must be a foundation for the exercise of jurisdiction. Hence, I am of the firm opinion that Plaintiff has failed to prove that there exist a prospect or apprehension and belief, coupled with intention of the Defendants, sought to be exhibited, if completed, will give rise to a cause of inflicting injury or receiving injury, to the Plaintiff. Hence, Plaintiff has failed to prove the interference. I find support to my above view as per the decision of the Hon'ble High Court of Karnataka reported in ILR 1978 Page 1560; in the case of Gopal M Hegde & Ors Vs U F M Narasimha Ganap Bhat & Ors, wherein it is held that, when the Plaintiff proves the intention on the part of the defendants, to do an act or existence of the act, which in the opinion of the Court, if completed, give ground of action, there is foundation for the exercise of jurisdiction. For the above said reasons, I answer Issue No. 2 in the NEGATIVE.
16. ISSUE NO.3: In view of my findings on issue Nos. 1 and 2, I proceed to pass the following: 20 OS No.27334/2012
ORDER Suit of the Plaintiff is hereby Dismissed.
No order as to costs.
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 8th day of April, 2019) [Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73) SCHEDULE:
All that piece and parcel of house property bearing present Municipal No.1, PID No.49-23-1, old No.14/1, 1st Cross, Sameerapura, Gavipura Guttahalli, Kempagowdanagar, Bengaluru-18, measuring East to West on the Northern side 42 feet, on the Southern side 21.6 feet and North to South on the Eastern side 55 feet, on the Western side 50 feet, with built up area of 1200 sq.ft together with 50% un-divided share in the land in total site, bounded on:
East by : Drainage,
West by : Byroji Rao house,
North by : Road,
South by : Krishna Rao house.
[Abdul-Rahiman. A.Nandgadi]
LXXII Addl.City Civil & Sessions
Judge, Bengaluru. (CCH-73)
21 OS No.27334/2012
ANNEXURES:-
LIST OF WITNESSES EXAMINED FOR THE PLAINTIFF:
PW.1: A.P Padmlatha LIST OF EXHIBITS MARKED FOR THE PLAINTIFFS:
Ex.P.1: General Power of Attorney. Ex.P.2: Registered Partition Deed. Ex.P.3: Katha Extracts.
Ex.P.4: Katha Certificate.
Ex.P.5: Death certificate of Suguna. Ex.P.6: Death certificate of A.K.Sathyanarayana Gupta. Ex.P.7 to Ex.P.10: Four photographs. Ex.P.11: CD LIST OF WITNESSES EXAMINED FOR THE DEFENDANTS:
NILL LIST OF EXHIBITS MARKED FOR THE DEFENDANTS:
NILL [Abdul-Rahiman. A.Nandgadi] LXXII Addl.City Civil & Sessions Judge, Bengaluru. (CCH-73)