Bangalore District Court
Smt. Rekha Bafna vs Sri. Tejraj Jain on 18 January, 2020
IN THE COURT OF THE XXIX ADDL. CITY CIVIL
& SESSIONS JUDGE AT BANGALORE CITY. (CCH 30)
Dated this the 18th day of January 2020
PRESENT: SMT. NAGAJYOTHI. K.A., LL.M.,
XXIX ADDL CITY CIVIL & SESSIONS JUDGE, BANGALORE.
O.S.No. 7141/2012
PLAINTIFFS: 1. Smt. Rekha Bafna,
W/o. Sri. Manish Kumar,
Aged about 31 years,
R/a. No.14/8, 2nd Floor,
Ganapathy Apartment,
Jain Temple Street,
Visveswarapuram,
Bengaluru - 560 004.
2. Smt. Neetu Bheemoni,
W/o. Sri. Shokal Chand,
Aged about 35 years,
R/a. No.31, E.A.T. Street,
Opp. Bugal Rock Park,
Gandhibazaar,
Basavanagudi,
Bengaluru - 560 004.
(By Sri. V.B. Shivakumar,
Advocate)
Vs.
DEFENDANT: Sri. Tejraj Jain,
S/o not known to the plaintiffs.
Major by age,
R/a. No.4, Old No.28,
Then Old No.161,
Arcot Srinivasachar Street,
Bengaluru - 560 053.
(By Sri. Vishwanath Shendge,
Advocate)
Date of institution of the suit 03/10/2012
Nature of the suit (suit on
pronote. Suit for declaration and Perpetual Injunction
possession suit for injunction,
2
O.S.No.7141/2012
etc.)
Date of the commencement of 14/07/2015
recording of the evidence.
Date on which the judgment 18/01/2020
was pronounced
Total duration Year/s Month/s Day/s
07 03 15
JUDGMENT
This suit is filed for perpetual injunction restraining the defendant inclusive of Chickpet police station, from interfering, attempted to interfere or dispossess the plaintiffs' lawful title and possession of the schedule immovable property described in the schedule and from closing the ventilator provided to the premises of the plaintiffs' for over a period of more than 100 years by his predecessors being employed and for costs, and such other reliefs.
2. It is averred in the plaint that, the plaintiffs are the absolute owners of property bearing old No.28, then old No.161, new No.3/1, situated at Arcot Srinivasachar Street, Bengaluru, measuring EastfWest : 23 feet 10 inches and NorthSouth : 12 feet 10 inches, with 100 year old building, which is now given property No.PID No.282073/1, referred as the 'schedule property'. The property originally belonged to one Smt. Satyavathi Devi W/o Late S. Anantha Rao and Dr. S.A. Ramesh S/o Late S. Anantha Rao and they were under the joint peaceful possession 3 O.S.No.7141/2012 and enjoyment of the property, which came to be allotted to them in a deed of partition dated 26.11.1964. The premises was a 100 years old premises. It has ventilation. The plaintiffs for the purposes of residence found that the rafters of the premises was damaged and the tiled house was in a completely damaged condition due to normal wear and tear. Under the circumstances, in order to reside, removed the rafters and also the tiles, undertook a repair of the roof and also wherever the internal plastering had withered away. While the completion of the repair work being undertaken, the defendant unnecessarily started interfering. The interference that was given was interference pertaining to the existing ventilator that is available to the premises. The defendant wanted to close the ventilator, plaintiffs refused to close the ventilator, as it is the only source of air that would be circulated. That apart, in the event of premises being used and if there is a combustion that is undertaken within the premises due to cooking or otherwise, it does not have an outlet and therefore, it is an essential amenity of a ventilator that is required. The defendant also threatened with dire consequences and thereafter started demanding huge sums of money engaged the local police authorities and started making immense 'galate' in the premises. The police of Chickpet police station called upon the plaintiffs on 29.09.2012, threatened the plaintiffs that if the 4 O.S.No.7141/2012 window is not closed and the repair work is not stopped, he would take suitable necessary action. Hence, files this suit.
3. The defendant has appeared through his counsel and submitted in the writtenstatement that, the plaintiffs have undertaken new construction and extensive repairs on the said premises and in the process contemplating to have an opening in the form of a window on the schedule 'B' wall, opening towards schedule 'A' property owned by the defendant without obtaining any valid sanction plan from BBMP. As per BBMP bylaws, as the property falls within the ambit of 'A' zone, there cannot be any opening to the neighbouring property owners except with a valid sanction plan with permissible set back between two portions owned by two neighbouring individual owners. Therefore, the plaintiffs' by having an illegal opening on the schedule 'B' wall of the defendants without any sanction plan of BBMP, is an infringement of their easementary rights and violation of BBMP bylaws. On enquiry by the defendant, it was revealed by the contractor that they had come to inspect the property and will be carrying out the work soon. Subsequently, on the 3 rd October, the same contractor and his workmen had descended on the spot to carry out the construction work, but with timely intervention the defendant could avert the said happening, but the threat of the plaintiffs' who could benefit by having access through the said common wall would materialize if the plaintiff is not prevented 5 O.S.No.7141/2012 from doing so by issue of an adinterim order of temporary injunction. There is no cause of action accrued to the plaintiffs. Hence, prays for dismissing the suit with exemplary costs.
4. In proof of their case, the Power of Attorney Holder of the plaintiffs examined as PW.1 and relied upon the documents Exs.P.1 to P.21. The defendant himself was examined as DW.1. Exs.D.1 to D.4 were marked.
5. Heard arguments.
6. Considering the facts and circumstances and the material available in the matter, my Learned Predecessor has framed the issues on 18.04.2015, as under:
ISSUES (1) Whether the plaintiffs prove that, they are the absolute owners in possession of the suit schedule property?
(2) Whether the plaintiffs prove that, the defendants are illegally interfering in the peaceful possession and enjoyment of the plaintiffs over the suit schedule property?
(3) Whether the plaintiffs prove that, the defendant is attempting to close ventilator provided to the premises of the plaintiffs as contended in the plaint?
(4) Whether the plaintiff is entitled for the relief of permanent injunction as prayed in the plaint? (5) What order or decree?
7. My findings to the above issues are as under: Issue No.1 : In the Affirmative.
Issue No.2 : In the Affirmative.
Issue No.3 : In the Affirmative.
6
O.S.No.7141/2012 Issue No.4 : In the Affirmative.
Issue No.5 : As per final order for the following:
REASONS
8. Issue No.1: It is a suit for perpetual injunction against the interference in respect of the suit schedule property. This suit is filed against one Tejraj Jain, but relief claimed as, restraining the defendant including Chickpet police station. Chickpet police station is not the party. The plaintiff is the owner of the property bearing old No.161, new No.3/1, situated at Arcot Srinivasachar Street, Bengaluru, which consists more than 100 years old building, which has given property number as PID No.282073/1, and boundaries shows, the defendant's property exists at Northern side of the suit schedule property as shop; West : Road; East :
Remaining portion of property bearing No.3; and South : Property bearing No.4. The subject is, during the construction work, the defendant causes interference. In respect of his lawful possession in the suit schedule property, the plaintiff produces the gift deed executed in favour of Smt. Rekha Kumari and Piyushkumar. It was executed on 13.09.2002. In the recital, it shows the property is originally belonged to Smt. K. Sathyavathi Devi and Dr. S.A. Ramesh. The same was found in the plaint pleading also, who executes the registered sale deed in favour of Mutha Kirthi Kumar Chaganraj, who is the donar of Ex.P.2. Thereafter, the plaintiff purchased it on 09.08.2012. Whereas, they have not produced 7 O.S.No.7141/2012 the sale deed. However, to corroborate their ownership, the plaintiff produced uttara pathra/Ex.P.3 issued in the year 2012, khatha certificate/Ex.P.4 and khatha extract/Ex.P.5. She has also produced Ex.P.9/sale deed executed on 09.08.2012. The same was corroborated in uttara pathra/Ex.P.3. So, it concludes plaintiffs' lawful possession in the suit schedule property. On perusal of the writtenstatement shows, the defendant was not challenged the titledeed of the plaintiff.
9. On behalf of the plaintiffs, the Special Power of Attorney Holder, one Manish Kumar deposes as PW.1, on the basis of Ex.P.1. On perusal of the crossexamination shows, he was not crossexamined on title of the suit schedule property. Moreover, it is a dispute in respect of construction in the schedule building. Accordingly, without need of further discussion, I hold Issue No.1 in the 'Affirmative'.
10. Issue No's.2 & 3: The plaint averments narrates on existence of building and it's dilapidated conditions as follows:
"The premises was 100 years old premises. It has ventilation. It is a tiled house. He undertook the repair work of the roof and also wherever the internal plastering. The defendant wants to close the ventilator, but plaintiff refused to close the ventilator, as it is only the source of air to the entire premises. So, if it is closed, there is no outlet for combustion or otherwise."
In corroboration of the same, the plaintiff has produced the photo/Ex.P.11, which clearly shows the dilapidated condition of 8 O.S.No.7141/2012 the building and ventilator is a small window. Ex.P.6 is the letter given to Asst. Executive Engineer, BBMP, where she seeks permission for the repairs, it was dated 15.09.2012. Ex.P.7 is the endorsement of Chickpet police station dated 08.10.2012, where it directs, since it is a civil suit, not to cause any quarrel in the spot. Ex.P.8 is another endorsement of Chickpet police station dated 09.10.2012. It shows, before commencing the repair work, plaintiff has informed it to the concerned authority. It also shows, the defendant also filed O.S.No.26970/2012 against the Commissioner and other, which includes the plaintiffs of this suit, against the construction in the suit schedule property. On perusal of Ex.P.19/ordersheet shows, it was dismissed for default on 14.11.2014. Ex.P.20 is the plaint copy of the said suit shows, the plaintiff No's.1 & 2 herein are defendant No's.2 & 3. It refers that, the plaintiffs and defendant premises divided by a common wall. The plaintiff has an easementary right over the said common wall and defendants are contemplating to opening a window without opening any setback and it is an illegal opening and it causes interference. Whereas, as per contention of plaint pleading of this suit, the ventilator window exists much earlier. Even in the writtenstatement, the plaintiffs of this suit submitted that the plaintiffs in the said suit deliberately closed the window which amounts to fraud. When the defendant prefers MFA against the order of this court dated 08.01.2018, the defendant did not appear 9 O.S.No.7141/2012 before the Hon'ble High Court of Karnataka. So, MFA was dismissed. On 08.01.2018, this court has rejected I.A.No.VI under Order VII, Rule 11 of CPC, where it urged the dismissal of the suit on the ground of no cause of action. So, all the above facts shows, the defendant of this suit was not interested in contesting the suit legally.
11. In the crossexamination, PW.1 replied as follows:
"It is true that, the plaintiff's property and defendant's property exists in one building and it was divided by common wall. It is true that, the defendant purchased the backside portion of their schedule building, it is in the Eastern side. There is a common wall between the two schedule buildings. PW.1 replies that, common wall exists in their property so it is in their ownership". However, truly, the same was not mentioned in the plaint pleading. He is not aware that, the center of the wall comes to the Southern side of the defendant's property. The defendant is running the shop under the name of Maharaja Metal Mart and plaintiff is running the shop under the name of Mahaveer International. They repaired the schedule building by putting roof (ತತತಲತ) and at that time the defendant gave complaint to the police. He admits that, they removed tiles in the roof and put wooden tole after plastering. It is pertinent to note that, the suggestion is as follows:10
O.S.No.7141/2012 "Since the building is very old during the repair work, it apprehends defendant that their portion may also get damaged and so the defendant files complaint". It was denied by PW.1. So, it does not shows, there is no damage caused in the portion of defendant, it is only an apprehension of causing damage. When it was questioned in respect of licence, he was not replied properly. He denied the suggestion that, their building repair work is completed. He replies that, the defendant was not allowed him to complete the repair work. He alleges that, the defendant closed their ventilator. They gave building to the tenant Rajesh, who sells sports items in the schedule building, it is a commercial building. So, the suggestion itself shows, the defendant caused interference by giving complaint to the police. But, the complaint is given on apprehension that, their building may get damage.
12. The defendant himself deposes as DW.1, where he alleges in the chiefexamination that, the plaintiff intends to put new structure on building, which cause extensive repairs and it is against BBMP bylaws and also alleges an opening of new building. In the crossexamination he replied that, it is true that the suit schedule property belongs to the plaintiff. They might have purchased it in the year 2012. Since then plaintiffs are in possession of it. The Eastern portion of the house building belongs to him. He was not produced document of his property. It is true that, the documents of his property are in his possession. 11
O.S.No.7141/2012 He was not disputing the measurment of the schedule building. Subsequently, he produced the khatha certificate, tax receipt and sale deed. It is pertinent to note that, his sale deed is executed on 12.06.2018. In the schedule, it has specified on existence of building of more than 100 years old and it is in dilapidated condition and had no doors and windows. In the cross examination he admits that, the sale deed says the measurement as 364 sq. ft. but in fact, it was lesser than this measurement. So, it corroborates the plaintiff's contention on common wall exists plaintiff's property. He admits that, he has filed suit before the Mayo Hall Court, and it was dismissed. He denied the suggestion that, at that time there is no negotiation held for compromise. It was suggested that, Ex.D.1 does not shows the building portion includes the common wall. The crucial admission in respect of window is as follows:
"ವವದಯರರ ತಮಮ ಸಸತತಗತ ಇಟಟರರವ ಕಟಕ ಜವಗವನರನ ನವನರ ಮರಚಚದತದದನತ ಎನರನವವದರ ಸರಯಲಲ. ಸವಕಕ ಸಸತತ ಮರಮದರವರತದರ ನವನರ ಸಸತರತ ಖರದದಸರವವಗ ಅದನರನ ಅದರ ಮತಲ ಮವಲದಕರತದ ಮರಚಚದದರರ ಎಮದರ ನರಡದದವದರತ."
So, it clearly shows, the existence of window prior to the purchase of the property by the plaintiff and defendant. But, who has closed the window, is not relevant here. So, it shows the defendant has not allowed to use the ventilator window, but it also shows, the common wall exists in the building and plaintiff has right over it. Although the writtenstatement defends the 12 O.S.No.7141/2012 damages, the suggestion gives as apprehension of damage. So, it clearly shows unlawful interference of the defendant. Although the defendant filed earlier suit, he has not contested the suit and it was dismissed for default. The defendant's documents reveals on existence of building and it is in a dilapidated condition. The defendant has not produced any material to show that, it is a major repair work of plastering. When the defendant has objection on repairing of building, he has to approach the BBMP Authority. Whereas, there is no material to show that the defendant approached the BBMP authority. So, without approaching the proper authority, he files complaint and suit against the plaintiffs and not contested suit and thus, it clearly concludes their interference. Accordingly, I hold Issue No's.2 & 3 in the 'Affirmative'.
13. Issue No.4: In view of my findings given on Issue No's.1 to 3, the plaintiffs are entitled for the relief as prayed in the plaint. Accordingly, I hold Issue No.4 in the 'Affirmative'.
14. Issue No.5: In view of the reasons stated supra, I proceed to pass the following:
ORDER Suit is decreed.
Parties to bear their own costs.
The defendant is hereby permanently restrained from interference or dispossessing the plaintiffs from the suit schedule property and also 13 O.S.No.7141/2012 restrained from closing the ventilator provided to the plaintiffs' premises.
Draw the decree accordingly.
(Dictated to the Judgment Writer, transcribed and typed by him, corrected and then pronounced by me in the open court, on this the 18 th day of January, 2020) (NAGAJYOTHI.K.A) XXIX Addl. City Civil Judge, Bangalore City.
ANNEXURE List of witnesses examined for the plaintiffs' side: PW.1 Manish Kumar List of documents exhibited for the plaintiffs' side: Ex.P.1 Special Power of Attorney dated 14.07.2015. Ex.P.2 Original registered gift deed dated 13.09.2002. Ex.P.3 Suvarna khatha uttara pathra issued BBMP on 03.10.2012.
Ex.P.4 Khatha certificate. Ex.P.5 Khatha extract. Ex.P.6 Copy of application dated 15.09.2012, written to
Asst. Executive Engineer, BBMP, Cottonpet Sub Division, Bengaluru.
Exs.P.7}{ Endorsements issued by PSI, Chickpet P.S., dated
& P.8}{ 08.10.2012 & 09.10.2012.
Ex.P.9 Original registered sale deed dated 09.08.2012.
Ex.P.10 Encumbrance certificate for the period from
01.04.2012 to 10.08.2012.
Exs.P.11}{ Photos (7 in No's).
to P.17}{
Ex.P.18 CD.
Ex.P.19 CC of ordersheets in O.S.No.26970/2012.
Ex.P.20 CC of plaint in O.S.No.26970/2012.
Ex.P.21 CC of writtenstatement in O.S.No.26970/2012.
List of witnesses examined for the defendant's side: DW.1 Tejraj Jain 14 O.S.No.7141/2012 List of documents exhibited for the defendant's side: Ex.D.1 CC of sale deed dated 12.06.2018.
Ex.D.2 Khatha extract.
Ex.D.3 Khatha certificate.
Ex.D.4 Tax paid receipt.
XXIX Addl. City Civil Judge,
Bangalore City.
15
O.S.No.7141/2012
Judgment pronounced in
open Court, vide separate
judgment.
ORDER
Suit is decreed.
Parties to bear their own costs.
The defendant is hereby
permanently restrained from
interference or dispossessing
the plaintiffs from the suit
schedule property and also
restrained from closing the
ventilator provided to the
plaintiffs' premises.
Draw the decree accordingly.
XXIX Addl. City Civil Judge,
Bangalore City.
16
O.S.No.7141/2012