Bangalore District Court
Dr.Shoba Devi vs Smt.Kavita Bhandari on 2 July, 2016
IN THE COURT OF THE XX ADDL.CITY CIVIL &
SESSIONS JUDGE(CCH.32), BANGALORE CITY
Present:
Sri. V.B.Suryavanshi, B.Com.,LL.B.(Spl.),
XX Addl. City Civil & Sessions Judge,
Bangalore
DATED THIS THE 2nd DAY OF JULY, 2016
O.S.No.4102/2013
Plaintiff: Dr.Shoba Devi,
D/o late Prof. B.N.Chowdaiah,
Aged about 57 years, R/at No.10, 4th
Block, 5th Cross, Kumara Park West,
Subramanya Temple Street,
Bangalore-560 020.
(by-Sri.H.V.Manjunatha, Adv)
/VS/
Defendants: 1. Smt.Kavita Bhandari,
D/o G.Vimal Bhandari,
Aged about 20 years,
2. Sri.G.Vimal Bhandari,
Father's name not known,
Aged about 45 years,
3. Sri Vinod, Father's name not known,
Aged about 40 years,
4. Sri Prakash,
Father's name not known,
Aged about 41 years,
All r/at No.22, (old No.15/22),
R.V.Shetty Layout, Seshadripuram,
Bangalore-560 020.
(D1 & D2 by Sri.H.S.Somnath, Adv
D3 & D4 deleted)
Date of Institution of the
10.06.2013
suit
Nature of the suit Injunction
Date of commencement of
14.10.2015
recording of evidence
Date on which Judgment 02.07.2016
pronounced
Total Duration Years Months Days
03 00 22
2 O.S.4102/2013
JUDGEMENT
This is a suit filed by the plaintiff against the defendants for injunction and mandatory injunction.
2. It is the specific case of the plaintiff that, she is the owner and in possession and enjoyment of the suit schedule property. The defendants 1 and 2 are the owners of the house property bearing No.29 (old No.17) situated at 4th block, 4th Cross Road, Kumarapark West, Bangalore which is situated behind the house property of the plaintiff i.e., southern side of schedule property and there is a rear wall between the property of the plaintiff and the defendants 1 and 2. The said rear wall i.e., schedule 'B' was constructed by the father of the plaintiff when he constructed a residential house in the schedule 'A' property and the rear wall is described as 'B' schedule.
2(a). There was an out house in the defendants' 1 and 2 property which was abutting to the above 3 O.S.4102/2013 said rear wall between the schedule 'A' property and property of the defendants 1 and 2 and the defendants 3 and 4 are the contractors working under the defendants 1 and 2.
2(b). The plaintiff being single working lady who is residing in the schedule property alone and she goes to work during the day. On 24.08.2012 the defendants 1 and 2 have demolished the out house with the help of defendants 3 and 4 and at that time the defendants have demolished the rear wall ie., schedule 'B' property for about 4 feet from the top portion without the knowledge and consent of the plaintiff and the same was questioned by the plaintiff to the 2nd defendant. The 2nd defendant apologized for the said act and promised the plaintiff that they will rebuild the rear wall with painting on or before 15 days. The defendants 1 and 2 have failed to keep up their assurance, accordingly, the plaintiff lodged police complaint. 4 O.S.4102/2013
2(c). Due to the defendants' illegal demolition of the rear wall, i.e., schedule 'B' property, cracks have appeared on different parts of the plaintiff's schedule 'A' property. Due to demolition of portion of the rear wall i.e., schedule 'B' property entire roof of the schedule 'A' property is exposed on the southern side and all the debris had fallen inside the plaintiffs' schedule 'A' property and accordingly, the plaintiff got issued legal notice calling upon the defendants to carry out repair and paint, hence, the plaintiff is constrained to file this suit against the defendants for injunction and mandatory injunction.
3. On the contrary, the defendants 1 and 2 have filed their written statement and denied the case of the plaintiff.
It is the specific defence of the defendants that, the 1st defendant is the absolute owner of the entire immovable property bearing No.29 (old No.17) totally measuring 2726 Sq.ft. The defendants 1 and 2 are in 5 O.S.4102/2013 physical possession and enjoyment of the same since from the date of purchase.
3(a). The defendants subsequent to the purchase of the written statement schedule property demolished the out house portion in their property which was abutting to the plaintiff's property i.e., schedule 'A' property in the present suit. The plaintiff started claiming that, the northern side wall of the written statement schedule property belongs to the plaintiff and accordingly, the BBMP have conducted spot mahazar and given report. Further, the defendants contended that, the schedule 'B' property which is a wall of the property of the 1st defendant. Therefore, the suit filed by the plaintiff is not maintainable and hence, prays for dismissal of the suit.
4. On the rival pleadings of the both the parties, the following issues have been framed by the court on 26.11.2013:
6 O.S.4102/2013
1. Whether the plaintiff proves her lawful possession over the suit schedule A and B properties as on the date of the suit?
2. Whether the plaintiff is entitled to get mandatory injunction for reconstructing schedule-B property right upto painting?
3. Whether the plaintiff proves the alleged interference of the defendants?
4. Whether the plaintiff is entitled for the relief of injunction as prayed for?
5. What decree or order?
5. The plaintiff herself has been examined as PW.1 and got marked documents at Ex.P1 to Ex.P7 and plaintiff's side evidence closed. On behalf of the defendants, the 1st defendant has been examined as DW.1 and no documents marked.
6. Heard the arguments.
7. My findings on the above issues are as follows:
Issue No.1 : In the Affirmative
Issue No 2 : In the Affirmative
Issue No 3 : In the Affirmative
7 O.S.4102/2013
Issue No.4 : In the Affirmative
Issue No.5 : As per final order
for the following
REASONS
8. Issue Nos.1 to 3: Since, these issues being interconnected and interlinked to each other, to avoid repetition of facts and evidence, I have taken these issues together for common consideration.
9. This is the suit filed by the plaintiff against the defendants for injunction and mandatory injunction.
10. It is the specific assertion of the plaintiff that, she is the owner and in possession of the schedule 'A' property and the schedule 'B' property is the rear wall existed between the property of the plaintiff and the property of the defendants 1 and 2. The said B-schedule property was constructed by the father of the plaintiff, when he constructed residential house in the schedule 'A' property. 8 O.S.4102/2013
11. The defendants 1 and 2 while demolishing the out house in their property have demolished the rear wall i.e., schedule 'B' property and caused substantial damage to the property of the plaintiff i.e., A-schedule property, hence the plaintiff is constrained to file this suit against the defendants.
12. On the contrary, the defendants 1 and 2 have categorically denied the case of the plaintiff and contended that, the schedule 'B' property is not the property of the plaintiff and it is the property of the defendants 1 and 2 and the suit filed by the plaintiff is not maintainable.
13. The plaintiff got herself examined as PW.1 and she has reiterated the contents of the plaint averments in her oral testimony and she has produced certified copy of the sale deeds marked as Ex.P1 and P2 and khatha extract marked as Ex.P3 and Tax paid receipt marked as Ex.P4. 9 O.S.4102/2013
14. During the course of the cross examination, it was suggested to the witness that, both the counsels for the defendants and the plaintiff have visited the suit schedule property and accordingly, instructions were given to carry out the repairs to the wall and after one month they have started repairing the wall and PW.1 has stated that, the defendants 1 and 2 have repaired the wall by plastering the wall and later same was painted. It is contended by the plaintiff that, since the defendants 1 and 2 could not build the wall about 15 feet touching the parapet.
15. If the version of the cross examination of the PW.1 is taken into consideration and also suggestions made by the learned counsel for the defendants 1 and 2 to PW.1 wherein, it clearly goes to show that, after having damaging the B-schedule property by the defendants 1 and 2 they have repaired the same to some extent and also painted the same, but the B-schedule wall was not rebuilt to 10 O.S.4102/2013 the full extent. So, the conduct of the defendants 1 and 2 clearly goes to show that, they have damaged the B-schedule wall while demolishing the out house.
16. It is very significant to note that, though the defendant No.2 got examined himself as DW.1 and he has reiterated the contents of the written statement in his oral testimony, but unfortunately the DW.1 has not tender himself for cross examination, despite sufficient opportunities were given to him, accordingly, evidence of DW.1 was discarded.
17. If the reliance is placed on the documentary evidence i.e., Ex.P1 and P2, the same being corroborated with the evidence of PW.1 and also cross examination, I am of the considered opinion that, the plaintiff is the absolute owner of the suit 'B' schedule property i.e., rear wall situated in between the property of the plaintiff and the property of the defendants 1 and 2. So, it is also 11 O.S.4102/2013 borne out from the cross examination of PW.1 wherein the defendants 1 and 2 though have repaired B-schedule property wall to some extent but later they could not built to the full extent till parapet. Therefore, the plaintiff is the absolute owner of the suit schedule property and the defendants 1 and 2 have damaged the B-schedule property and the defendants 1 and 2 are bound to construct the B-schedule property wall and also they are also bound to paint the same. With this observation, I answer issue Nos.1 to 3 in the Affirmative.
18. Issue No.4: In view of findings given in issue Nos.1 to 3, the plaintiff is entitled for the relief sought for. So, I answer this issue in the Affirmative.
19. Issue No.5: In view of finding on issue No.4, I proceed to pass the following 12 O.S.4102/2013 ORDER The suit of the plaintiff is decreed with cost.
It is ordered and decreed that, the defendants or anybody on their behalf are restrained permanently from interfering with the plaintiff's peaceful possession and enjoyment of the suit 'A' and 'B' schedule properties.
Further, it is ordered and decreed by way of mandatory injunction that, the defendants 1 and 2 are directed to reconstruct rear wall i.e., B-schedule property and paint immediately.
Draw decree accordingly.
(Dictated to the judgment writer, transcribed by her, corrected and then pronounced by me in open court, this the 2nd day of July, 2016) ( V.B.SURYAVANSHI ) XX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
13 O.S.4102/2013ANNEXURE List of witnesses examined for the Plaintiff :
PW.1 : Dr.Shoba Devi List of documents marked for the Plaintiff :
Ex.P1 C/c of sale deed Ex.P2 C/c of sale deed Dt.31.08.1967 Ex.P3 Khatha extract Ex.P4 Tax paid receipt Ex.P5 Copy of legal notice Ex.P6 Copy of the complaint Ex.P7 Copy of endorsement
Witnesses examined for the defendants:
DW.1 Sri. G.Vimal Bhandari Documents marked for the defendants: nil ( V.B.Suryavanshi ) XX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY 14 O.S.4102/2013 Judgment pronounced in the open court. (vide separate judgment) Order The suit of the plaintiff is decreed with cost.15 O.S.4102/2013
It is ordered and decreed that, the defendants or anybody on their behalf are restrained permanently from interfering with the plaintiff's peaceful possession and enjoyment of the suit 'A' and 'B' schedule properties.
Further, it is ordered and decreed by way of mandatory injunction that, the defendants 1 and 2 are directed to reconstruct rear wall i.e., B-schedule property and paint immediately.
Draw decree accordingly.
XX ACC & SJ,B'lore 16 O.S.4102/2013