Bangalore District Court
Hanumappa M vs Kumaraswamy K M on 5 November, 2024
1 O.S. No.8229/2016
KABC010282782016
C.R.P.67 Govt. of Karnataka
Form No.9
(Civil)
Title Sheet for
Judgments in
Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XL ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY : (CCH-41)
::Present::
Smt. Veena N., B.A.L., L.L.B.,
XL Addl. City Civil & Sessions Judge,
Bengaluru City.
Dated this 05th day of November, 2024.
O.S. No.8229/2016
PLAINTIFFS :: 1. Sri. M.Hanumappa, Since dead by his
LRs. (LRs. brought on record as per Court
Order dated 04.01.2023)
:: 1(a) Smt. Susheela, W/o. Late.
Hanumappa, Aged about 60 years,
:: 1(b) Smt. Manjula H., D/o. Late.
2 O.S. No.8229/2016
Hanumappa, W/o. Devaraj, Aged about 40
years,
:: 1(c) Sri. Nagaraj H., S/o. Late.
Hanumappa, Aged about 38 years,
All are R/at: No.25/1, Puttenahalli, Opp.
Petrol Bunk, Kothanur Main Road,
J.P.Nagar 7th Phase, Bengaluru - 560
078.
(By Sri. H.A.Manjunatha, Advocate)
V/s.
DEFENDANTS :: 1. Sri. Kumaraswamy K.M., S/o. K.M.
Manjunath, Aged about 26 years,
:: 2. Sri. K.M.Manjunath, S/o. K.M. Mallaiah,
Aged about 52 years,
Both are R/at: BSK Party Hall, 2 nd Floor,
25/1, Puttenahalli, Opp. Petrol Bunk,
Kothanur Main Road, J.P.Nagar 7th Phase,
Bengaluru - 560 078.
(By Sri. M.R.Venugopal & Associates)
Date of Institution of the :: 02-12-2016
Suit
Nature of the Suit :: INJUNCTION
3 O.S. No.8229/2016
Date of commencement of :: 26-02-2018
recording of evidence
Date on which the :: 05-11-2024
Judgment was pronounced
:: Year/s Month/s Day/s
Total Duration 07 11 03
(VEENA N.)
XL Addl. City Civil & Sessions Judge,
Bengaluru City.
JUDGMENT
Suit is one for Permanent Injunction to restrain the defendants from interfering with the plaintiffs peaceful possession and enjoyment over suit 'A' schedule property.
2. Case of the plaintiffs in brief is as hereunder:-
The plaintiff is the absolute owner of the suit 'A' schedule property and it is situated on the western side of Kothanur Main Road. The plaintiff by leaving 10 feet towards Kothanur Main Road constructed a commercial 4 O.S. No.8229/2016 complex consisting of ground and first floor and party halls and other amenities in the 2 nd and 3rd floors. Behind the said commercial building he constructed residential portions and he along with his family members is in occupation of the residential building. To approach the said residential building, he left 10 feet passage on north eastern corner of the building and the plaintiff and his family members are using the said passage to reach their house from the main road. The defendant No.1 is the son of defendant No.2 and the defendant No.1 was inducted as a tenant in respect of 2nd and 3rd floor of the suit 'A' schedule property which is described in the 'B' schedule property to run a party hall and accordingly, the defendant No.1 is in possession of the same as a tenant under registered lease deed dated 03.10.2012. Further at the instance of defendant No.1 additional registered lease deed was executed on 12.03.2013 in respect of 'B' schedule property, according to which the defendant No.1 agreed 5 O.S. No.8229/2016 to pay Rs.20,25,000/- to the plaintiff as lease amount and had agreed to pay rent at the rate of Rs.100/- p.m. initially and agreed to pay 5% enhanced rent subsequently. But the defendant No.1 did not pay the lease amount nor the rent amount and in violation of the terms of lease deed, the defendant No.1 is using a portion of the property for residential purpose and using the remaining portion for the commercial purpose and is running a business under the name and style B.S.K. Party Hall in 'B' schedule property. The 'B' schedule property is having entrance on the northern side of the suit 'A' schedule property. The defendants approached the plaintiff and requested to let out shop No.1 in 'A' schedule property, to which the plaintiff refused and at that time the defendants proclaimed and threatened that they will not allow the plaintiff to use the shop peacefully and thereafter, without having any manner of right, title or interest either over 'A' schedule property or the vacant space infront of the property illegally parked 6 O.S. No.8229/2016 their cars and thereby blocked the ingress and egress to the 'A' schedule property. Inspite of repeated requests, the defendants made hectic attempts to block the ingress and egress by parking their cars and thereby prevented the plaintiff from using 'A' schedule property and hence, left with no choice the present suit is filed.
3. In pursuance to the summons issued, the defendants caused appearance and filed their written statement, wherein which they admit that the plaintiff is the owner of the suit 'A' and 'B' schedule property and also admits the topography of the place, but denies that there exists 10 feet passage on the north eastern corner of the building and the plaintiff is using the said passage to reach the house from the main road. It is also admitted that the defendant No.1 is inducted in the suit property as a tenant under registered lease deed dated 03.10.2012 and additional registered lease deed 12.03.2013. It is contended that as per the lease deed 7 O.S. No.8229/2016 the defendants have paid a security deposit amount of Rs.50,00,000/- to the plaintiff and agreed to pay rent of Rs.100/- p.m. initially and agreed to pay 5% enhancement rent in respect of the lease property. It is stated that original lease deed dated 03.10.2012 the 2 nd and 3rd floor was leased in favour of these defendants and they paid a sum of Rs.29,75,000/- as a security deposit and a monthly rent of Rs.100/- was agreed to be paid to the plaintiff and the defendant No.1 is carrying on business as party hall in the name B.S.K. Party Hall and subsequently entered into additional registered lease deed dated 12.03.2013 and he paid additional security deposit of Rs.20,25,000/- and in all the defendant No.1 paid sum of Rs.50,00,000/- to the plaintiff as a security deposit and the term of agreement expires on 30.09.2027. After the lease obtained, the plaintiff has not provided any amenities to the building to carry on the business as agreed upon in the agreement of lease. Though the plaintiff agreed to 8 O.S. No.8229/2016 provide 5HB connection to each floor and had agreed to provide electricity transformer, Cauvery water connection, bore well with pumping connection, lift, the plaintiff has not provided the amenities to the defendant. Inspite of the repeated requests by these defendants, the plaintiff has not taken any interest nor complied with the demands made. The said basic amenities are very much required to run a party hall and the plaintiff is not inclined to provide these facilities and the defendants with no alternative dug bore well at their cost and installed submersible pumps and motors and even the lift and plumbing connection was provided by the defendants to the schedule premises by incurring Rs.25,90,027/- and also they have laid tiles windows, glass and ACP sheets, wood work, KEB expenditure, painting and labour construction materials. Apart from these defendants have also spent a sum of Rs.55,64,295/- for PVC doors, entrance board, glass and sheets, S.S. grills, staircase grill, gate and grills, 9 O.S. No.8229/2016 ground floor lift room gate, window grills, wooden doors, tiles and labour and generator set, lift grounding, water tank and other expenditure with labour, centering iron roads, a totally cost of Rs.81,54,322/-. All the expenditures for the aforesaid amenities will be borne by the plaintiff. Even then he has not done anything and with no other alternative, these defendants made the amenities for running a party hall. In this regard, the defendant No.1 has also issued a legal notice to the plaintiff on 06.07.2015 asking him to provide a permanent power connection with transformer, water connection and pay lift charges, plumbing connecting charges, bore well digging and installation charges and pay expenditure incurred by the defendant No.1 to the tune of Rs.85,54,322/- to the defendant No.1 and even then the plaintiff has not complied with the demands made by these defendants.
4. It is stated that the plaintiff had agreed earlier to give the shops to the defendants as rent and 10 O.S. No.8229/2016 thereby he has not kept his promise and the plaintiff and his family members are troubling to run a party hall in the premises and their intention is to to vacate these defendants from the scheduled premises in one way or the other. In this regard, these defendants have given complaint to the jurisdictional police for protection and the police also advised them to not to interfere or trouble the defendants to carry a party hall business in the schedule premises. It is stated that infront of the building the public and others are parking their vehicles when the shops are vacant and the defendants never violated nor obstructed the plaintiff for their egress and ingress to the 'A' schedule property at any point of time. The plaintiff and his family members have assaulted the defendant No.2, his wife and children and they have damaged the fixtures and the C.C. T.V. cameras in the premises installed by the defendants. In this regard, they have lodged a complaint before the jurisdictional police and thereafter, to counter blast to this complaint 11 O.S. No.8229/2016 the plaintiff filed another complaint against these defendants intentionally to come to their terms and the plaintiff intention filed this false and frivolous suit to cause wrongful loss to defendants and hence, the suit which is filed by suppressing the materials facts is not maintainable and is liable to be dismissed.
5. The aforesaid pleadings have occasioned following:-
ISSUES
1. Whether plaintiff proves the alleged interference by defendants for use and enjoyment of schedule 'A' property ?
2. Whether plaintiff is entitled for relief sought ?
3. What Order or Decree ?
6. The plaintiff in order to discharge the burden cat upon him got examined as P.W.1 and has relied upon 12 documents marked at Ex.P.1 to Ex.P.12 and close the evidence.
12 O.S. No.8229/2016
7. The defendant No.2 though got examined as D.W.1, he has not produced any documents and this Court vide order dated 12.09.2024 has discarded the evidence of D.W.1.
8. Heard learned counsel for the plaintiffs and perused records.
9. My answers to the above issues are as follows:
ISSUE NO.1 :: In the Affirmative
ISSUE NO.2 :: In the Affirmative
ISSUE NO.3 :: As per final order for the
following;
REASONS
10. ISSUES NO.1 AND 2 :: Both issues are
taken up collectively for common discussion to avoid repetition of facts and also for convenience of the Court.
The present suit is one for Permanent Injunction to restrain the defendants from interfering with the 13 O.S. No.8229/2016 plaintiff's peaceful possession and enjoyment over suit 'A' schedule property. In the instance suit, the undisputed facts which is appearing from the pleadings and from the documents more particularly Ex.P.1 to Ex.P.5 which are the copy of the Memo filed in O.S. No.2746/2014 and copies of the judgment and decree passed in S.C. No.1192/2015 and 1193/2015 shows that the plaintiff is the absolute owner of both 'A' and 'B' schedule property and he has constructed ground, first floor and the party hall and has also constructed 2 nd and 3rd floor of the building and behind the commercial building he has constructed residential portions and he along with his family members is in occupation of the residential building and to approach the residential building he has left 10 ft. passage on north eastern corner of the building and the said passage is used by the plaintiff to reach his house from the main road. It is also not in dispute that the plaintiff had rented out 3 shops in the ground floor in favour of one R.D.Patel, 14 O.S. No.8229/2016 Narayana Swamy and one Aslam and since the shops were required by the plaintiff for his bonafide use and occupation he filed O.S. No.2746/2014 against the R.D.Patel and S.C. No.1192/2015 against Narayana Swamy and S.C. No.1193/2015 against Aslam and all the suits were decreed and the tenants vacated and delivered vacant possession of the shops to the plaintiff. It is also not in dispute that the defendants No.1 and 2 being father and son were inducted into the suit schedule property as a tenant under registered lease deed dated 03.10.2012 in respect of 'B' schedule property to run a party hall and additional registered lease deed was executed on 12.03.2013 in respect of the same property.
11. Now the controversy involved in the suit is that according to the plaintiff, the 'B' schedule property is having entrance on the northern side of the complex and that is the only means of access to use and the defendant without having any manner of right, title or 15 O.S. No.8229/2016 interest as park to the vehicle or as to the block ingress and egress to the 'A' schedule property and hence, the suit.
12. On the contrary, it is the contention of the defendants that these defendants are also using the said passage for their ingress and egress for conducting business in the 2nd and 3rd floor and they never obstructed the plaintiff and their family members and the suit is a frivolous one and is not maintainable.
13. In order to establish his claim, the plaintiff got examined himself as P.W.1 and he has in his evidence deposed that the plaintiff is the absolute owner of the suit 'A' schedule property and he by leaving 10 feet towards Kothanur Main Road constructed a commercial complex and behind the said commercial building he constructed residential portions and he along with his family members is in occupation of the residential building. To approach the said 16 O.S. No.8229/2016 residential building he left 10 feet passage on north eastern corner of the building and the plaintiff and his family members are using the said passage to reach their house from the main road. The defendant No.1 was inducted as a tenant in respect of 2 nd and 3rd floor of the suit 'A' schedule property which is described in the 'B' schedule property to run a party hall. The 'B' schedule property is having entrance on the northern side of the suit 'A' schedule property. The defendants approached the plaintiff and requested to let out shop No.1 in 'A' schedule property, to which the plaintiff refused and at that time the defendants proclaimed and threatened that they will not allow the plaintiff to use the shop peacefully and thereafter, without having any manner of right, title or interest either over 'A' schedule property or the vacant space in front of the property illegally parked their cars and thereby blocked the ingress and egress to the 'A' schedule property and thereby prevented the plaintiff from using 'A' schedule 17 O.S. No.8229/2016 property and hence, left with no choice the present suit is filed.
14. In support of his evidence he has relied upon Ex.P.6 and Ex.P.7 which are the registered lease deed and additional lease deed which is discussed herein before and these documents are also not in dispute. Ex.P.8 to Ex.P.11 which are the photographs relied upon by the plaintiff to establish the alleged interference caused. These photographs shows that there are 5 shops in the ground floor and in the first floor there is a board under the name Sri. B.S.K. Party Hall which is the admittedly being run by the defendants and these photographs also shows the cars parked in front of the shops situated on the ground floor and also on the passage which is used as a means ingress and egress by the plaintiff to approach his residential house constructed on the back side of the commercial building.
18 O.S. No.8229/2016
15. During cross-examination of P.W.1, he admits that the tenants used to park their vehicles in front of the shops were open area is available measuring 10X68 ft. and except tenants no other persons will be allowed to park the vehicles in the area and the suggestion putforth that the photographs were taken at the time when the ground floor tenants were being vacated is admitted. So the admission of the P.W.1 shows the photographs Ex.P.8 to Ex.P.11 which shows the car parked in the passage and in the front portion of the ground floor shows it was part at the time of vacating the ground floor shops.
16. But it is necessary to note that the defendant has though raised a contention that the said passage is used by the tenants to park their vehicles and at no point of time they obstructed the plaintiffs from using the passage, they have not chosen to adduce any contradictory evidence on record. So 19 O.S. No.8229/2016 relying on the sole testimony of P.W.1 and the documents relied upon by him, it is established that the plaintiff is owner of both 'A' and 'B' schedule property and he has been using the passage shown in the Ex.P.8 to Ex.P.11 as a means of access to his residential house from the main road and the photographs depicts that the passage is blocked by parking the cars. So when the possession of the plaintiff is proved and also when it is proved that the 'B' schedule property is used as a means of access by the plaintiff, the attempts made by the defendants to block the passage by parking their cars shows the alleged interference. Hence, this Court is of opinion that the plaintiff has established that he is in possession and enjoyment of 'A' schedule property and that there was interference by the defendants and as such the alleged interference requires to be protected. Accordingly, this Court proceeds to answer the aforesaid issues No.1 and 2 in the Affirmative.
20 O.S. No.8229/2016
17. ISSUE NO.3 :: In view of findings on issues No.1 and 2, this Court proceeds to pass the following;
ORDER Suit of the plaintiff is decreed.
The defendants are hereby restrained from interfering with the plaintiff's peaceful possession and enjoyment over the suit 'A' schedule property by way of permanent injunction.
Draw decree accordingly.
(Dictated to the Stenographer, transcribed by her, transcription corrected and then pronounced by me in the open Court on this the 05th day of November, 2024).
(VEENA N.) XL Addl. City Civil & Sessions Judge, Bengaluru City.
ANNEXURE I. LIST OF WITNESSES EXAMINED ON BEHALF OF :
(A) PLAINTIFF SIDE ::
P.W.1 :: M.Hanumappa
(B) DEFENDANTS SIDE ::
D.W.1 :: K.M.Manjunath
21 O.S. No.8229/2016
II. LIST OF DOCUMENTS EXHIBITED ON BEHALF OF:
(A) PLAINTIFF SIDE ::
Ex.P.1 :: Memo filed in S.C. No.1192/2015 Ex.P.2 & :: Certified copies of judgment and decree in Ex.P.3 S.C. No.1192/2015 Ex.P.4 & :: Certified copies of judgment and decree in Ex.P.5 S.C. No.1193/2015 Ex.P.6 :: Certified copy of lease deed dated 03.10.2012 Ex.P.7 :: Certified copy of lease deed dated 12.03.2013 Ex.P.8 to :: 4 photographs with C.D. Ex.P.12 (B) DEFENDANTS SIDE :: - NIL -
(VEENA N.) XL Addl. City Civil & Sessions Judge, Bengaluru City.
Digitally
signed by
VEENA N
VEENA Date:
N 2024.11.07
16:47:53
+0530