Bangalore District Court
Mrs.Hemalatha Ramanath vs Mr.V.T.Gajendran on 24 November, 2015
Govt. Of Karnataka
C.R.P.67] TITLE SHEET FOR JUDGMENTS IN SUITS
Form No.9(Civil) AT MAYOHALL UNIT, BANGALORE.
Title sheet for
Judgment in suits
(R.P.91)
Present: Sri. B.Venkatesha, B.Sc., LL.B,
(Name of the presiding judge)
Original suit No.27349/2009
(CCCH-29)
Plaintiff:- Mrs.Hemalatha Ramanath,
w/o.N.Ramanath,
aged about 49 years,
r/at.No.16, Doddakatappa Road,
Ulsoor, Bangalore 560 008.
(By Pleader : Sri. K.T.Pemmaiah )
V/s.
Defendant:- Mr.V.T.Gajendran,
s/o.late V.T.Thanigachalan
Mudaliar, aged about 69 years,
r/at.No.11, 1st floor,
Someshwara temple st., Ulsoor,
Bangalore 560 008.
(By Pleader : Sri.Younous Alikhan )
Date of Institution of the suit 25.11.2009.
Nature of the (Suit or pro-note, suit for Declaration &
declaration and possession, suit for Injunction.
injunction, etc.)
Date of the commencement of recording of 6.8.2013
the Evidence
Date on which the Judgment was 24.11.2015
pronounced
2 O.S.No.27349/2009
Year/s Month/s Days
Total duration 5 11 29
XXVIII ADDL.CITY CIVIL JUDGE
BANGALORE
3 O.S.No.27349/2009
JUDGMENT
This is a suit filed by the plaintiff for a declaration that terrace of the immovable property bearing No.16, ground floor and property No.18, first floor situated at Doddakatappa Road, Ulsoor, Bangalore (herein afterwards referred to as suit schedule property) with common staircase, common passage, common terrace and vacant space in front of ground floor are exclusively belonging to the plaintiff and the defendant and for permanent injunction restraining the defendant from putting up any construction on the terrace of the suit schedule property or from raising any pillars or putting up any construction on the vacant space that situated in front of the plaintiff's house in ground floor and for costs, etc.
2. The plaintiff's case in brief is that her husband N.Ramanath has purchased the property bearing No.16, ground floor, Doddakatappa road, Ulsoor, Bangalore under a registered sale deed dtd.30.9.1987. The defendant has purchased the property bearing No.18, first floor, Doddakatappa Road, Ulsoor, Bangalore under a registered sale deed dtd.20.3.2006. The properties bearing No.16 and 18 are situated in one building. The plaintiff's husband N.Ramanath's whereabouts have not been found from the year 2003. A police complaint was submitted on 4 O.S.No.27349/2009 21.6.2003 before the Ulsoor police station and that it was registered. Police have issued an endorsement that her husband has not been traced out and he is missing and his whereabouts are not known. Common passage, staircase and terrace of the suit schedule property are commonly used by the plaintiff and the defendant. Therefore, the plaintiff and defendant have equal right over the terrace, staircase and common passage of the suit schedule property. The plaintiff has been in peaceful possession and enjoyment of the property bearing No.16 along with her children. The defendant has no independent right, title or interest over the terrace, common area and staircase of the suit schedule property. In spite of that, he has been trying to raise pillars from the plaintiff's compound wall which is exclusively belonging to the plaintiff. The said building is constructed about 50 years back. If any construction on the terrace will lead to heavy damages to the said building and that it may collapse. On 16.11.2009 at about 9.30 am, the defendant has brought men and materials and tried to start earth work inside the compound, he threatened the plaintiff that he will complete the construction. Therefore, the plaintiff has constrained to file this suit.
3. On service of suit summons, the defendant has put his appearance and has submitted his written statement 5 O.S.No.27349/2009 contending that this suit is not maintainable either in law or on facts. He has admitted that the plaintiff's husband N.Ramanath is the absolute owner of the property bearing No.16, ground floor, D.Katappa Road, Ulsoor, Bangalore 8. He also admitted that he is the absolute owner of the property bearing No.18, first floor of the suit schedule property. It is false that the plaintiff's husband N.Ramanath left the house in 2003 and that his whereabouts were not known. The defendant has contended that the plaintiff's husband is still alive and that it is within the knowledge of the plaintiff. He has submitted that the plaintiff has been enjoying the property No.16 and defendant has been enjoying the property No.18 of the suit schedule property. He has admitted that the defendant is putting up construction on the terrace of his property and also putting pillars as without the pillars the construction cannot be done. The defendant has denied that he has no independent right, title or interest over the terrace of the suit schedule property. The defendant has every right to put up construction and raise pillars in the vacant space inside the compound and on the terrace. He is about to put up construction after obtaining sanction plan from the concerned authority. The plaintiff has lodged a complaint before the BBMP officers. After going through the complaint and on verification 6 O.S.No.27349/2009 and spot inspection, the BBMP have not taken any action against the defendant as the construction which is about to be constructed by him is within the limits. He is admitted that the said building is constructed about 50 years back, but he has pleaded that it is false that if any construction is done, it may lead to damage to the suit schedule property. The defendant has obtained the sanction plan and he is about to construct building over the said terrace with pillars on the said building in the vacant space as per law. He submitted that the staircase only is common to property No.17 and 18. At para 14 of his written statement, the defendant has admitted that the staircase, common passage and vacant space in ground floor are all belonging to all the occupants of the said building. Therefore, the defendant has sought for dismissal of this suit with his costs.
4. Based on the aforesaid pleadings this Court has framed the following issues:-
1. Whether the plaintiff proves that the terrace portion of the suit schedule property is common to both plaintiff and defendant?
2. Whether plaintiff proves the interference caused?
3. Whether plaintiff is entitle for permanent injunction?7 O.S.No.27349/2009
4. What order or decree?
5. The plaintiff herself examined as P.W.1, she got admitted 16 documents as Ex.P-1 to P-16 and closed her side of evidence. The defendant got examined himself as D.W.1, he got admitted 19 documents as Ex.D-1 to D.19 and closed his side of evidence.
6. Heard the arguments of the learned counsels appeared for the plaintiff as well as the defendant. They also submitted their notes of arguments in support of their oral submissions respectively. Perused the plaint, WS, evidence of P.W.1, D.W.1 as well as the contents of the aforesaid documents and the arguments urged on both the sides.
7. My answer to the aforesaid issues is as follows:-
Issue No.1 : As in the affirmative.
Issue No.2 : As in the affirmative.
Issue No.3 : As in the affirmative.
Issue No.4 : As per final order for the following :-
REASONS
8. Issue No.1 :- It is the case of the plaintiff that terrace of the properties bearing No.16 and 18, ground and first floors is common to the plaintiff as well as the defendant. In the 8 O.S.No.27349/2009 plaint as well as in the affidavit evidence of P.W.1, she has stated that the property bearing No.16 of ground floor of Dodda Katappa road, Ulsoor, Bangalore is the property of her husband by means of a registered sale deed dtd.30.9.87. She has further deposed that the property bearing No.18 situated at first floor of D.Katappa road, Ulsoor, Bangalore is the property of the defendant by means of a sale deed dated 20.3.2006. The plaintiff and the defendant have been using the common passage, staircase and terrace. She has deposed that the defendant has no independent right, title or interest whatsoever over the terrace of the suit schedule property. In the written statement as well as in the affidavit evidence of D.W.1, the defendant has specifically contended that originally his property belonged to Smt.Nagalakshmi the mother-in-law of the plaintiff.
She sold her property bearing No.18 to one Mukhtar Ahmed on 24.11.2005. The said Mukhtar Ahmed sold the property bearing No.18 to the defendant on 20.3.2006. Whatever mentioned in the schedule of Mukhtar Ahmed's sale deed has been passed on to him. Therefore, the plaintiff has no manner of right to interfere with his peaceful possession of the property. He contended that whatever the rights owned by the said Mukhtar Ahmed has been passed to him and that therefore he had every right to put up 9 O.S.No.27349/2009 construction and raise pillars in the vacant space inside the compound and to construct a building on the terrace of his property bearing No.18. Therefore, the defendant has contended that the plaintiff has no right to obstruct him in constructing the said building on the terrace of his building by putting pillars on the land available in the ground floor.
9. Ex.P-1, sale deed dtd.30.9.87 discloses that the plaintiff's husband N.Ramanath had purchased the property bearing No.16 that lies in the ground floor of Doddakatappa Road, Ulsoor, Bangalore. Page No.7 of Ex.P-1 discloses that the plaintiff's husband has purchased the property all that piece an parcel of land with all the buildings standing thereon, comprising ground floor only, together with fittings and fixtures of all and every description therein, excluding the electric fans therein, bearing Corporation No.16. Doddakatappa Road, Ulsoor, Bangalore 8. The said sale deed discloses that there exists another property in the ground floor bearing No.16 and that middle wall of the properties No.15 and 16 is a common wall to both the properties. Ex.P-2 is the original of Ex.D-9. Ex.D-9 is the sale deed dtd.20.3.2006 discloses that the defendant has purchased the property bearing No.18 (first floor) situated at Doddakatappa Road, Ulsoor, Bangalore having a built up area of 10 O.S.No.27349/2009 611.69 sq. feet along with 469 sq.ft. of proportionate undivided right, title and interest over the land together with fixtures and fittings of all and every description therein excluding the electrical fittings measuring on East 20'6", West 19', North 22 ½" + 8'9"+10'1 1/2'" + 3'6" and South 22'1 ½" + 8'9" + 3'6"
with balcony 3'6" in first floor and common staircase in the ground and first floor in between premises No.15 and 17. The said sale deed discloses that there exists 2 properties in the first floor bearing No.17 and 18 and middle wall is a common wall to the properties No.17 and 18. The said sale deed further discloses that the defendant has right over 469 sq.ft of proportionate undivided right, title and interest in the land. Ex.P- 3 and 4 discloses that property No.16 has been mutated in the name of the plaintiff's husband Ramanath. Ex.P-5 discloses that the plaintiff's husband has paid tax of the property bearing No.16. Ex.P-6 is the encumbrance certificate of the property bearing No.16 from 1.4.85 to 31.3.2004 and that the same discloses that the plaintiff's husband is the purchaser of the said property and that there was no encumbrance in respect of the said property. Ex.P-7 is the encumbrance certificate of the property bearing No.16 from 1.4.2004 to 21.11.2009, also supports the contents of Ex.P.6. Ex.P-8 is the approved sketch of 11 O.S.No.27349/2009 the properties bearing No.16 to 18 of Doddakatappa Road, Ulsoor, Bangalore. Ex.P-9, copy of the complaint discloses that the plaintiff has submitted the same to the Ulsoor police station alleging that her husband Ramanath has been missing from the year 2003. Ex.P-10, the CC of the FIR submitted to the ACMM Court in connection with Cr.No.372/2003 of Ulsoor police station discloses that a criminal case has been registered in pursuance of the complaint marked at Ex.P-9. Ex.P-11 discloses that the Ulsoor police have issued an endorsement to the plaintiff stating that her husband has not been traced till 26.10.2005. Ex.P-12 is the copy of the ration card of the plaintiff's family that stood in the name of her husband Ramanath. The same bears the name of the plaintiff also. Ex.P-13 is the copy of the voter identity card which discloses the plaintiff's husband's name as Ramanath. Ex.P-14 are the 5 photographs of the said property. Ex.P-14(a) is the negative of the said photographs. Ex.P-15 bill of the photographs marked at Ex.P-14. Ex.P-16 discloses that the plaintiff has submitted complaint against the defendant alleging that the defendant is constructing a building unauthorizedly on the terrace of the first floor house bearing No.18.
10. Ex.D-1 is the sale deed dtd.24.11.2005 which discloses that the plaintiff's mother-in-law Smt.N.Nagalakshmi 12 O.S.No.27349/2009 sold the property bearing No.18 to Mukhtar Ahmed. The said sale deed at page No.11 discloses as follows :-Whereas the vendor Smt.N.nagalakshmi Narayanaswamy, flat No.18 and her son N.Ramanathan owner of flat No.16 have agreed that they will have no objection in the event of the 1st floor owner constructs the 2nd floor on the first floor and shifts the water tank on the 2nd floor with liberty to the ground floor owner to come and clean the Sintex tank as and when required. The said sale deed discloses that the said Nagalakshmi has sold 611.69 sq.ft. built up area with 469 sq.ft. of proportionate undivided right, title and interest in the land. Ex.D-2 sale deed dtd.30.9.87 discloses that the plaintiff's mother-in-law Smt.N.Nagalakshmi had purchased the property bearing premises No.18, first floor of the said building. As per the said sale deed marked at Ex.D-2, no right was conveyed to the said Smt.Nagalakshmi to construct a building in the terrace of the property bearing No.18 or in the land of ground floor area. The same discloses that under the said sale deed only 611.69 sq.ft. of built up area in the first floor was conveyed to the said Smt.Nagalakshmi. If that is so, it is clear that the said Nagalakshmi had no right to alienate 469 sq.ft of proportionate undivided right, title and interest in the land in favour of the said 13 O.S.No.27349/2009 Mukhtar Ahmed. Therefore, it is clear that the said Mukhtar Ahmed also had no right to alienate the said 469 sq.ft. Undivided right, title and interest in the land to the defendant. Similarly Ex.D-2 did not disclose that the said P.Krishna Murthy had not given consent to the said Nagalakshmi to construct a building in the 2nd floor over the terrace of the property bearing No.18. Therefore, it is clear that the said Nagalakshmi has no right to convey or grant permission to Mukhtar Ahmed to construct a building in the 2nd floor i.e., over the terrace of the property bearing No.18. Therefore the contention of the defendant that whatever the right acquired by the said Mukhtar Ahmed has been conveyed to him cannot be accepted. The contents of the said sale deed discloses that the owner of the ground floor houses has a right to keep their water tank on the terrace of the property No.17 and 18 and clean the same as and when they require. Therefore, it is clear that the ground floor owner of the said building also have a common right over the terrace of the property bearing No.18 that situated in the first floor. Ex.D-3 to 6 are the documents executed by the said Nagalakshmi in favour of ANZ Grindlays bank, Basaveshwarnagar branch to avail a loan in respect of the 14 O.S.No.27349/2009 property bearing No.18, first floor of Dodda Katappa road, Ulsoor, Bangalore. Ex.D-7 is the valuation of the flat No.18 made by R.K.Makhija & Co. The same discloses that the value of the property bearing No.18 of Dodda Kattappa road, Ulsoor is Rs.4 lakhs. Ex.D-8 is the Memorandum of entry. Ex.D-10 is the certificate issued by G.Somashekar; Chartered surveyor discloses that the foundation of the residential building situated at Dodda Kattappa road, Ulsoor is capable of carrying the load of first and second floor as per sanction plan. Ex.D-11 is the approved plan in respect of the construction of the building over the terrace of the house bearing No.18. Ex.D-12 is the application filed in respect of tax payers who are assigned PID Number discloses that the plaintiff's husband has submitted the same for self assessment of his property bearing No.16, ground floor. Ex.D-13, 14 and 16 discloses that the plaintiff's husband has paid tax to his property bearing No.16. Ex.D-15 and 17 are the self assessment tax blank forms. Ex.D-18 is the letter addressed to the DCP, Ulsoor, Bangalore by the defendant on 10.10.2012 alleging that one R.Kannan is disturbing him by putting threat to him. Ex.D-19 is the endorsement issued by the police inspector, Ulsoor police station stating that police have enquired Kannan and recorded his statement.15 O.S.No.27349/2009
11. Nothing is elicited in the cross-examination of P.W.1 that the defendant alone has right to construct building on the terrace of the property bearing No.18. Similarly, nothing is elicited in the cross-examination of D.W.1 in support of the case of the defendant, but as stated supra it is clear that the defendant's vendor's vendor Smt.N.Nagalakshmi had not possessed right to construct building on the terrace of the property bearing No.18. She also has not acquired proportionate title over the undivided 469 sq.ft. area in the land. Though she has no such right, she executed the sale deed in favour of Mukhtar Ahmed by conveying the said 469 sq.ft. undivided right over the land in the ground floor. She also has granted permission to the said Mukhtar Ahmed to construct a building in the terrace of the property bearing No.18 even though she has not possessed such right as per Ex.D-2 sale deed dtd.30.9.87. Therefore, it is clear, that the ground floor, common staircase and terrace of the said building is common to all the owners of the flats bearing No.15, 16, 17 and 18 of the said building. Therefore, it is clear that the defendant alone has no right to construct building on the terrace of the building bearing No.18 and in the land situated in the ground floor. Therefore, no grounds to discard or disbelieve the evidence of P.W.1 or 16 O.S.No.27349/2009 contents of the documents marked on behalf of the plaintiff. Therefore, I answered Issue No.1 as in the affirmative.
12. Issue No.2 & 3 :- The pleadings of the defendant as well as the contents of the documents marked on behalf of the defendant makes it clear that the defendant has been making preparation to construct a building on the terrace of the property bearing No.18 as well as in the land situated in the ground floor. As stated supra on Issue No.1, it is clear, that the defendant alone has no right to put up such construction. Therefore, it is clear that the defendant is attempting to interfere with the plaintiff's right, title and enjoyment of the said terrace as well as ground floor by way of attempt to construct a building therein. Admittedly the said building was 50 years old. If any construction on its second floor, it may cause danger to the said building. Therefore, I am of the opinion, that the plaintiff is entitled to the relief as prayed for. Therefore, I answered Issues No.2 and 3 as in the affirmative.
13. Issue No.4 :- In view of my findings on Issues No.1 to 3 as above, this Court proceeds to pass the following :-
ORDER The suit of the plaintiff is hereby decreed. 17 O.S.No.27349/2009 It is hereby declared that the terrace of the property bearing No.18, first floor, situated at Dodda Katappa Road, Ulsoor, Bangalore is common to plaintiff as well as the defendant. It is hereby ordered that the defendant is permanently restrained from putting construction over the vacant land in the ground floor as well as on the terrace of the property bearing No.18 first floor in any manner. No costs.
Draw up decree accordingly.
[Dictated to the Judgment-Writer, computerized transcript thereof corrected, signed and then pronounced by me in the open court on this the Tuesday the 24th day of November, 2015].
[ B.VENKATESHA ], XXVIII Addl. City Civil & Sessions Judge, Mayohall, Bangalore.
SCHEDULE All that piece and parcel of immovable property bearing No.16 - ground floor (plaintiff's property) and No.18 - 1st floor (defendant's property) (both in one building), Doddakatappa road, Ulsoor, Bangalore 560 008, with common staircase, common passage, common terrace and vacant space in front of ground floor exclusively belongs to the plaintiff. Bounded on the East by property belongs to Sri.Anjanappa bearing No.19, West by Doddakatappa road, North by property No.15, Doddakatappa road and South by common passage 10 ft.3 inches. Sital area 889.94 sq.ft. built up area ground floor 611.69 sq.ft. and 1st floor 611.69 sq.ft.
ANNEXURE 18 O.S.No.27349/2009
1. List of witnesses examined for the plaintiffs :-
P.W.1 : Hemalatha Ramanath. 2. List of documents marked :- Ex.P 1 : Sale deed dt.30.9.87. Ex.P 2 CC of sale deed dt.20.3.2006. Ex.P 3 Khata extract. Ex.P 4 Khata endorsement. Ex.P 5 Tax paid receipt. Ex.P 6 Encumbrance certificate. Ex.P 7 Encumbrance certificate. Ex.P 8 Plan. Ex.P 9 Police complaint. Ex.P 10 FIR. Ex.P 11 Endorsement. Ex.P 12 CC of Ration card. Ex.P 13 CC of election ID. Ex.P 14 Photographs. Ex.P 14a Negatives. Ex.P 15 Photo receipt. Ex.P 16 Letter of BBMP.
3. List of witnesses examined for the defendants :-
D.W.1 : V.T.Gajendran. 4. List of documents marked :- Ex.D 1 : Sale deed dt.24.11.2005. Ex.D 2 Sale deed dt.30.9.87. Ex.D 3 Legal scrutiny report. Ex.D 4 Letter dt.18.3.98. Ex.D 5 Affidavit. Ex.D 6 Undertaking letter. Ex.D 7 Revaluation certificate. Ex.D 8 Memorandum of entry. Ex.D 9 Sale deed dt.20.3.2006. Ex.D 10 Foundation certificate. Ex.D 11 Approved plan dt.21.3.08. Ex.D 12 Assessment application. Ex.D 13,14 Two tax paid receipts. 19 O.S.No.27349/2009 Ex.D 15 Letter. Ex.D 16 Tax receipt. Ex.D 17 Assessment application. Ex.D 18 Compliant. Ex.D 19 Endorsement. [ B.VENKATESHA ], XXVIII ACC & S.J. 20 O.S.No.27349/2009 Case called. Pltff. Pre/abs. Deft. Pre/abs. Judgment pronounced in open Court as under :- ORDER The suit of the plaintiff is hereby decreed. It is hereby declared that the terrace of
the property bearing No.18, first floor, situated at Dodda Katappa Road, Ulsoor, Bangalore is common to plaintiff as well as the defendant.
It is hereby ordered that the defendant is permanently restrained from putting construction over the vacant land in the ground floor as well as on the terrace of the property bearing No.18 first floor in any manner. No costs.
21 O.S.No.27349/2009Draw up decree accordingly.
(Separate judgment is kept in the file.) (B.Venkatesha), XXVIII ACC & SJ.
22 O.S.No.27349/2009