- 1 - HC-KAR NC: 2025:KHC:27886 MFA No. 1764 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR MISCELLANEOUS FIRST APPEAL NO. 1764 OF 2025 (CPC) BETWEEN: SMT. A. EARKAI VANI W./O KAMAL KANNA, D/O SRI ANGAMUTHU AND PONGAVANAM, AGED ABOUT 64 YEARS, R/AT NO. 482/614, 3RD CROSS, LALBAGH ROAD, NEAR YWCA SCHOOL, KHADAR SHARIFF GARDEN, WILSON GARDEN, BENGALURU - 560 027. …APPELLANT (BY SRI. GOPALA H.M, ADVOCATE) AND: SRI. A. AMBEDKAR S/O LATE ANGAMUTHU, AGED ABOUT 60 YEARS, R/AT NO. 482/614, 3RD CROSS, LALBAGH ROAD, NEAR YWCA SCHOOL, KHADAR SHARIFF GARDEN, WILSON GARDEN, BENGALURU - 560 027. …RESPONDENT (BY SRI. KESHAVA K.V, ADVOCATE) THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED.04.02.2025 PASSED ON I.A.NO.1 IN OS.NO.6948/2024 ON THE FILE OF THE III ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH-25, DISMISSING THE IA.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC. Digitally signed by ANJALI M Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:27886 MFA No. 1764 of 2025 THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR ORAL JUDGMENT The appellant/plaintiff, being aggrieved and dissatisfied by the order dated 04.02.2025 passed in OS.No.6948 of 2024, by the III Additional City Civil and Sessions Judge (CCH-25) Bengaluru, is before this Court, challenging the dismissal of her application filed under Order XXXIX, Rule 1 and 2 read with Section 151 of CPC. 2. It is the case of the appellant/plaintiff before the trial Court, that plaintiff is the absolute owner of 'B' schedule property and all the revenue records are standing in her name. She is paying regular taxes to the BBMP from the date of release deed dated 04.03.2020. It is stated that plaintiff’s mother Pongavanamma, purchased 'A' schedule property from one Dr.K.N.Sharif under the registered sale deed dated 28.09.1972. Thereafter, his father, mother, brothers and sisters among themselves - 3 - HC-KAR NC: 2025:KHC:27886 MFA No. 1764 of 2025 effected a partition of 'A' schedule property i.e., ground, first and second floor. In the said partition 'C' schedule property was allotted the share to the plaintiff, middle portion of the ground floor constructed area is 487 square feet with RCC roofing with all civic amenities which is constructed in the entire schedule property along with 1/10th of undivided share, right, interest and ownership of the land in the entire schedule property. It is stated that father of the plaintiff died on 04.11.2023, the defendant is the younger brother. It is alleged that on 20.06.2024, defendant unnecessarily disturbed the work of 'B' schedule property i.e. 3rd floor and alteration of the building. Even defendant used the vulgar languages and threatened the workers. Thus, defendant along with his henchmen are disturbing the workers to continue their work. Therefore, the plaintiff has filed the suit for injunction. 3. Before the learned trial Court, the defendant appeared and filed written statement denying the entire assertions made in the plaint. It is contended that, as per - 4 - HC-KAR NC: 2025:KHC:27886 MFA No. 1764 of 2025 the partition, defendant has got eastern side portion of the first floor house property having constructed area of 656 square feet with all civic amenities along with 1/10th of undivided share as mentioned in 'G' schedule property in the said partition deed carved out in 'A' schedule property. 4. It is also contended that, the plaintiff has got her share in a middle portion of ground floor house property having constructed area of 487 square feet with all civic amenities along with 1/10th undivided share mentioned as 'C' schedule property. It is contended that, in the said partition deed, there is a clear mention with regard to the common area, common facilities, lobbies, staircase etc., which are in ground floor and the entire suit schedule property shall be utilized equally by all the said property owners. It is contented that, the plaintiff by suppressing all the material facts has filed this suit. 5. The Learned trial Court considering the submissions of both the sides and on going through the - 5 - HC-KAR NC: 2025:KHC:27886 MFA No. 1764 of 2025 records have answered all the points for consideration in negative, while deciding in I.A.No.1 and ultimately dismissed the I.A.No.1 filed by the plaintiff. 6. The Learned counsel for the appellant/plaintiff submits that, in the partition deed dated 14.08.2019, it is mentioned in page 13 of the partition deed that, all the common areas, common facilities like staircase, lobbies, passages etc., which is in ground floor in the entire suit property shall be utilized equally by all the said property owners without giving any trouble to the other party and also the terrace portion space in third floor in the entire suit schedule property shall be utilized equally by all the said property owners. But they have no right to construct house or building on the terrace portion space. All the property owners have equal rights to use the terrace portion for their functions etc., as per this partition deed, not only the plaintiff and other co-sharers were also parties and defendant is also one of the signatory to this deed. It is submitted that, despite the said covenant in the - 6 - HC-KAR NC: 2025:KHC:27886 MFA No. 1764 of 2025 said partition deed, because of some obstructions so caused, there was another document effected in between the co-sharers of the property wide release deed dated 04.03.2020. The counsel for the appellant further submits that, as per contents of the said release deed in Para 8, there was a mutual agreement amongst all the co-sharers, that they have decided to construct the house on the terrace portion space in the 3rd floor. Accordingly, they have constructed the house on the terrace portion space in the 1st floor and 3rd floor, which comes on eastern side, constructed area is 959 square feet in the entire schedule property etc. He submits that, as per the photographs produced by the appellant, almost construction is completed by the appellant and only plastering, plumbing and electric work is pending. In the meantime, there was obstructions. Without considering all these factual facts, he submits that, the trial Court have dismissed the interim application. - 7 - HC-KAR NC: 2025:KHC:27886 MFA No. 1764 of 2025 7. On the other hand, the learned counsel for the respondent submits that, the plaintiff has undertaken an unauthorised construction. Therefore, a complaint was lodged to the Commissioner-BBMP informing about the illegal construction. The plaintiff has submitted a representation to the BBMP-Commissioner stating as under: "ಾನು ಸದೕ ೕಲಂಡ ಾಸದ ಾಾದು ತಮ ಕೇೆ ಎ.ಅಂೇಡ ರವರು #ೊ%&ರುವ ದೂನ ಅ'(ಯ*+ ಇ-ೇ 3ೇ ಅಡ.ರ/ೆ0, 1ಾ2ಾ3 ರ/ೆ0, ಧಮ(5ಾಯ/ಾ67 -ೇವ/ಾ8ನ ಉಪ ;ಾಗ ನಂ.26/2 ಾಸದ =>ೕಮ?. ಪ@ಂಾವನಂ ರವರ ಸ6Aಾ0ದು, B.ಐ.D. ಸಂEೆF:48-37-26/2 ಈ ಸ6?0ನ*+ ೆಲ, Hದಲೇ ಮತು0 ಎರಡೇ ಅಂತಸು0ಗIದು, ಇದರ*+ ಒಟು& 10 ಾಸದ ಮೆಗIದು, ಈ ಸ6ತ0ನುL ತಮ ಮಕIಾ ;ಾಗ ಪತ>ದ ಮೂಲಕ ಎಲ+ಗೂ ೕDರುAಾ05ೆ. ಸದೕ ದೂರು-ಾರ5ಾದ ಎ.ಅಂೇಡರವರು Hದಲೇ ಅಂತ0ನ*+ ಾಸಾರುAಾ05ೆ. ಾವMಗಳO ಮೂರೇ ಅಂತ0ನ ಮೆಯನುL ಆ2Qೆ>ೕಷS Tಾಡು?0-ೇೆ. ನ7ಂದ Hದಲೇ ಅಂತ0ನವೆ ಾವM-ೇ ೕ?ಾದ Aೊಂದ5ೆಯ ಅವಶFಕAೆ ಇರುವMVಲ+. ಒಂದು ೇೆ ಎ.ಅಂೇಡ ರವೆ Aೊಂದ5ೆಾದ*+ ಾವMಗೇ ಇದನುL ಸಪD#ೊಡುAೆ0ೕೆ. - 8 - HC-KAR NC: 2025:KHC:27886 MFA No. 1764 of 2025 ಸದೕ ಸ6?0ನ ಮೂರೇ ಅಂತ0ನ ೕ1ೆ ಾರೂ ಕಟ&ಡವನುL Tಾ(ಣ Tಾಡಾರ-ೆಂದು ಮತು0 ೕನ QಾFಂಕನುL ಇಡಾರ-ೆಂದು /ೇ2 DೕX YೇZ ನಂ.8,ರ*+ ಸೂ[ರುAಾ05ೆ." 8. The counsel for the respondent further submits that, without any plan or license from the BBMP, the plaintiff has constructed the building as shown in the photographs. Even to the said release deed Stalin was absent. It is submitted that, the said Stalin is no more now. 9. I have given my anxious consent to the arguments of both the side. So far as effecting of a partition deed in between plaintiff/defendant and other co- sharers dated 14.08.2019 is concerned, it is admitted. So also it is admitted between both the sides that, initially all the co-sharers named in the partition deed have agreed to use the common area etc., as recited in Para 13, which reads as under: - 9 - HC-KAR NC: 2025:KHC:27886 MFA No. 1764 of 2025 "All the Common Areas, Common Facilities like Staircase, Lobbies, Passages, etc., which is in Ground Floor in the Entire Schedule Property shall be utilized equally by all the said property owners without giving any trouble to other party. Meanwhile and also the Terrace Portion Space in Third Floor in the Entire Schedule Property shall be utilized equally by all the said property owners. But they have no right to construct house or bulging on the Terrace Portion Space. All the property owners have equal right to use the Terrace portion space for their functions etc." 10. It is also admitted fact between both the sides that there was a release deed on 04.03.2020 wherein in page 8, it is agreed between the parties to the release deed as under: "All the immoveable property owners are enjoying their share of the property along with 1/10th of undivided share, title interest and ownership in the Land in the Entire Schedule Property and they are in peaceful possession and enjoyment in respect of their share of the property which is free from all kind of encumbrances. In the said Registered Partition Deed in Page No.13 in Fourth Para there is a restricted condition has been mentioned and recorded the condition is that the said property Owners have no right to construct house or building on the Terrace Portion Space which is in the third floor in the said property. All the property owners have equal right to use the Terrance portion space for their functions etc. which is in the Entire Schedule Property. But they are unable to perform and follow the said condition due to some family problems. Therefore all the property owners have mutually agrees among themselves and decided to construct the house on the Terrace Portion space in the third Floor. - 10 - HC-KAR NC: 2025:KHC:27886 MFA No. 1764 of 2025 Accordingly they have constructed the house on the Terrace Portion space in the third Floor which comes on Eastern Side, constructed area is 959 Sq.feet, in the Entire Schedule Property the same description of the property has been mentioned and recorded in the Schedule 'B' property." 11. The defendant is also one of the signatory to the release dated 04.03.2020. It is the grievance of the plaintiff that, almost construction is completed, while plastering, plumbing and electric work is pending, because of the obstructions by the defendant, the progress of the completion of the building has come to an halt. 12. The only grievance of the defendant is that, the plaintiff has not obtained any license or permission or approved plan from the BBMP. The objection is to that effect is filed before the BPMP. 13. In view of the facts and circumstances of this case and in view of the agreement to the release deed, as parties to the said deed are permitted to construct the house each other on the terrace portion space in the third floor and some of them have already constructed the - 11 - HC-KAR NC: 2025:KHC:27886 MFA No. 1764 of 2025 house, on the terrace portion, in the third floor and it is also mentioned that, what is the extent of the construct area, therefore, now the defendant cannot deprive the rights of the plaintiff to exercise the same for his convenience. After all plaintiff/defendant are sister and brother inter se residing in the said building itself. Therefore, subject to the clearance/permission from the BBMP, if the plaintiff is permitted to complete the remaining construction, it would meet the ends of justice. However, this permission is subject to the clearance/permission from the BBMP. With this observation, this appeal is disposed of. All the rights of the parties to the suit are kept open. Sd/- (RAMACHANDRA D. HUDDAR) JUDGE PK List No.: 1 Sl No.: 20