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2015 DIGILAW 633 (KAR)

Priyanka H. S. v. Lokesh Giri H. D.

2015-06-16

B.SREENIVASE GOWDA, N.KUMAR

body2015
JUDGMENT : N. Kumar, J.- This is a defendant's regular first appeal challenging the judgment and decree of the Trial Court, which has decreed the suit of the plaintiff as prayed for. 2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit. 3. The case of the plaintiff is that property bearing No. 31 formed out of property No. 212 of Kodigehalli Village, Yelahanka Hobli, Bangalore North Taluk having CMC Katha No. 693/1175/293/31, amalgamated Katha Nos. 840 and 1246 measuring East to West 40 feet and North to South 60 feet totally measuring 2400 sq. feet, belonged to one Smt. Jayamma, the mother of the plaintiff. Adjacent immovable property bearing No. 32, formed out of property No. 212 of Kodigehalli Village, Yelahanka Hobli, Bangalore North Taluk having CMC Katha No. 693/1175/293/32, amalgamated Katha Nos. 840 and 1246 measuring East to West 40 feet and North to South 60 feet totally measuring 2400 sq. feet belonged to one Smt. Mogamma, the grandmother of the defendant. After getting the said property amalgamated, the said Smt. Jayamma and Smt. Mogamma entered into a Joint Development Agreement dated 16-4-2007 with M/s. Space Time Constructions, a registered partnership firm for the Joint Development of the amalgamated properties into residential apartments. As per the Development Agreement, the share of the owners was 45% and that of the developers was 55%. The developer constructed residential apartments and it is called `Aster Apartments'. The developer, as per the terms of the agreement retained 55% of his share and allotted 45% of the owner's share as mentioned in the Joint Development Agreement. Accordingly, Flat No. G2, Flat No. G3, Flat No. 301, Flat No. 302 and Flat No. 303, two bedroom apartments in the ground floor and the 3rd floor were allotted to the share of the owners and a pent house in 4th floor was allotted to them. The properties, which were allotted to the share of the owners are the subject-matter of the suit and are morefully described in the schedule to the plaint and hereinafter referred to as `the schedule property'. 4. Smt. Mogamma gifted her half share through a registered gift deed dated 26-11-2009 to the defendant. Smt. Jayamma also gifted her share to the plaintiff, who is her son. 4. Smt. Mogamma gifted her half share through a registered gift deed dated 26-11-2009 to the defendant. Smt. Jayamma also gifted her share to the plaintiff, who is her son. Thus, the plaintiff and defendant have become equal co-owners of the schedule property with half share each. The plaintiff under a misconception that the developer had not handed over possession of the suit schedule property, approached him. Then he came to know that possession has already been handed over. Thereafter, the plaintiff called upon the defendant to come for partition of the suit schedule property and in fact he has suggested an equitable partition. Out of the two bedroom accommodations, one apartment could be taken by each of them and the third apartment could be taken by either of them by paying the consideration of Rs.3,000/- per sq. ft. for the half share. Insofar as the three bedroom accommodations are concerned, each one of them can take one out of them. Insofar as the apartment in the pent house is concerned, again whoever is willing to retain can pay Rs.3,000/- per sq. feet. However, this suggestion of the plaintiff is not acceded to by the defendant. It is further case of the plaintiff that they have also paid maintenance charges to BWSSB connection with regard to three flats. Therefore, he sought for partition of his half share by metes and bounds and for mesne profits and other consequential reliefs. 5. The defendant, after service of suit summons entered appearance and filed a detailed written statement. In the written statement, he did not deny the Joint Development Agreement entered into by them with the developer. She also did not dispute that each one of them has got half right in the schedule property. Her grievance was the developer has not yet handed over possession. Till possession is handed over, the plaintiff has no right to maintain a suit for partition and as the developer is not made a party to the proceedings, the suit is not maintainable for non-joinder of necessary parties. Insofar as the pent house is concerned, it cannot be partitioned. It is not approved by the BBMP. It was built by Mogamma on her own cost with the help of the developer. Insofar as the pent house is concerned, it cannot be partitioned. It is not approved by the BBMP. It was built by Mogamma on her own cost with the help of the developer. Due to non-availability of property and legal records in relation to handing over the suit schedule property to the defendant by the developer, the question of partition would not arise. She denied that the plaintiff has paid any maintenance charges. Therefore, she sought for dismissal of the suit. 6. On the basis of the aforesaid pleadings, the Trial Court framed the following five issues: 1. Whether the plaintiff proves that the developer has already handed over the owners' share? 2. Whether the plaintiff and the defendant are in joint possession of the suit schedule property? 3. Whether the plaintiff is entitled to partition and separate possession of his half share over the schedule property as against the defendant? 4. Whether the suit of the plaintiff is bad for non-joinder of necessary party? 5. What decree or order? 7. The plaintiff in order to substantiate his claim examined himself as P.W. 1 and also examined Mr. Praveen R. one of the partners of the developer partnership firm as P.W. 2. The plaintiff produced 8 documents, which were marked as Exs. P. 1 to P. 8. On behalf of the defendants, Dr. H.D. Sheshagiri, power of attorney of the defendant was examined as D.W. 1 and only the power of attorney was marked as Ex. D. 1. 8. The Trial Court, on appreciation of the aforesaid oral and documentary evidence on record held that the plaintiff has proved that the developer has already handed over the owner's share to the owners. It also held that the plaintiff and defendant are in joint possession of the suit schedule property. As the share of the plaintiff is not disputed, plaintiff is entitled to partition and separate possession of his half share over the suit schedule property. It further held that the suit is not bad for non-joinder of necessary party, as developer is neither necessary nor proper party to the suit and therefore, it decreed the suit of the plaintiff as prayed for. However, it declined to grant decree for mesne profits which means that the decree for mesne profits is rejected. Aggrieved by the said judgment and decree, of the Trial Court, the defendant is in appeal. 9. However, it declined to grant decree for mesne profits which means that the decree for mesne profits is rejected. Aggrieved by the said judgment and decree, of the Trial Court, the defendant is in appeal. 9. The learned Counsel for the appellant assailing the impugned judgment and decree contends that the Trial Court committed a serious error in not noticing that the developer has not handed over possession of the schedule property to the owners, which is a condition precedent for effecting partition between co-owners. It also failed to notice that the plaintiff has no right in the pent house firstly because, it is Smt. Mogamma, who has paid the entire consideration for the construction and consequently, it is an illegal construction, as it is not forthcoming from the sanction plan. Therefore, he contends that the judgment and decree passed by the Trial Court requires to be set aside. 10. Per contra, the learned Counsel appearing for the plaintiff-respondent supported the impugned order. 11. In the light of the aforesaid facts and the rival contentions, the points that arise for our consideration in this regular first appeal are as under: 1. Whether the finding of the Trial Court that the Developer has already handed over possession and that plaintiff and defendant are in joint possession of the schedule property calls for any interference? 2. Whether the plaintiff is entitled to half share in the suit schedule property? 12. From the pleadings and evidence, it is clear that the title to the two sites belonging to Smt. Jayamma and Smt. Mogamma are not in dispute. Similarly, the gift deeds made by them in favour of the plaintiff and defendant are also not in dispute. Similarly, the Joint Development Agreement dated 16-4-2007 and its registration is also not in dispute. As per the terms of the Joint Development Agreement, 55% of the flat area belong to the developers and 45% belongs to the owners. In the agreement clear description of that 45% built-up area, which belong to the owners has been dearly mentioned. That is precisely what is reflected in the suit schedule and described as suit schedule property. It is also not disputed that the developer has put up construction, sold his construction to the purchasers and also formed an association in accordance with law. That is precisely what is reflected in the suit schedule and described as suit schedule property. It is also not disputed that the developer has put up construction, sold his construction to the purchasers and also formed an association in accordance with law. In fact after entering into Joint Development Agreement, the parties have also entered into a supplementary agreement with regard to the share of the flats, which is also not in dispute. As is clear from the schedule property and the terms of the Joint Development Agreement and subsequent agreement where flats are shared, towards the share of the owners 3 and 2 bedroom apartments in the ground floor and 3 and 2 bedroom apartments in the third floor and one pent house in the 4th floor are allotted. In fact prior to the filing of the suit, the plaintiff has made an offer. Out of the two flats with three bedroom apartments, each one of them can take one flat. As there are three and two bedroom apartments, each one of them can take one flat and the third flat could be retained by the person willing to pay Rs.3,000/- per sq. ft. for the half share. Insofar as the fourth floor pent house is concerned, whoever wants to retain, should pay the other Rs.3,000/- per sq. ft. to the 50% share. We cannot think of a more reasonable equitable partition than this. The defendant did not agree. Therefore, the plaintiff was constrained to file the suit. 13. Now the defence taken by the defendant is, till possession of the schedule property is handed over to the owners, it is not capable of partition. The evidence on record shows that in the first place, the possession of the land was never parted by the owners in favour of the developer. He was only permitted by the owners to enter on the land in order to put up construction. Therefore, the possession of the entire land continued with the owners notwithstanding the development by the developer. Further, the evidence on record shows that the developer has written letters calling upon them to take the shares, which were allotted to them in accordance with the Joint Development agreement. Therefore, the Trial Court, on proper appreciation of the oral and documentary evidence on record has categorically held that the developer is not in possession of the schedule property. Further, the evidence on record shows that the developer has written letters calling upon them to take the shares, which were allotted to them in accordance with the Joint Development agreement. Therefore, the Trial Court, on proper appreciation of the oral and documentary evidence on record has categorically held that the developer is not in possession of the schedule property. It is the owners, who are in possession of the schedule property and therefore, there is no legal impediment for effecting a partition between the co-owners according to their share. As the title of the property is not in dispute and as the share to which each of the co-owner is entitled to is not in dispute and as both of them are in joint possession of the schedule property it felt that a decree for partition declaring half share to the plaintiff and to the defendant could be granted and accordingly, it is granted. Therefore, we do not see any justification to interfere with the well-considered order passed by the Trial Court. 14. Insofar as the pent house in the fourth floor is concerned, no doubt, it is not there in the sanctioned plan. There is also no material to show that Smt. Mogamma paid the cost of the entire consideration. Assuming that it is an illegal construction, that will not come in the way of the partition and if the defendant does not want to touch the construction, he could give it to the plaintiff, if the plaintiff is willing to pay a sum of Rs.3,000/- per sq. ft., towards the half share, to which the defendant is entitled to. If the defendant wants to retain that property, he has to pay Rs.3,000/- per sq. ft. for the half share of the plaintiff. However, that is a matter to be worked out in final decree proceedings. 15. Suffice it to say that the plaintiff has established that plaintiff and defendant are co-owners and the plaintiff has half share and defendant has half share. In pursuance of the Joint Development Agreement, the developer has put up construction and retained 55% of the area belonging to him and delivered possession of 45% of the area to the plaintiff and defendant, possession is delivered to them and therefore, the plaintiff is entitled to half share in the schedule property and also entitled to separate possession of that half share. In that view of the matter, we do not see any infirmity in the judgment and decree passed by the Trial Court, which calls for interference. There is no merit in this appeal. Appeal is dismissed.