M. Suresh and Others vs S.B. Arunachala and Others

B.S. Patil, J.—R.S.A. 1575/2010 and R.F.A. 1433/2013 are the result of two suits filed by the common plaintiff against the common defendants.

R.S.A. 1575/2010 arises out of O.S. No. 44/2001. The said suit was filed seeking mandatory injunction against the 2nd respondent - Mysore City Corporation, Mysore, to demolish the alleged illegal construction made by the 1st respondent herein S.B. Arunachala in the suit schedule shop premises with a direction to the Municipality not to regularize the illegal construction made in the shop premises. The suit was decreed on 15.04.2008. Sri S.B. Arunachala - 1st respondent herein preferred R.A. No. 1130/2009. Learned V Additional District and Sessions Judge, Mysore, has allowed the appeal setting aside the judgment and decree passed by the Trial Court and has thereby dismissed the suit.

Another suit O.S. No. 43/2000 was filed by the very plaintiff/appellant herein M. Suresh against the very defendants seeking permanent and mandatory injunction restraining S.B. Arunachala - defendant No. 1 therein from putting up any construction over the schedule property and for a direction to demolish the illegal construction put up in the schedule premises. This suit came to be decreed by the learned IV Additional Civil Judge, Mysore, vide judgment and decree dated 15.04.2008. Aggrieved by this judgment and decree, S.B. Arunachala - defendant No. 1 therein preferred R.A. No. 281/2010 on the file of the learned Civil Judge (Sr. Dn.), Mysore. However, on a civil petition being filed before this Court in C.P. No. 198/2012 under Section 24 CPC, appeal R.A. No. 281/2010 pending before the Civil Judge (Sr. Dn.), Mysore has been withdrawn to this Court renumbering it as R.F.A. No. 1433/2013 to be heard along with R.S.A. No. 1575/2010. This is how the Regular Second Appeal and the Regular First Appeal are before this Court.

In the regular second appeal filed by the plaintiff M. Suresh, the following substantial questions of law have been framed:

Whether respondent No. 1 having purchased an undivided interest in the land along with the super structure to the extent of 15'' X 30'' would have no right to excavate and to create cellar floor on the footing that it would affect the interest and right of the other co-owners?

What is that interest or right which is affected or lost to the other co-owners?

Whether, in law, it can be said that the purchase of the super structure of a building belonging to several co-owners would include right in the land on which it stands, proportionately, or whether it is only the super structure which is purchased as held in some text books?

As both the regular second appeal and regular first appeal arise between the same parties and the subject matter is the same, I have heard the learned counsel for both parties. In both appeals, common arguments have been addressed.

The facts leading to the dispute, stated in nutshell, are that the City Improvement Trust Board, Mysore, allotted a site bearing No. 53 situated at D. Devaraj Urs Road, Mysore, measuring East to West 30 feet and North to South 30'' in favour of three brothers by name M. Jagadish, M. Suresh and M. Ramesh Kumar vide allotment dated 19.07.1976. They were put in joint possession. The three brothers partitioned the premises among themselves as per agreement dated 10.02.1986. As per the said agreement, in the ground floor, eastern half portion was allotted to the share of M. Jagadish and western half portion was allotted to M. Ramesh Kumar. The entire first floor area was allotted to the share of M. Suresh - plaintiff. Sri M. Suresh was given the right to put up further construction. Pursuant to the partition new numbers were allotted to the three portions. An agreement has been entered into between the three brothers on 13.03.1986 which confirms the entitlement of the three brothers.

Sri M. Jagadish one of the brothers sold his shop bearing No. 53/1 measuring 15'' X 30'' in favour of S.B. Arunachala, son of late D.C. Bhaskarachar as per registered Sale Deed dated 16.04.1999. The said Sri S.B. Arunachala made an attempt to create an opening in the ground floor of the premises. Therefore, the plaintiff filed a suit in O.S. No. 43/2000 against S.B. Arunachala - 1st defendant and Mysore City Corporation - 2nd defendant therein seeking permanent and mandatory injunction to restrain the 1st defendant from putting up any construction in the schedule premises and for a direction to him to restore the shop premises to its original position. During the pendency of the suit, S.B. Arunachala - defendant No. 1, on 09.04.2000 demolished the wall on the northern side facing D. Devaraj Urs Road and started carrying on construction work. Hence, plaintiff filed one more suit on 11.01.2001 in O.S. No. 44/2001 seeking mandatory injunction against Mysore City Corporation to demolish the illegal construction made by defendant No. 1 S.B. Arunachala and for a direction not to regularize the illegal construction made in the shop premises. It was contended by the plaintiff that cause of action for the first suit and the cause of action for the second suit were totally different.

In O.S. No. 44/2001, plaintiff M. Suresh examined himself and produced and marked Exs. P1 to P25. Defendant No. 2 S.B. Arunachala examined himself as D.W. 1. He produced and marked documents Exs. D1 to D7. The Trial Court framed the following issues:

Whether the plaintiff proves that the 2nd defendant has no right to put up construction below the surface of the suit schedule property?

Whether the plaintiff proves that the 2nd defendant has undertaken the construction work in gross violation of building bye-laws and provisions of K.M.C. Act?

Is the plaintiff entitled for the suit reliefs?

What order or decree?

The Trial Court decreed the suit O.S. No. 44/2001. It held that as per Ex. P2 - Title Deed, joint ownership of the site over which the shop is constructed is evidenced and Ex. P1 which is the registered Sale Deed executed by M. Jagadish, brother of the plaintiff in favour of S.B. Arunachala was in respect of shop of premises bearing No. 53/1 and therefore, it was clear that the three brothers had jointly purchased the site and that there was no partition among them to show that the site was divided or partitioned by metes and bounds. Evidence of D.W. 1 - S.B. Arunachala has been relied upon to hold that plaintiff and his brother M. Ramesh Kumar had not given written consent to S.B. Arunachala or to his vendor to put up construction in the ground floor beneath the schedule property. The Trial Court further found that Ex. P3 - agreement dated 13.03.1986 was between the vendor of S.B. Arunachala, M. Ramesh Kumar and plaintiff and that the said agreement refers to partition of the building owned by the plaintiff and his brothers. As per the said agreement, S.B. Arunachala was not allowed to assert his right over the land beneath the ground floor. Thus, the Trial Court found that all the three brothers were joint owners of the site. Therefore, it was held that defendant S.B. Arunachala had no absolute right to put up construction beneath the ground floor in the suit schedule property.

The Court found that S.B. Arunachala had undertaken construction beneath the ground floor in the suit schedule property, hence, the Mysore City Corporation had to be directed to take legal steps for demolition of the illegal construction made by S.B. Arunachala in the schedule property and to restore the shop premises to its original condition. Thus, the suit O.S. No. 44/2001 came to be decreed. Appeal filed against this judgment and decree in R.A. No. 1130/2009 by S.B. Arunachala has been allowed on 02.03.2010 by the learned V Additional District Judge, Mysore. Learned Appellate Judge has found that the second suit filed by M. Suresh in O.S. No. 44/2001 was hit by Order II Rule 2 CPC as the earlier suit instituted in O.S. No. 43/2000 on the file of the IV Additional Civil Judge (Jr. Dn.), Mysore, on 05.01.2000 was against the same parties for the same relief of permanent and mandatory injunction, therefore, it was clear that one year prior to filing of O.S. No. 44/2001, plaintiff had already filed another suit seeking similar relief and that the said suit was pending before the Trial Court and hence, the second suit filed was clearly hit by Order II Rule 2 CPC.

The Appellate Court further found that the suit filed by the plaintiff for relief of mandatory injunction without seeking the relief of declaration was not maintainable. It also found that S.B. Arunachala had every right to put up construction in the cellar portion of the suit schedule property. In this connection, the lower Appellate Court found on re-appreciation of the evidence on record that in Ex. P1 Sale Deed, it had been stated that in the partition, shop bearing No. 53/1 had fallen to the share of M. Jagadish and he had become absolute owner of the said shop being in exclusive possession of the same and the same was sold to defendant S.B. Arunachala. In Ex. P1, it is further mentioned that vendor M. Jagadish and his brothers had absolute right of ownership over the respective share which disclosed that vendor of S.B. Arunachala, M. Jagadish was having absolute right of ownership over the respective shop premises. The Appellate Court has further found that in the Sale Deed nothing was mentioned with regard to the plaintiff and his brothers retaining any joint right over the site where the shop bearing No. 53/1 was constructed. In the absence of any right retained by the plaintiff and his two brothers in terms of the conditions contained in Ex. P1 Sale Deed and in the absence of any evidence let by the plaintiff of his two brothers to show that at the time of partition, they had retained joint right over the site, the version of the plaintiff could not be believed.

It is also necessary to notice that admittedly plaintiff''s shop is situated in the first floor. He has been given absolute right to put up any construction over the first floor. He has been also given right of easement in respect of the ground floor for protecting his building. There is nothing to show that the plaintiff had been reserved any right over the subsoil of the shop site. It is not the contention of the plaintiff that because of the construction of sump and safety room in the cellar by S.B. Arunachala, there was any danger to his building. S.B. Arunachala had indeed obtained licence from Mysore City Corporation and constructed a sump and safety room in the cellar portion. It is in this background, the lower Appellate Court has found that even if it was taken that plaintiff did have any right over the subsoil of shop site No. 53, the same was only for the purpose of protecting the first floor building owned by the plaintiff and the plaintiff cannot exercise that right to prevent the defendant S.B. Arunachala from enjoying his premises by constructing a sump or safety room in the cellar.

The averments made in the suit O.S. No. 43/2000 and the basis of the right pleaded by the plaintiff therein and as also the cause of action for the said suit was same as those pleaded in the second suit O.S. No. 44/2001. In fact, in O.S. No. 43/2000, S.B. Arunachala was made 1st defendant and Mysore City Corporation was the 2nd defendant, whereas in O.S. No. 44/2001 S.B. Arunachala was made the 2nd defendant and Mysore City Corporation was the 1st defendant.

The prayer in O.S. No. 43/2000 is for permanent injunction against S.B. Arunachala from putting up any construction over the suit property and for mandatory injunction against him to demolish the illegal construction put up coupled with a direction to him to restore the schedule premises to the original condition. All other averments in the body of the plaint are similar.

In O.S. No. 43/2000 also, the plaintiff M. Suresh examined himself as P.W. 1 and Exs. P1 to P13 were produced and the defendant S.B. Arunachala was examined himself as D.W. 1 and has relied on Exs. D1 to D7 in support of his case. The Trial Court framed necessary issues with regard to the proof by the plaintiff that defendant had no right to put up construction beneath the surface of the ground floor or alter or add anything to the schedule premises and the entitlement of the plaintiff for the relief sought in the suit. On the same cause and reasoning, the Trial Court has decreed the suit holding that generally any sale of building without any specific reference to the land on which it stands cannot necessarily convey the land along with it and that on the sale of building only, the land on which it stand does not pass.

The Trial Court has proceeded to place the burden on the defendant S.B. Arunachala while analyzing and examining the evidence of D.W. 1. It has observed in paragraph 10 of the judgment that evidence of D.W. 1 clearly disclosed that plaintiff and his brother Ramesh Kumar had not given written consent, either to S.B. Arunachala or to his vendor to put up construction in the ground floor beneath the schedule property. Though defendant S.B. Arunachala had asserted that there was a partition deed executed among the plaintiff and his brothers, he has later on deposed that he had not seen such a partition deed and the said contradictory version of the 1st defendant created doubt about the existence of any partition deed entered into between the plaintiff and his brothers. The Trial Court has further held that Ex. P3 agreement dated 13.03.1986 entered into between three brothers referred to partition of the shop owned by the three brothers. But, there was nothing to show that vendor of S.B. Arunachala had no claim whatsoever to the appurtenant land on which the shop that had fallen to his share was constructed. Therefore, the trial Court has reasoned out that one of several co-sharers will not be entitled to erect the building upon the joint property without the consent of other joint owners even though the construction of such building causes no loss to the joint owners.

The essential question to be decided in these two appeals is as regards the nature of right that the vendor of S.B. Arunachala in these two suits had in the shop that he has sold in favour of S.B. Arunachala as per Ex. P1. The documents that fall for consideration are Exs. P1 to P3. Exs. P1 is the copy of the Sale Deed dated 16.04.1999. Under this, M. Jagadish has sold shop premises bearing door No. 53/1 (ground floor only) situated at Mysore constructed on a site measuring East to West 15 feet and North to South 30 feet having built up area of 450 sq. ft. bounded on the East by Shop No. 54, West by Shop No. 53, North by D. Devaraj Urs Road and South by conservancy lane. There is no term or condition contained in the Sale Deed that limits the title and ownership of the purchaser to enjoy only the constructed shop premises denying any such right to the land appurtenant thereto. On the other hand, the seller Jagadish has assured that he was the absolute owner of the schedule property having subsisting right of disposition and that the purchaser shall peacefully hold, possess and enjoy the property as his own property without any hindrance, interruption or claim by the seller or any other person. Ex. P2 is the certified copy of the Title Deed whereunder Mysore Urban Development Authority has conveyed the premises bearing shop No. 53 in favour of the three brothers. The schedule appended to Ex. P. 2 mentions the boundaries of the shop as North by D. Devraj Urs Road, South by Road, East by Shop No. 54 and West by Shop No. 52. It is thus clear that under Ex. P2 all the three brothers jointly became owners of shop site in question.

Ex. P3 is an important document. This document is not denied. Indeed it is admitted by both the parties. This agreement is entered into between the three brothers. There is a recital in this agreement about a partition of the shop premises whereunder shop No. 53/1 being eastern half of the ground floor had fallen to the share of M. Jagadish and the western half of the ground floor had fallen to the share of Ramesh Kumar and the entire first floor portion had fallen to the share of plaintiff M. Suresh. The agreement further records that each of the three persons were in separate possession of the respective portions as absolute owners thereof. This agreement was executed in order to assure the owner of the first floor M. Suresh - plaintiff herein that he was the absolute owner of the 2nd floor in case, he puts up the second floor at his cost over the first floor and the other two brothers who are the absolute owners of the ground floor will have no claim. The agreement further makes it clear that the second floor as and when constructed shall belong to M. Suresh absolutely.

When there is reference made to a partition having been entered into between the three brothers whereunder the ground floor was divided between two brothers and the first floor was given to another brother/the plaintiff, it was the duty of the plaintiff to place on record the partition deed. In the absence of any restriction imposed on the sharers with regard to the enjoyment of their respective premises, it cannot be said that the persons who had given clear rights in the ground floor were precluded from constructing a sump or making an opening in the cellar. This is not a case where all the three brothers are the joint owners of the property. This is a case where all the three brothers have partitioned the building and the first floor of the building has gone to the share of the plaintiff. He has been given absolute right over the first floor including the right to put up second floor. No right is given to him to prevent the enjoyment of the ground floor or the cellar or to erect any sump by excavating the earth in the ground floor. No doubt, the owners of the ground floor cannot cause damage to the building in the guise of constructing a sump or making an opening for a cellar portion. No such case is made out, nor is it pleaded by the plaintiff.

The Trial Court, in both the suits have misdirected themselves in appreciating the evidence on record and in coming to the conclusion that rights given were only in the constructed building and it had to be held that one of several co-sharers was not entitled to erect a building upon the joint property without the consent of other joint owners. This approach of the trial Court is founded on a wrong premises that the suit property was jointly owned by all the three brothers. Ex. P3 agreement discloses that there was a partition among the brothers. They had partitioned the shop premises and each one of them was the absolute owner of different portions of the shop premises. Therefore, each one of them is entitled to enjoy the property in the manner permissible in law. It is in this background, one of the brothers sold his portion of the premises to S.B. Arunachala and after S.B. Arunachala purchased the property for the first time, plaintiff has come up with the plea that partition was only in respect of constructed shop premises and the appurtenant land was kept under joint ownership and enjoyment. There is absolutely no material to substantiate this plea. The burden was on the plaintiff to establish the same. The Trial Court in both the suits have not approached the matter in proper perspective. The lower Appellate Court in R.A. No. 1130/2009 has re-appreciated the entire evidence both documentary and oral and has come to a correct conclusion. The findings recorded by lower Appellate Court are just and proper.

Thus the question of law raised is answered accordingly in favour of the defendant. The conclusion reached by the lower Appellate Court logically flows from the reasons assigned. There is no perversity in the findings. The question whether the second suit O.S. No. 44/2001 was not maintainable in the light of the earlier suit filed in O.S. No. 43/2000 pales into insignificance and it is not necessary to decide the said question having regard to the findings recorded by me on merits.

Hence, R.S.A. No. 1575/2010 is dismissed confirming the judgment and decree passed by the lower Appellate Court in R.A. No. 1130/2009. R.F.A. No. 1433/2013 is allowed setting aside the judgment and decree passed in O.S. No. 43/2000. O.S. No. 43/2000 is dismissed. Having regard to the nature of the dispute, both parties are directed to bear their respective costs.