Sri U S Jagannath Vs Sri Bhimappa Shrimandar Hulloli

FLAT BEARING NO.F-2 FIRST FLOOR OF PREMISES BEARING MUNICPAL NO. 15/3 OLD NO.15, PANCHAKUTIR SITUATED AT 1ST MAIN ROAD, MARUTHI LAYOUT KEMPAPURA AGRAHARA BENGALURU 560 023.

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…APPELLANT

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(BY SRI. JANARDHANA G., ADVOCATE)

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AND:

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SRI BHIMAPPA SHRIMANDAR HULLOLI SON OF SHRIMANDAR P. HULLOLI FLAT NO.S-1

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NC: 2025:KHC:28942 MFA No. 133 of 2024

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HC-KAR

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SECOND FLOOR NO.15, PANCHAKUTIR 18TH MAIN ROAD, SRI MARUTHI LAYOUT MARENAHALLI VIJAYANAGARA BENGALURU 560 040

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SRI. SELVANARAYANA S/O ALASINGACHAR AGED ABOUT 61 YEARS FLAT NO. F-1, FIRST FLOOR NO15, PANCHAKUTIR 18TH MAIN ROAD, SRI MARUTHI LAYOUT MARENAHALLI VIJAYANAGARA BENGALURU 560 040

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…RESPONDENTS

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(BY SRI. SHIVAKUMAR N., ADVOCATE FOR C/R-1; SRI. SATEESH MUDAVI, ADVOCATE FOR R-2)

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THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 05.12.2023 PASSED ON I.A.NO.1/2023 IN OS.NO.2867/2023 ON THE FILE OF THE XLI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE C/C OF XXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, CCH-30, REJECTING I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 R/W SECTION 151 OF CPC.

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THIS MFA, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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ORAL JUDGMENT

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This appeal is filed by the plaintiff, questioning the order dated 05.12.2023 passed by the learned XXIX Additional City Civil and Sessions Judge, Bengaluru, (CCH30) on I.A.No.I in O.S.No.2867/2023, whereby, the application filed by the plaintiff for temporary injunction is dismissed.

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The Trial Court has dismissed the application filed by the plaintiff on the reason that, in the Sale Deed of the plaintiff, there is no clause of "covered Car parking" facility, whereas, in the Sale Deed of the defendants, there is a recital of 'covered Car parking' facility. Therefore, whether the plaintiff is also entitled for having a covered Car parking facility as claimed by him, is a matter requiring trial in the suit. The plaintiff has not shown what is his legal right for claiming Car parking facility. Therefore, dismissed the application. Aggrieved by the

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NC: 2025:KHC:28942 MFA No. 133 of 2024

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HC-KAR

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dismissal of the application, the plaintiff has filed the present appeal.

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The plaintiff/appellant has filed the suit for permanent injunction, restraining the defendants from obstructing the plaintiff from parking his vehicle in the open space available in the ground floor of the suit schedule property.

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Heard the learned counsel for plaintiff/appellant

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and learned counsel for respondents/defendants.

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It is the case of the plaintiff that the plaintiff is the owner of one flat in the Apartment in question and he is having a right for parking his Car in the common area of Car parking, but the defendants are obstructing the same. Therefore, the present suit is filed.

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It is the case of the defendants that there is no specific clause in the Sale Deed of the plaintiff that when he has purchased the flat, he can also utilise the common area for Car parking. Therefore, the plaintiff does not

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HC-KAR

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have any right to utilize the common area for Car Parking. Though the purchasers have purchased the common area but they purchased different area and different extents of space. The plaintiff having purchased an area measuring 436 sq.ft. whereas the defendants have purchased an area measuring 461 sq.ft.

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It is also submitted that in the sanctioned plan for construction of the Apartment, there is no permission for parking five Cars. It is only one Garage and two Car parking space. Furthermore, in the Sale Deed of the defendants, there is a recital in the schedule that the area of 461 sq.ft. purchased by the defendants includes a covered car parking slot below the flat F1 from the first pillar of the South-East corner to the next pillar towards the West. When this being the fact, the plaintiff does not have any right to claim that he can utilize the common area for parking his Car. Thus, the Trial Court has rightly considered this aspect and dismissed the application of the plaintiff.

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NC: 2025:KHC:28942 MFA No. 133 of 2024

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HC-KAR

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Upon considering these rival submissions, this Court, had, earlier, appointed a Court Commissioner on two occasions and the Court Commissioner has submitted his report twice along with photographs.

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Learned counsel for the plaintiff/appellant placed reliance on the Court Commissioner's report, photographs and clause 3 and 3(f) of the Karnataka Apartment Owners Act, 1972. He submits that the plaintiff is having legal right to use the common area for his Car Parking.

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Learned counsel for the defendants has also produced the sanctioned plan of the Apartment in question. In the plan, it is stated that there is facility for only two Car Parking and one Garage. Even according to the learned counsel for plaintiff/appellant, there is a Garage and that it should be used for Car Parking only. But prima facie , there is permission for three Car Parking. The Trial Court observed that in the Sale Deed of the plaintiff, the clause of using Car parking facility is absent, whereas in the Sale Deed of the defendants, there is

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HC-KAR

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mentioning that the defendants are having Car Parking facility. Therefore, whether the plaintiff is having right to claim facility of Car Parking in the absence of clause in the Sale Deed is a question to be decided in the trial of the suit. But prima facie, the plaintiff has not shown what is his legal right to claim Car Parking facility in the common area in the ground floor of the Apartment.

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As observed above, prima facie, there is no clause in the Sale Deed of the plaintiff that the plaintiff is entitled for facility of Car Parking. Whereas in the Sale Deed of the defendants, there is a clause in their Sale Deed. When the defendants are having Car Parking facility from the first pillar of the south-east corner to the next pillar towards the west, in the same area, the plaintiff is claiming his right to park his car. Therefore, the Trial Court is correct in its observation that the plaintiff has to establish his right of declaration to use the common area for Car Parking facility. Admittedly, the plaintiff has purchased a lesser extent of area in the Apartment

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HC-KAR

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whereas the defendants have purchased a bigger extent compared to the plaintiff. Therefore, the issue whether plaintiff is also entitled to covered car parking space is to be decided only after conducting trial in the suit. Hence, the plaintiff has not made out prima facie case to utilize the common area for Car Parking. Hence, there is no need to interfere in the order and the appeal is liable to be dismissed. Accordingly, it is dismissed.

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In view of disposal of appeal, pending I.A. does not survive for consideration.

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SD/-

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(HANCHATE SANJEEVKUMAR) JUDGE

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BMV* List No.: 1 Sl No.: 25

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NC: 2025:KHC:28942 MFA No. 133 of 2024

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU [SRI U S JAGANNATH VS. SRI BHIMAPPA SHRIMANDAR HULLOLI AND ANOTHER]

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30.07.2025 (VIDEO CONFERENCING / PHYSICAL HEARING)

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CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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ORAL ORDER 'FOR BEING SPOKEN TO'

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This Court on 28.07.2025 has passed the order, with an observation that, the observations made in the said order shall not influence the trial Court to decide the case on merits. Whatever observations are confined only to this appeal.

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The respondents/defendants have purchased the flats including the car parking area and they shall use the same portion only without causing any disturbance to others. The trial Court is directed to expedite the trial and dispose of the suit as early as possible. For this, both plaintiff and defendants shall co-operate to the trial Court for a speedy trial. This order shall be part and parcel of the order dated 28.07.2025.

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The affidavit filed by respondent Nos.1 and 2 dated 16.07.2025 is placed on record in the appeal.

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SD/(HANCHATE SANJEEVKUMAR) JUDGE

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CH List No.: 1 Sl No.: 1

Sri U S Jagannath v. Sri Bhimappa Shrimandar Hulloli

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Sri U S Jagannath v. Sri Bhimappa Shrimandar Hulloli

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