Case Note & Summary
The appellant, Ms. Sandra Lesley Ann Bartels, filed a Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908, against the judgment and decree dated 7.10.2013 passed in O.S.No.3275/2010 by the V Additional City Civil and Sessions Judge, Bangalore City, which partly decreed the suit for declaration and permanent injunction. The appellant was the plaintiff in the suit. She had purchased an apartment bearing No.103 on the first floor of the building named 'Revelstoke' at 6/4, III Cross, Hutchins Road, St. Thomas Town, Bangalore, along with an undivided share of 17.42% (853.80 sq.ft.) in the land, as per the Sale Deed dated 3.3.2004. The apartment area was 1226 sq.ft., and she was entitled to use a car parking space, a two wheeler parking space, and all common areas including the terrace as described in Schedule-C to the Sale Deed. The vendors were P. Gunavathy (owner of the land) and M/s Masonite Construction Company (developer). Under the Joint Development Agreement, the owner had reserved two apartments on the ground floor and two apartments on the first floor for herself, and the remaining four apartments were to be sold by the developer. The building had eight apartments in total. The dispute arose when the respondents (defendants) claimed exclusive right over the terrace and prevented the appellant from using it. The trial court partly decreed the suit, declaring that the plaintiff had no right over the terrace and granting a permanent injunction against the plaintiff from using the terrace. The High Court, after hearing the appeal, held that the terrace is part of the common areas and facilities as per the sale deed and joint development agreement, and that no owner can claim exclusive use of the terrace without the consent of all other owners. The court allowed the appeal, set aside the trial court's decree, and dismissed the suit.
Headnote
A) Property Law - Rights over Common Areas - Terrace as Common Area - Sale Deed, Joint Development Agreement - The dispute pertained to the right of an apartment owner to use the terrace of the building. The court held that the terrace is part of the common areas and facilities as described in the sale deed and joint development agreement, and that no owner can claim exclusive use of the terrace without the consent of all other owners. The trial court's finding that the plaintiff had no right over the terrace was set aside. (Paras 1-10) B) Civil Procedure - Appeal against Decree - Section 96 CPC - Regular First Appeal - The appeal was filed under Section 96 of the Code of Civil Procedure, 1908 against the judgment and decree of the trial court. The High Court allowed the appeal, setting aside the trial court's decree and dismissing the suit. (Paras 1-10)
Issue of Consideration
Whether the terrace of an apartment building is a common area available to all apartment owners, and whether the trial court erred in granting a declaration that the plaintiff had no right over the terrace and in granting permanent injunction against the plaintiff from using the terrace.
Final Decision
The High Court allowed the appeal, set aside the judgment and decree of the trial court, and dismissed the suit. The court held that the terrace is part of the common areas and facilities, and no owner can claim exclusive use of the terrace without the consent of all other owners.
Law Points
- Interpretation of sale deed
- rights over common areas
- terrace as common area
- joint development agreement
- rights of apartment owners
- permanent injunction
- declaration of rights
