PRIYANKA H.S. Vs. LOKESH GIRI H.D.

JUDGEMENT

(1.) 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. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

(2.) 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'.

(3.) 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. 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.