H V Srirangaraju vs Sri H V Ashwathanarayana
2021 Latest Caselaw 7114 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 23RD DAY OF DECEMBER 2021

                            BEFORE

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

                  R.F.A.No.1352 OF 2010

BETWEEN:

H.V.Srirangaraju,
Aged about 71 years,
S/o Late N.R.Venkataramaiah,
No.1263/16 (New No.15/2),
9th `B' Cross, Kavi Ranna Road,
Bangalore-560 050.                              .. Appellant

 ( By Sri N.R.Nagaraj, Advocate )

AND:

Sri H.V.Ashwathanarayana,
Aged about 64 years,
S/o Late N.R.Venkataramaiah,
No.1263/16 (New No.15/2),
9th `B' Cross, Kavi Ranna Road,
Bangalore-560 050.

Presently residing at
C/o.Sharadamma Thimmaiah,
No.628, 10th A Cross,
Raghavendra Road,
Bangalore-560 050.                              .. Respondent

 ( By Sri M.B.Chandrachooda, Advocate )

      This Appeal is filed under Section 96 read with Order XLI
Rule 1 of Code of Civil Procedure, praying to call for the records
in O.S.No.7294/2007 and to set aside the judgment dated
                                                  RFA.No.1352/2010
                                2


22.07.2010 passed by the Hon'ble 39th Addl.City Civil Judge,
Bangalore (CCH-40), in O.S.No.7294/2007 and allow the suit
O.S.No.7294/2007 by restraining the defendant from
encroaching upon the common passage of (3 ft. 6 inches + 3 ft.
10 inches)/2 situated on the eastern side of the schedule
property of the defendant which includes part of the common
passage by way of permanent injunction.

      This Appeal having been heard through Physical
Hearing/Video Conferencing Hearing and reserved on
14.12.2021, coming on for pronouncement of Judgment this
day, the Court delivered the following:

                          JUDGMENT

It is the plaintiff's appeal. The present plaintiff had

instituted a suit against the respondent arraying him as

defendant in O.S.No.7294/2007, in the Court of learned XXXIX

Addl.City Civil Judge, Bengaluru City (hereinafter for brevity

referred to as `trial Court'), for the relief of permanent

injunction with respect to the suit schedule property.

2. The summary of the case of the plaintiff in the trial

Court was that he is the absolute owner in possession of the

property bearing No.1263/16 and new No.15/2, 9th `B' Cross,

Kavi Ranna Road, Bengaluru, measuring East to West 30 ft. and

North to South 15 ft., with a 4 ft. common passage as access

from the road on the southern side, having acquired the same RFA.No.1352/2010

by virtue of registered Gift Deed dated 17.11.2003, executed by

his sister-in-law Smt.Pushpavathi.

It is also the case of the plaintiff that, apart from the said

property, he is also the owner of another property bearing the

same address, but, situated on the South-eastern side of the

said property and measuring East to West 13 ft. and North to

South 30 ft., having acquired the same by virtue of a registered

Sale Deed dated 31.12.2003, executed by Smt.Pushpavathi, his

sister-in-law, in his favour.

The plaintiff has also averred that the defendant is the

owner of another portion of the property of the same address

and located on the western side of the plaintiff's purchased

property. The defendant's property bears the No.1263/16 and

New No.15, measuring East to West 15 ft. and North to South

30 ft., which he has purchased under a registered Sale Deed

dated 04.09.2003, executed by his sister-in-law

Smt.Pushpavathi. The plaintiff and the defendant are the

younger brothers of one Sri H.V.Srirumulu, the husband of the

said Smt.Pushpavathi.

It is also the case of the plaintiff that the entire larger

property measures East to West 30 ft. and North to South RFA.No.1352/2010

45 ft., bearing No.1263 as per the Bengaluru Development

Authority Reconvey plan. It was acquired by their elder brother

late Sri H.V.Sriramulu under a registered Sale Deed dated

25.08.1983. At that time, there had been a residential house

on the northern side of the said property and measuring East to

West 30 ft. and North to South 15 ft., but, the rest of the area

on the southern side was vacant.

It is the further case of the plaintiff that like the other

residents in the same road, even their brother late

Sri Sriramulu annexed 5 ft. of the road to his acquisition on the

southern side of his property, thus, the property became East

to West 30 ft. and North to South 50 ft. The said Sri Sriramulu,

the brother of the parties herein, died on 30.04.1988 as

issueless, but, leaving behind him his wife Smt.Pushpavathi as

his sole legal heir.

The plaintiff also stated that said Sri Sriramulu had put up

a residential house measuring East to West 13 ft. and North to

South 30 ft. with AC sheet roof in the year 1983. Similarly he

also constructed another residential house on the South-eastern

portion of the larger property and measuring East to West 13 ft.

and North to South 30 ft. with RCC roof during the year 1985.

RFA.No.1352/2010

Thus, there had been a common passage of 4 ft. width between

the two properties built by Sri Sriramulu and the said passage

was leading from South to North giving an access to the house

on the northern side which was there in existence since earlier.

This common passage has been used by said Sri Sriramulu even

for laying water lines, sewage lines and electrical conduits for

all the three residential houses.

The plaintiff has further stated that the common passage

between the properties of plaintiff and defendant is having a

width of 4 ft. and length of 35 ft. The said passage is shown as

a common passage in the Sale Deeds executed by their

sister-in-law Smt.Pushpavathi in favour of both the plaintiff and

the defendant. However, the defendant in his Sale Deed

executed by Smt.Pushpavathi got 2 ft. width of the said

common passage as the property sold to him, thus, by making

the dimension of his property to 15 ft. East to West and 30 ft.

North to South. Thus, he has disputed that the common

passage of 4 ft. is for the use of both plaintiff and the

defendant.

The plaintiff has further stated that though he is using the

said common passage since the year 1985 and the defendant is RFA.No.1352/2010

also making use of the very same common passage, but, the

defendant is trying to deprive the plaintiff of the said common

passage. Hence, it has become necessary to restrain the

defendant from encroaching upon the common passage and put

up any construction of whatsoever on the same. He has also

stated that the defendant by reducing the said width of the

common passage by 2 ft., is attempting to render the said

passage as incapable of being used as main access to the

properties.

3. In response to the summons served upon him, the

defendant appeared through his counsel and filed his written

statement denying the plaint averments generally. Though he

admitted that he is the purchaser of the South-western portion

of the property and that the Sale Deed shows the measurement

of the property as East to West 15 ft. and North to South

30 ft., but, he denied that the northern portion of the larger

property measuring 30 ft. East to West and 15 ft. North to

South was gifted by his sister-in-law Smt.Pushpavathi in favour

of the plaintiff. He stated that the Sale Deed in favour of the

plaintiff with respect to South-eastern portion of the property

measuring 13 ft. x 30 ft. was subsequent to he (the defendant) RFA.No.1352/2010

purchasing the property measuring 15 ft. x 30 ft. from

Smt.Pushpavathi. He denied that there exists any common

passage of a width of 4 ft. running from South to North. He

stated that an open space between himself and the plaintiff

includes his property to an extent of 2 ft. wide and running

throughout his property from South to North, which is 30 ft. He

denied any alleged interference from his side in the plaintiff's

property.

4. Based on the pleadings of the parties, the trial Court

framed the following issues :

" 1. Whether the plaintiff proves the defendant is trying to encroach upon the common passage of 4 ft. situated on the eastern side of the plaint schedule property as alleged?

2. Whether the plaintiff is entitled for the relief of permanent injunction as sought?

3. What order or decree?

5. In support of his suit, the plaintiff got himself examined

as PW-1 and got marked documents from Exs.P-1 to P-9.

The defendant got examined himself as DW-1 and got examined RFA.No.1352/2010

his son by name Sri H.A.Tharanatha as DW-2 and got produced

and marked the documents from Exs.D-1 to D-9.

After hearing both side, the trial Court by its impugned

judgment and decree dated 22.07.2010, while answering issue

Nos.1 and 2 in the negative, dismissed the suit of the plaintiff.

Being aggrieved by the same, the plaintiff has preferred this

appeal.

6. In response to the notice served upon him, the

respondent is appearing through his counsel.

7. Records from the trial Court are called for and the

same are placed before the Court.

8. For the sake of convenience, the parties would be

referred to as per their rank before the trial Court.

9. Heard the arguments of learned counsel from both side

and perused the materials placed before this Court, including

the impugned judgment and the trial Court record.

10. The points that arise for my consideration are,

1. Whether the plaintiff proves that there exists a common passage between his property on the South-eastern side and defendant's property on the South-western RFA.No.1352/2010

side in the larger property originally measuring 30 ft. x 45 ft.?

2. Whether the plaintiff has proved the interference by the defendant in the alleged lawful use of the common passage by him?

3. Whether the plaintiff is entitled for the relief of permanent injunction?

4. Whether the impugned judgment and decree under appeal warrants any interference at the hands of this Court?

11. The plaintiff as PW-1 in his examination-in-chief filed

in the form of affidavit evidence has reiterated the contentions

taken up by him in his plaint. In his support, he got produced

and marked the documents from Exs.P-1 to P-9 i.e., the original

registered Gift Deed dated 17.11.2003, executed by one

Smt.Pushpavathi i.e., his sister-in-law, in his favour, gifting him

the northern portion of the larger property and measuring East

to West 30 ft. and North to South 15 ft. at Ex.P-1 and the

original registered Sale Deed dated 31.12.2003 shown to have

been executed by Smt.Pushpavathi, the sister-in-law of the

plaintiff, in favour of the plaintiff with respect to South-eastern

portion of the larger property and measuring East to West 13 ft.

RFA.No.1352/2010

and North to South 30 ft., at Ex.P-2. Ex.P-3 is the plan for

residential building in the northern portion of the property said

to have been gifted to the plaintiff by Smt.Pushpavathi.

Exs.P-4(a) to P-4 (g) are the colour photographs and Ex.P-4 are

its negatives said to have been showing the properties on the

South-eastern and South-western side of the larger property

and said to be belonging to the plaintiff and defendant

respectively. Ex.P-5 is the certified copy of the Sale Deed dated

04.09.2003 shown to have been executed by the very same

Smt.Pushpavathi, but, in favour of the defendant selling him

the South-western portion of the larger property and measuring

East to West 15 ft. and North to South 30 ft. Exs.P-6 and P-8

are the Katha certificates and Exs.P-7 and P-9 are the Katha

extracts with respect to the plaintiff's properties.

12. The defendant as DW-1 in his examination-in-chief

filed in the form of affidavit evidence has reiterated the

contentions taken up by him in his written statement. He got

examined his son Sri H.A.Tharanatha as DW-2, who also has

repeated summary of the written statement in his examination-

in-chief filed in the form of affidavit evidence. The defendant

got produced and marked the certified copy of the Sale deed, RFA.No.1352/2010

which is the certified version of Ex.P-5, as Ex.D-1. The Katha

certificate and Katha extract of the defendant's property are

marked at Exs.D-2 and D-3 respectively. The tax paid receipts

of the defendant's property are marked from Exs.D-4 and D-8.

The approved plan of the construction obtained by the

defendant is produced at Ex.D-5 Exs.D-6 and D-7 are the

Encumbrance certificates. Ex.D-9 is a rough sketch of the

larger property prepared by the defendant.

13. From the pleading and evidence of the parties, it is

not in dispute that late Sri Sriramulu was the elder brother of

the plaintiff and the defendant, who had purchased the property

measuring East to West 30 ft. and North to South 45 ft. from

one Smt.Nagarathna under a registered Sale Deed dated

26.08.1983. In that portion of the larger area, a structure was

there on the northern portion of the property and that structure

was located within an area measuring East to West 30 ft. and

North to South 15 ft. The northern portion of the larger

property measuring 15 ft. x 30 ft. was said to have been gifted

by Smt.Pushpavathi, wife of late Sri Sriramulu in favour of the

plaintiff under a registered Gift Deed which is at Ex.P-1.

Though the defendant had called the said Gift Deed as an RFA.No.1352/2010

invalid Gift Deed, but, except making the said suggestion to

PW-1 in his cross-eamination, he could not shake the credibility

of the said registered document in favour of the plaintiff. It is

not in dispute that in that gifted portion of the property, the

plaintiff after demolishing then existing old structure, has put

up a new construction after obtaining a sanctioned plan as per

Ex.P-3.

14. It is also not in dispute that two more constructions

were put up by Sri Sriramulu, each measuring East to West 13

ft. and North to South 30 ft. in the South-eastern and South-

western portion of the remaining area. It is also an admitted

fact that the South-western portion measuring East to West 15

ft. and North to South 30 ft. was sold by the sister-in-law of the

parties herein i.e., Smt.Pushpavathi, in favour of the defendant

under a registered Sale Deed dated 04.09.2003 as evidenced in

Ex.P-5 and Ex.D-1 respectively. It is also not in dispute that

another construction measuring East to West 13 ft. and North

to South 30 ft. in the South-eastern side of the larger property

was sold by the very same Smt.Pushpavathi in favour of the

plaintiff under the registered Sale Deed dated 31.12.2003 as

per Ex.P-2. It is also not in dispute that between the two RFA.No.1352/2010

houses purchased by the defendant and plaintiff respectively

under two registered Sale Deeds at Exs.P-2 and Ex.D-1, there is

a passage running from South to North giving access to the

house of the plaintiff on the eastern side as well to his another

house on the northern side and also to the house of the

defendant on the western side.

15. Though these facts have remained undisputed, rather,

have remained as an admitted fact, however, the only dispute

between the parties is about the width of the passage running

from South to North and the rights of the parties therein.

According to the defendant, the said passage is of a width of

4 ft. and a length of 30 ft, wherein, both plaintiff and defendant

have rights to use it as a common passage. On the other hand,

though the defendant admits that there is a common passage,

but, he contends that, out of the alleged 4 ft. width of the

common passage, 2 ft. belongs to him since the width of the

property purchased by him under Ex.D-1 from Smt.Pushpavathi

was measuring 15 ft. (from East to West) unlike the properties

sold to the plaintiff by the same vendor Smt.Pushpavathi which

is of a width of only 13 ft. (from East to West).

RFA.No.1352/2010

16. Though as per the contention of the plaintiff, as per

Ex.P-1, the width of the said passage is 4 ft. and the

arithmetical calculation after deducting the constructed area,

which is 13 ft. each on eastern and western portion of the

property, the remaining area would be only 4 ft. width,

however, as per Ex.P-1 and Ex.P-3(a), the width of the said

common passage is 3 ft. 9 inches. Without much discussion

upon it, suffice it to say that the width of the common passage

is not just 2 ft. as contended by the defendant, but, it is not

less than 3 ft. 9 inches and not exceeding 4 ft. from East to

West.

17. It is in the above circumstances, the first point of

argument of learned counsel for the appellant/plaintiff is that

the Sale Deed in favour of the defendant which is at Ex.P-5, as

well at Ex.D-1, is null and void in view of the fact that there has

passed no consideration from the defendant as a purchaser to

his vendor Smt.Pushpavathi. In his support, he relied upon a

judgment of Hon'ble Apex Court in Kewal Krishan -vs- Rajesh

Kumar and others etc., Civil Appeal Nos.6989-6992 of 2021,

disposed of on 22.11.2021, wherein in Paragraph-15 of its

judgment, the Hon'ble Apex Court while analysing Section 15 of RFA.No.1352/2010

the Transfer of Property Act, 1882 (hereinafter for brevity

referred to as `T.P.Act'), was pleased to observe as below :

".................. a sale of an immovable property has to be for a price. The price may be payable in future. It may be partly paid and the remaining part can be made payable in future. The payment of price is an essential part of a sale covered by Section 54 of the TP Act. If a sale deed in respect of an immovable property is executed without payment of price and if it does not provide for the payment of price at a future date, it is not a sale at all in the eyes of law. It is of no legal effect. Therefore, such a sale will be void. It will not effect the transfer of the immovable property."

18. In the instant case though the learned counsel for the

appellant contends that the sale of a portion of larger property

to the defendant by Smt.Pushpavathi was for no valid

consideration, however, a perusal of copy of the Sale Deed at

Ex.P-5, the certified copy of which is at Ex.D-1, would go to

show that the sale of the said property was made for a

consideration of a total sum of `2,50,000/- and the vendor

Smt.Pushpavathi has acknowledged the receipt of the said

consideration in cash from the defendant. Therefore, the

argument of learned counsel for the appellant that the sale of

South-western portion of the larger property in favour of the RFA.No.1352/2010

defendant under Ex.P-5 and Ex.D-1 is null and void for want of

consideration, is not acceptable.

19. Learned counsel for the appellant submitted that the

trial Court suspected his ownership of the northern portion of

the larger property measuring East to West 30 ft. and North to

South 13 ft. by observing that the attesting witnesses to the

registered Gift Deed at Ex.P-1 were not examined. Stating

that when admittedly the Gift Deed was a registered document,

there was no necessity for him to examine any of the witnesses

to prove the said document, the learned counsel for the

appellant relied upon two judgments.

The first judgment is in Kushal Chand Swarup Chand

Zabak Jain -vs- Suresh Chandra Kanhiyalal Kochar and

another, reported in Indian Kanoon.org/doc/17944391,

wherein with respect to proving the Gift Deed, the Hon'ble Apex

Court was pleased to observe that Section 68 of the

Evidence Act prescribes proof of execution of the document

required by law to be attested. If a document is required by

law to be attested, it shall not be used as evidence until one

attesting witness at least has been called for the purpose of RFA.No.1352/2010

proving its execution, if there by an attesting witness alive and

subject to the process of the Court and capable of giving

evidence. But, if once the execution of the document has been

specifically admitted, the due execution under the Registration

Act is presumed to have been done as the gift is admittedly a

registered document.

In Kakali Ghosh -vs- Madan Mohan Ghosh and another,

reported in Indian Kanoon.org/doc/198255043, the Kolkata

High Court has reiterated the same view that when the

execution of a registered Deed of Gift is admitted, the

examination of any of the witnesses to the said document was

not necessary under Section 68 of the Indian Evidence Act.

20. In the instant case, though the defendant in his

written statement has denied the Gift Deed said to have been

executed by Smt.Pushpavathi in favour of the plaintiff,

however, in the cross-examination of PW-1, by suggesting to

PW-1 that after the said Smt.Pushpavathi gifting the property to

the plaintiff and selling few other properties, still, neither the

said Smt.Pushpavathi nor the plaintiff questioned the

measurement of the property sold to the defendant, has RFA.No.1352/2010

admitted the gifting of northern portion of the property by

Smt.Pushpavathi in favour of the plaintiff. In one more place in

the cross-examination of PW-1, the defendant by making a

suggestion that the plaintiff has not left any space for approach

to his property which he acquired under the Gift Deed, has

admitted the gift by Smt.Pushpavathi in favour of the plaintiff.

Moreover, no where in the cross-examination of PW-1, the

defendant denied the gift of northern portion of the property

measuring 15 ft. x 30 ft. by Smt.Pushpavathi in favour of the

plaintiff.

21. Thus, the defendant though had initially denied the

plaint averments that northern portion of the larger property

was gifted by Smt.Pushpavathi in favour of the plaintiff, but,

has not adhered to his said contention. On the other hand, he

himself has suggested to PW-1 that he had received the said

property under the gift. Therefore, it cannot be held that the

Gift Deed at Ex.P-1 executed in favour of the plaintiff by

Smt.Pushpavathi was seriously in dispute between the parties.

Furthermore, the alleged validity of either the Sale Deed at

Ex.D-1 in favour of the defendant or the Gift Deed at Ex.P-1 in

favour of the plaintiff is not the question involved in the present RFA.No.1352/2010

suit which is a suit for bare injunction with respect to an alleged

common passage between the properties of the plaintiff and the

defendant.

As analysed above, the existence of a passage between

the plaintiff's property on the South-eastern side and

defendant's property on the South-western side, running from

South to North up to the plaintiff's other property on the

northern side, is an admitted fact. As further analysed above,

the actual dispute is only with respect to the alleged width of

the passage and as to whether the entire passage is for

common usage for both, the plaintiff and the defendant.

22. Admittedly, the width of the total property from East

to West is 30 ft. The one portion of it in the South-western

portion measuring East to West 15 ft. and North to South 30 ft.

was sold to the defendant at the first instance under a

registered Sale Deed on 04.09.2003. This has reduced the

width of the remaining portion of the property from East to

West to only 15 ft. Subsequently, another portion measuring

East to West 13 ft. and North to South 30 ft. on the South-

eastern side was sold to the plaintiff under a registered Sale

Deed dated 31.12.2003. Therefore, the open space between RFA.No.1352/2010

the property of the plaintiff and the defendant running from

South to North would be only of width of 2 ft. running from East

to West. However, the contention of the plaintiff is that the

property intended to be sold to the defendant by

Smt.Pushpavathi was only 13 ft. x 30 ft., but, not 15 ft. x 30

ft. and that the defendant by taking undue advantage of his

relationship and possession against the vendor

Smt.Pushpavathi, has got the measurement mentioned as 15 ft.

from East to West instead of 13 ft. Since the said dimension

has not been challenged by Smt.Pushpavathi, the vendor or

that the suit is not for the declaration and also for the reason

that, except the contention of the plaintiff, there are no other

materials to accept the said contention, I am not inclined to

accept the argument of the learned counsel for the appellant

addressed on these lines.

23. According to the plaintiff after deducting the

constructed portion of 13 ft. each on the South-western and

South-eastern portion of the larger property, the 4 ft. open

space left over from East to West is the common passage which

has been under the constant use of both the parties. It is also RFA.No.1352/2010

an access to the houses situated on the northern side of the

larger property. The same is the evidence of PW-1 also.

In the cross-examination of PW-1, a suggestion was made

to the witness from the defendant's side suggesting that the

alleged 4 ft. wide passage is situated within the property

purchased by the plaintiff. Though the plaintiff has not

admitted the said suggestion as true, however, by making the

said suggestion the defendant has admitted the existence of a

passage of a width of 4 ft. Though PW-1 has stated in his cross-

examination that he has put up a construction measuring

13 ft. 30 inches from East to West and 30 ft. from North to

South, but, even according to him, the Sale Deed at Ex.P-2,

through which he has purchased the South-eastern portion of

the larger property, measures only 13 ft. x30 ft.

24. Regarding the existence of the passage, particularly

of 3 ft. 9 inches or 4 ft. wide for the common usage of both the

parties, the same has to be searched in the evidence of the

defendant's side. As already observed above, the evidence of

both DW-1 and DW-2, who are father and son respectively, in

their examination-in-chief filed in the form of affidavit evidence,

have come on similar lines. However, certain interesting RFA.No.1352/2010

revelations were made and certain important statements were

elicited from DW-1 in his cross-examination from the plaintiff's

side.

DW-1 in his cross-examination has admitted that the

constructed portion of the house in the South-eastern, as well

in the South-western portion of the larger property was

measuring 13 ft. East to West and 30 ft. North to South in both

the properties. The witness has specifically admitted that an

open spare running from North to South has been left in-

between the house of Sri. Sriramulu and himself for the

common usage of both the parties. Thus, he has admitted the

existence of common passage between the property of the

present plaintiff and himself. He has also not denied that in

that open passage, water pipes, electricity cables and other

sewage pipes of all the three houses are passing through.

Thus, he has not only admitted that the said passage was not

only for the common usage to walk on, but, it was also used as

a passage for several of the pipelines and cables for the entire

property.

He specifically admitted in his cross-examination that the

constructed area of his property on the South-western side is of RFA.No.1352/2010

a width of only 13 ft. and the remaining 2 ft. is the open space.

Thus, including the said open space, the total width of his

property from East to West is 15 ft. Therefore, he has shown

that, apart from undisputed existence of 2 ft. passage out of

the 30 ft. width of the larger property measuring East to West,

there is two more feet open space abutting to the said open

space, thus, making it to a 4 ft. wide passage. This is also

brought out further in the evidence of DW-1, who has denied

that the 4 ft. wide passage which is in-between the two houses

is for a common usage. In the said process of denial that it was

not for common usage, the witness has not denied the width of

the said common passage as 4 ft. Therefore, it is established

that the width of the passage running from South to North in-

between South-eastern and South-western properties of the

plaintiff and defendant respectively is between 3 ft. 9 inches to

4 ft. from East to West and its length is 30 ft. from South to

North and it is an access not just to the properties of the

plaintiff and the defendant on the eastern and western side of

the properties respectively, but, also to the house of the

plaintiff on the northern portion of the larger property.

RFA.No.1352/2010

25. It is not in dispute that the first construction was put

up by the brother of the parties herein i.e., by late Sri

Sriramulu as long back as in the year 1983. The said

construction was measuring 13 ft. East to West and 30 ft. North

to South with ACC sheet roof house. It is also not in dispute

that the said Sri Sriramulu also put up another residential house

in the larger property measuring East to West 13 ft. and North

to South 30 ft. with RCC roof. Both these houses were opposite

to each other having an open space between them as a

common passage to reach both the houses. It is also not in

dispute that the said open space which is a passage, is also an

access to the another house on the northern side of the larger

property which was gifted to plaintiff by Smt.Pushpavathi.

Thus, for all these three houses, the only access is the said

passage running from South to North with a width of 3 ft. 9

inches to 4 ft. Thus, it go to show that from the year 1983

itself, when the first construction was put up by Sriramulu in

that larger property, the said passage has been in use by the

parties residing in those properties.

26. DW-2, who is the son of defendant, in his cross-

examination has categorically stated that before the defendant RFA.No.1352/2010

could purchase the property, the residents in the house on the

northern portion of the larger property were making use of the

said passage to have an access to the road lying on the

southern side of the larger property. He has also stated that

those residents of the northern portion of the larger property

were making use of the passage lying in-between the two

houses. He has further stated that his house faces East and the

house of the plaintiff faces West. He further admitted a

suggestion as true that from the day the two houses were

constructed, the open space in-between the two houses has

been maintained as it is without any changes.

27. Thus, the contention of the plaintiff through his

pleading, as well through his evidence that the said common

passage which is 4 ft. wide is being used as a common passage

for all the three constructions in the larger portion of the

property has been further admitted by none else than DW-2,

who is the son of defendant No.1, in his cross-examination.

Thus, it is established that though the defendant claims to have

acquired the ownership of 2 ft. in the said common passage

under registered Sale deed which is at Ex.P-5 and Ex.D-1, but,

it has remained a fact that, throughout the said 2 ft., open RFA.No.1352/2010

space, upon which he claims ownership, has been a part of the

common passage for the common use of the plaintiff, as well

the defendant for their three houses situated in the larger

property. Even the photographs at Exs.D-4(a) to D-4(g) by

naked eye assessment would go to show that the width of the

common passage cannot be only 2 ft., but, it is more than that,

which according to the plaintiff, is 4 ft. The piling up of the

cement bricks in large number also go to show that by their

regular size, it is to the common sense of one and all who have

seen those size of bricks that the width of the passage cannot

be only 2 ft., but, necessarily must be more than 3 ½ feet.

28. The defendant as DW-1 in his cross-examination has

stated that his brother Sri Sriramulu after purchasing the

property, has put up a construction measuring 13 ft. x 30 ft. in

the vacant portion of the eastern side and started residing

there. He has also stated that thereafter said Sri Sriramulu put

up another construction measuring 13 ft. x 30 ft. on the

western side of his house in the year 1984. He also admitted

that the doors of those two houses put up by Sri Sriramulu are

facing East and West respectively and in-between those two

houses, there is an open space running from North to South for RFA.No.1352/2010

the movement. Thus, even according to DW-1, the said open

space which is a passage, has been in use by the residents of

all the three tenants there in the larger property much prior to

the year 1984.

29. DW-2 also in his cross-examination has stated that it

was Sri Sriramulu who put up two house structures respectively

on the eastern and western side of the larger property, which

subsequently have come to plaintiff and defendant as a site

property measuring 15 ft. x 30 ft. each. He has further stated

that, before his father had purchased the western side of the

property in the year 2003, the open space was being used as a

passage by the houses in the larger property, including the

house on the northern portion of the property.

30. From the said evidence of DW-1 and DW-2, it is clear

that, even prior to the defendant purchasing his portion of the

property on the western side, the passage running from South

to North was being used as a common passage earlier by Sri

Sriramulu, later by the plaintiff and the defendant. Thus, it is

clear that even before the defendant purchased the property

measuring 15 ft. x 30 ft. from Smt.Pushpavathi, in the year RFA.No.1352/2010

2003, his alleged 2 ft. in the open space from North to South

was already a subject matter of unabated use by the dwellers in

that larger portion of the property since prior to the year 1984.

31. In the Gift Deed at Ex.P-1 the width of the passage is

shown as 3 ft. 9 inches. However, the Sale Deed at Ex.P-2

shows the width of the very same passage as 4 ft. he approved

plan at Exs.P-3(a), which has been admitted by DW-1 in his

cross-examination, shows the very same passage with a width

of 3 ft. 9 inches. The said plan was confronted to DW-1 in his

cross-examination, who after seeing the said plan at Ex.P-3,

has identified the common passage in the said plan stating that

the said passage is the passage for the use of all the residents

in the houses and got it marked as Ex.P-3(a). This clearly

shows that DW-1 has not just admitted the existence of the

passage, but, also has admitted that the said passage is being

used by all. Further, by getting the said passage marked as

Ex.P-3(a), he has also admitted that the width of the said

passage is 3 ft. 9 inches as shown in Ex.P-3(a). In this

manner, the defendant himself has admitted that though his

Sale Deed at Ex.P-5 and Ex.D-1 shows that the measurement of

his property as 15 ft. from East to West, but, the constructed RFA.No.1352/2010

portion in it being only of 13 ft. wide, the remaining 2 ft. which

is part of the passage is being used by one and all as a common

passage.

32. The plaintiff both in his plaint, as well in his evidence

has stated that the defendant knowing fully well that the

common passage is for the benefit for both of them, has

deliberately encroaching upon the common passage, in the

process, the defendant with his henchmen started marking for

the foundation to be laid for a new construction on 28.08.2007

which he intends to put up on the existing schedule property

measuring East to West 15 ft. and North to South 30 ft.,

including the 2 ft. width in the common passage on the eastern

side. The defendant has not denied or disputed the same.

On the other hand, he has produced an approved plan at

Ex.D-5 contending that he has obtained an approved plan in

that regard. But, the photographs at Exs.P-4(a) to P-4(g) also

shows that the defendant has piled up cement bricks and other

construction materials in the common passage.

Since it has been observed above that the said common

passage of the width of not less than 3 ft. 9 inches up to 4 ft. is

a common passage for the residents of all the three RFA.No.1352/2010

constructions in the larger portion of the property, the

defendant merely by stating that he has got an approved plan

as per Ex.D-5, cannot deprive the plaintiff of his rightful use of

the entire space of the common passage as a common passage

only. Thus, the plaintiff has shown the obstruction that is being

caused by the defendant.

33. The plaintiff by establishing that the disputed portion

of the property is a common passage meant for the use of all

the residents of the larger portion of the property, has also

shown the obstruction that is being caused by the defendant.

In case if the defendant is permitted to continue to proceed

with the obstruction that is being caused in the common

passage, it would cause greater hardship to the plaintiff than to

the defendant. As such, the plaintiff is entitled for the relief of

the permanent injunction. Merely because the plaintiff did not

file a suit for declaration to declare that the 2 ft. width in the

property of defendant on its eastern side is a common passage,

by that itself, it cannot be held that the plaintiff is not entitled

for the relief of permanent injunction when particularly the

plaintiff has able to establish that the said passage was used as

a common passage since prior to the year 1984. As such, the RFA.No.1352/2010

argument of learned counsel for the respondent on the said

point is not acceptable.

34. Therefore, it has to be held that the plaintiff has

proved that there exists a common passage between his

property on the South-eastern side and defendant's property on

the South-western side in the larger property, which larger

property was originally measuring 30 ft. x 45 ft. The plaintiff

has also proved that the defendant is causing interference in

the lawful use of the common passage by him. Therefore, the

balance of convenience is in favour of the plaintiff and he is

entitled for the relief of permanent injunction. However, the

trial Court without analysing the evidence in their proper

perspective has solely confining itself to the Sale Deed standing

in favour of the defendant, which is at Ex.P-5 and Ex.D-1, held

that the passage is not of 4 ft. wide. In the said process, it

ignored the fact that 2 ft. of the passage though shown as the

property of the defendant under the Sale Deed at Ex.D-1, but,

that portion has been kept in use of all the three houses in the

larger property. Since the finding given by the trial Court on

the said aspect is erroneous, the same requires interference at

the hands of this Court.

RFA.No.1352/2010

35. Accordingly, I proceed to pass the following order:

ORDER

The Regular First Appeal is allowed.

The judgment and decree dated 22.07.2010, passed by

the learned XXXIX Addl.City Civil Judge, Bengaluru City,

passed in O.S.No.7294/2007, is set aside. The suit is decreed.

The defendant or anybody claiming through him are restrained

from encroaching upon the common passage of 4 ft. wide

situated on the eastern side of the suit schedule property.

There is no order as to costs.

Draw decree accordingly.

In view of disposal of the main appeal, Misc.Civil

No.12314/2010 does not survive for consideration.

Registry to transmit a copy of this judgment along with

records to the concerned trial Court without delay.

Sd/-

JUDGE

bk/