Telangana High Court
Smt. B.Lalitha vs Smt. G.Geetha on 6 January, 2025
Author: N. Tukaramji
Bench: N. Tukaramji
THE HONOURABLE SRI JUSTICE N. TUKARAMJI
SECOND APPEAL No.215 of 2010
AND
SECOND APPEAL No.268 of 2010
COMMON JUDGMENT:
Heard Sri P.V.Vidyasagar, learned counsel for the
appellants.
2. As the issue involved is selfsame, these appeals are heard
and being disposed of by this common judgment.
3. S.A.No.268 of 2010: The appellant as plaintiff has filed suit
OS No.841 of 2000 seeking perpetual injunction against the
defendant (plaintiff in OS No.1122 of 2001) against blocking the
entrance of the suit schedule property i.e., plot No.147/C/B
admeasuring 47.5 Sq.yds situated at Hyderbasti, Secunderabad
(hereinafter referred to as 'suit schedule premises').
4. S.A.No.215 of 2010: The defendant in OS No.841 of 2000
as plaintiff field suit OS No.1122 of 2001 seeking perpetual
injunction against the defendant (plaintiff in OS No.841 of 2000)
from blocking the entrance of the suit schedule premises.
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5. For the sake of convenience, the parties are referred to as
per their array in OS No.841 of 2000.
6. Briefly stated the relevant facts are that the schedule
property admeasuring 95.05 Sq.yds belonged to one Bharath
Kumar from him one Srinivas Rao brought the property from whom
the plaintiff and defendant purchased the east and west portions of
the first floor under registered sale deeds on the same day.
7. Contending that the defendant blocked the entrance of the
suit schedule premises leading common staircase and also
threatened with dire consequences, the plaintiff filed the suit.
8. With the similar pleadings, the defendant filed OS No.1122
of 2001 claiming that the plaintiff blocked the entrance i.e.,
staircase and threatened with dire consequences.
9. The trial Court, after considering the evidence, decreed the
suit filed by the defendant i.e. OS No.1122 of 2001 injuncting the
plaintiff from blocking the entry. Further, the suit filed by the
plaintiff was dismissed.
10. Whereupon, the plaintiff preferred appeals against the
judgment and decree passed in his suit (O.S.No.841 of 2000) as
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well as the suit filed by the defendant (O.S.No.1122 of 2001), vide
appeal Nos.208 of 2004 and 180 of 2003 respectively. The
appellate Court having considered the pleadings, dismissed both
the appeals, thus these second appeals.
11. Learned counsel for the plaintiff would contend that the
Courts below failed to appreciate the averments in the documents
placed by the plaintiff and erred in granting injunction. He pointed
to the plaintiff's sale deed/Ex.A-1 and pleaded that as per the
schedule, the staircase and passage are for the vendee therein.
He further pleaded that in the appeal, the son of the plaintiff as
DW.2 got marked certified copy of judgment in O.S.No.725 of 2003
and encumbrance certificate/Exs.B-2 and B-3, but they were not
considered by the appellate Court while determining the appeals.
He further pleads that in IA No.3781 of 2008, the defendant had
admitted the existence of second staircase for their use.
Therefore, the exclusive right of the plaintiff has been disregarded
by the appellate Court which affected the substantial rights of the
plaintiff. Hence, prayed for intervention in the second appeals.
12. In spite of due notice, the defendant chose to remain silent.
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13. The appeal in S.A.No.215 of 2010 was admitted on
26.03.2010 on the following substantial questions of law:
1. Whether non-consideration of Ex.B1 sale deed by both
the trial Court and the lower appellate Court where-
under the first appellant-defendant has become
exclusively entitled to the stair case, passage leading to
the first floor and the bore well has vitiated the result of
the suit and appeal respectively?
2. Whether the non-consideration of the additional material
evidence, oral evidence of DW.2 and the documentary
evidence-Exs.B2 and B3 by the lower appellate Court
has also vitiated the result of the first appeals?
14. The appeal in S.A.No.268 of 2010 was admitted on
16.04.2010 on the following substantial questions of law:
1. Whether in spite of the cancellation of Ex.B2 rectification
deed by the judgment and decree in OS No.725 of 2003
on the file of the I Junior Civil Judge, City Civil Court,
Secunderabad, both the Courts could have dismissed
the suit?
2. Whether the non-consideration of Ex.B1 sale deed by the
trial Court and lower appellate Court whereunder the
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appellant-plaintiff became exclusively entitled to the stair
case, passage leading to the first floor and the bore well
in the ground floor, has vitiated the result of the suit and
the appeal respectively?
15. I have carefully considered the submissions of learned
counsel and perused the materials on record.
16. The plaintiff and defendant by their pleadings are in
agreement that they had purchased the eastern and western
portions of the property from their common vendor under
registered sale deeds and their possession over the respective
properties. The entire dispute is around use of entrance/stair case.
17. In this regard, the document for consideration would be the
sale deed and the schedule of property purchased by the parties.
As per the plaintiff's sale deed/Ex.A1 in the schedule property it
has been mentioned that "All that 813 Sq.Ft approximately
consisting of four rooms in first floor premises in Plot No.147/C/B,
5-2-388 along with Stair case and passage with Borewell in the
ground floor and first floor including land admeasuring 47.5
Sq.yds..." and the schedule property of the defendant's sale
deed/Ex.B1 does not read as to the staircase or pathway. Further,
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in the appeal filed against the defendant's suit, the plaintiff got
examined his son as DW-2 and placed the judgment /Ex.B-2 and
Encumbrance Certificate/Ex.B-3 to signify that the suit filed by the
plaintiff vide O.S.No.725 of 2003 to cancel the rectification deed
executed by his vendor dated 06.08.2000 has been cancelled and
that judgment attained finality, hence the plaintiff asserted his
exclusive right over the staircase and pathway.
18. It is pertinent to note that, in the rectification deed, the
vendor of the plaintiff made an effort to reduce the area sold under
the sale deed of the plaintiff by 5 square yards.
19. It is pertinent to note here that the properties of plaintiff and
the defendant are on either side in the first floor. The sketch of
scheduled properties filed by the plaintiff is evidencing that the
staircase is in the middle of the plaintiff's and defendant's property.
Therefore, to reach the portions of plaintiff and defendant the only
way is the staircase. As per the defendant, it is only the way to
ingress and egress to the first floor and to his portion. Although
the sale deeds of the plaintiff and the defendant are on the same
day the sale deed of the plaintiff alone is referring to the staircase.
However, during hearing, learned counsel for the plaintiff pleaded
that as per his instructions, the defendant had constructed another
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staircase. Additionally, basing on the averment in the affidavit
asserted that there is another staircase. Yet, in the absence of
cogent material on record and in view of the pleadings of the
defendant in the affidavit that a make shift staircase is there to
reach store room, it has to be held that, the staircase shown in the
site map is only way for both the plaintiff and defendant to their
respective properties.
20. Further, the rectification deed appears to be an attempt by
the vendor to set right the situation by limiting the area purchased
by the plaintiff by 5 square yards. Howsoever, the absence of the
rectification deed would not make things better for the defendant to
use his property. That apart, perfecting exclusive rights of the
plaintiff over the staircase and granting permanent injunction
against the defendant would render the defendant's property
useless for want of access. Because of this, permanently
injuncting the plaintiff from interfering with the defendant's access
to the staircase and pathway is perfectly justified. In effect, the
conclusions of the trial and appellate Courts in A.S.No.208 of 2004
in O.S.No.841 of 2000 deserve affirmation and the Second Appeal
i.e. S.A.No.215 of 2010 is liable to be and accordingly, dismissed.
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21. Simultaneously, having regard to the pleading and
attestation of the plaintiff as to defendant's interference to the
extent of use of the staircase shall be taken into account and
granting injunction against the defendant from interfering with the
usage of staircase by the plaintiff is found proper to deduce
effective conclusion.
22. As a consequence, the Courts below ought to have
restrained the defendant from interfering with the plaintiff's usage
of staircase. Accordingly, to that extent, the impugned judgment in
A.S.No.108 of 2003 in O.S.No.1122 of 2001 deserves modification.
Resultantly, S.A.No.268 of 2010 is partly allowed and the
defendant is injuncted from interfering with the usage of common
staircase by the plaintiff. Accordingly the impugned decree stands
modified. There shall be no order as to costs.
As a sequel, miscellaneous petitions if any, stands closed.
_____________________
JUSTICE N. TUKARAMJI
Date:06.01.2025
ccm/pld
