G. Rathnamma and Others vs Charles Narohna and Others

Anand Byrareddy, J.—Heard the learned counsel for the appellants and the learned counsel for the respondents.

The appellants had filed a suit with certain omnibus reliefs which are as follows:

"a) For a declaration, declaring that the suit schedule property i.e., 3 feet wide East to West and 20 feet length North to South open space abutting to the Municipal Road, as per the Hissa Palu Patti, being the part and parcel of the house property comprised in Schedule-B property of the plaintiffs'' house as per Hissa Palupatti (vide Annexure-A) exclusively belonged to the plaintiffs for their enjoyment and possession as shown in the rough sketch (vide Annexure-H).

b) For a mandatory injunction, directing the defendants to remove the encroachment made by them the alleged construction of the balcony projecting to the extent of 2 feet, in the suit schedule property and to remove the door, windows and sanitary pipes laid in the suit schedule property by excavating for the purpose to an extent of 1 foot width and 17 feet length North to South in the suit schedule property and to restore the suit schedule property in the same condition as it was prior to the alleged encroachment and constructions at their own cost.

c) For a permanent injunction, restraining the defendants, their agents, servants, subordinates, relatives and any other person or persons claiming through or under them from trespassing over the suit schedule property or in any other manner obstructing the plaintiffs and her people in the enjoyment of the suit schedule property i.e., 3 feet wide and 20 feet length open space, as per the rough sketch produced herewith (vide Annexure-H).

d) Costs and such other reliefs."

The suit having been contested, the Trial Court has come to a conclusion as follows:

"Therefore, from the over all appreciation of the oral and documentary evidence and from the interpretation of the recitals in Ex. P.8, it appears to be that the plaintiffs were not allotted the passage of the width of 3 feet and 20 feet. On the contrary, the recitals in Ex. P.8 and the other evidence on record show that the passage of the width of 3 feet and 20 feet was a passage common to Govindaiah and Nanjundaiah and thereafter, it is a common passage to their successors in interest. Absolutely, no scrap of paper is produced by the plaintiffs to show that the defendants have encroached upon the passage of the width of 3 feet and of the length of 20 feet." And again, on Internal page No. 49, has held that,

"I hold that the plaintiffs have failed to prove that the suit schedule property i.e. 3 feet x 20 feet open space abutting the Municipal road is a part and parcel of the property allotted to the share of Govindaiah, the predecessor in title of plaintiffs. So also, I hold that the plaintiffs have failed to prove that the suit property exclusively belonged to them and they are in possession of it. I also hold that the plaintiffs have failed to prove that the defendants have constructed the balcony projecting to the extent of 2 feet in the suit property. It may be that the plaintiffs have proved that the defendants have constructed a balcony projecting to an extent of 2 feet, but not in the suit property. Hence, I hold that the plaintiffs have failed to prove that the defendants have constructed the balcony projecting to the extent of 2 feet in the suit property. I also hold that the plaintiffs have failed to prove that the defendants have laid sanitation pipes in the suit property by encroaching it. There is no question of defendants encroaching the suit property as the suit property is not the exclusive property of the plaintiffs." 4. However, the learned counsel for the appellants would now submit that, it would not be possible to reconcile the finding of the court below that the passage in question was a common passage and also to acknowledge that the defendants have put up a ''chajja'' protruding 2 feet into the passage and the fact that there are pipes laid in the passage, though underground and further, there are doors and windows laid on the passage by the defendant. It would be in line with the findings of the Trial Court if these obstructions are removed and the passage is maintained as a common passage. Therefore, notwithstanding the finding of the court below, there is an infirmity which is apparent in the defendant being permitted to encroach upon the passage in the manner aforesaid notwithstanding that it was a common passage.

While the learned counsel for the respondents would point out that the court below has endorsed the existing state of affairs and has found that there is no impediment for free movement in the concerned passage and there can be no grievance in this regard by the learned counsel for the appellants.

However, it is to be observed that if that is a common passage that is in controversy, neither party should place any obstruction or in any manner, cause impediment in the free movement by either party. It shall, at all times be maintained as a free passage and be kept free of parked vehicles or other obstruction which would cause impediment to the other. With that observation, the existing state of affairs insofar as the ''chajja'' to the extent of 2 feet protruding into the passage and the underground pipes laid therein as well as the doors and windows that may be installed by the defendant, shall remain in place. This will not give any licence to the defendant to add to any such facilities that the defendants may seek to impose, in the passage. With that observation, the appeal stands disposed of.