M. Krishnappa vs Parvathamma

Anand Byrareddy, J—These appeals are heard and disposed of by this common judgment.

Respondent in RFA No. 1888/2010 having been served has remained unrepresented. However, learned Counsel appearing for the respondent in RFA No. 589/2010, who could have also entered appearance for the respondent in RFA No. 1888/2010 has remained absent.

The present appeals are preferred against the judgment and decree in O.S. No. 1153/1995 filed by the respondent and O.S. No. 1868/1995 filed by the appellant. The suit in O.S. No. 1153/1995 having decreed in favour of the plaintiff therein and the suit in O.S. No. 1868/1995 having been dismissed which was instituted by the present appellant, these two appeals are filed.

The case of the plaintiff in O.S. No. 1153/1995 was to the effect that the plaintiff was the absolute owner of the property described in schedule A'' of the suit property and defendant was the owner of the property described in schedule ''B'' of the suit property. There was an alleged common passage shown by the letters DEFC in the sketch annexed to the plaint and the defendant claimed to be the owner of ''C schedule property marked as GHEF in the sketch. All the properties described in schedule A'', ''B'' and ''C were stated to be part of Khaneshmari No. 117, situated at Hebbal village, Bangalore North Taluk. The measurement of the property described in schedule A'' East to West 14 3/4 feet and North to South 41 feet, ''B'' schedule property measuring East to West 4 feet and North to South 41 feet. ''B'' schedule property was claimed to be a common passage for use of both the plaintiff as well as the defendant and it was alleged that defendant was beginning to construct a building making use of the area measuring 4 x 41 feet which was described and shown as ''B'' schedule property and it was claimed that such interference was the cause of action and hence, sought for injunction.

The appellant herein, who was the defendant had entered appearance and had denied the plaint averments. He had specifically contended that in the house bearing Khanesumari No. 117, there was no passage let alone a common passage. The properties belonging to the plaintiff and the defendant were adjacent properties and that the defendant had purchased the property bearing Khanesumari No. 117, V.P. Khata No. 145, House No. 260 measuring 14 x 41 feet from Somappa s/o. late Geeyanna under a registered sale deed dated 7.4.1994 and has been in possession and was paying taxes to the concerned authorities in respect of the said property. Before it was purchased by the appellant, there was a small house which was in a state of disrepair and the appellant had continued to be in possession of the same.

As the matter stood thus, it was alleged that the plaintiffs husband, who was no more, had encroached upon the defendant''s property and was again trying to claim a right of way in the appellant''s property and there was no passage between the properties of the plaintiffs and defendant''s. The so-called passage claimed is within the confines of the boundary of the appellant''s property and the boundary walls are touching each other and therefore, the question of a common passage did not arise. The plaintiffs property was facing the II Main Road, Hebbal and therefore, the question of allowing any passage did not arise and admittedly, since the plaintiff had direct access to the main road, the question of also having been providing ingress and egress over the defendant''s property did not arise. On the basis of these pleadings, the Court below had framed the following issues:

"1. Whether the plaintiff proves that she is using the common passage for her ingress and egress?

Whether the plaintiff proves that defendant is obstructing the common passage?

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

What Order or Decree?"

In so far as the suit in O.S. No. 1868/1995 filed by the present appellant was against the very same plaintiff in O.S. No. 1153/1995 and was filed earlier to the suit filed by Parvathamma. The appellant had reiterated the manner in which he had acquired the property and as to the situation of the properties, which did not indicate that there was a passage separating the properties of the plaintiff and the defendant and it was actually the property belonging to the appellant which was being claimed by the plaintiff as being a common passage.

Smt. Parvathamma in turn, in her written statement had negated the case of the plaintiff The Court below had framed the following issues:

"1. Whether the plaintiff proves his lawful possession over the suit schedule property?

Whether the plaintiff proves the cause of action as alleged in the plaint?

What Order or Decree?

The Court below had later clubbed the two suits O.S. No. 1153/1995 and O.S. No. 1868/1995 and common evidence was tendered by the parties and the Court below has dismissed the suit filed by the appellant herein and has decreed the suit filed by the respondent. It is that which is under challenge in the present appeals.

The learned Counsel for the appellant would point out that a patent error committed by the trial Court is that there is a complete misreading of the documents produced by the appellant and therefore, the learned Counsel for the appellant would meticulously take this Court through the documents to demonstrate that there is no passage which could have been claimed by the respondent herein and the so-called passage is part of the property of the appellant. In this regard, he would firstly draw attention to exhibit D. 1, which is a sale deed dated 7.6.1945 whereby one Munipapanna has sold the property described as Khanesumari No. 117, Hebbal in favour of one Krishnamma.

The said property was shown to be bounded as follows:

East by property of Doddamarappa, S/o. Subbanna;

West by Hanumantharaya''s house;

North by Kasim Sab''s vacant land;

South by public road

As per Ex. D2, Krishnamma in turn sold the Eastern portion of the said property bearing Khaneshuman No. 117 to Munipapanna with the following boundaries:

East by property of Doddamarappa, S/o. Subbanna;

West by passage;

North by house of Mylarachari;

South by public road

within the confines of this area measuring 41 feet North to South, and 10 feet East to West was a house including a passage measuring East to West 4 feet and North to South 41 feet.

Munipapanna inturn executed a gift deed in favour of PW-2 one Somanna who is the adopted son of Munipapanna and the property is described as having the following boundaries:

East by house of Doddamarappa, S/o. Subbanna;

West by passage; North by Mylarachari''s house;

South by public road

The property within the confines of this boundary as reiterated is described in Ex. D2.

Somanna thereafter executed the sale deed in favour of the appellant as per Ex. D3 wherein the property is described as follows:

East by house of Sonnappa and Gopalappa,

sons of Doddamarappa;

West by Late Ashwathappa''s property,

namely the husband of the respondent herein;

North by Ashwathappa''s property;

South by public road

It is also stated that the house which was existing on the above property, had collapsed as it was in a state of disrepair and therefore the area was shown as one unit, without reference to any passage, measuring East to West 14 feet which included the passage and North to South 41 feet.

It is therefore contended by the learned counsel for the appellant with reference to the above title deeds that the property of the appellant measuring 14 feet x 41 feet cannot be in dispute as unmistakably, earlier the passage was described as measuring 4 feet x 41 feet and subsequently, after the collapse of the house, the passage has been included as vacant land as a composite unit and it is shown as 14 feet x 41 feet.

As against this, the claim of the appellant insofar as the respondent''s property and the title deeds pertaining to the respondent, Ex. P1 describes the property of the respondent as follows:

East by house of Doddamarappa, S/o. Subbanna;

West by passage;

North by Mylarachari''s house;

South by public road measuring East to West 14 3/4 feet and North to South 41 feet having access to the southern side.

The mother-in-law of the respondent had purchased the said property under Ex. P1 dated 14/3/1963 from one Krishnamma.

Thereafter the mother-in-law of the respondent had executed a partition deed Ex. P3 on 27/11/1969. Under the partition deed, there were several properties involved and the property now claimed by the respondent was bequeathed and it was described as follows:

East by Munipapanna''s property;

West by Pachakhan Saheb''s house;

North by Mylarachari''s house;

South by public road

However, the measurement is not shown in the said deed, but it is shown in Ex. P1 and it measures only 14 3/4 feet East to West and 41 feet North to South. It could not include the passage which was within the confines of the boundaries of the appellant''s property as shown in the above sale deed. Therefore the court has been mislead into accepting the claim of the respondent that the passage was a common passage, for use both by the appellant as well as the respondent, whereas the passage was within the boundary of the appellant''s property and could not be treated as a common passage, as can be found from the categorical reference in the several title deeds referred to herein above and hence would seek that the judgment and decree of the Trial Court be set aside insofar as the dismissal of the suit of the appellant is concerned and to dismiss the suit filed by the respondent.

Further the court below has proceeded to misinterpret the meaning of as meaning a common passage, whereas the dictionary meaning of the word being additional area. According to the Kannada-English dictionary by Rev. F. Kittel, is defined as, "the state of being much or many, abundance, multitude; plurality, majority". As per the "Sankshipta Kannada Nigantu" published by the Kannada Sahitya Panshad, is defined as or .

Therefore, the learned counsel would contend that would only mean additional area and cannot be treated as a common passage. This other fallacy committed by the Trial Court in holding that the passage claimed by the respondent was a common passage, actually was the land belonging to the appellant and therefore seeks that the suit filed by the respondent be dismissed and the suit filed by the appellant be decreed as prayed for.

The learned counsel for the respondent on the other hand would submit that the respondent had not claimed title over the common passage but had only sought that the appellant should not construct on the said passage and it should be retained as a common passage. It is evident from the Title Deed of the appellant himself that the claim was the property measured 10'' x 41'' and not 14'' x 41''. It is a subsequent improvement on the measurement is concerned by claiming that there was a small house on the property and after it collapsed, the entire area became one unit measuring 14'' x 41'', and by that ruse, the appellant seeks to claim that the property actually measures 14'' x 41'', whereas it is only 10'' x 41'' and the passage has always been a common passage which is the only manner of ingress and egress to the respondent and if the appellant is permitted to have a claim over the common passage and if he is permitted to block and construct over the same, the respondent would be left with no way to access her property and this practical difficulty should be borne in mind by this Court in proceeding to render judgment. It is further sought to be contended that the Trial Court has arrived at categorical findings insofar as the appellant''s case is concerned as seen from Paragraphs 22 and 23 and also at Paragraph 25. The said portions read as follows:

"22. Now, let me advert to the cross-examination of the defendant.

In his cross-examination, the defendant has stated that he is the owner of property measuring 14 ft. x 41 ft. He has admitted that 17.06.1945 is a title deed to the schedule property. He has stated that in Ex. D2 passage is not mentioned. Now, it is pertinent to go back to Ex. D2 wherein it is clearly mentioned that there exists passage, i.e., and he has stated that he had verified all the documents pertaining to the schedule property before purchasing it. Then, why defendant has not examined Ex. D2, wherein it is clearly mentioned that property is 10ft. x 41ft. and not 14ft. x 40ft. He has stated that he has gone through the gift deed, i.e. Ex. D4. Plaintiff has also furnished this document, which is Ex. P3. Further he has stated that he has produced Form Nos. 10 and 12 and all other documents. It is pertinent to mention here that all other documents filed by the defendant are based on Ex. D3. Thus weightage cannot be given to those documents.

The defendant has not produced any materials which are logically probative for a prudent mind to accept that he purchased the common passage and he is owner of 14ft. x 41 ft. Plaintiff has produced sale deeds and also most importantly Ex. P4, i.e. partition deed and also examined PW2 who is vendor of the defendant and clearly proved that there exists a common passage. Thus, I have no hesitation to answer Issue Nos. 1 and 2 in O.S. No. 1153/95 in the affirmative and Issue No. 1 in O.S. 1868/95 in the negative.

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As far as O.S. 1868/95, I carefully gone through the entire documents and my voyage to the pleadings and evidence in the quest of truth, does not provide adequate materials which did not illuminate the defendant''s claim. Thus, defendant''s suit lacks merit."

Therefore, the learned counsel would submit that the respondent''s house has doors and windows facing the passage and if the passage is permitted to be claimed by the appellant and built over, it would practically block the respondent''s ingress and egress to the property, which would result in a gross miscarriage of justice and therefore, submits that the appeals be dismissed.

Given the above contentions and on a perusal of the record, it is evident that the property of the appellant as described in the several documents of title as detailed hereinabove would clearly indicate that within the confines of the boundaries mentioned in respect of the appellant''s property, it is shown that the property measures 10 feet x 14 feet with an additional area, or a , which is a passage measuring 4 feet x 41 feet. And in title deeds pertaining to the respondent''s property, the measurements are not shown in Exhibit P3, whereas it is shown in Exhibit P1 as measuring East to West 40 feet and 14 3/4 feet North to South. There is no common passage referred to except the boundaries on the Eastern side is shown as . This the Trial Court has interpreted as meaning a common passage. It cannot be construed as a common passage having regard to the meaning of as already extracted from authoritative Dictionaries. Therefore, the interpretation that there is a common passage meaning thereby that both the appellant and the respondent were enabled to use the passage as a common passage, cannot be said to be apparent from the examination of the several documents referred to hereinabove. The boundary of the respondent''s property being shown as a passage, would not lead to a conclusion that it is a common passage.

Insofar as the contention of the learned counsel for the respondent that if the passage is allowed to be claimed by the appellant, it would result in the complete blockage of ingress and egress of the respondent, is not also apparent from the description of the property. The road to which the respondent has access from her property is on the Southern side, whereas the common passage as claimed by the respondent is on the Eastern side. It could not be said that the sale deed or conveyance would be made in favour of the respondent, if the passage was the only ingress and egress to the property, when there is a public road which provides access to the respondent''s property. Hence, the argument that the passage should be retained as a common passage, otherwise ingress and egress of the respondent would be completely blocked, is not apparent from the record. There is no evidence as regards the doors and windows of the respondent''s property opening on to the passage. The discrepancy insofar as the property of the appellant measuring 10'' x 41'' and also shown as 14'' x 41'' is sought to be explained by the counsel for the appellant with reference to the house that was in existence possibly measuring 10 feet wide and the property totally being described as 10'' x 41'' with an additional passage of 4'' x 41''. This would logically lead to a conclusion that the house having fallen down and if the vacant land is taken into consideration, the property did measure 14ft. x 41ft. Therefore, there is no infirmity which could be actually sustained as found by the court below. Hence, the court has committed a palpable error in holding that there is a common passage accessible by both the respondents herein and the appellants, whereas it is part of the appellant''s property and it could not be treated as a common passage. In that view of the matter, the appeals are allowed and the suit of the appellant is decreed as prayed for and the suit of the respondent is dismissed.