Puttamma and M.S. Doreswamy vs Jayamma and Others

A.S. Pachhapure

The appellants have challenged the decree of permanent injunction and mandatory injunction granted by the trial Court, confirmed in appeal by the first appellate Court. The facts relevant for the purpose of this appeal are as under:

The parties are referred to as they were referred in the original proceedings, for the sake of convenience.

Appellant No.1 herein is defendant No.1, appellant No.2 is defendant No.3, whereas respondent Nos.2 to 4 are the legal representatives of defendant No.2 and respondent No.5 is defendant No.3 before the trial Court in the suit instituted by respondent No.1 herein and another. The suit property is a country tiled house portion with katha No.108/102 situated at Maddur Town with the boundaries described in the schedule to the plaint. The portion of the house on the southern side and the portion of the suit house were ancestral properties of the parties. The house on the northern portion [suit property] was given to the share of the plaintiffs, whereas the southern portion [house property] was given to the share of defendant Nos.1 to 3. The plaintiffs have also made available a rough sketch with the plaint. In the front portion of the suit property i.e., on the northern side there are two shops and there is a door to the suit house on the northern side to reach the main road i.e., pete beedi [old M.C. Road]. Plaintiff No.1 had filed a suit for partition and separate possession of the ancestral and joint family properties and the suit property was not included in the said suit by over-sight. It is under these circumstances that the whole house including the suit property was partitioned and the northern portion came to the share of the 1st plaintiff, whereas the southern portion came to the share of defendant No.1. As the defendants caused obstruction by blocking the passage to reach pete beedi from the door on the north side, the present suit came to be instituted by respondent No.1 and others.

Defendant Nos.1 to 3 filed their written statements denying the allegations in the plaint and contended that the northern portion [suit property] is in their portion and the southern portion [house property] has fallen to the share of plaintiff No.1. The defendants admitted that the suit property was not the subject matter in the suit bearing O.S. No.133/1988 filed by plaintiff No.1 for partition and separate possession of the other family properties. The said defendants disputed the existence of the passage, the right of the plaintiffs and with regard to the share in the shops on northern side of the suit property. On these grounds, they sought for dismissal of the suit.

Defendant No.4, who is the Town Municipal Council filed the written statement stating that the plaintiffs are in possession of the suit property, whereas the other defendants are in possession of southern portion of the house and that in between two shops, there is only one passage to the house of the plaintiffs on the northern portion for ingress and egress and defendant Nos.1 to 3 are trying to block the road by putting up construction, without obtaining any license. On these grounds, they sought for dismissal of the suit.

The trial Court framed the issues. Plaintiff No.2 herself examined as P.W.1 and two witnesses P.Ws.2 and 3 and got marked the documents Exs.P1 to 45 in their evidence. Defendant No.3 himself examined as D.W.1 and a witness D.W.2 and got marked the documents Exs.D1 to 45 in their evidence. The trial Court after hearing the parties and on appreciation of the material on record, granted a decree for injunction and mandatory injunction to remove the obstruction caused. Aggrieved by the Judgment and decree, the defendants preferred R.A. No.6/2007 and the said appeal also came to be dismissed on merits. Aggrieved by the concurrent findings of the Courts below, the present appeal has been filed.

This Court while admitting the appeal has raised the following substantial questions of law for consideration:

1) Whether the appreciation of evidence by the courts below is perverse and capricious and in the absence of declaratory relief regarding passage, the relief of mandatory injunction could have been granted?

2) In the absence of any document to show that the plaintiffs were entitled to enter their house through four feet passage, whether the Courts below were in error in holding that the appellants are liable to remove the obstructions?

I have heard learned counsel for the parties.

It is the contention of learned counsel for the appellants that the plaintiffs have claimed an easementary right and a suit for a relief of declaration is not maintainable in law. It is his further contention that the suit is barred under the provisions of Order II Rule 2 CPC as the plaintiffs did not claim such a relief in the suit instituted for partition and the present suit could have dismissed on this ground alone. So also, it is his contention that the Courts below did not adopt the well-established principles in appreciating the material placed on record and committed an error in granting a decree.

Per contra, learned counsel for the respondent No.1 submits that the suit passage is the only way to reach the road and this passage fell to the share of the plaintiffs in the partition inclusive of the suit house. The plaintiffs have an exclusive right to use the passage to reach the house. Furthermore, she contends that the Courts below have properly appreciated the evidence and rightly granted a decree to the plaintiffs. She submits that the suit property was not a subject matter of the suit in O.S. No.133/1988 and that there is no bar to institute a suit for the relief of injunction and mandatory injunction.

The existence of southern portion, the suit property and the shops on the northern side of the suit house are not in dispute. So also, the fact that the suit house inclusive of the southern portion was an ancestral property and that there was a partition in respect of the suit house is also not in dispute. In para 10 of the written statement, defendant Nos.1 to 3 state "they divided their ancestral landed properties including suit schedule property and the remaining house which is attached to the suit schedule property in the year 1962 before the Panchayatdars orally". What they contend is that the suit house was given to the share of defendant No.1 and the southern portion of the house was given to the share of the plaintiffs. At this stage, it is relevant to mention here that there was a complaint by plaintiff No.1 to defendant No.4-Town Municipal Council, against defendant No.1 in causing obstruction of the use of the passage by putting up some construction and it is under these circumstances, the plaintiff impleaded defendant No.4 as a party to the suit. Defendant No.4 in para 3 of its written statement submits that the plaintiffs are residing in the suit property bearing Assessment No.108/102 and defendant Nos.1 to 3 are residing on the southern portion of the property bearing Assessment No.109/103. It is also admitted that there is a passage on the northern portion of the suit house to reach the public road and that defendant Nos.1 to 3 tried to put up a construction causing obstruction in the use of the passage, which is in existence in between two shops on the northern portion of the suit house. As could be seen from the property extract-Ex.P1, it is the name of plaintiff No.1, which has been entered in the records as the owner of the suit house i.e., the property bearing Assessment No.108/102. Ex.P5-extract of the assessment list in possession of defendant No.1 and her name is entered in the records. It is in the evidence of the parties that except the door on the northern side of the suit house, there is no other door for the plaintiffs to reach the passage. So, when the parties admit that one portion of the property was given to the share of the plaintiffs and other portion was given to defendant Nos.1 to 3, it has to be held that the portion to whom the suit property was given must have an exit road and the passage is deemed to be the part of the suit house as there is only one road to reach the main road. Both the Courts below have consistently held on the basis of the records produced including Ex.P2 and the admission of defendant No.4 that the suit property is in possession of the plaintiffs and the passage on the northern side is the only way for the plaintiffs to reach the main road. As there are concurrent findings in relation to this fact and as the said findings are based on proper appreciation of the evidence and the documents referred to supra, it cannot be said that the Courts below appreciated the evidence in capricious and perverse manner. The abundant material placed on record is itself sufficient to hold that the suit house fell to the share of the plaintiffs and the southern portion was given to the share of defendant Nos.1 to 3.

The suit is not based on the claim of any easementary right. It is relevant to note that the suit property has only one door on the northern side and to reach the main road, the plaintiffs have to use the passage. So, when the suit property fell to the share of the plaintiffs, naturally it has to be inferred that the suit passage is also given to their share. In such circumstances, when the passage is part of the suit house, the question of claiming the relief of easementary right does not arise.

Leaned counsel for the appellant has placed reliance on the decision of this Court reported in D. Ramanatha Gupta Vs. S. Razaack, wherein this Court in a suit for right of easement held that the relief of declaration is necessary. This principle does not apply to the facts on hand, as the suit is not based on any easement.

So far as maintainability of the suit is concerned, there is no such contention in the written statement. Both the parties admit that the suit property inclusive of southern portion of the house fallen to the share of defendant Nos.1 to 3 is ancestral property and it was divided in the year 1962. Though plaintiff No.1 has instituted O.S. No.133/1988 for partition in relation to other properties of the family, the relief claimed and the subject matter in the said suit are different and the plaintiffs have claimed the relief in this suit only for injunction. There is no question of bar of the suit under the provisions of Order II Rule 2 CPC and as the facts are very much clear, there was no difficulty for the Courts below to grant the relief sought for by the defendants. Learned counsel for respondent No.1 has placed reliance on the decision of the Apex Court, reported in Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others, and another decision reported in Pabia and Others Vs. Badia and Others, In the first decision the Apex Court has held that in a case where a second appeal is filed against the concurrent findings by the Courts below, the findings of facts howsoever erroneous cannot be interfered in an appeal. The Apex Court also observed that the substantial question of law has to be distinguished from a substantial question of fact. Even if the evidence led by the parties is looked into, the Courts below on proper appreciation of the material on record, have come to a just conclusion that the suit property has fallen to the share of the plaintiffs and except the passage, there is no way for the plaintiffs to reach the main road and that the passage forms part of the suit house. It is under these circumstances that the Courts below have granted injunction against defendant Nos.1 to 3 not to cause obstruction in the use of passage and to remove the obstruction that has been put up illegally. Hence, the substantial questions of law raised are answered in negative.

In the result, the appeal fails and is dismissed.