S.G. Manohara Rao vs Smt. Lakshmi Devi

S.N. Satyanarayana, J.—All these four appeals are filed by plaintiffs in O.S. No. 6436 of 2013, who are defendants 2 and 3 in O.S. No. 5877 of 2013:

(a) MFA Nos. 2509 and 2510 of 2014 are filed by defendants 2 and 3 in O.S. No. 5877 of 2013 impugning the order dated 7-1-2014 passed by the learned XXXVII Additional City Civil and Sessions Judge (CCH-38), Bengaluru City, insofar as it pertains to I.A. No. 1 and I.A. No. 3 respectively.

(b) MFA Nos. 2512 and 2513 of 2014 are filed by plaintiffs in O.S. No. 6436 of 2013 against the order dated 9-1-2014 passed by the learned XXXVII Additional City Civil and Sessions Judge (CCH-38), Bengaluru City, insofar as it pertains to I.A. Nos. 2 and 4 respectively.

The brief facts of the case leading to these appeals are as under:

Plaintiff 1 in O.S. No. 5877 of 2013 is the wife of late Jayaram and plaintiffs 2 to 4 are her children. It is the case of plaintiffs in the said suit that they are the absolute owners in possession and enjoyment of residential property bearing No. 34 measuring East to West 25 feet and North to South 30 feet situate at 1st Main Road, Palace Guttahalli, Bengaluru-560 003, which is described as suit Schedule ''A'' property. There is an open space in between the property of plaintiffs and property of defendants, out of which plaintiffs are the absolute owners of an extent measuring East to West 3 feet and North to South 30 feet (totally 90 feet) on the western side of plaintiffs'' house, which is described in Schedule ''B'' to the plaint and the remaining extent of 1� feet belongs to defendant 1. According to plaintiffs, the said Schedule ''B'' property is not a common passage, but a setback on the western side of their house and forms part of the suit ''A'' schedule property, which was purchased by one Smt. Hanumakka, wife of Kalappa from its earlier owner Narasinga Rao under the registered sale deed dated 21-1-1971. Smt. Hanumakka, during her lifetime, executed a registered Will dated 9-2-1989 bequeathing the said property in favour of Jayaram, the husband of plaintiff 1 and father of plaintiffs 2 to 4. The said Jayaram died intestate on 4-10-1993 and after his death, plaintiffs have acquired title over the suit ''A'' schedule property.

It is further stated in the plaint in O.S. No. 5877 of 2013 that on the western side of property No. 34 belonging to plaintiffs beyond the said open space, there is property No. 35, which was originally owned by one V. Ramaswamy. The said Ramaswamy, during his lifetime, executed a Will, wherein property No. 35 was divided into three portions and he bequeathed: northern portion in favour of defendant 1; middle portion in favour of his wife, Smt. Savithramma and southern end portion to his another son, V.R. Rajashekhara. Subsequently, property of defendant 1 is numbered as 35, middle and southern portions are numbered as 35/1 and 35/2 respectively. Defendant 1 is in possession of property Nos. 35 and 35/1. Sri V.R. Rajashekhara, son of V. Ramaswamy, sold the property bearing No. 35/2 to defendants 2 and 3 as per the registered sale deed dated 6-8-2012. According to plaintiffs, the actual width of defendants'' property from East to West is 41 feet, but in the Will executed by Ramaswamy and the sale deed executed by V.R. Rajashekhara, it is wrongly shown as 50 feet. Though defendants 2 and 3 are having independent entry through road to their property from southern side, they are interfering with plaintiffs'' possession of the ''B'' schedule property. Plaintiffs approached defendant 1, who is the owner of property No. 35 situate on the western side of their property, to resolve the dispute between plaintiffs and defendants 2 and 3. He has not made any effort to solve the problem.

It is seen that earlier, there were two rounds of litigation between the parties to the suit in O.S. No. 5877 of 2013. Sri V.R. Rajashekhar, the predecessor-in-title of defendants 2 and 3 to property No. 35/2 had filed a suit in O.S. No. 11333 of 1994 before the Court of XIII Additional City Civil Judge, Mayohall Unit, Bengaluru, against the defendant therein, who is plaintiff 1 in O.S. No. 5877 of 2013, seeking a decree of permanent injunction restraining her from encroaching upon the common passage situate in property No. 35 and measuring East to West 4� feet and North to South 100 feet, as exclusively belonging to the plaintiff and his brother, Lakshman Babu. Initially, the Trial Court by judgment dated 23-9-2004, decreed the suit in O.S. No. 11333 of 1994. Against the same, the defendant in the suit preferred RFA No. 1378 of 2004 before this Court. This Court appointed a Court Commissioner to inspect and measure property bearing No. 34 belonging to appellant-Smt. Lakshmi and property No. 35/2 belonging to the respondent-Rajashekar. The Commissioner submitted two reports and a sketch. This Court held that the correctness of the said reports could not be gone into in the absence of evidence of the Commissioner and accordingly, by judgment dated 21-10-2008, has allowed the appeal in RFA No. 1378 of 2004 in part and has remitted the matter to the Trial Court for fresh consideration by providing opportunity to the parties to lead evidence, particularly to examine the Court Commissioner. After remand, the parties adduced further evidence and the Trial Court, by judgment dated 13-7-2010, has decreed the suit of the plaintiff-Rajashekar, against which the defendant-Smt. Lakshmi has preferred a Regular First Appeal in RFA No. 1788 of 2010 before this Court. A co-ordinate Bench of this Court by judgment dated 12-7-2013, has observed that during the pendency of the appeal, respondent-Rajashekar has sold the property No. 35/2 in favour of a third party and having regard to the submission of learned Counsel for the appellant that there was no friction between third-party purchaser and the appellant, held that she was not entitled to pursue the appeal in RFA No. 1788 of 2010. It is further held that since the question of title of the respective parties had not been gone into in O.S. No. 11333 of 1994, which was for bare injunction, in the event of any fresh dispute arising between the third-party purchaser and the appellant therein, she can file a fresh suit invoking question of title, in such an event the decree suffered by her in O.S. No. 11333 of 1994 should not be construed as a bar to a fresh suit on the principle of res judicata.

In this background, plaintiffs in O.S. No. 5877 of 2013 have sought for a declaration that they are the absolute owners in possession of the setback area measuring East to West 3 feet and North to South 30 feet i.e., suit Schedule ''B'' property and for permanent injunction against defendants restraining them or anyone claiming under them from interfering with plaintiffs'' peaceful possession and enjoyment of the suit Schedule ''B'' property.

Defendants 2 and 3 in O.S. No. 5877 of 2013 have filed written statement under Order 8, Rule 1 of the Civil Procedure Code, and counter-claim under Order 8, Rule 6A of CPC. They contended inter alia that the actual measurement of the suit Schedule ''A'' property from East to West is 22 feet and not 25 feet as stated in the plaint. There is a common passage on the eastern side of entire property bearing Nos. 35, 35/1 and 35/2 measuring East to West, at the southern half 3.7 feet and the northern half 4� feet and North to South 100 feet, which is described in the schedule to the written statement. The suit Schedule ''B'' property is part and parcel of property bearing No. 35 and its sub-numbers. They have denied the allegation in the plaint that there is an independent access to their property through road on the southern side stating that narrow conservancy situate at the southern side of property No. 35/2, which is 5 feet lower than the ground level of the said property, cannot be used as an access to their property. There are eight residential units in property No. 35/2 and out of them, defendants 2 and 3 have leased seven residential portions to tenants. The written statement schedule property is the only access to defendants 2 and 3 and their tenants and the space available to park their two wheelers. Plaintiffs have no manner of right, title or interest over the suit Schedule ''B'' property and they have illegally put up construction of a ridge measuring 1� feet width and 1/2 feet height in the said property. Accordingly, defendants 2 and 3 have sought for: declaration that the written statement schedule property is the common passage of property bearing Nos. 35, 35/1 and 35/2; mandatory injunction directing plaintiffs to remove the said ridge put up by them and permanent injunction restraining plaintiffs or anybody claiming through them from interfering into the possession and enjoyment of the written statement schedule property by defendants 2 and 3.

In the suit in O.S. No. 5877 of 2013, plaintiffs have filed I.A. No. 1 under Order 39, Rules 1 and 2 of Civil Procedure Code, 1908, for temporary injunction restraining defendants or anyone claiming under them from interfering with plaintiffs'' peaceful possession and enjoyment of the property described in the schedule to the said application. Defendants 2 and 3 have filed two applications: I.A. No. 2 under Order 39, Rule 4 of CPC, for vacating the interim order granted by the Trial Court in favour of the plaintiffs on 13-8-2013 and I.A. No. 3 under Order 39, Rules 1 and 2 of CPC, for temporary injunction restraining plaintiffs from interfering with their peaceful possession and enjoyment of the written statement schedule property.

The suit in O.S. No. 6436 of 2013 is filed by plaintiffs, who are defendants 2 and 3 in O.S. No. 5877 of 2013, against defendants 1 to 4 therein stating that they are the absolute owners in possession of property bearing No. 35/2 measuring East to West 50 feet and North to South 40 feet, having purchased the same from V.R. Rajashekar under registered sale deed dated 6-8-2012. They have leased seven out of eight residential units in property'' No. 35/2 to tenants and they are residing in a unit located in the ground floor. It is stated that the actual measurement of property No. 35/2 from East to West is 43 feet 11 inches including the common passage attached to the said property. The suit schedule common passage is part and parcel of property'' Nos. 35, 35/1 and 35/2. One Lakshmi Devi (plaintiff 1 in O.S. No. 5877 of 2013) is the owner of property'' No. 34. Defendant 1 is the owner of property No. 34/1. Defendants 2 and 3 are the owners of property'' No. 33 and defendant 4 is the owner of property No. 32. In the survey sketch prepared by survey authorities, the suit schedule property is shown as part of property'' No. 35 and its sub-numbers. It is alleged that defendants 2 and 3, who are owners of property'' No. 33, have put up construction of chajja and roof slab by aerially encroaching over portion of the suit schedule property. Accordingly, plaintiffs have sought for: declaration that the suit schedule property i.e., common passage is part and parcel of property bearing Nos. 35, 35/1 and 35/2; mandatory injunction directing defendants 2 and 3 to demolish and remove the construction of the chajja and roof slab as stated in the plaint and for permanent injunction restraining defendants 1 to 4 from interfering into the suit schedule common passage in any manner.

Defendants in O.S. No. 6436 of 2013 have filed their written statement as well as counter-claim stating that they are the owners of property Nos. 34/1, 33 and 32. ''fire defence of defendants 2 and 3 is that they have put up construction within the boundaries of their property No. 33 after obtaining sanction plan from Bruhat Bengaluru Mahanagara Palike (BBMP) and they have not encroached over plaintiffs'' property. According to defendants, the setback area to an extent of 3 feet on the western side of their properties belongs to them and plaintiffs in the guise of renovating their property No. 35/2, have projected chajja, windows on the eastern side of their property and laid sanitary pipes in the setback area belonging to defendants. Plaintiffs have a separate access towards southern side to their property, where there is a concrete road constructed by BBMP. Accordingly, defendants have sought for: dismissal of the suit with cost; mandatory injunction directing plaintiffs to remove and demolish the chajja and windows fixed on the eastern wall of plaintiffs'' building in property No. 35/2 and to remove the sanitary pipes laid in the 3 feet setback area belonging to defendants.

In the suit in O.S. No. 6436 of 2013, plaintiffs have filed two applications under Order 39, Rules 1 and 2 of the Civil Procedure Code for temporary injunction in: I.A. No. 1 restraining defendants from interfering with the plaintiffs'' possession and enjoyment of the suit schedule property in any manner till disposal of the suit and I.A. No. 2 restraining defendants 2 and 3 from putting up any further construction by encroaching over any portion of the schedule property. Defendants in the said suit have filed application in I.A. No. 4 under Order 39, Rules 1 and 2 of CPC, for grant of temporary injunction restraining plaintiffs from interfering with defendants'' possession and enjoyment of the schedule property pending disposal of the suit.

So far as the suit in O.S. No. 5877 of 2013 is concerned, the Trial Court after considering the contentions of the parties and the material on record, by order dated 7-1-2014, has allowed I.A. No. 1 filed by the plaintiffs by restraining defendants, their men, agents, servants etc., from interfering with the plaintiffs'' use of the aforesaid passage for attending any repair work of their western wall till the disposal of the suit. It is further ordered that plaintiffs shall not take any construction work over the said passage except any repair work of western wall of their property. However, I.A. Nos. 2 and 3 filed by defendants 2 and 3 have been dismissed. Being aggrieved by the same, defendants 2 and 3 have preferred two appeals in MFA Nos. 2509 and 2510 of 2014 challenging the order of the Trial Court passed on I.A. Nos. 1 and 3 respectively. It is necessary'' to mention at this juncture that no appeal is filed with reference to order passed on I.A. No. 2.

In the suit in O.S. No. 6436 of 2013, the Trial Court by order dated 9-1-2014, has allowed I.A. No. 4 filed by defendants by restraining plaintiffs from interfering with the defendants'' use of the aforesaid passage to the extent of East to West 3 feet and North to South 60 feet as described in the schedule of I.A. No. 4 till the disposal of the suit. It is further ordered that defendants 2 and 3 shall not make use of the said passage for putting up any construction. However, I.A. Nos. 1 and 2 filed by plaintiffs have been dismissed. Being aggrieved by the same, plaintiffs in the said suit have preferred two appeals in MFA Nos. 2512 and 2513 of 2014 challenging the order of the Trial Court passed on I.A. Nos. 2 and 4 respectively.

Heard the learned Counsel for the parties and perused the material on record. On going through the same, it is seen that the sum and substance of the dispute between the parties is with reference to the title and extent of an open space existing between the respective property belonging to plaintiffs and defendants in the said suits. The said open space exists between property Nos. 35, 35/1 and 35/2 on one side and property Nos. 34, 34/1, 33, 32 and 31 on the other side.

According to plaintiffs in O.S. No. 5877 of 2013, who are common respondents 1 to 4 in MFA Nos. 2509 and 2510 of 2014, they are the owners of property No. 34 situate in 1st Main Road, Palace Guttahalli, with its entrance facing to the road on the north and there is an open space measuring 4� feet on the western side of their property, out of which, an extent measuring East to West 3 feet and North to South 30 feet described as suit Schedule ''B'' property belongs to them and an extent of 1� feet belongs to defendant 1, who is the owner of property No. 35. The said open space is not a common passage, but a setback in between property of plaintiffs and defendants. Defendants have independent access to their property through road on the southern side.

The material on record would disclose that the original property bearing No. 35 is divided into three portions. The first portion with No. 35 is facing the main road and the second portion numbered as 35/1 is behind it. The third portion numbered as 35/2 is behind property No. 35/1 and bounded on its south by conservancy lane.

Defendants 2 and 3 in O.S. No. 5877 of 2013, who are common appellants in these appeals and who are the owners of property No. 35/2, claim that the common passage situate on the eastern side of property Nos. 35, 35/1 and 35/2 measuring East to West at the southern half portion 3.7 feet and at northern half portion 4� feet and from North to South 100 feet is part and parcel of property Nos. 35, 35/1 and 35/2. Out of the eight residential units in property No. 35/2, they have leased out seven residential units to tenants. Defendants and their tenants have right of egress and ingress to 1st Main Road, Palace Guttahalli through the said common passage. They have alleged that plaintiffs in O.S. No. 5877 of 2013 have constructed a ridge in the written statement schedule property and accordingly, in their counter-claim, they have sought for mandatory injunction directing plaintiffs to remove the said ridge.

So far as plaintiffs in O.S. No. 6436 of 2013 are concerned, they are defendants 2 and 3 in O.S. No. 5877 of 2013 and common appellants in these appeals. They admit that: one Lakshmi Devi (plaintiff 1 in O.S. No. 5877 of 2013) is the owner of property No. 34; defendant 1 in O.S. No. 6436 of 2013 is the owner of property No. 34/1; defendants 2 and 3 are the owners of property No. 33 and defendant 4 is the owner of property No. 32. However, they claim that the suit common passage forms part and parcel of property Nos. 35, 35/1 and 35/2 and defendants 2 and 3, who are respondents 2 and 3 in MFA Nos. 2512 and 2513 of 2014, without any manner of right have put up chajja and roof slab by aerially encroaching over the suit schedule common passage. Accordingly, they'' have sought for mandatory injunction directing defendants 2 and 3 in O.S. No. 6436 of 2013 for demolition and removal of chajja and roof slab.

On the contrary, it is the defence of defendants in O.S. No. 6436 of 2013 that open area on the western side of their property Nos. 34/1, 33 and 32, measuring East to West 3 feet and North to South 60 feet is a setback and the same belong to defendants and the construction put up by defendants 2 and 3 in their property No. 33 is as per the sanction plan issued by BBMP. Though plaintiffs in the said suit have independent access to their property on the southern side through road, in the guise of renovating their house, they'' have extended chajja, windows and have laid sanitary pipes in the 3 feet setback area belonging to defendants. Accordingly, defendants in O.S. No. 6436 of 2013 have sought for direction to plaintiffs to demolish the said chajja and windows and to remove the sanitary pipes laid in the 3 feet setback area belonging to defendants.

The Trial Court, prima facie, accepting the plea put forth by plaintiffs in O.S. No. 5877 of 2013 claiming that they are the owners of the property No. 34 measuring East to West 25 feet and North to South 30 feet and the open space of 3 feet, which is lying on the western side of their property forms part and parcel of suit schedule ''A'' property, has allowed I.A. No. 1 filed by them for temporary injunction while dismissing I.A. Nos. 2 and 3 filed by'' defendants 2 and 3 in the said suit. Similarly, in O.S. No. 6436 of 2013, the Trial Court has allowed I.A. No. 4 filed by defendants against the plaintiffs for temporary'' injunction while dismissing I.A. Nos. 1 and 2 filed by plaintiffs therein.

Learned Counsel for appellants in MFA Nos. 2509 and 2510 of 2014 has produced copy of the sanctioned plan before this Court this day. The said plan is of the year 1936, wherein the Municipal Authority while considering sanction of plan has taken measurement of property Nos. 34, 33, 32 and 31. The said sanctioned plan of the year 1936 tallies with the rough sketch produced by plaintiffs in O.S. No. 5877 of 2013 as per Annexure-F to the appeal. In this background, it is seen that parties to the suits in O.S. Nos. 5877 and 6436 of 2013 are making allegations and counter-allegations with reference to title and extent of the said open area. In the facts and circumstances of the case, in order to determine the question as to whether the said open area forms part of their respective properties as contended by parties to the said suits, requires evidence to be recorded and appreciation of documents of title with reference to several revenue records, which are now sought to be produced and relied upon in these appeals.

In that view of the matter, this Court feel that at this juncture, giving any finding with reference to the title of the properties would be disadvantageous to the parties to these appeals. Therefore, parties herein are directed to maintain status quo with reference to the existing open space between property Nos. 35, 35/1 and 35/2 on one side and property Nos. 34, 34/1, 33, 32 and 31 on the other side as it is today running from North to South direction i.e., from 1st Main Road, Palace Guttahalli, Bengaluru, to conservancy lane lying behind the southern side of property Nos. 35/2 and 31. With such observations, these four appeals are disposed of with a direction to the parties to these appeals to agitate their claim before the Trial Court and demonstrate their right in respect of the property/ies, which is/are acquired by them by way of purchase as well as in succession with reference to the boundaries as could be seen from the documents of tile as also revenue records. If the parties to the suits are able to demonstrate that there is an open passage, which is for common use of the respective owners of properties, they shall be entitled to the said relief. If they are able to demonstrate that there is no passage in existence for the common use of the said properties, such finding shall be given by the Court below on appreciation of the material on record to be produced by both the parties in support of their case. With such directions, these four appeals are disposed of.

In view of disposal of these appeals, I.A. No. 1 of 2014 for stay in MFA No. 2509 of 2014, I.A. II of 2014 for temporary injunction in MFA Nos. 2510 and 2512 of 2014 and I.A. No. 11 of 2014 for stay in MFA No. 2513 of 2014 do not survive for consideration and the same stand disposed of.