Smt. Choodamani and Kum. Malathi vs Sri M. Prakash

S.N. Satyanarayana

These three appeals are filed by the defendants in O.S. No. 8584/2010, pending on the file on XXXVII Addl. City Civil Judge (CCH-38), Bangalore. The parties to this proceeding are referred to by their ranking in the court below for convenience and identifying them with reference to their share in the suit schedule property.

Brief facts leading to these appeals are as under:

The appellants in all the three appeals are defendants in the court below and respondent in all the three appeals is the plaintiff in the court below. The suit in O.S. No. 3584/2010 is filed by the plaintiff - respondent herein for the relief of declaration that the staircase mentioned in suit schedule ''C property is common staircase and also for an order of decree of permanent injunction restraining defendants or their agents and workers from demolishing the alleged common staircase, standing on the suit schedule ''C'' property.

The undisputed facts of the case are, defendant nos. 1 to 3 and vendors of plaintiff namely, Smt. Hematatha, Smt. Harini and Smt. Bhagyalakshmi are daughters of one B. Earappa. Admittedly, the said B. Earappa was the owner in possession and enjoyment of suit schedule ''A'' property, bearing No. 43 (old Municipal No. 142 and new BBMF No. 22) situated at 4th Cross, Sudhamanagar, Bangalore - 560 027, measuring east to west 45''-00", north to south - 30''-00" in all measuring 1350 sft. Admittedly, the said property was purchased by B. Earappa during his lifetime under a registered sale deed dated 22.07.1977. It is also not in dispute that the said B. Earappa, during his lifetime executed a Will on 30.10.2006, bequeathing the aforesaid property in favour of his six daughters, namely, Smt. Hernalatha, Smt. Harini and Smt. Bhagyalakshmi (vendors of the plaintiff) and Smt. Choodamani, Smt. Malathi and Smt. Jamuna, defendant nos. 1 to 3 in the court below.

The Will, dated 30.10.2006 was registered in the office of the Sub-Registrar as document No. 831/1977-78. Subsequent to the execution of the said Will, B. Earappa died on 01.07.2007. After death of B. Earappa, his six-daughters who had 1 /6th undivided share for each of them entered into a partition deed, wherein the aforesaid property was divided into two portions, i.e., the property which measured in all 30/45 ft. was divided into two portions of 15/45 ft. and 15/45 ft. as per partition deed entered into between them on 15.10.2008 and registered as document No. 1511/2008-09. In the said partition deed, the entire property held by B. Earappa was referred to as Schedule ''A'' property, the portion that was allotted to the vendors of plaintiff was defined as schedule ''B'' property and a portion that was allotted to defendant nos. 1 to 3 in the court below, was referred to as schedule ''C'' property.

Under the said partition, three of the sisters who were allotted the schedule ''B'' property took the said portion to their exclusive possession and three of the other sisters took possession of schedule ''C'' property to their possession. Each of them were in possession and enjoyment of their respective portion. The suit schedule ''A'' property had several tenements in it, each group of the parties to partition took possession of the tenements falling to their share in terms of the said partition. However, the staircase, which existed in a portion of schedule ''C'' property continued to be enjoyed by all the parties together.

Subsequently, the parties of first part to the partition deed sold schedule ''B'' property in favour of the plaintiff in O.S. 3384/2010. Pursuant to which, the plaintiff got the katha of the said portion registered in his name and also put up additional floors on the portion purchased by him. Whereas the parties of second part to the partition deed, who were allotted schedule ''C'' portion in the partition deed took up the demolition of the building standing on schedule ''C'' property, with a view of putting up three separate floors to enable each one of them to have a separate portion for their use and enjoyment. When the said work was taken up, the plaintiff who succeeded to the share of parties of first part under the partition deed filed the aforesaid suit in O.S. 3584/2010 contending that the staircase, which is in the middle of the suit schedule ''A'' property and falling within boundaries of ''C schedule properly in the partition deed is a common staircase and the same is required to be maintained as such. Since it is the only way which was available to reach 1st and 2nd floor of the properties purchased by him from the parties of first part under the partition deed. The said suit was filed by him against the parties of second part, who are defendant nos. 1 to 3. In the said suit the schedule ''A'' and ''B'' in partition deed was referred to as suit ''A'' and ''B'' schedule properties. However, only the staircase portion in ''C'' schedule of partition deed is referred to as suit ''C'' schedule property.

In the said proceeding, two applications of similar prayer was filed by the plaintiff in I.A. 1 and 2 and the defendants in the said suit also filed application in I.A. 3, for the relief of injunction against plaintiff not to disturb demolition work taken up by them on the suit schedule property. The court below took up all three applications for consideration together and after hearing the plaintiffs, as well as the defendants, proceeded to allow I.A. 1 and 2 filed by the plaintiff and allowed the applications filed by defendant nos. 1 to 3 in part i.e., they were permitted to demolish the existing building in schedule ''C'' property referred to in the partition deed and while doing so, they were restrained from demolishing the staircase, which is referred to as schedule ''C'' property in the suit.

The defendants being aggrieved by the common order passed by the court below in O.S. No. 3584/2010 in rejecting a portion of their prayer in I.A. 3 and allowing I.A. 1 and 2 filed by the plaintiff have come up in these three appeals challenging the order passed on each one of those explications.

When the matter came up for admission this Court appointed a Court Commissioner to inspect the entire property belonging to the plaintiff and defendants and also the common staircase situated between the said property, which is referred as suit schedule ''C'' property. After the Commissioner report was filed, several opportunities was also given to the parties to the proceedings to approach the Mediation Centre and to resolve the dispute between them amicably, either the plaintiff selling the suit schedule property in favour of the defendants or the defendants in turn selling the suit schedule property in favour of the plaintiff, permitting him to retain the stair case as it existed on suit schedule property However, the said settlement did not come through. Therefore, these three appeals are taken up for final disposal with the consent of the counsel appearing for the appellants and respondent, who are defendants and plaintiff, respectively, in the court below.

Heard the learned counsel for appellants and respondent. On going through the grounds of appeal in all the three appeals and also the findings of the court below in the common order impugned in these three appeals, the following point arises for consideration:

Whether the court below was justified in allowing the applications in I.A. 1 and 2 restraining defendants from demolishing the alleged common staircase, measuring about east to west 15'' - 10" and North to South 7 -10", situated in the middle of the property bearing No. 43, Old Municipal No. 142, New BBMP No. 22, which is now divided into two portions, northern portion belonging to plaintiff and southern portion belonging to the defendants.

Heard the Counsel for the appellants and respondent. On appreciation of the grounds of appeal and the arguments of both counsel, this court answer the aforesaid point for consideration in the negative for the following;

REASONS

The rights of the parties in this appeal will have to be analyzed taking into consideration the documents commencing from the Will executed by B. Earappa in favour of his six daughters. As could be seen from the said Will, the suit schedule property was bequeathed by B. Earappa in favour of his six daughters in equal portion. The said property in all measures north x south 30 sq.ft., east to west 45 sq.ft. With the said property having the access to the road on its eastern side and the entire property measures to an extent of 1350 sq.ft. The six beneficiaries under the will decided to divide the said property into two equal half of 15 45'' each. Three of the sisters took northern half portion and another three sisters accepted southern half portion.

Accordingly, they entered into a registered partition deed on 15.10.2008. In the said partition deed, the entire property of B. Earappa was referred to as schedule ''A'' property and the property which, was given to the share of three sisters namely, Smt. Bemakuha, Smt. Harini and Smt. Bhagyalakshmi was referred to as schedule ''B'' property. In the said partition deed, the schedule ''B'' reads as under:

"Schedule - ''B''

(Description of the property allotted in favour of the parties of First Part)

All the part and parcel of Northern portion of the house property bearing No. 43, Old Municipal No. 142, New BBMP No. 22, PID No. 48-26-22, situated at 4th Cross, (Formerly known as 2nd Cross) Sudhamanagar, Bangalore - 560 027, measuring East to West 45 Feet and North to South 15 Feet, in all measuring about 675 sft. and bounded on the :

East by : Road

West by : Site No. 139

North by : Site No. 143, South by : Property allotted in favour of parties of second part.

Together with structure standing thereon.

The share that was allotted to the remaining three daughters i.e., the properties allotted to defendants nos. 1 to 3 is referred to in Schedule ''C'' of the partition deed. As could be seen clearly from the reading of the schedule, the staircase, which was standing in the middle was not referred to by the parties as common stair case and they did not reserve any right over the said property to remain in common for all the six of them.

Admittedly, as on the date when the partition was entered into between them, there were several tenements in the schedule ''A'' property. Therefore, no reference was made regarding the manner in which the parties are entitled to enjoy the staircase, which existed in middle of the property. However, as could be seen from the schedule, it is clear that they intended that each one of them should take 50 % of the property equally without keeping any portion of the same for common enjoyment.

When that being the case, the question of plaintiff trying to set-up a claim chat the said staircase, which is referred to in schedule ''C to the plaint is a common staircase for the enjoyment of both the portions of the property bearing No. 43, old Municipal No. 142, new BBMP No. 22, does not stand to reason. When admittedly, plaintiff after purchase of partition B'' schedule property from the sisters of defendant nos. 1 to 3 having taken steps to construct one more floor on his property should have made alternative arrangements for providing exclusive stair case to his portion from ground floor to the 1st and 2nd floor that was constructed by him. Having not done so, it is not open for him to state that a portion of the schedule ''C'' property, which has fallen to exclusive share of defendant nos. 1 to 3 should be allowed to be used and enjoyed by him as common a staircase, when the vendors of the plaintiff did not retain such right over the staircase in the partition deed, which was entered into between defendant nos. 1 to 3 and their sisters.

Further, it is not open for the plaintiff, successor to the rights of the parties to first part to the partition deed to claim the stair case in suit ''C'' schedule property as common staircase. which is available in common to be used by him and defendant nos. 1 to 3.

Though the Will of B. Earappa and the partition entered into between the plaintiff - vendor and defendant nos. 1 to 3 being available on record, the court below has not looked into the same and not analyzed the rights of the parties to the said partition deed and also rights of the plaintiff who has succeed to the share of the parties to first part of the partition deed. The court below has carried away itself by the pleadings wherein the plaintiff has contended that except the stair case which is situated in the middle of the property in schedule ''A'' property, there is no other way to reach the 2nd floor of his property.

Therefore, the court below has passed the aforesaid order which is more in the nature of equitable order without considering rights of the parties when legally the plaintiff nor his predecessor in title had any right to use the said staircase in common with defendants. The court below was not justified in allowing the applications filed by the plaintiff in restraining the defendants from demolishing half portion of the stair case which falls within the boundaries of their property as mentioned in Schedule ''C'' to partition deed dated 15.10.2008.

Therefore, on re appreciation of the material available on record, this court find there is an error on the part of the court below in appreciating the prima-facie rights of the plaintiff to grant the extra-ordinary relief of temporary injunction in restraining the defendants from demolishing the staircase existing in their portion.

Accordingly, while answering the point for consideration in negative, this court set-aside the common order dated 08.12.2010 passed by the court below on I.A. 1, I.A. 2 and I.A. 3 in O.S. 3584/2010. While setting aside the order, the application in LA. 1 and 2 filed by the plaintiff is dismissed and I.A. 3 filed by the defendants in the said suit seeking relief of temporary injunction restraining the plaintiff from disturbing the right of the defendants to demolish the stair case referred to in the schedule ''C'' property is allowed, without any order as to cost.