Research › Search › Judgment

Karnataka High Court · body

2025 DIGILAW 1585 (KAR)

SANJEEVAPPA v. Kamalamma W/o S Ramadas Naidu

2025-12-03

V.SRISHANANDA

body2025
JUDGMENT : V.SRISHANANDA, J. Heard Sri M.B.Chandra Chooda, learned counsel for the appellants and Sri.Lakamapurmath Chidanandayya, learned counsel for the contesting respondents in RFA No.475/2006 and RFA No.476/2006. 2. The legal representatives of unsuccessful plaintiff are appellants in both these appeals. They are challenging the validity of the common judgment and decree dated 09.12.2005 passed in O.S.No.2006/1996 and O.S.No.6156/1997 on the file of the VIII Additional City Civil and Sessions Judge, Bengaluru (CCH-15). 3. The parties are referred to as plaintiff and defendant as per their original ranking before the Trial Court, for the sake of convenience. 4. Facts in the nutshell, which are utmost necessary for disposal of these appeals are as under: The plaintiff-Sanjeevappa filed a suit in O.S.No.2006/1996 with a prayer for grant of permanent injunction restraining the defendant-Kamalamma from putting up unauthorised construction over ‘A’ schedule property and restraining the defendant from opening any door at point CH leading towards Schedule ‘B’ passage and for mandatory injunction directing the defendant to demolish the unauthorised structure put up by her on ‘A’ schedule property. 5. The schedule to the suit in O.S.No.2006/1996 reads as under: SCHEDULE ‘A’ PROPERTY Property bearing No.70, Chikkathayappa road, 7th Cross, Vasanthanagar, Bangalore-52 belonging to Kamalamma, measuring East to West 17 feet and North to South 22 feet bounded on the: East by: Property of Sanjeevappa, West by: 5 feet common passage, North by: Nanjamma’s Property, South by: Property belonging to Kamalamma, SCHEDULE ‘B’ PROPERTY Property bearing Old No.26, New No.71, Chikkathayappa road, 7 th Cross, Vasanthanagar, Bangalore-52, private passage measuring 5½ feet North to South and 27 feet East to West bounded on the: East by: 7 th Cross road, West by: property belonging to defendant, North by: Property of Muninanjamma, South by: Property of the plaintiff, 6. The plaintiff filed the said suit in O.S.No.2006/1996 by contending that he is the owner in possession and enjoyment of the property bearing Old No.26 New No.71 of Chikathayappa Road, Vasanthanagar, Bengaluru. The suit property was purchased by father of the plaintiff by name B.Thimmarayappa under a registered sale deed dated 27.08.1926. 7. The plaintiff-Sanjeevappa contended that his father viz., B.Thimmarayappa was in possession of the suit property. The suit property was purchased by father of the plaintiff by name B.Thimmarayappa under a registered sale deed dated 27.08.1926. 7. The plaintiff-Sanjeevappa contended that his father viz., B.Thimmarayappa was in possession of the suit property. Thereafter plaintiff-Sanjeevappa continued to be in possession of the suit property as owner and was in enjoyment of the same which consists a private passage measuring 5½ feet North to South and 27 feet East to West, which was part and parcel of the suit property having been mentioned in the sale deed dated 27.08.1926. 8. It is the further contention of the plaintiff-Sanjeevappa that the defendant-Kamalamma tried to put up construction on the adjacent property situated on the western side of the suit property on the pretext that she has purchased the said property from erstwhile owner and she has obtained necessary plan and license for the purpose of putting up the construction. 9. The property alleged to have been purchased by the defendant-Kamalamma is described in ‘A’ schedule to the plaint and the defendant's previous owner, viz.,, Bande Channappa was having access to the scheduled property from the road existing on the western side of their property. Said Bande Channappa had also left a similar passage measuring 5½ feet North-South throughout his property on northern side leading to the road and Western side of the suit property. 10. The property of the plaintiff is shown in English alphabets as ‘ABCD’ in the rough sketch and property of the defendant is mentioned as ‘CDEF’ in the very same rough sketch. The passage exclusively belonged to the plaintiff has been shown as ‘CHBJ’ in the rough sketch, which is more fully described in ‘B’ schedule of the suit. 11. It is the specific case of the plaintiff-Sanjeevappa that defendant-Kamalamma has no manner of right over the ‘B’ schedule property. Without obtaining plan and license from the competent Authority, the defendant is putting up the construction in a clandestine manner and sought for the plaint reliefs. 12. It is also contented by the plaintiff that on 19.03.1996, the defendant attempted to put up a door frame at the point ‘CH’ in the rough sketch and the family members of the plaintiff objected for the same. The Corporation Authorities were intimidated and they also failed to take any steps to stop the illegal construction. Therefore, the suit was filed. 13. The Corporation Authorities were intimidated and they also failed to take any steps to stop the illegal construction. Therefore, the suit was filed. 13. The suit in O.S.No.6156/1997 was filed by Kamalamma who is the defendant in O.S.No.2006/1996 against Sanjeevappa who is plaintiff in O.S.No.2006/1996 seeking declaration that ‘B’ schedule property is a common passage for use of both plaintiff and defendant and to grant permanent injunction restraining the defendant from obstructing the plaintiff and her family members from having access to the schedule property through the common passage leading from Chikkathayappa Road, Vasanthanagar, Bengaluru. 14. Kamalamma-plaintiff in O.S.No.6156/1997 contented that she is the owner of the property bearing No.72 situated at Chikkathayappa Road, 7 th Cross, Vasanthanagar, Bengaluru, having purchased the same from its erstwhile owner Smt.Muniyamma under a registered sale deed dated 23.07.1977. 15. It is further contented by Kamalamma that to the east of the suit property in O.S No.6156/1997, there is a common passage leading to Chikkathayappa road and said passage is used by Kamalamma and her predecessors to reach the suit property from time immemorial for having access from ‘A’ schedule property. 16. The suit common passage is meant for the usage of plaintiff as well as defendant (Sanjeevappa who is plaintiff in O.S No.2006/1996) and one more owner of the property on the north eastern side of the suit property. 17. Suit property in O.S No.6156/1997 is culled out hereunder for ready reference. SCHEDULE-A. “House property bearing No.72, 7th cross, Chikkathayappa Road, Vasanthanagar, Bangalore-560 052 measuring East to West 26 feet, and North to South 17 feet and bounded on the: East by: Property of the defendant and common passage leading to Chikkathayappa Road, (7 th Cross, Vasanthanagar, Bangalore-560052); West by: Lane; North by: Ramachandra's property; South by: Property of the plaintiff bearing No.70. SCHEDULE-B. Common passage lying towards the eastern side of the schedule- A property measuring East to West 50 feet and North to South 5.50 feet bounded on the: East by: 7 th cross Road (Chikkathayappa Road); West by: Schedule-A property; North by: Private property belonging to Sri.S.R.Rao. South by: Defendant's & private property.” 18. There was an order of temporary injunction granted in favour of Kamalamma which was challenged by Sanjeevappa and the same was carried up to this Court in MFA No.1272/1997, which also came to be disposed of by the Order dated 09.04.1997. 19. South by: Defendant's & private property.” 18. There was an order of temporary injunction granted in favour of Kamalamma which was challenged by Sanjeevappa and the same was carried up to this Court in MFA No.1272/1997, which also came to be disposed of by the Order dated 09.04.1997. 19. Therefore, Kamalamma prayed for declaring the passage which is the ‘B’ schedule property in O.S.No.2006/1996 as common passage. 20. Sanjeevappa (plaintiff in O.S No.2006/1996) filed written statement reiterating the plaint averments in the said suit. Whereas Kamalamma has filed written statement which is almost replica of the plaint averments in O.S No.6156/1997. 21. Based on the rival contentions of the parties in both the suits, the learned Trial Judge raised following issues for consideration. ISSUES IN O.S.No.2006/1996: (i) Whether the plaintiff proves that he was in lawful possession of the suit schedule property on the date of filing the suit? (ii) Whether plaintiff proves the interference by the defendant? (iii) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? (iv) Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for? (v) What order or decree? ISSUES IN O.S.No.6156/1997: (i) Whether the plaintiff proves that ‘B’ schedule property is the common passage for the use of the plaintiff and defendant? (ii) Whether the plaintiff proves the interference by the defendant in making use of the common passage? (iii) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? (iv) What order or decree? 22. Both suits were clubbed for the sake of convenience and common trial was held. 23. Since the suit for declaration was filed by Kamalamma, evidence was recorded on behalf of Kamalamma who is plaintiff in O.S No.6156/1997. Sri R.Doraiswamy, son of Smt.Kamalamma was examined as P.W-1 and he placed on record 17 documentary evidence which were exhibited and marked as Exs.P-1 to P-17 comprising of special power of attorney, sale deed dated 23.08.1965, tax paid receipt, photographs, copy of the complaint dated 06.04.1997, endorsement issued by the police, copy of the complaint given to the Commissioner of Police, copy of the complaint, sale deed dated 23.07.1977, khata certificate, tax paid receipt, copy of the sale deed, encumbrance certificate and sanctioned plan. 24. 24. As against the evidence placed on record by Sri R. Doraiswamy-P.W.1 on behalf of Kamalamma, son of Sanjeevappa by name Babu is examined as D.W-1. He has placed on record 20 documentary evidence which were exhibited and marked as Exs.D-1 to D-20 comprising of certified copy of the sale deed, photographs, original sale deed, tax paid receipts, power of attorney, rough sketch, copy of the police complaint, sanctioned plan, judgment and decree passed in O.S No.2488/1991, certified copy of the Commissioner’s report, certified copy of the sketch and certified copy of the order passed in MFA No.3537/1992 and MFA No.1272/1997. 25. Thereafter, learned Trial Judge heard the arguments of the parties and by the impugned judgment dated 09.12.2005, dismissed the suit of Sanjeevappa and decreed the suit of Kamalamma. 26. The operative portion of the common judgment passed by the Trial Court reads as under: “The suit of the plaintiff in O.S.No.2006/1996 is dismissed. The suit of the plaintiff in O.S.No.6156/1997 is decreed. The defendant in O.S.No.6156/1997 is hereby restrained by means of permanent injunction from interfering with plaintiff’s use of ‘B’ schedule property, which is common passage. Both parties shall bear their own costs. Original of this judgment shall be kept in O.S.No.6156/1997 and copy in O.S.No.2006/1996.” 27. Being aggrieved by the dismissal of the suit for permanent injunction, legal representatives of Sanjeevappa have filed the present RFA No.475/2006 and challenging the validity of the decree passed in O.S No.6156/1997, and against dismissal of O.S.No.2006/1996, have filed the appeal in RFA No.476/2006. 28. Sri M.B.Chandra Chooda, learned counsel is representing the legal representatives of the original plaintiff-Sanjeevappa. 29. Sri L.M.Chidanandayya, learned counsel is representing the legal representatives of Smt.Kamalamma who is the plaintiff in O.S No.6156/1997. 30. Both have addressed their arguments in a comprehensive manner with vehemence. 31. 28. Sri M.B.Chandra Chooda, learned counsel is representing the legal representatives of the original plaintiff-Sanjeevappa. 29. Sri L.M.Chidanandayya, learned counsel is representing the legal representatives of Smt.Kamalamma who is the plaintiff in O.S No.6156/1997. 30. Both have addressed their arguments in a comprehensive manner with vehemence. 31. Sri M.B.Chandra Chooda, learned counsel for the appellants/legal representatives of Sanjeevappa, reiterating the grounds urged in both the appeals, contented that the original sale deed of the year 1926 clearly mentions that the passage mentioned in ‘B’ schedule property is the exclusive property of the vendor of late B.Thimmarayappa (father of Sanjeevappa- appellant) and thereby Sanjeevappa is the absolute owner of ‘B’ schedule property which has not been taken note of by the learned Trial Judge while dismissing the suit of Sanjeevappa and decreeing the suit of Kamalamma resulting in miscarriage of justice and sought for allowing the appeals filed by legal representatives of Sanjeevappa. 32. He would further contend that the orders passed at the interlocutory stage would not bind the parties and in the trial, the learned Trial Judge was required to re-appreciate the material evidence placed on record especially the sale deed dated 27.08.1926, which is earlier in point of time executed in favour of late B. Thimarayappa (father of Sanjeevappa). Therefore, finding recorded by the learned Trial Judge that the passage which is mentioned in ‘B’ schedule in O.S.No.2006/1996 which is also mentioned as the suit property in O.S. No.6156/1997 ought to have been held as the private passage of Sanjeevappa and not common passage and thereby the learned Trial Judge misdirected himself in dismissing the suit of Sanjeevappa and decreeing the suit of Kamalamma and thus sought for allowing both the appeals. 33. Per contra, Sri L.M.Chidanandayya, learned counsel for the respondent-Kamalamma in both the appeals supports the impugned judgment dismissing the suit of Sanjeevappa and decreeing the suit of Kamalamma. 34. He would further contend that admittedly the defendant is also owner of the property by virtue of the sale deed executed by Muniyamma in favour of the kamalamma. 35. It is specifically mentioned that there exists a common passage measuring 5½ feet x 27 feet not only to the benefit of the Kamalamma but also yet another owner of the property adjacent to the property of Kamalamma and also for the plaintiff. 35. It is specifically mentioned that there exists a common passage measuring 5½ feet x 27 feet not only to the benefit of the Kamalamma but also yet another owner of the property adjacent to the property of Kamalamma and also for the plaintiff. Therefore, decreeing of the suit of Kamalamma and dismissing the suit of the Sanjeevappa is just and proper. 36. Sri L.M.Chidanandayya would also contend that in a suit for bare injunction, what was required to be established by Sanjeevappa was that he was in lawful possession over the suit property and in a suit for permanent injunction he could not have restrained the real owner of the adjacent property from making use of the passage especially when the passage is a common passage which would allow the parties to reach the road on the northern side and thus, the impugned judgment is just and proper and sought for dismissal of both the appeals. 37. Having heard the arguments of both sides, this Court perused the material on record meticulously. 38. On such perusal of the material on record, following points would arise for consideration: (i) Whether the original plaintiff Sanjeevappa has made out a case that ‘B’ schedule property in O.S No.2006/1996 is the exclusive property of Sanjeevappa having purchased the same under the registered sale deed dated 27.08.1926? (ii) If so, whether Sanjeevappa has got a right to restrain the defendant- Smt.Kamalamma or anybody else claiming under Kamalamma from using the said passage as a common passage? (iii) Whether Plaintiff in O.S No.6156/1997 (Kamalamma) has established that she is the owner of the suit property in the schedule mentioned therein and further established that there existed a common passage measuring 5 ½ feet x 27 feet which is to be used by Kamalamma and another adjacent owner of the property? (iv) Whether the impugned common judgment is suffering from legal infirmity and perversity and thus calls for interference? (v) What order? 39. REGARDING POINT Nos.(i) TO (iv): In the case on hand, both the parties have placed on record their respective sale deeds and there is no dispute as to the ownership of their respective properties. What is to be looked into is, the passage which is mentioned as ‘B’ schedule in O.S No.2006/1996. 40. According to Sanjeevappa, the said passage is a private passage meant for exclusive use of Sanjeevappa and his family members. What is to be looked into is, the passage which is mentioned as ‘B’ schedule in O.S No.2006/1996. 40. According to Sanjeevappa, the said passage is a private passage meant for exclusive use of Sanjeevappa and his family members. Whereas the defendant, Kamalamma has stated that it is a common passage and she is the owner of the suit property in O.S No.6156/1997 having purchased from Muniyamma and she is entitled to make use of her property including opening of the door on the eastern side of her property so as to reach the common passage. 41. In this regard, the documents that are placed on record by the parties are practically admitted documents inasmuch as there is no dispute as to the title to the suit property and title to the respective properties of Sanjeevappa and Kamalamma. 42. As could be seen from the sketch that has been placed on record along with O.S No.2006/1996, the property of Sanjeevappa and property of Kamalamma are mentioned with specific demarcation and is represented by English alphabets ‘ABCD’ and ‘CDEF’ and the disputed passage is mentioned as ‘CHBJ’. 43. It is the specific case of Sanjeevappa that on 19.03.1996, Kamalamma attempted to put up a door frame on point ‘CH’ without any right, title or interest. It is also the contention of the Sanjeevappa that the construction is made by Kamalamma without leaving setback and therefore she cannot open a door on the point at ‘CH’. 44. That dispute is the subject matter of RFA No.995/2012 which will be dealt separately by a separate judgment having scope and ambmit of said appeal. 45. In the case on hand, as could be seen from the deposition of the power of attorneys of the parties viz., R. Doraiswamy (P.W.1) who is the son of Kamalamma and Sri Babu(D.W.1) who is the son of Sanjeevappa, the dispute is only with regard to making use of the passage marked at ‘CHBJ’ measuring 5½ feet x 27 feet. 46. When the said aspect of the matter is analyzed, it is crystal clear that the parties had litigated and the matter had come up before this court in MFA No.3537/1992. This Court in the said appeal filed by Kamalamma against Sanjeevappa, while considering the rival contentions of the parties, at paragraph 6 of the judgment has held as under: “6. When the said aspect of the matter is analyzed, it is crystal clear that the parties had litigated and the matter had come up before this court in MFA No.3537/1992. This Court in the said appeal filed by Kamalamma against Sanjeevappa, while considering the rival contentions of the parties, at paragraph 6 of the judgment has held as under: “6. The plaintiff claims 'B' Schedule property as a common passage which according to him that it is the only way to his property. In case if he is not permitted to use the passage, he will not be in a position to enter to his house. In this regard, the learned City Civil Judge, after considering the sale deed, at para 10 of his order has observed thus: "I have carefully compared the description of the property mentioned in plaint-A schedule along with the boundaries with that of the description and the boundaries of the property mentioned in the plaintiff's sale deed. In the plaint, the A schedule property is shown to be bounded on the east by the property of the defendant and the common passage leading to Chikkathayappa's road (7th Cross, Vasantha Nagar, Bangalore) whereas, in the original sale deed, the eastern boundary is shown as the house of Shri Thimmarayappa. This Court is more particularly concerned with the eastern boundary of the plaint-A schedule property because the plaintiff has sought for the declaration that there is a common passage on the eastern side of her property, but looking to the original sale deed of the very plaintiff herself, it is not at all mentioned that on the eastern side there is a common passage but it is only mentioned as Thimmarayappa's house." In that view of the matter, considering the description of the boundaries, the learned Additional City Civil Judge has dismissed I.A.No.I. Having regard to the facts and circumstances of the case, for right adjudication of the matter involved in the controversy, to ascertain whether there is a common passage or not, it is necessary for the appointment of a Commissioner, belonging to the Engineering section of the Bangalore City Corporation, as the sale deed of the plaintiff does not reveal the existence of a passage and that the Commissioner shall find out whether there is any access to his house from any other side. After the Commissioner is appointed, on receipt of the report of the Commissioner, the trial Court is directed to expedite the matter and dispose of the same on merits.” 47. It is to be noted that before passing such an order, a Commissioner came to be appointed who has visited the spot and filed a report. 48. Likewise, an order came to be passed in MFA No. 1272/1997 filed by Sanjeevappa which is marked as Ex. D-20, wherein at paragraph 3 it has been held as under: “3. The case of the plaintiff appears to be that the passage or open space marked as HCBJ in the plaint rough sketch exclusively belongs to him while it is the case of the defendant that it is the common passage. Whether it is a common passage or it is a open space exclusively belonging to the plaintiff is the question to be decided at the Trial. Under I.A.No.1 the plaintiff has sought for an interim order restraining the defendant from putting up any permanent structure on the passage HCBJ. The learned counsel for the defendant states that he is not putting up any structure in the portion marked as HCBJ in the plaint sketch and on the other hand it is the case of the defendant that it is the common passage leading to 7th cross. When the defendant specifically states that he is not putting up any structure in the passage portion marked as HCBJ, the court was right in refusing injunction in favour of the plaintiff. Even before this court the learned counsel appearing for the respondent-defendant states that the defendant is not putting up any structure in the passage portion marked as CHBJ in the plaint rough sketch. In view of the specific submission made by the learned counsel for the respondent, I hardly see any ground to interfere with the impugned order made by the court below.” 49. Pertinently these two orders are placed on record by Sri Babu (D.W.1) who is the son of Sanjeevappa. 50. On close reading of the above two orders, it is crystal clear that the finding recorded that the disputed passage marked as ‘CHBJ’ in the suit sketch, is to be treated as common passage. 51. Pertinently these two orders are placed on record by Sri Babu (D.W.1) who is the son of Sanjeevappa. 50. On close reading of the above two orders, it is crystal clear that the finding recorded that the disputed passage marked as ‘CHBJ’ in the suit sketch, is to be treated as common passage. 51. Probative value of these two documents are taken note of by the learned Trial Judge in the impugned judgment while holding that the disputed passage is the common passage and Sanjeevappa failed to prove that it is the private passage by virtue of the sale deed executed in favour of B.Thimmarayappa on 27.08.1926. 52. Corporation Authorities were also complained of about these aspects of the matter. Corporation Authorities have also visited the spot and they have directed the parties to work out their remedy before the Civil Court. So also, the Police Authorities have relegated the parties to the Civil Court. 53. In the civil suit, having regard to the finding that has been recorded in the aforesaid MFA No.3537/1992 marked as Ex.D-19 and in MFA No.1272/1997 marked as Ex.D-20, it is crystal clear that the plaintiff Sanjeevappa having failed to prove that it is a private passage, the learned trial judge decreed the suit of the Kamalamma wherein the prayer was to treat the disputed passage as a common passage, wherein not only Kamalamma, but also the plaintiff Sanjeevappa and yet other owner (neighbour) can make use of the property to reach the main road on the northern side. 54. Thus, in a suit for bare junction, when the plaintiff Sanjeevappa has failed to prove that it is his exclusive property and he was in exclusive and physical possession of the disputed passage, dismissal of the suit filed by Sanjeevappa and decreeing the suit of the Kamalamma and declaring that the suit passage(disputed passage) is the common passage and, plaintiff Sanjeevappa, defendant Kamalamma and yet another adjacent owner can make use of the property cannot be faulted with. 55. Accordingly, point Nos.(i)(ii) and (iv) are answered in the negative. Point No.(iii) is answered in the affirmative. 56. REGARDING POINT No.(v): In view of the finding of this Court on the aforesaid points as referred to supra, the following: ORDER (i) Appeals are meritless and are hereby dismissed. (ii) No order as to costs.