Bangalore District Court
Srinivasulu K vs Gurumurthy on 27 April, 2026
1
O.S.No.598 / 2016
KABC010017232016
IN THE COURT OF LV ADDL. CITY CIVIL & SESSIONS
JUDGE AT BENGALURU CITY: (CCH-56)
DATED THIS THE 27th DAY OF APRIL 2026 MOHAN
PRESENT PRABHU
SRI. MOHAN PRABHU, M.A., LL.M.
Digitally
LV ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU. signed by
MOHAN
PRABHU
O.S. No. 598 / 2016 Date:
2026.05.02
12:58:32
+0530
PLAINTIFF/S K.SRINIVASULU
S/O LATE A.V. KODANDARAMULU NAIDU
AGED ABOUT 51 YEARS,
RESIDING AT OLD No.M154, NEW
No.361/2-2, 5TH CROSS ROAD,
LAKSHMINARAYANAPURA,
BENGALURU - 560 021.
(BY SRI.D.N.RAMACHANDRAPPA, ADV.)
Versus
DEFENDANT/s K.GURUMURTHY
S/O LATE A.V.KODANDARAMULU NAIDU,
AGED ABOUT 47 YEARS,
RESIDING AT OLD No.M154, NEW
No.361/2-3, 5TH CROSS ROAD,
LAKSHMINARAYANAPURA,
BENGALURU - 560 021.
(BY SRI.J.R.J. ADV.)
2
O.S.No.598 / 2016
Date of Institution of the 21.01.2016
suit
Nature of the Suit Suit for permanent
injunction
Date of commencement of
recording of evidence
Date on which the 27.04.2026
judgment was pronounced
Duration Year/s Month/s Day/s
10 03 06
JUDGMENT
The plaintiff has filed this suit against the defendant for the relief of permanent injunction praying to restrain the defendant, his agents, attorney or anybody claiming under him from interfering with the plaintiff's peaceful possession and enjoyment of the B- schedule property.
SCHEDULE A PROPERTIES All that the piece and parcel of House property bearing old No. M-154, new No. 361/2-2 PID No. 8-17-2/2, ward No.8 situated at 5th cross, Lakshminarayanapura, Bengaluru-21 measuring east to west 13.6 feet and north to south 27.6 feet and bounded on the -
East by Narasaiah's property and 3.5 feet passage. West by Property of K.Nagabhushana North by Defendant's property and South by Conservancy.
3
O.S.No.598 / 2016 SUIT SCHEDULE - B PROPERTY All that the piece and parcel of the passage bearing old No.M-154, new No. 361/2, measuring east to west 3.6 feet and north to south 27 feet situated at 5th cross road, Lakshminarayanapuram, Bengaluru -21 bounded on the East by Property of Narasimiahah West by defendant's property North by Road; and South by conservancy and plaintiff property.
2. The plaint averments, briefly stated as follows.
The property bearing old No. M 154, New No. 361/2, situated at 5th Cross Road, Gayathrinagar ward, Lakshminarayanapuram, Bangalore originally belongs to paternal grandfather of the plaintiff by name Venkataswamy Naidu who purchased the property under a registered sale deed executed in the year 1936. Late. Venkataswamy Naidu who is the grandfather of the plaintiff and son of late. Rayappa Naidu resided along with his 5 brothers and his parents at 4th Cross, opposite to Geetha Mandir, Sreerampuram, Bangalore and late Rayappa Naidu i.e. the great grandfather of the plaintiff had two brothers and during his lifetime he distributed the said property among his two brothers and 4 O.S.No.598 / 2016 six children either by paying consideration and by delivering a portion of the property under which late. Venkataswamy Naidu who is the eldest son of late. Rayappa Naidu had received a sum of Rs. 1,100/- from his father and out of the sale proceeds he purchased the property No.154, New No.361/2, in the year 1936. Late. Venkataswamy Naidu died in the year 1962 leaving behind him only son namely A.V.Kodandaramulu Naidu i.e. the father of the plaintiff and he succeeded to the property after the death of his father and in the year 1974 A.V.Kodandaramulu Naidu mortgaged a portion of the property in favour of K.P.Rajan under two registered mortgage deeds for a total sum of Rs.22,000/- i.e. a portion for Rs. 12,000/- under a registered mortgage deed dated 25.04.1974 document No.319, volume 414, at page 89-92, of Book-I, document registered before the sub-registrar, Sreerampuram, Bangalore and another portion for Rs. 10,000/- through a separate registered mortgage dated executed in the year 1975 and the mortgagee was in possession of two portions and 5 O.S.No.598 / 2016 remaining portion were occupied by the wife and children of late A.V.Kodandaramulu Naidu. The mortgagee K.P.Rajan refused to redeem the mortgage and to deliver possession and as such in the year 1984 a suit came to be filed for redemption of mortgage and delivery of physical possession and the dispute was finally determined before the Hon'ble Supreme Court of India and in the year 1991 late A.V.Kodandaramulu Naidu got redeemed the mortgage and took physical possession of the property from the mortgagee K.P.Rajan and the entire property measuring 55 feet X 35 feet was in possession of late A.V.Kodandaramulu Naidu and his family till his death who died in the year 2002 leaving behind him, his wife Munirajamma, four sons and three daughters and after the death the legal heirs became the joint owners of the property and continued to enjoy with physical possession as the co- owners. The mother of the plaintiff Smt.Munirajamma died in the year 2012. Soon after the death of A.V.Kodandaramulu Naidu on 20.07.2002 the legal heirs decided to partition the 6 O.S.No.598 / 2016 property among themselves under which the mother of the plaintiff and 3 sisters have received their share through the monetary consideration and the four sons have given the property by 1/4th share by partitioning the property under 4 schedules i.e. Schedule A to Schedule D by entering into a registered partition deed dated 20.07.2002 vide document No.1788, of Book -I, document registered before the office of the sub-registrar Vijaynagar, Bangalore. After the partition the Bangalore City Corporation have assigned separate number to all the four portions and have issued the khatha endorsement to the respective shareholders by collecting the property tax. The plaintiff is the absolute owner in possession of the house property bearing old No. M-154, New No.361/2-2, PID No. 8-17-2/2, measuring east to west 13.6 feet and north to south 27.6 feet situated at 5th cross road, Gayatrinagar ward, Lakshminarayapuram, Bengaluru, which is more fully described as 'A' schedule property. Katha of 'A' schedule property stands in the name of the plaintiff and taxes also paid by the 7 O.S.No.598 / 2016 plaintiff to the BBMP. After the death of late A.V.Kodandaramulu Naidu the father-in-law of the defendant by name Sri.Gopal S/o. Sriramulu Naidu insisted for partition and by engaging the advocate by name Sudhakar the said Gopal who is also a witness to the document arranged the partition deed and obtained the signatures of the parties through the defendant in order to construct the building in his portion and the defendant has voluntarily got allotted the front portion facing roadside and the plaintiff has been allotted the southern portion situated just backside of defendant portion. Originally the entire property bearing corporation No.M154 consisted with 6 portions out of six portions 5 portions were let out to the tenants and one portion was occupied by all the family members and the said property consisted with a passage commencing from northern road portion and deviated in the middle of northern side property and again deviated on the western side of middle of the property and the said passage commencing from northern road portion still 8 O.S.No.598 / 2016 subsists and the defendant is using the passage for his free ingress and egress and the said passage is situated on the eastern side defendant's house and which continues till the southern end portion i.e. on the eastern side of plaintiff's property. The defendants share of the house property has been allotted towards Northern side facing road and plaintiff 'A' schedule property is situated towards south of the defendants property. To the east of defendant's property, there is passage measuring east towards 3.6 feet and north to south 27 feet, which is more fully described as 'B' schedule property. The 'B' schedule property is used by plaintiff for ingress and egress to the 'A' schedule property from the road situated towards North. Except the 'B' schedule property, there is no other way to go to the 'A' schedule property from the road. Even though, there is direct access or road to the defendant's property, he is also using the 'B' schedule property for egress and ingress to his house property by keeping door facing to the 'B' schedule property. The plaintiff used the 'B' schedule property 9 O.S.No.598 / 2016 since 20-07-2002. On the southern side of plaintiff's property there exists a conservancy lane and by constructing the building the plaintiff has covered his property abutting the conservancy lane by constructing the staircase, latrine and bathroom in the year 2005 itself and that apart the said conservancy lane is used by the B.W.S.S.B for drainage purpose and it is not fit to have free ingress and egress to the residents and there exists a gate closing the entrance of the conservancy lane and as such the plaintiff has no free access for his ingress and egress through the conservancy lane. When such being the case, the defendant on 03-01-2016 and on 10-01-2016, parked the two wheelers in the 'B' schedule passage preventing the plaintiff to use 'B' schedule property to go to his house from the road, the plaintiff resisted and succeeded in removing two wheeler from the 'B' schedule property with the help of neighbourers. When the plaintiff complained to the jurisdictional police, the police advised the plaintiff to approach the civil court since the matter is purely civil in 10 O.S.No.598 / 2016 nature. Hence, the plaintiff is approached this court for the relief of perpetual injunction and other consequential relief. Except the 'B' schedule property, i.e., 'B' schedule passage, there is no other passage or way for the plaintiff to go to his 'A' schedule property from the road. If the defendant is allowed to do restrict the plaintiff from using the 'B' schedule property he will be put untold misery. Hence, on these grounds, the plaintiff prayed to decree the suit.
3. The defendant entered appearance by engaging his counsel and resisted the claim of the plaintiff by filing written statement, which is briefly stated as follows.
The suit of the plaintiff is not maintainable either in law or on the facts of the case and the same is liable to be dismissed in limine. The suit of the plaintiff is also liable to be dismissed for non- joinder of necessary parties and mis-joinder of parties. The suit of the plaintiff is also liable to be dismissed as there is no cause of action for filing the case. The plaintiff is not the owner of 11 O.S.No.598 / 2016 the suit schedule property, more particularly plaintiff is not the owner of suit schedule - B property. The defendant has been the absolute owner of the suit schedule - B property from long back and he is paying the taxes. However the defendant had allowed the plaintiff to use the suit schedule property for few months as the plaintiff was carrying out repair work in the suit schedule - A property, the portion fallen to his share which is situated to the south of the suit schedule - B property. Though there is a conservancy road approach to the plaintiff suit schedule - A property, but the plaintiff by taking the advantage of the defendants permission to him to use the suit schedule - B property for few months as the plaintiff was carrying out repair work in the suit schedule - A property, closed the way towards the conservancy by constructing a bathroom in the passage of the suit schedule A property and blocked the way to conservancy permanently. Now with an evil intention of further harassing the defendant has now filed the present suit and hence the suit is liable 12 O.S.No.598 / 2016 to be dismissed. It is true that a partition deed was entered to between the plaintiff, defendant and their brothers and suit schedule - A property was fallen to the share of the plaintiff and the a portion to the north of the suit schedule - A, which is inclusive of suit schedule - B property was fallen to the exclusive share of the defendant. The same is evident from the mere perusal of the partition deed produced by the plaintiff himself. Infact even the boundaries of the suit schedule - A property clearly discloses the Northern boundary as the property of the defendant and there is no mention of common passage on the northern side as is alleged by the plaintiff, which itself falsifies the case of the plaintiff that suit schedule - B property was used by him for ingress and outgress to the suit schedule - A property. As could seen from the boundaries to the suit schedule - A property, the southern side is the conservancy, which is the one which was used by the plaintiff for his ingress and outgress to the suit schedule property. Infact the said conservancy road is still in existence and 13 O.S.No.598 / 2016 the plaintiff with an ill intention of harassing the defendant constructed a bathroom in the suit schedule A property blocking the way to the conservancy. The defendant is furnished the photo graphs of the ground floor, 1st floor and 2nd floor of the suit schedule- A property, which clearly shows the wrongful intention of the plaintiff. The photographs clearly show that both in the 1st floor and the 2nd floor there is a clear division of the plaintiff and the defendants property and the plaintiff himself has put up a wall bifurcating the suit schedule - A property and the property of the defendant in the said two floors. But in the ground floor as could be seen though there was a wall earlier, now only a part of it is visible and the projected wall could be seen on the northern side of the suit schedule - A property which clearly shows that, a wall did exist bifurcating the suit schedule - A property and the defendants property. Thus the suit of the plaintiff is liable to be dismissed for suppression of the said true facts. This defendant is not aware of the Katha of suit schedule - A property standing 14 O.S.No.598 / 2016 in the name of plaintiff and he paying taxes to the concerned authorities. The suit schedule A property is situated to the southern side of the defendants property and to the northern side of the defendants property there is a road. But it is specifically denied as false that there is a separate passage as described in the suit schedule B property which is used by the plaintiff. It is submitted that the passage which the plaintiff is now trying to claim is exclusively belonging to the defendant and the same is evident from the perusal of the typed page 10 and 11 of the partition deed dated 20/07/2002, which shows the property fallen to the share of the defendant inclusive of the passage. It is specifically denied as false that the plaintiff is using the suit schedule - B property from 20/07/2002 and that it is the only way for ingress and outgress to the suit schedule - A property. As stated supra there is a conservancy road towards the southern side of the suit schedule- A property, which the plaintiff was using from 20/07/2002 for ingress and outgress to suit schedule- A property and 15 O.S.No.598 / 2016 now by blocking the said road the plaintiff wants to snatch the property of the defendant by making false allegations. As the plaintiff himself has admitted that the door of the defendants house property is towards the passage and the said door was not opened now it was done more than 10 years ago and the defendant and his tenants have been using the suit schedule - B property as ingress and outgress not only in the ground floor, but also the stair case for ingress and outgress to the 1st and the 2nd floor too, which is well within the knowledge of the plaintiff. During the night times the vehicles of the defendant and his tenants will be parked in the suit schedule - B property in the same way as the plaintiff and his tenants park their vehicle in the passage in the portion allotted to the plaintiff. The only difference now is that earlier the plaintiff and his tenants used to use the conservancy road for ingress and outgress to their house in the suit schedule- A property and for parking their vehicles and now they have started using the defendants property by blocking the way to conservancy, which is 16 O.S.No.598 / 2016 the fault of the plaintiff himself and he cannot blame the defendant for the same. The defendant has been paying taxes to the concerned B.B.M.P. office in respect of the property fallen to his share in the partition deed dated 20/07/2002, which is inclusive of the suit schedule - B property. The Khatha of the same stands in the name of the defendant and he is enjoying the same as an absolute owner The suit of the plaintiff is barred by limitation. The reason why the plaintiff did not raise any objections earlier is due to the fact that earlier the plaintiff used the conservancy road for ingress and outgress to the suit schedule-A property and now he has blocked the said road by constructing a bathroom in the ground floor and when the tenants started questioning him, left with no other alternative he has set his evils eye on the property of the defendant and the plaintiff has filed this suit making false allegations. There is a conservancy road to the southern side of the suit schedule - A property which 10 feet vide and 100 feet which joins the main road which leads to the market 17 O.S.No.598 / 2016 area, but the plaintiff by blocking the said road, has now started claiming his rights over the suit schedule B property which is belonging to the defendant. The very recitals in the partition deed dated 20/07/2002, falsify the allegations of the plaintiff and the suit of the plaintiff is liable to be dismissed on the said ground alone. If the averments made in the plaint that the defendant is using the suit schedule property is to be taken into consideration, then it will have to be seen from when the defendant has been using the same and if the same is considered in a judicious manner the suit of the plaintiff is also barred by limitation. The plaintiff himself is not clear as to on what basis he is claiming rights over the suit schedule - B property. If it were by easementary rights then the present suit is liable to be dismissed at threshold and if it is by way of declaration then he has to pay court fee to that effect and in either of the cases the suit of the plaintiff is liable to be dismissed. Hence, on other grounds, the defendant prayed for dismissal of the suit.
18
O.S.No.598 / 2016
4. During the pendency of the suit the plaintiff carried out amendment by adding para 1 (a) to 1(d), 2 (a) to 2(b), 3(a) in the plaint for which the defendant filed additional written statement. The defendant admitted regarding mortgage deed executed in favour of K.P.Rajan and taken back possession after redemption of the mortgage deed as per order of the court. Before filling this suit the plaintiff forced the defendant to stop using the conservancy area and also closed the said conservancy entry in 2005 as averred in the plaint. The conservancy road was closed without any reasons. Then the plaintiff started claiming right over the portion of property belongs to defendant. Hence, the defendant prayed for dismissal of the suit.
5. Based on the pleadings of the parties, the following issues are framed in the suit.
1. Whether the plaintiff proves that he is having lawful right to use the passage mentioned in the schedule B of the plaint as on the date of suit?
2. Whether the plaintiff further proves that the 19 O.S.No.598 / 2016 defendant has interfered with his peaceful enjoyment of the suit passage?
5. What order or decree?
6. In order to prove the case of the plaintiff, the plaintiff himself examined as PW1 and one witness K.Nagabhushan examined as PW2. Documents at Ex.P1 to P19 are marked. After closure of the evidence on the side of plaintiff, the defendant himself examined as DW1 and got marked Ex.D1 to D4 documents. Out of these documents Ex.D1 to D3 are photographs were marked during the course of cross examination of PW1.
7. I have heard arguments on the side of the learned counsel for the plaintiff and learned counsel for the defendant.
8. The learned counsel for the plaintiff relied upon the following decisions.
1. Judgment of Hon'ble High Court of Karnataka in W.P.No.15800/2010 (LB-RES) decided on 27.07.2012 (SMT. N.KUMARI VS.CITY MUNICIPAL COUNSIL CHINTAMANI AND ANOTHER)
2. Judgment of Hon'ble High Court of Punjab and Haryana reported in 2024 latest case law 14878 P&H (HARENDER PAL SINGH VS. SIRI CHAND AND 20 O.S.No.598 / 2016 ANOTHER) decided on 21.08.2024
9. My findings on the above issues are as under.
Issue No.1 : In the Affirmative
Issue No.2 : In the Affirmative
Issue No.3 : As per final order, for the following.
REASONS
10. ISSUES NO.1: It is important to note some
undisputed facts in this suit. The plaintiff is the brother of the defendant. The property bearing Survey No. 154, New No. 361 / 2, measuring 55 feet x 35 feet, succeeded by Sri. A.V. Kodandaramulu Naidu from his father. Sri A.V. Kodhandaramalu Naidu died in the year 2002 leaving behind him, his wife Smt. Munirajamma and his 4 sons and 3 daughters. On 27.02.2002, his wife Smt. Munirajamma and sons viz K.Nagabhushan, K. Selvaranga, plaintiff K.Srinivasalu defendant K.Gurumurthy partitioned the property measuring 55 feet x 35 feet divided into four shares among the plaintiff, defendant and their two brothers K. Nagabhushan and K. Selvaranga. The plaint A property fallen to the share of the Plaintiff. Towards north of the plaintiff's property 21 O.S.No.598 / 2016 defendant's shared property is in existence. The defendant has admitted the document Exhibit P1 registered partition deed dated 20.07.2002. It is not in dispute that the plaintiff is allotted with the property which is mentioned in Exhibit P1 as Schedule D. The defendant is allotted with the property which is mentioned as Schedule E. Since the defendant has not disputed this document Exhibit P1 registered partition deed, it is pertinent to note the boundaries and extent which are mentioned in Exhibit P1 with regard to the property which is allotted to the share of the plaintiff and the property which is allotted to the share of the defendant. The description of the property Schedule D, which is allotted to the plaintiff, is mentioned as the property bearing number M-154 New 361/2-2, measuring east-west 13.5 feet, north-south 27.5 feet, and passage measuring 3.5 feet, bounded towards east:- the property belongs to Sri Narasimha and 3.5 feet common passage. West:- the property belongs to Sri K. Nagabhushan. North:- property belongs to Gurumurthy( Defendant ) 22 O.S.No.598 / 2016 South:- Conservancy. The E schedule property which is given to the share of the defendant K. P. Gurumurthy is mentioned as the property bearing M-154/361/2 measuring east-west 13.5 feet, north-south 27.5 feet and 3.5 feet passage, bounded towards east:- the property belongs to Narasimaiah and 3.5 feet common passage. West:- property Allotted to the share of K. Selvaranga. North:- road, south:- property belongs to K. Srinivasulu( Plaintiff). Thus on plain reading of the document Exhibit P1 registered partition deed one thing is very clear that there exists common passage of 3.5 feet width towards eastern side of the property allotted to the share of the plaintiff as well as defendant. PW1 has deposed that he is the absolute owner and in possession of the plaint A schedule property which measures East to west 13.6 feet and north to south 27.6 feet. He has deposed that the defendant's share of the house property has been allotted towards northern side of his property facing fifth cross road. He has deposed that towards east of defendant's house property there is 23 O.S.No.598 / 2016 a passage measuring east to west 3.5 feet and north to south 27.5 feet which is described as suit B schedule property. PW1 has deposed that Suit B schedule property is used by him for ingress and egress to the suit A schedule property from the road situated towards north. Except B schedule property, there is no other way to go to his A schedule property. PW1 has deposed that even though there is a direct access from the road to the defendant's property for ingress and egress to his house, but he kept door facing to B-schedule property. PW1 has further deposed that except B-schedule property, there is no other passage or way for him to go to A schedule property from the road. If the defendant is allowed to restrict him from using B schedule property, he will be put to untold misery. In order to substantiate the contention taken by PW1, the documents Exhibit P1 to Exhibit P19 are marked. Exhibit P1 is the certified copy of partition deed dated 20.07.2002. Exhibit P2 is the tax paid receipt. Exhibit P3 is the rough sketch showing the suit schedule properties. Exhibit P4 to 7 are the 24 O.S.No.598 / 2016 photographs of the suit property. Exhibit P8 is photos bill dated 11.01.2016. Exhibit P9 is CD of photographs. Exhibit P10 to 13 are four photographs of the Conservancy. Exhibit P14 is the photo bill dated 21.06.2017. Exhibit P15 is the CD of the photograph. Exhibit P16 is Khatha certificate. Exhibit P17 is Khatha extract. Exhibit P19 is the house plan. During the course of cross-examination of PW1, he has admitted the suggestion that as per Exhibit P1 partition deed, there exists common passage towards eastern side of his property. He has admitted the suggestion that there is a conservancy on the southern side of his house. He has deposed that this conservancy belongs to BWSSB.
10. In his cross-examination, PW-1 has deposed that there was house in the entire portion towards southern side of the property. He has deposed that staircase, as seen in Exhibit P5, was constructed during the lifetime of his mother. He has denied the suggestion that passage was open towards conservancy, thereafter he had constructed the staircase and latrine and closed towards 25 O.S.No.598 / 2016 conservancy. He has denied the suggestion that as per Exhibit P1 partition deed, 3.5 feet passage which is situated towards the property belongs to the defendant is exclusively belongs to defendant. He has denied the suggestion that he had constructed the toilet room and staircase only after filing of this suit and closed the passage situated towards southern side of his property. He has denied the suggestion that document Exhibit P19 is created recently.
11. PW2, Nagabushan, who is the brother of plaintiff and defendant, has deposed that house property bearing number M-154, New No.361/2, measuring east-west 35 feet, north-south 55 feet, situated at BBMP ward 5, 5th cross, Lakshminarayanapura, Bengaluru 560 021 originally belongs to the joint family consisting of plaintiff, defendant, he and his brother Selvaranga. He states that earlier to the partition of the property, there were two doors on northern side of 5th cross road, all the joint family members using these two doors for ingress 26 O.S.No.598 / 2016 and egress to the 5th cross road from the house. In the partition, he his brother Selvaranga, plaintiff and defendant have divided house property into four portions. On the western two portions got by himself and brother Selvaranga, and there is passage measuring east-west 4 feet left for using to reach 5th cross road from their house. Likewise, another two portions fallen to the share of plaintiff and defendant, which is towards eastern side of Selvaranga property. He states that the property belongs to the plaintiff and defendant situated towards east of his property, there is common passage measuring east-west 3.5 feet, which used by the plaintiff and defendant for ingress and egress to the 5th cross road from their respective houses. Since from the date of partition, both plaintiff and the defendant used common passage situated towards east of their house property for ingress and egress to the 5th cross road from their house. He has produced and got marked Exhibit P18, copy of his Aadhar card. During the course of cross- examination of PW2 by the learned counsel for the 27 O.S.No.598 / 2016 defendant, he has admitted the suggestion that he has got share as mentioned in Exhibit P3 rough sketch. He has seen Exhibit D1, passage mentioned in photograph. He has admitted the document Exhibit P1, partition deed, which was executed between them. He would contend that original of Exhibit P1 is with the defendant. He has denied the suggestion that since there exists conservancy towards southern side of the plaintiff's property, he has no impediment to use the conservancy. He has deposed that conservancy belongs to BWSSB. Thus, on perusal of oral evidence of PW2 Nagabhushan, who is elder brother of plaintiff and defendant, he has fully supported the case of plaintiff.
12. The defendant, who has examined as DW1 in examination-in-chief by reiterating the written statement contents has deposed that the plaintiff is the owner of the schedule -A property. He states that schedule- B property absolutely belongs to him as the same is fallen to his share through the partition. He states that he had 28 O.S.No.598 / 2016 allowed the plaintiff to use the schedule- B property for few months as the plaintiff was carrying out repair work in the schedule- A property. Then the plaintiff, by taking advantage of he permitting him to use the schedule- B property, carried out repair work in schedule- A property and closed the way towards conservancy by constructing bathroom in the passage of schedule - A property and blocked the way to conservancy permanently. Thereafter, with an evil intention to harass the defendant, the plaintiff has filed the present suit. DW1 has deposed that B schedule property exclusively fallen to his share and belongs to him. He and his tenants are using the schedule- B property in order to ingress and egress not only in the ground floor but also staircase for ingress and egress to the first and second floors within the knowledge of the plaintiff. During the night times, he and his tenants used to park the vehicle in the B- schedule property. The plaintiff was used to park the vehicles in the passage towards eastern side of his house and also using Conservancy road in order to ingress and egress to 29 O.S.No.598 / 2016 his schedule- A property. DW1 has deposed that conservancy road which is situated towards southern side of schedule- A property is of 10 feet wide and 100 feet length which joins the main road which leads to market area. But the plaintiff, by blocking the said road, has now started claiming his right over scheduled B property which belongs to the defendant.
13. The documents Exhibit D1 to D4 are marked on the side of defendant. Exhibit D1 to D3 are the photographs. Exhibit D4 is the property tax paid receipt of the year 2025-2026 with respect to defendant's property. During the course of cross-examination of DW1, he has admitted the suggestion that property bearing old number M154, new number 361/2-2, originally belongs to his grandfather Venkataswamy Naidu. He has admitted the suggestion that this property bearing number 154 house and vacant space, totally measures east-west 35 feet, north-south 55 feet. He has admitted the suggestion that his father, Kodandaramulu Naidu, died during the year 30 O.S.No.598 / 2016 2002, leaving behind him his wife, four sons, and three daughters. He has admitted the suggestion that after the death of his father, he and his brothers partitioned the house under registered partition deed dated 20.07.2002. He has admitted the signature of his uncle Gopal, found on Exhibit P1 partition deed. The signature is marked at Exhibit P1(a). He has admitted the suggestion that Nagabhushan is the first son. Selvaranga is second son, plaintiff is the third son, and he is the fourth son of his father. He has admitted the suggestion that his brother Selvaranga is found missing from 20 years. He has admitted the suggestion that there exists a road towards north of the house allotted to him. He has admitted the suggestion that there is conservancy lane situated towards southern side of the plaintiff's property. He has admitted the suggestion that P- schedule mentioned in Exhibit P1 allotted to the share of plaintiff, he has admitted the suggestion that in Exhibit P1, the property which allotted to the share of plaintiff towards southern side, the property belongs to Narasimhaiah and 3.5 feet 31 O.S.No.598 / 2016 common passage is mentioned. He has admitted the suggestion that E-schedule, which is mentioned in Exhibit P1, allotted towards his share. He has admitted the suggestion that towards eastern side of E-schedule property, the property of Narasimhaiah and 3.5 feet common passage is mentioned. He has admitted the suggestion that at the time of partition, they have decided that common passage measuring 3.5 feet, which is situated towards east of their share, can be used by all four brothers. He has admitted the suggestion that the plaintiff is also having right to use common passage, which is situated towards east of his property, thus on perusal of cross-examination portion of DW1, he has clearly admitted the suggestion that plaintiff is having equal right to use 3.5 feet common passage which is situated towards eastern side of the defendant's property. He has denied the suggestion that when the plaintiff was constructing staircase and bathroom, he has not objected for construction of the same. He has denied the suggestion that except common passage which is 32 O.S.No.598 / 2016 mentioned as B- schedule property, there exists no other alternative way to reach the house of the plaintiff.
14. The learned counsel for the plaintiff submitted that common passage that is, B-scheduled property is in existence since from the date of purchase of entire property by grandfather of plaintiff and defendant. He argued that common passage was left for the beneficial of the sharers. No brother can object to use common passage by remaining brothers. He submitted that the plaintiff allotted with his house towards southern side of the defendant's property. Towards northern side of defendants house there exists the main road, but now the defendant is interfering in the usage of common passage by the plaintiff. He submitted that when it is described as common passage, that means it is common for both parties. The defendant is not having right to block the common passage. He submitted that conservancy which is situated towards southern side of the plaintiff's property exclusively belongs to BWSSB and 33 O.S.No.598 / 2016 there exists drainage under the ground. He argued that as per Exhibit P19, plan of the year 1971 itself clearly shows the existence of plaint B-scheduled common passage. He relied on the two citations i.e. Judgment of Hon'ble High Court of Karnataka in W.P.No.15800/2010 (LB-RES) decided on 27.07.2012 (SMT. N.KUMARI VS.CITY MUNICIPAL COUNSIL CHINTAMANI AND ANOTHER), and Judgment of Hon'ble High Court of Punjab and Haryana reported in 2024 latest case law 14878 P&H (HARENDER PAL SINGH VS. SIRI CHAND AND ANOTHER) decided on 21.08.2024 to contend that conservancy cannot claim by any individuals as it belongs to the local authority. On the other hand, the counsel for the defendant argued that on plain reading of Exhibit P1, partition deed, it would go to show that common passage measuring 3.5 feet, situated towards east of the defendant's property, exclusively belongs to the defendant. He argued that the plaintiff in Exhibit P3 rough sketch suppressed regarding existence of conservancy lane towards southern side of his property. He argued that the plaintiff can make use of 34 O.S.No.598 / 2016 conservancy lane in order to ingress and egress to the public road. He argued that the plaintiff intentionally blocked the common passage existed towards eastern side of his property by constructing staircase and latrine and bathroom and closed towards conservancy and now started to claim common passage B scheduled property which exclusively belongs to the defendant. He argued that photographs relied by the plaintiff which are marked as Exhibit P4 to P7, Exhibit P10 to P13 and also relied by the defendant which are marked as Exhibit D1 to D3 are clearly show the existence of conservancy towards southern side of the plaintiff's house and also shows closure of common passage existed towards eastern side of plaintiff's house and he had constructed staircase, bathroom in that portion and blocked to enter towards conservancy. He argued that if at all plaintiff would not have constructed bathroom and staircase in common passage towards eastern side of his property, then he would have made use of conservancy in order to ingress and egress to his house. He argued that photographs 35 O.S.No.598 / 2016 Exhibit D2 and D3 would go to show that they have closed first and second floor common area, but the plaintiff claiming common passage only in the ground floor. Hence, there is dual stand played by the plaintiff regarding common passage.
15. I have appreciated rival contentions and perused the records. I have already noted down the admitted facts in this case. Since the defendant has not disputed the main document Exhibit P1, Partition Deed, entered into between plaintiff and the defendant, we can see the common passage left by the parties while dividing the property. On plain reading of D-Schedule allotted to the plaintiff, there is clear mention regarding total measurement of the property allotted to the share of plaintiff. It is mentioned as east-west 13.5 feet, north- south 27.5 feet, and 3.5 feet passage allotted to plaintiff share. Towards northern side of the plaintiff's property there exist property allotted to the defendant. Towards eastern side of the plaintiff's property there exists the 36 O.S.No.598 / 2016 property belongs to Narasimhaiah and 3.5 feet common passage. Likewise, in E schedule mentioned in Exhibit P1, property allotted to defendant, this property measures east-west 13.5 feet and north-south. 27.5 feet and 3.5 feet passage, the eastern boundary is mentioned as property belongs to Narasimhaiah and the 3.5 feet common passage towards southern side property belongs to K. Srinivasulu, i.e., plaintiff is mentioned when the boundary towards east of property allotted to the share of plaintiff as well as defendant is mentioned as Narasimhaiah property and 3.5 feet common passage, that itself indicates that there exists 3.5 feet passage which meant to use by both the parties and not exclusively belongs to any sharer. If we go for the definition of common passage, common passage means shared area meant for ingress and egress of multiple property owners. The common passage is deemed to be for the mutual benefits of residents. Since the eastern boundary of the plaintiff and defendant's property itself mentioned as Narasimhaiah property and 3.5 feet 37 O.S.No.598 / 2016 common passage, that indicates common passage of 3.5 feet is meant for the use of their share and meant for ingress and egress of their share. More than that, DW1 in his cross-examination clearly admitted that the plaintiff is also having right to use common passage which is situated towards eastern side of his property. It is relevant to mention the particulars, the particular portion of admission given by DW1 in his cross-examination which is as follows.
"ನನಗೆ ನಿಪಿ.1 ರಲ್ಲಿ ಬಂದ ಇ ಶೆಡ್ಯೂ ಲ್ಸ್ವ ತ್ತಿ ನ ಪೂರ್ವಕ್ಕೆ ನರಸಿಂಹಯ್ಯ ರವರ ಸ್ವ ತ್ತು ಹಾಗೂ 3.5 ಅಡಿಗಳ ಕಾಮನ್ ಪ್ಯಾ ಸೇಜ್ ಎಂದು ನಮೂದು ಮಾಡಲಾಗಿದೆ ಎಂದರೆ ನಿಜ. ನನಗೆ ಮತ್ತು ವಾದಿಗೆ ಬಂದ ಆಸ್ತಿ ಯ ಪೂರ್ವಕ್ಕೆ ಇದ್ದ 3.5 ಅಡಿಯ ಕಾಮನ್ ಪ್ಯಾ ಸೇಜ್ ಅನ್ನು ನಾವು ಅಣ್ಣ -ತಮ್ಮ ಂದಿರು 4 ಜನ ಉಪಯೋಗ ಮಾಡಬಹುದು ಎಂದು ತೀರ್ಮಾನಿಸಿದ್ದು ಎಂದರೆ ನಿಜ. ನನ್ನ ವಿಭಾಗಕ್ಕೆ ಬಂದ ಪೂರ್ವಕ್ಕೆ ಇದ್ದ ಕಾಮನ್ ಪ್ಯಾ ಸೇಜ್ ನಲ್ಲಿ ವಾದಿಗೂ ಓಡಾಡುವ ಹಕ್ಕು ಇದೆ ಎಂದರೆ ನಿಜ."
16. The defendant himself in his cross-examination admitted that the plaintiff is also having right to use 3.5 feet common passage which is situated towards eastern side of his property.
17. In the written statement of the defendant, he has 38 O.S.No.598 / 2016 not denied the existence of common passage towards eastern side of his property. Even though the defendant has taken contention that common passage measuring 3.5 feet is exclusively belongs to him, the same cannot be accepted when we appreciate the oral evidence of PW1 and 2 and DW1. PW2 is the elder brother of plaintiff and defendant, he also got one share in the entire property. PW2 has clearly deposed regarding common passage measuring east-west 3.5 feet length towards eastern side of plaintiff and defendant property left only in order to ingress and egress to 5 th cross road from their respective houses. The defendant has not disputed Exhibit P3 rough sketch produced by the plaintiff. No doubt the plaintiff in Exhibit P3 has not mentioned conservancy situated towards southern side of his property, but the fact remains that after plaintiff constructed staircase, bathroom and latrine towards northern side of the conservancy, there is no access towards conservancy. In other words, according to the defendant himself, the conservancy is blocked after 39 O.S.No.598 / 2016 construction of the staircase, latrine and bathroom by the plaintiff. The defendant in this suit, not sought for counterclaim, claiming his right over common passage situated towards eastern side of plaintiff's house. If at all the defendant has claimed counterclaim, claiming his right over common passage towards eastern side of the plaintiff's house, the matter would have been different. Since the defendant has not claimed any counterclaim in this suit, we need not discuss much regarding common passage, which is situated towards eastern side of plaintiff's house. The plaintiff has mentioned B schedule property as common passage which is situated towards eastern side of defendant's house. Admittedly, the defendant is having direct access towards northern side of main road as he is also having main door of his house towards the road. No doubt, the plaintiff himself admitted that the defendant also opened the door of his house towards eastern side of his house, opened towards passage. Since the plaintiff has not taken any such contention that defendant is not having right over 40 O.S.No.598 / 2016 common passage measuring 3.5 feet situated towards eastern side of defendant's property, no much discussion is required on this point. According to the plaintiff, common passage, i.e., B schedule property, is meant for use of the plaintiff as well as defendant. The plaintiff has not claimed exclusive right to use of common passage of B schedule property. The plaintiff is claiming that he is using common passage, i.e., B schedule property, for ingress and egress and to reach the main road towards north of the defendant's house. DW1 in his cross- examination admitted the suggestion that the plaintiff cannot reach through the vehicle from conservancy side. If anybody fell sick in the house of plaintiff, there is no chance to shift them through vehicle from conservancy side, i.e., southern side. The learned counsel for the plaintiff rightly submitted that conservancy is a public property controlled by the public authority and private persons cannot claim any right over the conservancy.
18. The learned counsel for the plaintiff relied on the 41 O.S.No.598 / 2016 Judgment of Hon'ble High Court of Karnataka in W.P.No.15800/2010 (LB-RES) decided on 27.07.2012 (SMT. N.KUMARI VS. CITY MUNICIPAL COUNSIL CHINTAMANI AND ANOTHER), wherein in para 7 it is observed that "Conservancy lane" is not defined in the Act, but the term 'street' is defined under sub section - (26) of Section - 2 of the Act to mean - any road, footway, square, court, alley or passage accessible whether permanently or temporarily to the public, ether throughfare or not; and shall include every vacant space, notwithstanding that it may be private property and partly and or wholly obstructed by any gate, post, chain or other barrier, if houses, shops or other buildings abut thereon, if it is used by any person as a means of access to or from any public place or thoroughfare, whether such persons be occupiers of such buildings or not; but shall not include any part of such space which the occupier of any such building has a right at all hours to prevent all other persons from using as aforesaid. 42
O.S.No.598 / 2016
19. He relied on the Judgment of Hon'ble High Court of Punjab and Haryana reported in 2024 latest case law 14878 P&H (HARENDER PAL SINGH VS. SIRI CHAND AND ANOTHER) decided on 21.08.2024, wherein it is held that since the defendant - appellant has failed to prove that the passage is not common passage and is private property, the judgment and decree passed by both the courts cannot faulted.
20. I have gone through the cited decisions. In my humble view, these cited decisions can be made applicable to the present suit. In the present suit, the recital of Exhibit P1 is the boundaries of the properties allotted to the plaintiff as D-schedule property and boundaries of the property allotted to the defendant as E-schedule property clearly shows that towards eastern side of their property, there exists 3.5 feet of common passage. DW1 in his cross-examination himself admitted that the plaintiff is also having right over the common passage situated towards eastern side of his property. 43
O.S.No.598 / 2016 According to DW1 himself, there is no access towards conservancy road from the house of the plaintiff, as it was already blocked as there is construction of staircase, toilet and bathroom are constructed. It is important to note that house of the defendant is situated abutting to main road which runs for northern side. The plaint A schedule property which is allotted to the plaintiff under partition deed dated 27.02.2002 as per Exhibit P1 situated towards southern side of the defendant's house. Hence, without use of the plaint schedule B property, there is no other alternative way to the plaintiff to approach the road situated towards northern side of the defendant's property. Admittedly, there is no motorable road immediately towards southern side of the plaintiff's A -schedule property. The main road which approached towards market is more than 100 feet from conservancy. Even if we peruse the photograph Exhibit P10 to P13 of conservancy, it contains shrubs and there are dumping of materials and also contains stones and stone slabs. Hence, it is not possible to use the conservancy in order 44 O.S.No.598 / 2016 to approach the main road. PW1 and PW2 have clearly deposed that conservancy belongs to BWSSB and there existed underground drainage in conservancy. Under such circumstances, we cannot expect the plaintiff to use conservancy in order to ingress and egress to his house. When there is dispute arose between brothers regarding usage of common passage, we cannot deviate by pointing the property of which belongs to government or statutory authority. The plaintiff has produced and got marked document Exhibit P19, sanctioned plan of entire house constructed in this property bearing No. M-154 /
361. The Exhibit P19 sanction plan was issued on 17.04.1971. On perusal of Exhibit P19, it is very clear that the claimed B- schedule passage was in existence even during the year 1971. There is no such mention in Exhibit P19 regarding the passage towards eastern side of the property, now which allotted to the share of the plaintiff, but there is mention regarding passage towards eastern side of the property, now which allotted to the share of defendant. Since the house of the defendant is 45 O.S.No.598 / 2016 abutting to the main road, runs from east-west, situated towards northern side of the defendant's property, the defendant can make use of the road directly accessed from his house, but it is not so to the plaintiff.
21. As the plaintiff is allotted with share in the house which is situated towards southern side of the defendant's property, in order to approach the main road situated towards northern side of the defendant's property, the plaintiff must use the passage i.e. plaint B Schedule property. The oral evidence of PW1 and PW2, which is supported by the document Exhibit P1 to P17 and Exhibit P19, are sufficient to hold that the plaintiff proves that he is having lawful right to use the passage mentioned in Schedule-B of the plaint. At the cost of repetition, in the cross-examination of DW1, he himself admitted that the plaintiff is also having right to use the 3 ½ feet common passage situated towards eastern side of his property. Hence, I answered issue No.1 in the AFFIRMATIVE.
46
O.S.No.598 / 2016
22. ISSUE No.2: It is the case of the plaintiff is that on 3-1-2016 and 10-1-2016, the defendant by parking two- wheelers in Schedule- B property prevented the plaintiff to go to his house, that is, Schedule- A property from the road. PW1 in his examination-in-chief by reiterating the plaint averments has deposed that the defendant on 3-1-2016 and 10-1-2016 by parking two-wheelers in the Schedule-B property prevented him to use Schedule- B property to go to his house, A-Schedule property, from the road. Hence, he requested and succeeded in removing two-wheelers from Schedule-B property with the help of neighbor. He also complained the jurisdictional police with regarding to same, but the police advised him to approach the civil court as the matter is purely civil in nature.
23. This chief examination version of PW1 is not seriously disputed by the defendant during the course of cross- examination of PW1. Even PW2 also deposed that on 3-1-2016 and 10-1-2016, the defendant by parking two-wheelers in the common passage towards east of the defendant's house, blocked the passage of the plaintiff. Then the plaintiff, he and 47 O.S.No.598 / 2016 other public persuaded the defendant to remove the vehicle. Subsequently, the defendant removed the vehicle. This oral evidence of PW2 given in his examination-in-chief is not denied by the defendant in the cross-examination of PW2. Through the plaintiff has not produced any documents to show that he has lodged a complaint to the police regarding the defendant interfering usage of the common passage, but there is clear evidence of PW1 and PW2 to show that on 3-1- 2016 and 10-1-2016, the defendant by parking two-wheelers in the common passage blocked the passage of the plaintiff and interfered the use of plaintiff's scheduled property by the plaintiff. DW1 in his examination-in-chief has deposed that he and his tenants used to park the vehicles in the passage. Likewise, the plaintiff also used the park his vehicle in passage situated towards eastern side of his house. The defendant himself in his examination-in-chief deposed that plaintiff has put up construction of staircase, bathroom and toilet in the passage area situated towards eastern side of the property of the plaintiff. It is pertinent to note that defendant has not claimed his right of use of passage situated towards eastern side of the plaintiff's house. It is the defendant's contention is that the plaintiff by constructing staircase, 48 O.S.No.598 / 2016 bathroom and toilet towards eastern side of his house in the passage area, he has closed the entry towards conservancy. Thereafter, he started to clean the passage situated towards eastern side of defendant's property. It is not the contention of the defendant is that at any point of time, he was using passage towards eastern side of the plaintiff's house or he was using conservancy which is situated towards southern side of the plaintiff's house. Since there is no dispute between the parties with regard to the first and second floors of the house and the dispute raised only with respect to ground passage area, we need not expand the discussion regarding first and second floors. PW1 and the PW2 in their oral evidence have clearly deposed that the defendant has interfered the plaintiff's peaceful enjoyment in the suit schedule -B passage by blocking passage by keeping two- wheelers. If any two-wheeler or any object placed occasionally without disturbing the usage of passage by others, it can be considered as a trivial matter, but in the present suit, the defendant in the written statement has taken contention that passage of 3 ½ feet situated towards eastern side exclusively belongs to him and it is his ownership. Thereby, the defendant denied the right of the plaintiff to use 49 O.S.No.598 / 2016 of the schedule property. While discussing issue No.1, this court held that plaintiff is having lawful right to use passage mentioned in schedule B of the plaint and under such circumstances, the very contention of the defendant that he is denied right of the plaintiff as user of the passage itself is sufficient to hold that he is interfering with the peaceful possession and enjoyment of the passage by the plaintiff. There is clear evidence on the side of the plaintiff that the defendant has interfered with the peaceful possession and enjoyment of the suit passage. Hence, I answered issue No.2 in the AFFIRMATIVE.
24. ISSUE No.3: The plaintiff has filed this suit against the defendant seeking for the relief of permanent injunction to restrain defendant interfering with the plaintiff's peaceful possession and enjoyment of the B -schedule passage. While discussing issue No. 1 and 2, this court held that plaint B- schedule passage is meant for beneficial enjoyment of the users by both plaintiff and defendant. Neither plaintiff nor plaintiff can claim exclusive rights over the plaint schedule- B passage. They can make use of plaint schedule passage in order to ingress and egress to their respective property. The 50 O.S.No.598 / 2016 plaintiff is entitled for the relief of permanent injunction against the defendant. In the result I proceed to pass the following.
ORDER The suit of the plaintiff is hereby DECREED. Permanent injunction is granted against the defendant restraining him, his agents, attorney, from interfering with the plaintiff's lawful right to use and enjoyment of the plaint schedule-B passage which measures East to West 3 ½ ft. and North to South 27 ft.
The parties shall bear their own costs.
Draw decree, accordingly.
(Dictated to SG-I, transcribed by him, corrected and then pronounced by me in the open court on the 27 th day of APRIL 2026).
(MOHAN PRABHU), LV Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PLAINTIFF/S:
PW1 K.Srinivasulu PW2 K.Nagabhushan
LIST OF WITNESSES EXAMINED ON BEHALF OF DEFENDANT/S:
DW1 K.Gurumurthy LIST OF DOCUMENTS EXHIBITED ON BEHALF OF PLAINTIFF/S: 51
O.S.No.598 / 2016 Ex.P1 Certified copy of partition deed dated 20.07.2002 Ex.P2 Tax paid receipt Ex.P3 Rough Sketch Ex.P4 to 7 Photographs Ex.P8 Phto bills Ex.P9 CD Ex.P10 to 13 Photographs Ex.P14 Photo bills Ex.P15 CD Ex.P16 Katha Certificate Ex.P17 Katha Extract Ex.P18 Copy of Aadhar card of PW2 Ex.P19 House plan LIST OF DOCUMENTS EXHIBITED ON BEHALF OF DEFENDANT/S Ex.D1to3 Photographs Ex.D4 Property tax receipt LV Addl. City Civil & Sessions Judge, Bengaluru.