Bangalore District Court
Muniyappa S/O. Late Yellappa vs ) Mr.Chandrahar S/O Muniyappa on 1 April, 2021
/1/ O.S.No.4856/2014
THE COURT OF XXXIX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, (CCH-40), BANGALORE CITY.
Dated on this the 1st day of April, 2021.
-: Present :-
Sri.Khadarsab, B.A, LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
Original Suit No. 4856/2014
Plaintiff : Muniyappa S/o. Late Yellappa,
55 years, R/o.No.1/4 & ½,
15th A Cross, Present BMP No.2
1st Main Road MES Colony,
Konena Agrahara,
Bangalore South Taluk,
Bangalore.
[By Sri.Vemareddy, Advocate]
/ VERSUS /
Defendants: 1) Mr.Chandrahar S/o Muniyappa,
Major
2) Mr.Srenivas alias Seena,
S/o Muniyappa, Major.
3) Mr.Nagaraja S/o Muniyappa,
Major.
4) Mr.Narayana S/o. Muryappa,
(Dead)
/2/ O.S.No.4856/2014
5) Mr.Vasantha S/o. Muniyappa,
Major.
Defendant Nos.1 to 3 & 5 are
residing at No.E-127, 1st Main
Road, MES colony, Konena
Agrahara,Bangalore South Taluk,
Bangalore.
[Sri.A.V.S., Advocate for D.1, 2, 3 and 5
Defendant No.4 - Dead]
***
Date of Institution of the
: 30.06.2014
suit
Suit for permanent
Nature of suit : injunction
Date of commencement
of evidence : 01.07.2016
Date on which the
judgment is pronounced : 01.04.2021
Duration taken for Years Months Days
: 06 09 01
disposal
***
JUDGMENT
The plaintiff has filed the suit against the defendants for the relief of permanent injunction restraining the defendants from interfering, obstructing /3/ O.S.No.4856/2014 or preventing the plaintiff from exercising the right of easement over the 4 Feet common passage abutting the suit schedule property on the southern side.
2. The case of the plaintiff in brief is as under :
Plaintiff is the absolute owner in possession of premises bearing No.1/4 & 1/2 HASB Khata No.562/2, BMP No.2 Ward No.73, 1st Main Road, MES Colony, Konena Agrahara, Varthur Hobli, Bangalore South Taluk, Bangalore, measuring East to West - 27.5 Feet; North to South - 15 Feet and bounded on the East by - Property of Muniyappa, West by - Road, North by - Private property of Sri Hanumanthappa, South by - 4 Feet wide common passage and property of Munirama Reddy. The plaintiff has purchased the said property from Narayanappa represented by his GPA holder Muniyappa on 15.9.2003, wherein plaintiff and his family members are residing in the said property. Plaintiff has paid /4/ O.S.No.4856/2014 update tax to the B.B.M.P. The defendants are the owners of property situated towards the northern side of the plaintiff's property and as such plaintiff and defendants are neighbourers. The plaintiff's property and defendants are separated by a 4 Feet wide common passage which is meant for the common benefit and use of both plaintiff and defendants. The plaintiff and his family members are making use of the said common passage without any interference, interruption or obstruction from the date of purchase and they continued to do so even as on this date. The 4 ft wide common passage which is for the benefit and common use of both the plaintiff and the defendants is reflected in the schedule of the sale deed executed in favour of the plaintiff. Such being the case, in the second week of June 2014 defendant No.3 approached the plaintiff and told him and his family members not use the common /5/ O.S.No.4856/2014 passage since it is exclusively meant for the use of defendants. The plaintiff made it clear to defendants that the common passage is meant for the benefit and common use of both plaintiff and defendants as and such advised the defendants not to create unnecessary problems over a trivial issue. But, on 23.6.2014, the defendant No.3 attempted to install an iron gate at the entrance of the common passage so as to prevent the plaintiff and his family members from using the common passage and also from exercising their right of easement. Though the plaintiff lodged complaint, the police have not taken any action, but they directed him to approach the Civil Court. If the defendants succeeded in their attempt to install the iron gate, he and his family members will be put to greater hardship. Hence filed the suit.
/6/ O.S.No.4856/2014
3. On service of suit summons, defendants
appeared through their counsel and have filed their common written statement, contending that the suit of the plaintiff is not maintainable either in law or on facts. Plaintiff is not the owner in possession of the suit schedule property. Plaintiff has no right to use the common passage. Plaintiff is making false claim over the suit schedule property. The plaintiff has suppressed the material facts. The wife of the plaintiff viz., Yallamma filed O.S.No. 26006/2007 against the father of defendants for similar set of facts and similar relief. Subsequently the said Yallamma withdrawn the suit. Hence, the suit of the plaintiff is hit by res-judicata. The plaintiff has filed the present suit on imaginary cause of action. The plaintiff filed present suit with ulterior motives and dishonest intention. The suit of the plaintiff is not maintainable in the present form. Plaintiff has no /7/ O.S.No.4856/2014 locus standi to file the present suit. In the plaint schedule the plaintiff has shown that the 4 Feet common passage is situated towards the southern side, if it were to be so, then there would have been no common passage on the southern side for the common use of plaintiff. Plaintiff has no right over the said 4 feet common passage. Hence, prayed for dismissal of the suit.
4. On the basis of the pleadings and documents of the parties, my predecessor in office has framed the following issues on 22.2.2016 :
1) Whether the plaintiff proves that the properties of plaintiff and defendants are separate by 4 Feet wide common passage ?
2) Whether the plaintiff proves that he along with his family members have been using the common passage /8/ O.S.No.4856/2014 continuously without any interruption by exercising the right of easement ?
3) Whether the plaintiff proves though the the defendants are obstructing him from exercising the right of easement over the common passage ?
4) Whether plaintiff is entitled for the relief as prayed for?
5) What order or decree?
5. In order to prove the case, the plaintiff got examined himself as P.W.1 and got marked documents as Exs.P.1 to P.13. In order to substantiate their defence, the defendant No.2 himself examined as D.W.1 and got marked documents Exs.D.2 to D.5. In support of their defence, defendants have examined one Srinivasa as D.W.2. While cross-examining D.W.1, 7 photographs have been confronted to witness, witness admitted the /9/ O.S.No.4856/2014 said photographs. Hence, same have been marked as Exs.P.14 to P.20.
6. The plaintiff has filed present suit against defendants No.1 to 5. During the pendency of the suit defendant No.4 dead. The counsel for plaintiff filed memo stating that defendants No.1 to 3 and 5 are the only legal heirs of defendant No.4.
7. Heard arguments.
8. My findings to the above issues are as follows:
Issue No.1 : In the affirmative.
Issue No.2 : In the affirmative.
Issue No.3 : In the affirmative.
Issue No.4 : In the affirmative.
Issue No.5 : As per final order, for
the following:
REASONS
9. Issues No.1 and 2 :- These issues are
interlinked with each other. Hence, in order to avoid / 10 / O.S.No.4856/2014 repetition of facts and evidence, they are taken up together for discussion.
10. The plaintiff filed the present suit for the relief of permanent injunction restraining the defendants, from interfering, obstructing or preventing the plaintiff from using the 4 Feet common passage abutting the suit schedule property on the southern side.
11. It is the case of the plaintiff that, he is the absolute owner in peaceful possession and enjoyment of premises bearing No.1/4 and 1/2, HASB Khatha No.562/2, B.B.M.P. No.2, Ward No.73, 1st Main Road, M.E.S. Colony, Konena Agrahara, Varthuru Hobli, Bangalore South Taluk, measuring East - West 27 Feet, North - South 15 Feet and bounded on East by property of Muniyappa, West by Road, North by Private Property of Hanumanthappa and South : 4 Feet Common Passage and property of Munirama Reddy.
/ 11 / O.S.No.4856/2014
12. On perusal of entire material available on record it reveals that, there is no dispute regarding the ownership of property. Further it is an admitted fact that, plaintiff and defendants are the neighboures. Only dispute is as regards to the 4 Feet common passage. The plaintiff claims that, the said 4 Feet common passage is used by plaintiff and defendants, whereas the defendants denies the claim of the plaintiff and specifically contended that they are exclusively using the said 4 feet passage. The plaintiff has no right to use the said passage. Since the defendants have denied the plaintiff's claim, the burden is upon the plaintiff to prove his rights over the said 4 Feet passage.
13. The counsel for the plaintiff argued that the plaintiff is the absolute owner in possession of the suit schedule property, in order to establish his possession over the suit schedule property, the plaintiff has / 12 / O.S.No.4856/2014 produced Exs.P.1 to P.20. The said documents clearly establish that the plaintiff is in possession of the suit schedule property. In Exs.P.1, 3 and 4 it is clearly mentioned as towards the south of plaintiff's property there is 4 Feet common passage. Though the defendants in their written statement denied the claim of the plaintiff, but D.Ws.1 and 2 in their cross-examination clearly admitted that the plaintiff is also using the said 4 feet passage. Hence, prayed for decreeing the suit. He further argued that Ex.P. 3 to 5 have been produced for collateral purposes.
14. Per contra, the counsel for the defendants argued that plaintiff is no way concerned with the 4 Feet passage. The plaintiff has created Exs.P.1, 3 to 5 documents in which several corrections have been made. In order to suit his claim, plaintiff has created the said documents. The suit of the plaintiff is not / 13 / O.S.No.4856/2014 maintainable in the present form. Besides, the wife of the plaintiff had filed O.S.No.26006/2007 on the file of Additional City Civil Court, Mayo Hall Bangalore. The relief claimed in the said suit and the relief claimed in the present suit are one and the same. Suit of the plaintiff is hit by doctrine of res-judicata. Hence, the present suit is not maintainable. Accordingly, prayed for dismissal of the suit.
15. It is admitted fact that plaintiff is the owner in possession of property bearing No.No.1/4 and 1/2, HASB Khatha No.562/2, B.B.M.P. No.2, Ward No.73, 1st Main Road, M.E.S. Colony, Konena Agrahara, Varthuru Hobli and defendants are the owners in possession of property bearing Konena Agrahara Grampanchayath Khatha No.357, House List No.201 of Konena Agrahara.
16. P.W.1 deposed that he is the absolute owner in possession of the suit schedule property and his wife has / 14 / O.S.No.4856/2014 purchased the said property on 15.9.2003 as per Ex.P.1 from Narayana through his GPA holder Muniyappa. The said Narayana has executed GPA on 12.1.1990 in favour of plaintiff in respect of suit schedule property as per Ex.P.3. Before executing the sale deed as per Ex.P.1, the erstwhile owner Narayana has executed an agreement to sell on 11.10.1989 as per Ex.P.4 and also executed Affidavit as per Ex.P.5 in favour of Muniyappa. The khatha extract and khatha certificate in respect of suit schedule property are standing in the name of plaintiff as per Exs.P.6 and Ex.P.7. Before certifying the khatha in the name of plaintiff, the municipal authority has issued notice on 10.4.2002 as per Ex.P.8. Exs.P.2, 9, 12 and 13 are the Tax Paid Receipts. Ex.P.11 is the Assessment List for Building and Land for the year 1982-83. Since its purchase, plaintiff and his family members are in possession of the suit schedule property. The / 15 / O.S.No.4856/2014 defendants are residing in their property situated towards the northern side of the suit schedule property. His property and defendants' property are separated by 4 Feet wide common passage for the common benefit and use of both himself and defendants. Himself and his family members have been making use of the common passage abutting the suit schedule property without any interference. During the second week of June 2014 defendants approached and warned him not to use the common passage since it is exclusively meant for the defendants' use. The defendants have no exclusive right over the said common passage, even then they are obstructing. Hence, prayed for decreeing the suit.
17. P.W.1 was subjected to a detailed cross- examination from the defendants' side wherein P.W.1 adhered to his original version. The counsel for / 16 / O.S.No.4856/2014 defendants made a suggestion while cross-examining P.W.1 that, Exs.P.3 to P.5 have not been executed by Narayanappa. Witness denied the said suggestion. The counsel for defendants further made a suggestion that defendants are having exclusive right over 4 Feet passage, witness denied the said suggestion. The counsel for defendant further made a suggestion that in Ex.P.3 several corrections have been made, witness denied the said suggestion. P.W.1 admitted that his wife filed O.S.No.26006/2007 against the father of defendants and further admits the said suit has been withdrawn on 23.10.2008. P.W.1 further admitted that defendants are using said 4 Feet common passage. Though the counsel for defendants cross-examined P.W.1 in length, nothing worth has been elicited from the mouth of P.W.1 in order to disbelieve the version of plaintiff and even there is no suggestion as regards to / 17 / O.S.No.4856/2014 the possession of the suit schedule property and alleged obstruction.
18. In order to establish their defence, defendant No.2 has been examined as D.W.1 and got marked the documents Exs.D.1 to D.5. The examination-in-chief of D.W.1 is nothing but replica of his written statement averments. D.W.1 deposed that his father has purchased property bearing House List No.201 on 23.8.1990 as per Ex.D.5. As per sale deed, towards southern side of their property there is a 4 Feet passage which is exclusively meant for defendants. The plaintiff has no right over said passage. Plaintiff has no right to use 4 Feet passage and said passage is not common to plaintiff and defendants. It is meant for exclusive use of defendants. The wife of plaintiff has filed O.S.No.26006/2007 as per Ex.D.1. The father of defendants appeared in the said suit and has filed written statement as per Ex.D.2.
/ 18 / O.S.No.4856/2014 Ex.D.3 is the Order Sheet in the said suit. In the said suit wife of the present plaintiff has filed Memo on 23.10.2008 as per Ex.D.4 for withdrawal of said suit. The said Memo came to be allowed and suit has been dismissed as withdrawn. Since the wife of the plaintiff has filed O.S.No.26006/2007 for the relief of permanent injunction, in the said suit no easementary rights have been confirmed upon the plaintiff, hence, the present suit is not maintainable and prayed for dismissal of suit.
19. Though D.W.1 deposed that plaintiff has no right over the said 4 Feet passage, but D.W.1 in his cross-examination at page No.8 clearly deposed that, "£ÁªÀÅ ªÁ¸ÀªÁVgÀĪÀ ªÀÄ£ÉAiÀÄ GvÀÛgÀPÉÌ ¨ÉÊgÀ¥Àà gÀªÀgÀ ªÀÄ£É, zÀQëtPÉÌ ರಸಸಸ, ¥À²ÑªÀÄPÉÌ ªÁ ¢AiÀÄgÀ ªÀÄ£É ªÀÄvÀÄÛ ¥ÀǪÀðPÉÌ PÀmÉÃgÀªÀÄägÀªÀgÀ ªÀÄ£É EgÀÄvÀÛzÉ. ªÁ¢AiÀÄgÀ ªÀÄ£ÉAiÀÄ ¥ÀÅÁªÀðPÉÌ £ÀªÀÄä ªÀÄ£É, ¥À²ÑªÀÄPÉÌ gÀ¸ÉÛ, GvÀÛgÀPÉÌ ºÀ£ÀĪÀÄAvÀgÁAiÀÄ¥ÀàgÀªÀ ರ ªÀÄ£É, zÀQëtPÉÌ ®PÀë ätgÀÉrØAiÀĪÀgÀ ªÀÄ£É EgÀÄvÀÛzÉ." which clearly goes to show that / 19 / O.S.No.4856/2014 plaintiff and defendants are the neighbours and suit schedule property is situated towards the westerns side of defendants' property. D.W.1 further deposed in his cross-examination at page No.9 that, "¸ÀzÀj 4 Cr eÁUÀPÉÌ ºÉÆA ¢PÉÆAqÀÄ ªÁ¢AiÀÄ ªÀÄ£É EzÀÄÝ CzÁzÀ £ÀAvÀgÀ £ÀªÀÄä ªÀÄ£É EgÀÄvÀÛzÉ J£ÀÄߪÀÅzÀÄ ¤d." D.W.1 further admitted that one Siddaiah is the tenant under pliantiff and the door of plaintiff's house is situated abutting to the common passage. D.W.1 further deposed that, "ªÁ¢ 15 EAlÄ 27 ªÀgÉ Cr eÁUÀzÀ°è ªÀÄ£ÉAiÀÄ£ÀÄß ¸ÀĪÀiÁgÀÄ 25 ªÀµÀðUÀ¼À »AzÉ PÀnÖ¹gÀÄvÁÛgÉ ªÀÄvÀÄÛ ¸ÀzÀj ªÀÄ£ÉAiÀÄ£ÀÄß PÀnÖ¹zÁÝV¤AzÀ ªÁ¢ C°èAiÉÄà ªÁ¸ÀªÁVgÀÄvÁÛgÉ J£ÀÄߪÀÅzÀÄ ¤d." The evidence of D.W.1 clearly goes to show that plaintiff is the owner in possession of suit schedule property. DW.1 further admitted in his cross- examination at page No.9, "¸ÀĪÀiÁgÀÄ 15-20 ªÀµÀðUÀ½AzÀ ªÁ¢ FUÀ ¹zÀÝAiÀÄå ªÁ¸ÀªÁVgÀĪÀ ªÀÄ£ÉAiÀÄ£ÀÄß ¨ÉÃgÉ ¨ÉÃgÉ ªÀåQÛUÀ½UÉ ¨ÁrUÉUÁV PÉÆnÖgÀÄvÁÛgÀÉ." The entire evidence of P.W.1 and D.W.1 and Exs.P.1, 3 to / 20 / O.S.No.4856/2014 5 clearly goes to show that properties of plaintiff and defendants are separate by 4 Feet wide common passage.
20. D.W.1 further admitted that plaintiff has constructed the building about 25 years back and since 25 years plaintiff and his family members are residing in the said property. DW.2 also in his cross-examination at page No.4 unequivocally admitted that, "ವವದ ಮತತಸ ಪಪತವವದಯರ ಮನಸಯ ಮಧಧದಲಲರತವ 4 ಅಡ ರಸಸಸಯನತನ ವವದ ಮತತಸ ಪಪತವವದಯರತ ಉಪಯಯಗಸತತಸದವದರಸ ಎನತನವವದತ ನಜ." The evidence of D.W.1 and 2 clearly goes to show that, plaintiff and defendants are jointly using the said 4 Feet common passage and defendants alone have no exclusive rights over the said passage.
21. D.W.1 deposed that wife of plaintiff namely Yellamma died about 8-9 years back. During the lifetime / 21 / O.S.No.4856/2014 of Yellamma, she had filed O.S.No.2606/2007 for the relief of permanent injunction against the father of defendants and present defendants as per Ex.D.1. In the said case they have filed written statement as per Ex.D.2. Ex.D.3 is the order sheet in the said suit. During the pendency of the said suit, the wife of present plaintiff filed memo on 23.10.2008 as per Ex.D.4 and has withdrawn the said suit. The property and parties involved in both the cases are one and the same, hence, the suit of the plaintiff is hit by doctrine of res-judicata, hence, prayed for dismissal of suit.
22. That, on perusal of Exs.D.1 to D.4 it reveals that wife of the present plaintiff had filed O.S. No.26006/2007 on the file of Additional City Civil Court, Bengaluru against the present defendants and their father for the relief of permanent injunction. Subsequently she had filed Memo as per Ex.D.4 and / 22 / O.S.No.4856/2014 withdrawn the said suit. In Ex.D.4 it is mentioned that the dispute between the parties have been resolved, therefore, the plaintiff filed Memo for withdrawal of the case. In order to attract Section 11 of C.P.C.- res- judicata, the parties, properties and subject matter of both the suits must be one and the same and the earlier suit must be heard and finally decided. But, in the earlier suit i.e., O.S.No.26006/2007 no Judgment has been passed. The said suit has been withdrawn by the plaintiff by filing Memo. Hence, Section 11 C.P.C. is not applicable. Apart from this, the relief of injunction is based on recurring cause of action and as long as plaintiff made out a case that an attempt was made to illegally interfere with the peaceful possession and enjoyment of the plaintiff, a suit can be brought.
23. On perusal of GPA dated 6.2.1998 executed by Narayanappa in favour of M.Muniyappa i.e., father of / 23 / O.S.No.4856/2014 defendants in respect of Khatha No.357/201 i.e., in respect of defendants' property in which it is clearly mentioned that 4 feet passage has been left. D.W.1 in his cross-examination at page No.8 unequivocally admitted that, "¸ÀzÀj f¦J.AiÀÄ°è 4 Cr zÀQëtzÀ PÀqÉ eÁUÀªÀ£ÀÄß NqÁqÀ®Ä ©qÀ¯ÁVzÉ JAzÀÄ £ÀªÀÄÆ¢¸À¯ÁVzÉ J£ÀÄߪÀÅzÀÄzÀ ¤d. ¸ÀzÀj f¦J.AiÀÄ CzsÁgÀzÀ ªÉÄÃ¯É ¤r-5 gÀAvÉ £ÁªÀÅ Rjâ¥ÀvÀæªÀ£ÀÄß ªÀiÁr¹PÉÆArgÀÄvÉÛÃªÉ J£ÀÄߪÀÅzÀÄ ¤d. FUÀ®Æ ¸ÀºÀ ¸ÀzÀj 4 Cr eÁUÀzÀ°è wgÀUÁqÀÄvÉÛÃªÉ J£ÀÄߪÀÅzÀÄ ¤d." . D.W.1 in his cross-examination at page No.11 admits Exs.P.14 to P.20 - Photographs and also situation of the suit schedule property i.e., Exs.P.14(a) to 20(a). D.W.1 further admits that the passage appearing in photographs - Exs.P.14 to 20 is the common passage between house of plaintiff and defendants. On perusal of said photographs it clearly shows that the 4 Feet passage biforcates the property of plaintiff and / 24 / O.S.No.4856/2014 defendants and said passage is common passage. On perusal of Exs.P.14 to 20 - Photographs it reveals that in order to enter into the house of plaintiff, plaintiff has to use the said common passage. Without using said passage plaintiff cannot enter into his house. Evidence of D.W.1 coupled with GPA executed by Narayanappa, it clearly goes to show that 4 feet passage has been left for common use. The boundary mentioned in plaint schedule clearly tally with boundary mentioned in Ex.P.1, 3 and 4. In Ex.P.1, 3 and 4, it is clearly mentioned that towards southern side of property No.1/4 and 1/2, 4 Feet common passage is in existence.
24. On perusal of evidence of P.W.1, D.Ws.1 and 2, it clearly reveals that plaintiff is using the said 4 feet common passage since long years, peaceably, openly, and without obstructions. Therefore, the right annexed to the house of the plaintiff to use passage is existing / 25 / O.S.No.4856/2014 without obstruction by the defendants. Though the defendants have contended that there are alternative ways to the plaintiff, but nothing has been produced by them to prove that fact. Even there is no suggestion to P.W.1 regarding alternative ways. The plaintiff being the owner of dominant tenement has a right to use common passage without obstruction by the defendants. Hence, this Court is of the view that for the effective use of plaintiff's property the right of way is essentially necessary. Therefore, right of plaintiff to use the 4 feet common passage is continuous and necessary for enjoying his property as it was enjoyed by him.
25. Evidence of P.W.1, D.Ws.1 and 2, coupled with the documents produced by both the parties, it clearly goes to show that properties of plaintiff and defendants are separate by 4 feet common passage and the plaintiff and his family members have been using the said / 26 / O.S.No.4856/2014 common passage continuously without any interruption. Accordingly, I answer Issue No.1 and 2 in the affirmative.
26. Issue No.3 : - It is the case of the plaintiff that, his property and defendants' property are separated by 4 Feet wide common passage and himself and his family members are using the said common passage. The defendants are also using the said common passage, but the defendants are obstructing from exercising the right of easement over the said common passage. P.W.1 categorically deposed that himself and his family members are using the 4 feet common passage. The defendants are obstructing to use the said common passage. Though the counsel for defendants cross-examined P.W.1 in length, but has not denied obstruction made by the defendants. Besides, D.W.1 in his cross-examination at page No.11 unequivocally admitted the obstruction made by them.
/ 27 / O.S.No.4856/2014 As per Section 58 of the Indian Evidence Act, facts admitted need not be proved. Hence, plaintiff has proved the obstruction made by the defendants. Accordingly, I answer Issue No.3 in the affirmative.
27. Issue No.4 : - This issue is framed with regard to the entitlement of the relief. Plaintiff filed the present suit for the relief of permanent injunction, thereby claiming protection to his easementary rights. The counsel for defendants argued that plaintiff has filed the present suit for the relief of permanent injunction thereby claiming the relief of easements, without claiming the relief of declaration of easementary rights, suit for bare injunction is not maintainable, hence he prays for dismissal of the suit.
28. That, on perusal of entire material available on record it reveals that plaintiff and defendants are / 28 / O.S.No.4856/2014 claiming the rights over the 4 Feet passage. In order to claim the easementary rights, dominant and servinant owners must be different persons. In this case plaintiff is not claiming easementary rights over the defendant's property. So on, defendants are also not claiming easementary rights over the plaintiff's property. Neither plaintiff nor defendants claiming ownership right over the said 4 feet space. Hence, neither plaintiff nor defendants are the owners of said 4 feet passage.
29. If the dispute is between the servinant owner and dominant owner, the matter could have been different. In this case the dispute is between two dominant owners. Besides, D.W.1 and 2 themselves admitted that the plaintiff is using the said passage. The plaintiff is not claiming new rights over the said 4 Feet passage, he is claiming protection to the existing right to use common passage.
/ 29 / O.S.No.4856/2014
30. That, as per the provisions of Section 32 of Indian Easements Act, the owner of the dominant heritage is entitled to the easement without disturbance by any other person. As per the provisions of Section 35 of the said act, the injunction can be granted restraining the disturbance. Section 35 reads as under:
35. Injunction to restrain disturbance.-
Subject to the provisions of the Specific Relief Act, 1877 (1 of 1877), sections 52 to 57 (both inclusive), an injunction may be granted to restrain the disturbance of an easement-
(a) if the easement is actually disturbed-
when compensation for such disturbance might be recovered under this chapter;
(b) if the disturbance is only threatened of intended- when the act threatened or intended must necessarily, if permitted, disturb the easement.
31. Therefore, as per clause (b) injunction may be granted to restrain the disturbance of easement when the act threatened or intended will disturb the / 30 / O.S.No.4856/2014 easement. The plaintiff has proved his possession over suit property and also obstruction made by the defendants. It is also proved that the plaintiff has right of easement of way. The photographs at Exs.P 14 to 20 shows that there exist 4 feet common passage between house of plaintiff and defendants. Therefore, if the defendants succeed in fixing gate in the 4 feet common passage it would definitely disturb the easement and also it would cause deprivation of right to way which has been enjoyed by the plaintiff. Hence, it necessary to restrain the defendants perpetually from fixing the iron gate in the said 4 feet common passage so as to disturb the easement. Therefore the plaintiff is entitled to the relief of perpetual injunction.
32. That, in a decision reported in ILR 2021 KAR 349 [Sughandhi (dead) By LRs and another Vs. P.Rajkumar represented by his power agent], in which / 31 / O.S.No.4856/2014 the Hon'ble Apex Court held that, "It is often said that procedure is the hand-maid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the Court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, Courts must lean towards doing substantial justice rather than relying upon procedural and technical violations." The said decision is aptly applicable to the case in hand. In this case also plaintiff is claiming that he is using the 4 Feet common passage along with defendants and he is not claiming exclusive rights over the said common passage. As discussed supra, as per Section 4 of the Indian Easement Act, there must be dominant and servinant heritages in existence to seek the relief of declaration of easement, but in this case both are the dominant heritages. Hence, the suit for bare injunction is maintainable.
/ 32 / O.S.No.4856/2014
33. In the decisions reported in 2014 (1) KCCR 391 (Smt.Narasamma and others Vs. D.S.Narasi Reddy and another.) in which the Hon'ble High Court of Karnataka held that, "Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction." The above said decision is aptly applicable to the case in hand. The plaintiff has proved that himself and his family members have been using the said 4 feet common passage continuously without any interruption by exercising the right of easement and also proved the obstruction made by the defendants. Hence, the plaintiff is entitled for the relief claimed. Accordingly, I answer Issue No.4 in the affirmative.
34. Issue No.5 :- For the forgoing reasons, I proceed to pass the following:
/ 33 / O.S.No.4856/2014
ORDER
Suit of the plaintiff is hereby decreed with costs.
The defendants or anybody acting on their behalf are hereby permanently restrained from interfering, obstructing or preventing the plaintiff from exercising the right of easement over the 4 Feet common passage abutting the suit schedule property on the southern side.
Draw decree accordingly.
(Dictated to the Judgment Writer, typed directly on computer, script corrected, signed and then pronounced by me in the open court, this the 1st day of April, 2021).
(KHADARSAB) XXXIX Addl. City Civil & Sessions Judge, Bangalore City.
*** ANNEXURE
1. List of witnesses examined for plaintiff :
P.W.1 : Muniyappa
/ 34 / O.S.No.4856/2014
2. List of documents exhibited for plaintiff:
Ex.P.1 : Sale deed dated 15.9.2003
Ex.P.2 : Tax Paid Receipt
Ex.P.3 : GPA dated 15.1.1990
Ex.P.4 : Sale agreement dated 12.1.1989
Ex.P.5 : Affidavit dated 12.10.1990.
Ex.P.6,7 : Holder Khatha Certificates.
Ex.P.8 : Notice dated 10.4.2002 by B.B.M.P.
Ex.P.9 : 12 Tax Paid Receipts
Ex.P.10 : Notice issued by B.B.M.P. dt 22.1.2002
Ex.P.11 : Property Assessment List for the year
1982-83
Ex.P.12,13: Acknowledgement issued by B.B.M.P. dated 4.4.2009 & 2.9.2013 Ex.P.14 to 20 : Photographs.
Ex.P.14(a) to 20(a) : Marked portion of disputed passage in Exs.P.14 to 20.
3. List of witnesses examined on behalf of defendants : -
D.W.1 : Srinivasa @ Seena
D.W.2 : Srinivas S/o. Muniveerappa.
/ 35 / O.S.No.4856/2014
4. List of documents produced by defendant :-
Ex.D.1 to 4 : C/c of plaint, written statement, Order Sheet and Memo dated 23.10.2008 in O.S.No.26006/2007on the file of City Civil Court, Bengaluru.
Ex.D.5 : Original Sale Deed dated 23.8.1990.
(KHADARSAB), XXXIX Addl. City Civil & Sessions Judge, Bangalore City.
***
/ 36 / O.S.No.4856/2014
01/04/2021
Judgment pronounced in the Open Court, vide separate Judgment :
ORDER Suit of the plaintiff is hereby decreed with costs.
The defendants or anybody acting on their behalf are hereby permanently restrained from interfering, obstructing or preventing the plaintiff from exercising the right of easement over the 4 Feet common passage abutting the suit schedule property on the southern side. Draw decree accordingly.
(KHADARSAB), XXXIX ACC & S Judge, Bangalore City.