Bangalore District Court
Ravindranath M N vs Ashwath Kumar M N on 12 August, 2025
KABC010181512021
IN THE COURT OF THE X ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU (CCH-26).
Dated this the 12th day of August, 2025.
Present
Sri Vijaya Kumar Rai, B.Com., LL.B.,
X Addl. City Civil & Sessions Judge,
Bengaluru.
O.S.No.4655/2021
Plaintiff: Sri M.N. Ravindranath
s/o Late M.S. Narayana Rao
Aged about 61 years
R/at No.1/1-9, Ground Floor
South Public Square Road
Diwan Madhava Rao Road
Basavanagudi, Bengaluru-04.
(By Sri C.V. Kumar, Adv.)
Vs.
Defendants: 1) Sri M.N. Ashwath Kumar
s/o Late M.S. Narayana Rao
Aged about 72 years
R/at No.1/1-9, 2nd Floor
South Public Square Road
Diwan Madhava Rao Road
Basavanagudi, Bengaluru-04.
2) Smt.Vimala
w/o Late M.N. Shama Sundar
Aged about 65 years
R/at No.1/1-9, 1st Floor
South Public Square Road
Diwan Madhava Rao Road
Basavanagudi, Bengaluru-04.
3) Sri M.S. Srinivas
s/o Late M.N. Shama Sundar
2 O.S.No.4655/2021
Aged about 40 years
R/at No.1/1-9, 1st Floor
South Public Square Road
Diwan Madhava Rao Road
Basavanagudi, Bengaluru-04
4) Sri M.S. Shashikiran
s/o Late M.N. Shama Sundar
Aged about 39 years
R/at No.1/1-9, 1st Floor
South Public Square Road
Diwan Madhava Rao Road
Basavanagudi, Bengaluru-04
(By Sri S. Gangadhara Aithal, Adv.)
Date of institution of the suit 31.08.2021
Nature of the suit For declaration, permanent
injunction and mandatory
injunction
Date of the commencement 04.07.2022
of recording of evidence
Date on which the judgment 12.08.2025
Pronounced
Total duration Years Months Days
03 11 12
(Vijaya Kumar Rai)
X Addl. City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This suit is filed by the plaintiff to declare that the suit schedule property is a common passage and the plaintiff has a right of way in and over the same and also permanent prohibitory injunction restraining the defendants from erecting stairs on the 3 O.S.No.4655/2021 suit common passage and causing or creating any kind of obstruction on the suit schedule common passage. Additional relief is also sought for an order of mandatory injunction directing the defendant to remove the stairs or any kind of obstruction to the suit common passage in the event of defendants erecting stairs, or creating any kind of obstruction to the common passage.
2. The case of the plaintiff in brief is as hereunder:-
(a) The defendant No.1 is the eldest brother of the plaintiff and the defendant No.2 is the wife of the plaintiff's elder brother late M.N. Shamsundar. The defendants No.3 & 4 are the sons of late M.N. Shamasundar. His father M.S. Narayana Rao died intestate on 16.10.1991 and thereafter all the children of late Narayana Rao entered into a registered partition deed dated 29.05.2015. In the said partition, the commercial site bearing No.136-137, situated at Gandhi Bazaar Main Road, Basavanagudi, Bangalore measuring east-west 18 feet and north-
south 37 feet consisting of ground floor, first floor, second floor and third floor was divided and allotted to the three sons of late M.S.Narayana Rao by allotting the ground floor property shop to the plaintiff with 1/3 undivided right in the property and right to use the terrace portion with undivided interest over the same. The first, second and third floors were jointly allotted to 4 O.S.No.4655/2021 Mr.M.N.Ashwath Kumar and M.N. Shamasundar with 1/3 undivided right each with access through a separate stairs to be utilised by them exclusively and with the right to use the terrace portion jointly by all the three brothers.
(b) The common passage i.e., suit schedule property is situated towards the eastern side of the commercial property over which all the three brothers including the plaintiff have right of passage. The plaintiff has a right of passage over the suit schedule common passage. The present dispute is in respect of the said common passage only. It is measuring 3 feet in width and 37 feet in length. Said common passage is in existence over 50 years back. The plaintiff has a right of way over it. There is a small room in the ground floor just behind the ground floor shop after the stairs. The said staircase leads to the first, second and third floors allotted to Sri M.N. Ashwath Kumar and M.N. Shamasundar. This staircase has a door painted with green colour. The room next to the staircase is in occupation of the plaintiff and the plaintiff has been in exclusive possession of the said room. The said room has been serving as a store-room for storing materials such as parcel boxes and extra materials for the front shop showroom. The said showroom has been used as showroom of materials and the said room is a part and parcel of the ground floor and the plaintiff has been using it from the year 5 O.S.No.4655/2021 1992. The door of the said room is painted with the pale yellow/cream colour.
(c) On 17.08.2021 at about 1 PM, the defendant No.4 herein accompanied by some workers were inspecting the common passage and taking measurements of the common passage. The plaintiff enquired the defendant No.4 as to what were they doing. The defendant No.4 informed the plaintiff that defendants intend to erect a separate/additional stairs from the common passage to the upper floors. Therefore, the plaintiff has objected for the same as it would obstruct the common passage. If that is erected, it will make movement or passage of person and materials such as parcel boxes, etc, impossible as the suit schedule narrow passage would become more narrower and create a bottle neck. The proposed action of the defendants to erect staircase will cause and create obstruction on the common passage, which is just 3 feet in width and as the obstruction is imminent, instituted this suit.
3. Pursuant to the suit summons issued by this Court, the defendants entered appearance and filed their written statement. In the written statement, the defendants have not disputed the partition deed dated 29.05.2015 and allotment of the shares. But, the specific contention of the defendants is that the passage referred to by the plaintiff is not a common passage, but 6 O.S.No.4655/2021 exclusively belongs to these defendants. It is contended by them that what was allotted to the plaintiff is only a shop and nothing else except to use the said passage, which exclusively belongs to these defendants. It is pleaded that the right of the plaintiff to use the said passage is only to go to the terrace portion, whenever there is a need and the plaintiff cannot treat the same as a common passage. It is the contention of the defendants that the plaintiff is permitted to use the said passage only for limited purpose of reaching the terrace and therefore, the plaintiff is not entitled to seek the relief of declaration that it is a common passage. In so far as the room referred to by the plaintiff in the ground floor, it is contended by the defendants that it is in their possession and not in the possession of the plaintiff.
(i) The defendants have specifically pleaded that there was a tenant in the upper floors and defendants got evicted the tenant from the upper floor. After little renovation, the defendants wanted to let out the upper floor to new tenants. As there is no direct entrance from the road to the upper floors at present, the prospective tenants are hesitating to take the upper floor on rental basis. Hence, with an intention to have entrance directly from the main road and for the convenience sake and with an intention to get good tenants for the upper floors who would pay little enhanced rents and to get good income, the defendants wanted 7 O.S.No.4655/2021 to have a staircase from the front side of the building and hence, the fourth defendant was taking measurements and was making preparation to erect one more staircase without causing any obstruction to the existing passage and at that juncture, the plaintiff coming to know of the said facts has filed this frivolous suit with a view to harass these defendants. It is the case of the defendants that erection of one more staircase will not put any inconvenience to the plaintiff or any of his right to go to terrace portion. On these contentions, the defendants have sought for dismissal of the suit.
4. On the basis of the above pleadings, this Court has framed the following issues:-
1) Whether the plaintiff proves that the suit schedule passage is meant for the common usage by himself and the defendants and as such, he has got a right of way over the said passage?
2) If so, whether he is entitled to seek the declaratory relief as sought for in para-17(a) of the plaint?
3) Whether he further proves the alleged attempt of the defendants of erecting stairs on the suit common passage thereby obstructing his user of the suit passage?8 O.S.No.4655/2021
4) If so, whether he is entitled to seek the relief of permanent injunction as sought for in para-17(b) of the plaint?
5) Whether the plaintiff further proves his entitlement to seek the relief of mandatory injunction as sought for in para-17(c) of the plaint?
6) Whether the defendants prove that the plaintiff has got only permissive right to use the suit common passage for a limited purpose?
7) What order or decree?
5. In support of the case of the plaintiff, he himself is examined as PW1 and got marked Ex.P1 to 12 documents. On the other hand. on behalf of the defendants, the fourth defendant is examined as DW1 and produced Ex.D.1 to 10 documents.
6. Heard the arguments.
7. Findings of this Court on the above issues are as hereunder:-
Issue No.1 : Partly in the affirmative Issue No.2 : Partly in the affirmative Issue No.3 : In the negative Issue No.4 : Partly in the affirmative Issue No.5 : In the negative Issue No.6 : Partly in the affirmative Issue No.7 : As per final order, for the following:9 O.S.No.4655/2021
REASONS
8. Issue No.1, 2 & 6:- The plaintiff and defendant No.1 are the sons of late M.S. Narayan Rao. Defendant No.2 is the wife of plaintiff's elder brother M.N. Shamasundar. The defendants No.3 & 4 are the sons of late M.N. Shamasundar. It is not in dispute that after the death of the parents of the plaintiff, the parties have entered into a registered partition deed dated 29.05.2015 as per Ex.P1 and the various properties available with the family were partitioned among them.
9. The suit schedule property is a passage measuring 3 feet in width and 37 feet in length situated in property No.136- 137, Gandhi Bazaar Road, Basavanagudi, Bengaluru. The property bearing No.136-137 situated Gandhi Bazar Main Road, Bengaluru is a site measuring east-west 18 feet and north-south 37 feet consisting of ground floor, first floor, second floor and third floor. In Ex.P1 partition deed, it was partitioned whereby the ground floor property shop was allotted to the plaintiff with 1/3 undivided right in the property and right to use the terrace portion with undivided interest over the same. The first, second and third floors were jointly allotted to Sri M.N. Ashwath Kumar (D.1) and M.N. Shama Sundar (husband of D.2 and father of D.3 & 4) with 1/3 undivided right each with access through a separate stairs utilised by them exclusively and with the right to use the terrace 10 O.S.No.4655/2021 portion jointly by all the three brothers. It is also admitted that suit schedule property is situated towards the eastern side of the this property, which is a passage provides access to the upper floors. The grievance of the plaintiff is that the defendants have tried to erect one more staircase to the existing passage and if such an additional staircase is erected, it creates obstruction for the movement of persons and materials such as parcel boxes, etc, as the passage is very narrow measuring 3 feet and if additional staircase is erected, the passage would become much more narrower and create bottle neck. On the other hand, the contention the defendants is that as there is no direct entrance from the road to the upper floors, the prospective tenants of the defendants are hesitating to take the upper floor on rental basis and hence, with an intention to have entrance directly from the main road and for the convenience sake to attract good tenants to the floors who would pay little enhanced rents, the defendants wanted to put up one more staircase without causing any obstructions to the existing passage. The contention of the defendants is that the suit schedule passage is exclusively for defendants and not to the plaintiff. It is their specific case that the plaintiff has only a right to have access to the terrace portion through the passage without having the right of common usage and therefore, it is the common passage only to the defendants 11 O.S.No.4655/2021 and not to the plaintiff. It is contended by the learned counsel appearing for the defendants that there is distinction between common passage and right to use the passage to reach the terrace.
10. Now the first point that is required to be determined is whether the suit schedule property is a common passage to the plaintiff and defendants or only a right of way is conferred to the plaintiff in the passage to reach the terrace portion. In this regard, the covenants of the Ex.P1 partition deed dated 29.05.2015 is decisive. The recital pertaining to the rights of the parties with regard to the suit schedule passage is contemplated in page Nos.24, 25, 30, 31, 32, 33, 34, 35, 36 & 37 of Ex.P.1. The relevant portions are extracted for ready reference:-
"B. Property bearing No.136-137 PID No.142-W0362-2, Gandhi Bazaar, Basavanagudi, Bangalore City measuring East to West: 18 feet and North to South: 37 feet.
The property is a non-residential premises consisting of ground floor and three upper floors and it is agreed between the parties that this property is to be divided and partitioned made between Sri M.N. Ravindranath, Sri M.N. Ashwath Kumar and Sri M.N. Shamasundar all the said parties shall have each 1/3rd undivided right, title and interest in the property.
12 O.S.No.4655/2021The ground floor of the said non-residential property the shop is allotted to Sri M.N. Ravindranath having independent access. The first floor, second floor and third floor of the said property is allotted to Sri M.N. Ashwath Kumar and Sri M.N. Shama Sundar and they have separate access to the said floors through a separate stairs and the same be utilized by them exclusively.
That the terrace portion of the property is to be utilized by the parties in the common and each of them having joint undivided interest over the same together with all attached thereto or standing thereon all embedded there in and all the easements profits privileges advantages and rights appurtenances what so over to the said premises belonging or in any way appertaining with the same or any part thereof now or at any time hereto fore usually held used occupied or enjoyed and the estate right, title and interest what so ever at law and equity". ....
Page-35:- "The fourth party Sri M.N. Ravindranath shall be the absolute owner of the ground floor having independent access and with 1/3rd undivided right, title and interest in the residential site of the said property with use of common car parking in the basement floor.
The terrace portion of the property will be utilized by all the three parties jointly having 1/3rd undivided right, title and interest over the same. 13 O.S.No.4655/2021
B. property bearing No.136-137 PID No.142-
W0362-2, Gandhi Bazaar, Basavanagudi, Bangalore City, Bangalore measuring East to West:18 feet and North to South:37 feet and bounded by :
East : Common passage and beyond Sri G. Kallappa's property West : Private property North : Private property No.136 South : Gandhi Bazaar Road.
The property is a non-residential premises consisting of ground floor and three upper floors. It is agreed between the parties that this property is to be divided and partitioned between Sri M.N. Ravindranath, Sri M.N. Ashwath Kumar and Sri M.N. Shamasundar.
All the said parties shall have each 1/3rd undivided right, title and interest in the property and the first, second and third floor of the said non-residential premises are allotted altogether to Sri M.N. Ashwath Kumar, Sri M.N. Shamasundar and they have separate access to the said floors through a separate stairs and that the same shall be utilized by them exclusively. The ground floor of the said non-residential property-shop is allotted to Sri M.N. Ravindranath having independent access.
The terrace portion of the property will be utilized by all the three parties jointly having undivided interest over the same".14 O.S.No.4655/2021
11. The recitals of the partition deed shows that the ground floor in this commercial building is allotted exclusively to the plaintiff along with 1/3 undivided right over the suit schedule property and also the use of terrace portion by all the three brothers jointly having 1/3 undivided right, title and interest over the same. In so far as the passage is concerned, it is referred to as common passage. But, it is specifically referred to that the first, second and third floors of the said non-residential premises is allotted together to M.N. Ashwath Kumar and M.N. Shamasundar and they have separate access to the said floors through a separate stairs and that the same shall be utilised by them exclusively. As rightly contended by the learned counsel appearing for the defendants in so far as the suit schedule passage is concerned, exclusive rights are given to the defendants with a right of use of passage given to the plaintiff to reach the terrace. If parties were intended to confer right of common passage to all the parties including the plaintiff similar to that of defendants, the words "same shall be utilized by them exclusively" would not have been used repeatedly in Ex.P.1 partition deed. The words so used in Ex.P.1 partition deed is the clear indication that it is a common passage to the defendants only and the right to the plaintiff is only to use the same to have access to the terrace portion. This is also probable for another 15 O.S.No.4655/2021 reason that the first floor, 2nd floor and 3rd floor are given exclusively to the defendants and therefore, there is nothing to the plaintiff to enjoy in 1st floor, 2nd floor and 3rd floor. Therefore, the plaintiff cannot claim declaration that the suit schedule passage is the common passage on par with that of the defendants. But, the plaintiff is entitled for a right of way over the same to reach the terrace portion.
12. In the present case, the dispute is with respect of the attempt of the defendants to put up additional stairs. The question for consideration is whether the defendants are entitled to put up additional stairs. Needless to mention that if the construction of proposed additional stairs obstructs the right of way of the plaintiff to reach the terrace through this passage, such an action of the defendants is not permissible. Such an action of the defendants prevents the plaintiff from reaching the terrace and therefore the defendants cannot be allowed to put up such construction of additional stairs or any other construction. The contention of the defendants is that putting up such additional floors will not obstruct the right of the plaintiff to reach the terrace portion in any way. Therefore, the Court is required to decide whether the defendants are entitled to put up additional stairs without obstructing the right of way of the plaintiff to reach the terrace portion.
16 O.S.No.4655/2021
13. As observed above, in the present case, the suit schedule property is a common passage to the defendants and the right of the plaintiff is limited to reach the terrace. Even if it is considered as a common passage to all the parties, in so far as the common passage is concerned, the law is is well settled that it is a joint property and any co-owner has to use such property reasonably in the sense that his user does not amount to ouster of other co-owners. No co-owner can complain that the use of the common passage by the other causes an unnecessary or additional burden upon the common passage. Each of such co- owners of the common property is entitled to use the property in a way most advantageous and beneficial to him without causing any injury or detriment to the other co-owners. Every co-owner is entitled to make use of the common passage to his maximum advantage. It is not for the other co-owners to dictate in what manner the other co-owner should enjoy the common property so long as the user of the common property by one co-owner does not materially interfere with the use of the property by the other co-owners or affect their rights or in any way weaken, damage or injure the common property.
14. In this regard, in the case of Krishnammal v/s Pariasamy (1997)1 MLJ 309, the Hon'ble Madras High Court has held as hereunder:-
17 O.S.No.4655/2021
" I feel that the said approach by the trial Court is not proper. In this case, it is not a case of easement. Both the plaintiff and defendant are co- owners in so far as the common lane is concerned. What are the rights of a co-owner over a passage? In Mitra's 'Joint Property and Partition' - Tagore Law Lectures, Third Edition 1991, at page 254, the learned Author has said thus:
"Every Co-owner has the right to make full use of the common passage. Even though a co-owner has the right to lay a new underground drains in the common passage, but such laying of new drains should not interfere with the existing drains and with the right of other co-owners of the passage. A person's right to drain his own premises by laying underground pipes in his own land is an incident of legal ownership and is not easement. The question of tenement arises when two tenements are involved, the dominant tenement to which the right belongs and the servient tenement on which the obligation is imposed. Such a situation does not arise between co-owners of common passage having right of drainage through it. When a right of drainage is given to the co-owners by deed of partition to the erstwhile co- owners, it is a right to drain the house and premises specified therein and is a joint right of drainage by the underground process. Moreover, such right is not restricted only to the building existing at the time of partition and the co-sharers have got the right to lay new underground drain during the common passage for the new buildings which may be erected on the premises provided there is no restriction in the deed of partition against construction of a new building. So, it is, therefore, clear that when a common passage belongs to both 18 O.S.No.4655/2021 the plaintiff and the defendant, there is no question of any one party having an easement right over the same. It is a joint property and any co-owner has to use such property reasonably in the sense that his user does not amount to ouster of other co- owners. No co-owner can complain that the use of the common passage by the other causes an unnecessary or additional burden upon the common passage. A co- owner carrying his carts, bullocks and ploughs through the joint property cannot be said to have caused unnecessary in convenience to the other co-owner.
In B.B. Katiyar's 'Easements & licences' - 11th edition (1993) at pages 222, 223, the learned author has extracted with approval, a passage from the decision reported in Subbiah Goundan v. Ramaswamy Goundan A.I.R. 1973 Mad. 42 at 45, wherein it was held thus:
...when co-owners at the time of partition set apart a portion of the common property to be used as common for the beneficial enjoyment of their respective shares, that involves a dedication. Each of such co-owners of the common property is entitled to use the property in the way most advantageous and beneficial to him without, at the same time, causing any injury or detriment to the other co-owners. It is for such a co-owner to decide in what may he could so use the common property to his maximum advantage. It is not for the other co-owners to dictate in what manner the other co-owner should enjoy the common property so long as the user of the common property by one co-owner does not materially interfere with the use of the property by the other co-owners or affect their 19 O.S.No.4655/2021 rights or in any way weaken, damage or injure the common property. Such Co-owners are not entitled to prevent the other co-owner from using the common property in the way most beneficial to him....
Little down, the learned Author said as follows:
...The principle underlying the enjoyment of common property is that one co-owner can use the common property to his maximum advantage, subject, of course to the rights of the other co-owner not being any way materially interfered with and without damaging or weakening the common property.
If this is the law regarding enjoyment of common property, and when there is an allegation in the plaint and counter - allegation in the written statement, a finding in that regard was necessary. In the trial Court judgment, there is no finding as to how far the construction of a septic tank beneath the ground level in the common lane will affect the plaintiff's right of his enjoyment of the lane. So long as there is no finding, the mandatory injunction should not have been granted. A decree for mandatory injunction is granted only for the reason that the plaintiff and defendant are co-owners over the pathway. That by itself is not sufficient to grant a decree for mandatory injunction. The lower appellate Court also held that since the parties are co-owners, without the consent of the other co-owner, no construction could be had in the common pathway. The said approach is also not correct. Granting of 20 O.S.No.4655/2021 mandatory injunction must depend upon the injury caused to the common pathway and how far the user is affected. I feel, for the said purpose, the decisions of the Courts below require interference".
15. The Principle of Law is similar even in case of a common wall. In this regard, in the Division Bench decision of Hon'ble Punjab and Haryana High Court rendered in the case of Sardari Lal Gupta vs Siri Krishan Aggarwal AIR 1984 PUNJAB AND HARYANA 439, the Hon'ble High Court has held as hereunder:-
"12. If the matter is examined from this point of view, it is clear that every owner has same rights in a party-wall and he is entitled to its user in a reasonable way. He can even raise its, height provided he admits the newly erected portion of the wall, a joint property of all the co-owners. He can also support his building on the common wall if that does not cause damage to the other co-owners. However, if a co-owner wants to raise the construction on the common wall with the purpose of ousting the other co-owners the ousted co- owners are entitled to raise objection regarding the construction".
In view of the above legal position, the law is very clear that even if the suit schedule passage is considered as a common passage, every party who has a right over the common passage has a right to utilise it in an advantageous manner. Every party 21 O.S.No.4655/2021 can even make alterations, repairs, which are necessary for the convenient and more profitable enjoyment. In case of common passage, law do not restrict the parties to maintain it as it was without altering it or without touching it in any way.
16. The grievance of the defendants is that they have evicted the tenant from their premises and now they are unable to attract good tenants to the property as the staircase to reach the upper floors is situated at the hind side of the suit schedule property to go to the first, second and third floors. It is their grievance that if additional stairs is put up in the front side, where the passage starts, the occupants of the upper floor can reach the upper floors directly and therefore, they are intending to put up an additional staircase which will not affect the right of the plaintiff to reach the terrace portion. In this regard, in the cross-examination of the plaintiff, the plaintiff has expressed his objection even for erecting steel steps in the front side where the passage starts. He has admitted that the building is constructed with the beams and pillars and therefore erection of additional stairs will not overload the building or damage the building. In this regard, PW1 in his cross-examination has stated as hereunder:-
"It is true to suggest that the first and second floor exclusively belong to the defendants. It is true to suggest that in case the first and second floor are let out, the tenants have to go to their properties 22 O.S.No.4655/2021 after passing the passage in front of my shop. It is true to suggest that there is about 5 feet width passage. It is not true to suggest that in case two steps are laid in the said passage to go to the first and second floors, I will not put to any hardship. I have objection even steel steps are put in front side where the passage starts. I have got objection even to put collapsible stairs. .....
It is true to suggest that in the first, second and third floors, there was a tenant who was doing the business in gambling. It may be true that the defendants have got him evicted from the said portion. I do not know whether the respectable tenants is doing commercial business could not be secured because of the staircase being situated at the hind side of the suit property to go to the first, second and third floors. It is true to suggest that building is constructed with beams and pillars".
17. The evidence is very much clear that in order to cut shot the way to the upper floors, the defendants are intending to put up additional stairs by using the existing suit schedule passage. The plaintiff is objecting any type of alteration or modification in the passage. This Court has already observed that law permits beneficial use of a common passage by any of the parties. Each of the party is entitled to make use of the passage for his profitable use in a most advantageous manner for its best use. Therefore, the plaintiff cannot object for putting up of 23 O.S.No.4655/2021 additional stairs in the existing suit schedule passage by the defendants until such construction by the defendants obstructs the plaintiff's right of way to reach the terrace portion. Therefore, the defendants cannot be prevented from carrying out any type of work in the staircase. In other words, Court cannot grant blanket order of injunction against the defendants. But, in the cross- examination of DW1, he has admitted that certain doors are removed by the defendants and the plaintiff has complained that by breaking open the door, he has removed the belongings of the plaintiff kept in the room. There is also some dispute with regard to the water tank, though it is admitted by the plaintiff that the water tank of the defendants is situated in the ground floor. Therefore, in the opinion of the court, it would be appropriate to grant an order of permanent injunction against the defendants from blocking the suit schedule passage, reserving liberty to the defendants to make necessary modifications in the passage for its beneficial and profitable use without obstructing the way of the plaintiff to reach the terrace.
18. In so far as the declaratory relief is concerned, plaintiff is not entitled to declare that the suit schedule passage is a common passage, but he is entitled for a relief of declaration that he has a right of way by using a common passage to reach the 24 O.S.No.4655/2021 terrace. Consequently, issue No.1, 2 and 6 are answered partly in the affirmative.
19. Issues No.3 & 5:- The plaintiff has alleged that the defendants have attempted to put up the stairs and thereby trying to obstruct his right of way to the terrace. The defendants while admitting the attempt to put up stairs denied the obstruction to the plaintiff to reach the terrace. It is the contention of the defendants that they are prepared to put up the stairs without obstructing the right of way of the plaintiff. So far, there is no material on record to show that the right of way of the plaintiff is obstructed by the defendants. Admittedly, so far the passage is not blocked. Therefore issue No.3 & 5 are answered in the negative.
20. Issues No.4 & 7:- In view of the answer given to issues No.1 & 6 as above, it is made clear that the plaintiff is entitled for the relief of declaration that he has a right of way in the suit schedule passage to reach the terrace portion. Further, defendants shall be restrained from blocking the suit passage. However, it is made clear that defendants are entitled to put up additional stairs to reach the upper floors by using the suit schedule passage without causing any obstructions to the plaintiff to conveniently reach the terrace portion. On these observations, issue No.4 is answered partly in the affirmative. 25 O.S.No.4655/2021
21. The parties have raised rival contentions with regard to their rights to make use of the suit schedule passage. The court has recorded a finding that the suit schedule passage is a common passage to the defendants and the right of the plaintiff is restricted to make use of it to reach the terrace portion. This misconception with regard to the right of usage has lead to filing of the suit. Therefore, it is not proper to direct the parties to pay cost while passing the decree. Accordingly, the following order is passed:-
ORDER Suit is decreed in part.
It is declared that the plaintiff has a right of way to use the suit schedule passage to reach the terrace portion.
The defendants, their men or any other persons claiming on behalf of them are restrained from obstructing the right of way of the plaintiff to conveniently reach the terrace portion of the building.
However, it is made clear that defendants are entitled to make use of the suit schedule passage for their beneficial, convenient and profitable enjoyment of their building by erecting extra staircase if found necessary without obstructing and disturbing the right of the plaintiff to make use of the suit schedule passage to reach the terrace portion conveniently.26 O.S.No.4655/2021
The other reliefs sought in the suit are rejected.
Draw decree accordingly (Judgment prepared through Speech to Text App with the assistance of Senior Sheristedar, carried out corrections, print out taken and then pronounced in the Open Court on this the 12th day of August, 2025) (Vijaya Kumar Rai) X Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for the plaintiff:
PW.1 : M.N. Ravindranath List of documents exhibited for plaintiff: Ex.P1 : Original partition deed dated 29.05.2015 Ex.P2 : Original khatha certificate Ex.P3 : Tax paid receipt Ex.P4 to 7: 4 photographs Ex.P8 : CD Ex.P9 to 12: Photographs List of witnesses examined for the defendants: D.W1 : M.S. Shashikiran List of documents exhibited for defendants:
Ex.D1 to 4: Photographs Ex.D5 : Rough sketch Ex.D6 to 9: Photographs Ex.D6(a): Proposed metal staircase Ex.D10 : Certificate u/s 65B of Indian Evidence Act X Addl. City Civil & Sessions Judge, Bangalore.