Karnataka High Court
M/S Diesel India vs P Vishalakshamma W/O ... on 20 August, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20TH DAY OF AUGUST 2013
BEFORE:
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
REGULAR FIRST APPEAL No.333 OF 2007
CONNECTED WITH
REGULAR FIRST APPEAL No.806 OF 2010
REGULAR FIRST APPEAL No.807 OF 2010
IN R.F.A.No.333 of 2007
BETWEEN:
M/s. Diesel India,
a Partnership firm,
registered under the Partnership Act,
No.2, Lalbagh Fort Road,
Bangalore - 560 002.
Represented by its Managing Partner
Sri. N.M.Patel. ... APPELLANT
(By Shri. S. Shaker Shetty, Advocate)
AND:
1. P. Vishalakshamma,
Wife of Sri. S.P.Sreeramaiah,
2
Aged about 70 years,
Residing at No.11,
Susheela Road,
Dodda Mavalli,
Bangalore - 560 004.
2. S.P.Sreeramaiah,
Son of Subbaiah Setty,
Aged about 89 years,
Residing at No.11,
Susheela Road,
Dodda Mavalli,
Bangalore - 560 004.
3. Anna Nanjamma,
Wife of Late Anna Ramachandraiah,
Aged 80 years,
Residing at No.40/379,
Vidyanagar, Karnool,
Represented by her
General Power of Attorney
Sri. T. Govindappa Setty,
Son of T. Malleshappa Setty,
Aged 82 years,
Chartered Accountant,
Residing at No.178,
2nd Cross Road,
Lower Palace Orchard,
Bangalore - 560 003,
Under the Power of Attorney
Dated 11.9.1992.
3(a) K.A.Hari Prasad,
Son of Late Anna Nanjamma,
3
3(b) Smt. Sukanya,
Major,
3(c) Smt. Surya Prabha,
Major,
3(b) and (c) are also Children of
Late Annananjamma and all
Are residing at No.40/329,
Vidyanagar,
Karnool [Andhra Pradesh].
4. B.H. Rangaswamy,
Major,
Son of Late T. Tirianappa,
5. B.H. Krishnaswamy,
Major,
Both are residing at No.47,
Surveyor Street,
Basavanagudi,
Bangalore - 560 004.
6. Smt. B.H. Jalajakshi,
Major,
Daughter of Late T. Hirianappa,
Represented by her Power of
Attorney Holder,
B.H.Krishnaswamy,
Major,
Residing at No.47,
Surveyor Street,
Basavanagudi,
Bangalore - 560 004.
4
7. Smt. Leelabai,
Major,
8. Sri. M.N. Srinivas,
Major,
9. Sri. M.N. Gopalasa,
Major,
10. Sri. M.N.Vasantha Kumar,
Major,
11. Sri. M.N.Muralidhar,
Major,
12. Smt. M.N.Sarvamangala,
Major,
13. Smt. Suvarnamangala,
Major,
Respondent no.7 being wife
Of late M.H.Nagendrasa and
Respondent nos. 8 to 12 are
Children of Late M.H. Nagendrasa,
All are residing at No.62/1,
III Cross, Lalbagh Road,
Bangalore - 560 004.
14. Smt. Saroja Bai,
Major,
5
15. Sri. M.K. Chandrashekar,
Major,
16. Sri. M.K. Prabhakar,
Major,
17. Smt. Sulochana Bai,
Major,
18. Smt. Saraswathi,
Major,
19. Smt. Gayathri,
Major,
20. Smt. Rajalakshmi,
Major,
Respondent no.14 being wife of
Late M.H. Krishnaswamy,
And respondent nos. 15 to 20
are children of late M.H. Krishnaswamy
nos. 14 to 20 are residing at
no.658, Basettypet,
Chickpet Cross,
Bangalore. ...RESPONDENTS
(By Shri. K.P. Ashok Kumar, Advocate for Respondent Nos. 4 to
6
Shri. V.B. Shivakumar, Advocate for Respondent Nos. 7 to 20
Shri. T. Mohandas Shetty, Advocate for Respondent No.1)
*****
This Regular First Appeal filed under Section 96 of the
Code of Civil Procedure, 1908, against the judgment and decree
dated 30.09.2006 passed in O.S.No.7369/1992 on the file of the
6
VII Additional City Civil Judge, Bangalore (CCH-19) dismissing
the suit as against defendant no.7 for permanent injunction.
IN R.F.A.No.806 of 2010
BETWEEN:
M/s. Diesel India,
A Partnership firm,
Registered under the Partnership
Act, No.2, Lalbagh Fort Road,
Bangalore - 560 002,
Represented by its
Partner, Sri. Harish Patel. ...APPELLANT
(By Shri. S. Shaker Shetty, Advocate)
AND:
1. S.P.Sreeramaiah,
Son of Subbaiah Setty,
Since deceased by his
Legal representatives
1(A) P.S.Venkatesh,
Son of Late S.P.Sreeramaiah,
Aged about 48 years,
Residing at No.11,
Susheela Road,
Doddamavalli,
Bangalore.
2. M/s. The Mysore Arts and
Wood Works Company Limited,
Lalbagh Fort Road,
7
Doddamavalli,
Bangalore - 560 004. ...RESPONDENTS
(By Shri. K.P. Ashok Kumar, Advocate for Caveator/Respondent
No.1
Shri. C.G. Gopalaswamy, Advocate for Respondent No.2)
*****
This Regular First Appeal filed under Section 96 of the
Code of Civil Procedure, 1908, against the judgment and decree
dated 05.02.2010 passed in O.S.No.7718/2007 on the file of the
XLIV Additional City Civil and Sessions Judge, Bangalore,
decreeing the suit for possession, arrears of rent and future rent.
IN R.F.A.No.807 of 2010
BETWEEN:
M/s. Diesel India,
A Partnership firm,
Registered under the Partnership
Act, No.2, Lalbagh Fort Road,
Bangalore - 560 002,
Represented by its Partner,
Sri. Harish Patel. ...APPELLANT
(By Shri. S. Shaker Shetty, Advocate)
AND:
1. K.A. Hari Prasad,
Son of Late Anna Nanjamma,
Aged about 64 years,
8
2. Smt. Surya Prabha,
Daughter of Late Anna Nanjamma,
Aged about 60 years,
3. Smt. Sukanya,
Daughter of Late Anna Nanjamma,
Aged about 50 years,
Respondent nos. 1 to 3 are
Residing at No.40/329,
Vidyanagar,
Kurnool [Andhra Pradesh]
4. M/s. The Mysore Arts and
Wood Works Company Limited,
Lalbagh Fort Road,
Doddamavalli,
Bangalore - 560 004. ...RESPONDENTS
(By Shri. T. Mohandas Shetty, Advocate for Caveator/Respondent
Nos. 1 to 3
Shri. C.G. Gopalaswamy, Advocate for Respondent No.4)
*****
This Regular First Appeal filed under Section 96 of the
Code of Civil Procedure, 1908, against the judgment and decree
dated 5.2.2010 passed in O.S.No.7856/2007 on the file of the
XLIV Additional City Civil and Sessions Judge, Bangalore (CCH-
45) decreeing the suit for ejectment, arrears of rent and future rent.
These Regular First Appeals having been heard and
reserved on 07.08.2013 and coming on for pronouncement of
Judgment this day, the Court delivered the following:-
9
JUDGMENT
These appeals are heard and decided by this common judgment as the appellant is common in all these cases. The parties are referred to by their rank before the trial court, for the sake of convenience.
2. The common background to these appeals are as follows:-
Land bearing survey no.1, Lalbagh Fort Road, Bangalore, measuring about 6 acres, belonged to one M.Subbaiah and he had leased the entire extent in favour of one Hassan Ismail Bhai Lalji, for a period of 50 years, under a registered lease deed dated 26.10.1922. The lessee was granted with a right to put up construction, to sub-lease or mortgage the said land. The land was bounded as follows :
East by : Subbaiah's garden and Cemetry. West by : Buildings and temple constructed by Subbaiah's father and Chikkarayappa's garden 10 North by : Public road, running west towards Kalasipalyam.
South by : by Lalbagh Road running from Mavalli to Lalbagh.
Lalji, the lessee is said to have executed a mortgage deed in favour of M/s Bank of Mysore Ltd., including all structures, leasehold rights and movables, under a registered deed dated 24.9.1923.
On the death of the owner of the land, M. Subbaiah, his children and his two wives are said to have sold the land, subject to the lease deed executed in favour of Lalji, along with a portion of land belonging to their family, under a registered sale deed dated 12.6.1928, in favour of B.M.Shamanna Gowda.
M/s Bank of Mysore Ltd., filed a suit for recovery of amounts due under the mortgage executed by Lalji, in case no.O.S. 25/35-36 on the file of the Court of the District Judge, Bangalore. A preliminary decree for the recovery of money under 11 the Mortgage deed, by the sale of the lease hold rights, was made in favour of the bank, as on 30.1.1936. A final decree followed as on 23.12.1936. The bank executed the decree in Execution case no.45/ 36-37, on the file of the Additional District Judge, Bangalore. The bank purchased the leasehold rights in the execution sale, which was confirmed on 30.6.1941. The bank also obtained a Sale Certificate dated 2.9.1941 and obtained possession of the properties under the leasehold rights. Thereupon Lalji and the bank jointly sold the leasehold rights to M/s Mysore Art and Wood Works Ltd. (Hereinafter referred to as the 'MAWWL', for brevity), under a sale deed dated 15.9.1941.
Shamanna Gowda and his brother Chandrashekara Gowda effected a partition and at the partition Chandrashekara Gowda was allotted the eastern portion of the property measuring 3 acres at the eastern side and Shamanna Gowda was allotted the western portion measuring 3 acres.
Chandrashekara Gowda sold his share of the land to M/s Mysore Art and Wood Works Ltd., under a registered Sale Deed 12 dated 5.1.1944. Thus MAWWL came into possession of the entire 6 acres of land, 3 acres as owner and 3 acres as lessee.
Shamanna Gowda sold the western portion of the land to M.S.Rudrappa and others under a sale deed dated 26.10.1938, subject to the lease hold rights of M/s Mysore Art and Wood Works Ltd.
At a partition effected under a registered deed dated 26.1.1946, between Rangamma, the first wife of late Subbaiah and the sons of Chanamma, the second wife of Subbaiah, namely, M.S.Bhadrappa, M.S.Subbaiah alias Chamaraju, N.Gowramma, wife of M.Rudrappa (son of Rangamma ), M.S. Veeranna (son of Rangamma), K.Gowramma, wife of M.S.Chakrappa (son of Rangamma), M.S.Rudrappa (son of Rangamma), the plot belonging to the plaintiffs was allotted to the share of K.Gowramma. The said partition deed included a sketch depicting the several plots of land allotted to the respective parties. In the said sketch Plot no.1 to 4 are shown on the western side and plot no.5 to 8 are shown on the eastern side.
13
The allotment made under the partition deed was as follows:-
Plot no. 1 : M. Rudrappa Plot no. 2 : N. Gowramma wife of M.S. Rudrappa Plot no. 3 : Rangamma Plot no. 4 : Veeranna Plot no. 5 : K. Gowramma wife of Shankarappa Plot no. 6 : M.S. Bhadrappa (who had subsequently sold the same to K. Gowramma) Plot no. 7 : Subbaiah alias Chamaraju ( later sold to K.Gowramma) Plot no.8 : Subbaiah alias Chamaraju (later sold to K. Gowramma) P.Vishalakshamma, wife of S.P. Sreeramaiah had purchased plot no.5 from the legal heirs of K.Gowramma, under a sale deed dated 15.1.1965.14
The southern portion of plot no.2 had been purchased by S.P.Sreeramaiah under a sale deed dated 2.6.1965 from N.Gowramma. The northern portion of plot no.2 had been purchased by Annananjamma under a registered sale deed dated 2.6.1965.
M/s Mysore Arts and Wood Works Ltd., and M/s Southern Roadways Ltd., had disputed the title of Vishalakshamma, she had thus filed a civil suit in O.S.343/74, for a declaration of her title to plot no.5 and sought recovery of possession. The said suit was resisted by the aforesaid parties. M/s Southern Roadways claimed to be in possession of plot no.5 as a lessee under M/ s Mysore Art. The suit was transferred to the Court of the City Civil Judge, Bangalore and was renumbered as OS 610/1980.
The title of S.P.Sreeramaiah, in respect of the southern half of Plot no.2, was disputed by MAWWL, Southern Roadways and M/s Diesel India. He was also constrained to file a civil suit in O.S.No.337/1974, for declaration of title to the said extent of the 15 property. That suit was transferred and renumbered as O.S.No.607/80 on the file of the City Civil Court, Bangalore.
The title of Annananjamma in respect of the northern half of plot no.2 was also disputed by the very same parties aforesaid and hence she was also driven to file a suit for declaration of title in OS 349/1974, which was transferred to the City Civil Court and renumbered as OS 610/1980.
All the aforesaid suits were disposed of by a common judgment dated 30.9.1983, decreeing the suits in favour of the plaintiffs. M/s Southern Roadways alone had challenged the decree in OS 610/1980, before this court in RFA 445/1983. M/s Diesel India had filed two appeals against the decree in O.S.No.607/1980 and O.S.No.611/80 before this court in appeals RFA 447/1983 and RFA 448/1983, respectively. All the three appeals were disposed of by a Division bench by a common judgment dated 18.8.1992. The title of the aforesaid three plaintiffs was confirmed by the said judgment. The decree relating to possession was however, set aside and the plaintiffs 16 were required to work out their remedy under the Karnataka Rent Control Act, 1961 (Hereinafter referred to as the 'KRC Act', for brevity).
The very same plaintiffs above referred had been prevented from entering upon and inspecting the plots of property till the judgment was delivered in the appeals by this court. It is the case of the plaintiffs that it is only thereafter they found that, a common passage separating plots no.1 to 4 and 5 to 8, which was provided by the owners, who formed the plots, for ingress and egress to the respective plots had been indiscriminately dotted with temporary structures put up by the defendants, who had also put up gates at either end of the passage and hence the civil suit in O.S.No.7369/1992 was filed on the file of the Court of the City civil Judge, Bangalore, seeking injunctory reliefs, for the removal of all such obstruction and to provide free passage.
After the disposal of the appeals aforesaid by a division bench of this court, S.P.Sreeramaiah had filed a petition for eviction in respect of the southern portion of Plot no.2 against 17 MAWWL and M/s Diesel India, under the provisions of the KRC Act, in HRC 2657/1992, before the court of Small Causes, Bangalore. The petition was allowed by order dated 27.2.1999. M/s Diesel India had challenged the same in revision before this court in HRRP 412/1999, by order dated 22.7.2002, this court held that the proceedings abated as the premises in question was more than 14 Square Metres and hence, it was for the petitioner to initiate appropriate proceedings for ejectment under the general law. Consequently, the plaintiff had issued a notice of termination of the lease and filed the suit for ejectment in OS 7718 /2007.
Similarly, the plaintiffs - respondents 1 to 3 in R.F.A.807/2010 had filed a suit in O.S.No.7856/2007 for ejectment against the appellant and respondent no.4, wherein the appellant had denied the relationship of landlord and tenant and that they were not in possession of the same. It was contended that the appellant had taken a property measuring 108' x 500' under a registered lease deed from MAWWL, respondent No.4, 18 with permission to sublet, after which the appellant had got the licence and plan sanctioned and constructed a building and started running its factory. The appellant had also got the khata of the property registered in its name and since the year 1954, it has had been paying taxes. The Plaintiffs, Respondents 1 to 3, who had the benefit of a partition deed in their favour in respect of the suit schedule property, had filed a suit for ejectment against the appellant, to deliver possession of the same.
These three suits having been decreed in favour of the plaintiffs, the same are under challenge in the respective appeals.
3. Shri Shaker Shetty, learned counsel for the appellant would contend that the appeal in RFA 333/2007 arises out of the suit filed by Smt Vishalakshamma and others, claiming that the several defendants, including the present appellant had erected certain structures in a common passage, marked as ABCD in the sketch annexed to the partition deed dated 26-1-1946, referred to 19 hereinabove which obstructed the plaintiffs' ingress and egress and hence sought for a mandatory injunction to remove the same.
It is contended that MAWWL had, by virtue of the lease hold rights, leased a portion of the land measuring 108' X 500' to the appellant in the year 1953 with permission to construct industrial sheds. The lease was for a period of 20 years. Accordingly, the appellant had obtained sanction of a building plan and licence from the competent authority and put up the industrial sheds and had started an industry. The khatha stood in the name of the appellant. It is contended that though there were several proceedings involving the very property in the occupation of the appellant, it is not established that the property claimed by the plaintiffs is under the occupation of the appellant. This controversy as to the location and identity has not reached finality and the appellant has not interfered with any property of the plaintiffs as claimed. The plaintiffs title to the property as described in their sale deed may have been established, but it is not the same property as described in the schedule to the plaint. 20
The concluded proceedings in the earlier suits filed by the plaintiffs and the judgment in the appeals confirming their title, nowhere considered the existence of the passage in question or any right of ingress and egress as claimed in the present suit. On the other hand PW-1 has admitted the existence of a superstructure at the time of sale in favour of the plaintiffs, and therefore the purchase was subject to the existing superstructure and hence no decree for mandatory injunction could be granted on the basis of the plaint averments.
It is contended that the sale being of the year 1965, the suit being filed in the year 1992 for removal of the structures admitted to be in existence at the time of sale, the suit was hopelessly barred by time. The reasoning of the court below that the second suit was saved by Section 14 of the Limitation Act, 1963, as the earlier suit for declaration was decided only in 1992 and that the cause of action for the later suit arose only thereafter is an incorrect interpretation of the law for the simple reason that the plaintiffs knew of the alleged obstruction even in the year 1965. 21
It is pointed out that the present appellant had also filed a suit in O.S.No.2944/2000 before the very trial court against the plaintiffs and others. The same was decided along with the suit of the plaintiffs by a common judgment. It was the case of the appellant that temporary stone slabs and temporary sheds had been constructed in the passage measuring 30' wide and connecting Malavally Tank Bund Road and Lalbagh Fort Road. The same was bounded as follows:-
East by : Plots no. 1 to 4 West by : Plots no. 5 to 8 North by : Lalbagh Fort Road South by : Malavally Tank Bund road ( H. Siddaiah Road ) The passage lying between Plots 1 to 4 on the West and Plots 5 to 8 on the East and the appellant had claimed that he was in possession of Plots 1 to 3. And though the plaintiffs had disputed the description of the passage as given by the appellant, the suit of the appellant had also been decreed - which entailed that the suit of the plaintiffs ought to have been dismissed. 22
It is further contended that the appeal in RFA 806/2010 is filed against the judgment and decree in the suit for ejectment filed by S.P.Sreeramaiah claiming as the owner of the southern half of the property in Plot no.2, against the appellant. The appellant had denied the jural relationship and the very identity of the suit property and claimed that the appellant vehemently denied that it was in occupation of any portion of the property said to have purchased by the plaintiff. On the contrary, it was the case of the plaintiff that it was a lessee under MAWWL, by virtue a registered lease deed, since the year 1952,in respect of land measuring 108' X 500', with permission to construct industrial sheds and the appellant having constructed such sheds was running its factory therein. It was therefore contended that the property said to have been acquired by the plaintiff was not at all the property in the occupation of the appellant.
It is contended that the trial court has clearly overlooked the serious dispute as regards the identity of the property, the finding 23 that in the earlier proceedings the property had been identified both by the trial court and the High Court, was an erroneous finding . On the other hand, it was held that there was no proper identification of the properties and that there was no finding to indicate that the property purchased by the plaintiff and the suit property were one and the same.
The southern half of Plot no. 2 purchased by Sreeramaiah was said to be a vacant site with the eastern boundary being a 30'common passage and not a public road. But if the Partition deed of the year 1946 is seen the eastern boundary is not shown as either passage or road. This inconsistency is also to be found in the boundaries of the northern portion of Plot no.2, which is the subject matter of the connected appeal.
It is contended that there is no dispute that the appellant is in occupation of land measuring 108' X 500' and the suit property described as a portion of the said extent is not maintainable. Further, if it was the case of the plaintiff that MAWWL was the 24 lessee in respect of the land and that the appellant was the sub- lessee, the termination of the lease was mandatory and the suit was hence not maintainable. It is also contended that the appellant is a manufacturing unit and hence was required to be put on a six month notice of termination of lease and hence the suit was not maintainable.
It is contended that the City civil court had no jurisdiction to entertain the suit for ejectment and it was only the Small Causes Court which would have jurisdiction in view of the Full Bench decision of this court in the case of Abdul Wajid Vs. A.S. Onkarappa and others, ILR 2011 Kar.229.
It is contended that even according to the plaintiff the suit property is vacant land. Therefore, Section 14 of the Karnataka Rent Act, 1999 (Hereinafter referred to as the 'KR Act', for brevity) would not apply - as there is no plinth area involved. In respect of vacant land, whatever the extent, if the rent applicable is 25 less than Rs.3500/-, in Bangalore city, it is the KR Act, that is applicable.
It is contended that in so far as the appeal in RFA 807/2010 is concerned is preferred against the judgment in O.S.No.7856/2007 filed by the legal representatives of Annananjamma, who are said to be the owners of the northern half of Plot no.2, under a sale deed dated 2-6-1965. Shri Shetty would contend that the very grounds urged in respect of the southern portion of Plot no.2 which is the subject matter of the appeal in RFA 806/2010 would equally apply to this appeal as well.
4. On the other hand, the learned counsel Shri K.P.Ashok Kumar appearing for the plaintiffs in all these appeals contends that there is no inconsistency what so ever in the identity of the properties or the boundaries thereto. It is pointed out that the suit schedule property is the same property that was the subject matter of the suit for declaration of title filed by the respective plaintiffs in O.S.No.607/1980 and O.S.No.611/1980 and the same having 26 been decreed in favour of the plaintiffs, has been affirmed by a Division bench of this Court in RFA 445/1983 and connected appeals by a judgment dated 18-8-1992.
It is further sought to be demonstrated that there is no inconsistency in so far as the boundaries of the property described under the Partition Deed of 26-1-1946 in which the overall boundaries of what is identified as Block no.2, of which Plot no.2 which is a portion, are shown, and the boundaries as given to the portions of Plot no.2 purchased by the respective plaintiffs. The eastern boundary to the entire Block no. 2 is shown as the building of MAWWL, where as the immediate eastern boundary of the suit properties is commonly shown as the 30' passage or road. This is sought to be shown as an inconsistency, which is not tenable.
It is also pointed out that the sketch produced at Exhibit P.11 is one prepared by the court commissioner-surveyor, clearly depicting the several plots and the common passage in existence. The same has been reaffirmed by a second report by the Taluk 27 Surveyor. And more significantly the appellant itself had relied on a sketch depicting the self same plots and passage as seen at Exhibit D.2, produced and marked in O.S.No.7369/1992.
It is also pointed out that the plaintiffs had complied with the requirement of issuing statutory notice period of six months' as seen from one of the notices marked as Exhibit P.6, to which the appellant had replied as per Exhibit P.7. Therefore, the claim that there was no notice is not tenable.
The further contention that the KR Act was applicable and that the City Civil Court had no jurisdiction to try the suit etc., it is pointed out by the learned counsel for the plaintiffs that such a contention is urged for the first time before this court in appeal. On the other hand, it was the vehement contention of the appellant that the KRC Act was no longer applicable, which prompted this court to set aside the earlier order of eviction and the owners being relegated to a civil suit for ejectment. It is hence contended that it is not open to the appellant to now revert to a different stance to suit its convenience.
28
5. As can be seen by the rival contentions, the controversy that is sought to be canvassed by the appellant is that there is a serious dispute about the identity and location of the respective properties claimed by the plaintiffs on the one hand and the appellant on the other. However, it is seen that the suit properties are the very same properties, which were the subject matter of earlier suits for declaration of title filed by the respective plaintiffs, which are referred to herein above. The said suits have been decreed and affirmed in appeal by a Division Bench of this court, in so far as title to the property is concerned. The appellant was very much a party to those suits. The appellant having allowed the said judgment to attain finality is estopped from contending that the plaintiffs have no claim over the said properties. It was then for the appellant to have taken steps to protect his possession and to have obtained a declaration to the effect that the property in the occupation of the appellant did not include the properties of the plaintiffs. Consequently, in so far as the plaintiffs are concerned they have proceeded in accordance 29 with law in taking their claim to title and recovery of possession to its logical conclusion. The appellant seeking to keep a controversy alive when there are findings in favour of the plaintiffs, that cannot be wished away, is no longer tenable.
The other incidental contentions raised have been met by the plaintiffs. In so far as the suit for injunctory reliefs is concerned, the reliefs claimed by the appellant and the plaintiffs, in their respective suits was common, except that the appellant who had filed its suit eight years after the suit filed by the plaintiffs, was apparently seeking to protect what had been claimed by the plaintiffs as part of the encroachment, into the common passage, by the appellant. To that extent it cannot be said that the trial court had committed any irregularity in decreeing both the suits for injunctory reliefs.
Hence the appeals are dismissed. No order as to costs.
Sd/-
JUDGE nv*