Karnataka High Court
Zaheera Bee W/O Saleemsab Nalwar vs Shaik Mahaboob on 3 December, 2012
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 3RD DAY OF DECEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE MOHAN SHANTANAGOUDAR
R.S.A. NO.300/2008
BETWEEN :
Zaheera Bee
W/o.Saleemsab Nalwar
Since deceased by Lrs.
1. Sarwar Bee
S/o.Raj Ahmed
Aged 42 years, Occ: Household
2. Sharifa Bee
W/o.Ibrahim Sab
Aged 40 years, Occ: Agri
3. Shahanaz Begum
W/o. Abdul Miya
Aged 38 years, Occ: Agri
4. Gouslya Bee
W/o.Haji Kareem
Aged 33 years, Occ: Agri
All r/o.Jewargi, Gulbarga Dist.
-585 102
5. Bab
S/o. Saleem Sab
Aged 36 years, Occ: Business
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R/o.H.No.16-54 in plot
No.28 & 29
Jewargi Taluk
Gulbarga Dist.-585 102
.. APPELLANTS
(By Sri Veeresh B.Patil, Adv.,)
AND :
1. Shaik Mahaboob
S/o.Jaffar Ali
Aged 37 years, Occ: Teacher
2. Shaik Shabbeer
S/o.Jaffar Ali
Aged 30 years, Occ: Business
Both r/o.Jewargi
Jewargi Taluk
Gulbarga Dist.-585 102
.. RESPONDENTS
(By Sri Mohd.Khader Khan, Adv.,)
This RSA is filed under Section 100 of CPC against the
judgment and decree dated 25.8.2007 passed in
RA.No.282/2006 on the file of the III Addl.Civil Judge
(Sr.Dn.), Gulbarga, dismissing the appeal and confirming the
judgment and decree dated 30.11.2006 passed in
O.S.No.67/2006, on the file of the Civil Judge (Jr.Dn.) and
JMFC., Jewargi.
This RSA coming on for admission, this day the Court
delivered the following:-
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JUDGMENT
Against the concurrent findings of facts arrived at by both the Courts below, the original plaintiff has filed this second appeal.
2. According to the appellant-plaintiff, there is a common pathway between the properties of the plaintiff and defendants and that the suit property lies beyond the common pathway and the present suit is pertaining to open space, which is beyond the common pathway. According to the plaintiff the suit property belongs to her. It is the case of the defendants that the suit property is nothing, but the common pathway and that there is no space beyond the common pathway. However, in the written statement, they have stated that they are in no way concerned with the suit property and they are not interfering with the suit property of the plaintiff. The sum and substance of the case of the defendants is -4- that the common passage lying between the properties of the plaintiff and defendants should be kept open to be used by both the parties and that they are not concerned with suit property except the pathway.
3. After hearing, the appeal is admitted to consider the following question of law:-
"Whether the Courts below are justified in dismissing the suit ignoring the admission of the defendants that they are in no way concerned with the open passage and they will not interfere with the suit property."
Heard the learned advocates on the aforementioned question of law.
4. As aforementioned, it is the case of the plaintiff that the suit property lies beyond the common passage and that the common passage will be kept as -5- the common passage to be used by the plaintiff and defendants. It is the case of the defendants that they are in no way concerned with the suit property, but they are interested only to use common passage lying between the properties of the plaintiff and defendants. Thus, it is not in dispute that both the parties have agreed that pathway is lying between the properties of the plaintiff and the defendants and the same needs to be kept as common passage. Both the parties will not interfere with another party in using it as a common passage.
5. It is relevant to note that the defendants herein had filed O.S.No.43/2004 for injunction restraining the plaintiff herein from interfering with the peaceful enjoyment of the common pathway. The said suit was decreed. The plaintiff-appellants herein filed RA.No.161/2005, which also came to be dismissed. Thus, it is clear that the defendants have -6- got right to use the common passage and the plaintiff should not interfere with the peaceful enjoyment of the passage by the defendants.
6. However, the question still remains to be decided is as to whether the defendants have got right over the suit property, which is stated to be beyond the common passage. The defendants in the written statement (paragraphs 5 and 6) have categorically admitted that they are in no way concerned with the suit property and that they never tried to interfere with the possession of the plaintiff over the suit property. They are merely interested in protecting 15 feet width of pathway. In view of such categorical statement made by the defendants, confusion would not arise at all. The admissions made by the defendants are ignored by the first appellate Court also. The suit property is treated by the Courts below -7- is as if the same is common passage and not an open space.
From the material on record and by the admissions of the parties, it is clear that pathway lying between the plaintiff's property and the defendants' property shall remain as common passage and both the parties have got right to enjoy the same. So also, defendants have no right in whatsoever over the property beyond the common passage.
The question of law is answered accordingly. Appeal is allowed in part in the above terms.
Sd/-
JUDGE *ck/-