Madhya Pradesh High Court
Santosh Kumar vs Santosh Kumar on 23 September, 2019
Author: Rajeev Kumar Dubey
Bench: Rajeev Kumar Dubey
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
SINGLE BENCH : RAJEEV KUMAR DUBEY, J
Second Appeal No.880/2007
Santosh Kumar
Vs.
Santosh Kumar and Others
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Shri R.P. Agrawal, learned Senior Counsel with Shri Pranjal
Agrawal, counsel for the appellant.
None for the respondents, though served.
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JUDGMENT
Reserved on 29/08/2019 Delivered on 23/09/2019 This Second Appeal has been filed under Section 100 of the Code of Civil Procedure against the judgement and decree dated 11/04/2007 passed by District judge, Sagar in Civil Appeal No. 18A/2007 filed against the judgement and decree dated 13/ 06/2006 passed by III rd Civil Judge, Class-II Sagar in Civil Suit No.131-A/03 whereby learned Civil Judge decreed the suit filed by respondents/plaintiffs and declared that the plaintiffs and defendant are entitled to joint use of the common passageway, 44 feet long and 2.6 inches wide to its full height, situated in front of the House No.32, Municipality ward Katra , Sagar and also declared that the plaintiffs are the owners of half part of 15 inches thick common wall i.e. 7.5 inches thick part situated between plaintiffs' and defendant's house. Trial court further directed the defendant not to do any construction work in future over the half part of the common wall Digitally signed by VARSHA SINGH Date: 2019.09.24 13:30:57 +05'30' 2 belonging to plaintiffs and remove the wall built by him over common wall and also remove the construction work done by the defendant over the common passageway. In the appeal, learned District Judge partly allowed the appeal and set aside the direction of the trial court which directed him to remove the wall constructed by him over the common wall and affirmed the remaining part of the judgement.
2. The appellant is the defendant and the respondents are the plaintiffs of the civil suit out of which this appeal arises. The appellant and respondents shall be referred to as described in the suit.
3. Brief facts of the case are that, the plaintiffs filed the civil suit averring that they are the owners of the house No.32 situated at Katra ward, Sagar (shown in map by yellow colour filed alongwith the plaint). They had purchased said house from its previous owner by five registered sale-deeds dated 17/07/1986 and 20/12/1995. They ran a hotel called "Shubham Hotel". The said house is situated 44 feet away from the municipal road. The remaining part of the house owned by the former seller was located in front of the house purchased by the plaintiff, so while selling said part of house to the plaintiffs, the seller of the house gave them a 2.6 feet wide and 44 feet long common passageway (which shown in the map filed along with the plaint in red color and further referred to as common passageway) for ingress and egress to their house from municipal road as there is no other approach road for the plaintiffs for ingress and egress their house to the main road. It was also assured by the seller that the said common passageway would always be open for ingress and egress and disposal, and no one could close it. It is further averred that on 13/6/1997, by two sale deeds appellant purchased the remaining part of the house which was situated between plaintiff's house and municipal road. In these sale deeds also the previous owner of the house clearly mentioned that the wall situated between the plaintiff's house and Digitally signed by VARSHA SINGH Date: 2019.09.24 13:31:12 +05'30' 3 the part of the house which was purchased by the defendant will be common and the passageway also will be common. It was not sold to defendant. A wall of 15 inches width was being constructed by the defendant wrongly over the common wall. Earlier rain water from the plaintiff's house used to flow from the roof of the defendant's house and fall in the municipal drains through pipe fitted in front of the defendant's house. Due to construction of the wall by the defendant over common wall, the disposal of rainwater of the plaintiffs house has been obstructed. Similarly, the defendant has also put column beams above the common passageway, he is going to construct building over it. So it be declared that the plaintiffs are the owners of the half part of 15 inches thick common wall i.e. 7.5 inches thick part situated between plaintiffs' and defendant's house and defendant be directed not to do any construction in future over the plaintiffs' half part of the common wall. It also be declared that plaintiffs have the right to joint use of the common passageway up to the unlimited extent in the hight and defendant also be directed to remove the wall constructed by him over common wall and also remove the construction done over the common passageway.
4. Defendant in his written statement clearly denied from the claim of the plaintiffs and averred that he has not done any construction over the common wall or common passageway. The condition of his house is the same as it was at the time of his purchase, all the construction work was done by the former owner of the house before the house was sold to him. The former owner had given a limited right of use over that common passageway to plaintiffs only upto the height of 11 feet and not above that. So defendant has a right to construct a building above that height over common passageway. The former owner of the house had also given him right to use the common passageway up to unlimited height. Plaintiffs only have a right to use common passageway upto 11 feet height from its Digitally signed by VARSHA SINGH Date: 2019.09.24 13:31:24 +05'30' 4 floor. Plaintiffs have no right to dispose rain water of his house from the roof of defendant's house or from common passageway. So plaintiffs are not entitled to get any of the relief claimed by them against the defendant and pray for rejection of the plaint.
5. Learned trial court after recording the evidence and hearing the arguments of both the parties decreed the plaintiffs' suit and declared that plaintiffs and defendant are entitled to joint use of the common passageway 44 feet long and 2.6 inches wide up to the top and also declared that the plaintiffs are the owner of the half part of 15 inches thick common wall i.e. 7.5 inches thick part situated between plaintiffs' and defendant's house. Trial court further directed the defendant not to do any construction work in future over the plaintiffs' half part of the common wall and remove the wall built by him over common wall and also remove the construction work done by him over the common passageway. In the appeal learned District Judge partly allowed the appeal and set aside the direction of the trial court by which learned trial court directed defendant to remove the wall constructed by him over the common wall and affirmed the remaining part of the judgement. Being aggrieved from that judgement defendant filed this second appeal.
6. This Court vide order dated 14/9/2007 framed following substantial question of law for disposal of this second appeal:-
"Whether the Court below erred in granting decree in respect of common passage towards its height to unlimited extent, while as per the documents Ex. P-3, Ex.P-4 and Ex.P-7 the height of common passage was limited to the extent of 11 feet?"
7. Learned senior counsel of the appellant/defendant Shri R.P. Agrawal submitted that in the sale deeds (ExP-3 to Ex.P-7) by which plaintiffs purchased their part of house no. 32 from former owner of the house, it is very specifically mentioned that there is a 2.6 feet wide 44 feet long and Digitally signed by VARSHA SINGH Date: 2019.09.24 13:32:03 +05'30' 5 11 foot high common passageway for ingress and egress to the sold property from municipal road. It will remain common in future also and nobody could close it. This clearly shows that the intention of the seller was to convey the right over the common passageway up to a height of 11 feet only, so the plaintiffs cannot stretch their right above 11 feet. The answer to the question of law so framed by this court solely depends upon the recital in the sale deeds. It is not open to the parties to add or subtract anything beyond the recital in the sale deeds. If the right is limited only to the extent of 11 feet in height, the same cannot be stretched to an unlimited extent.
8. Learned counsel for the appellant further submitted that the trial Court as well as appellate Court committed mistake in holding that plaintiffs have a right over the common passageway upto unlimited height against the documentary evidence on record because plaintiffs purchased the property by sale deeds (Ex.P/3 to Ex.P/7), so they are bound with these documents. In these sale deeds it is clearly mentioned that the plaintiffs have a right of common passageway 2.6 feet wide, 44 feet long and 11 feet in height. So they cannot claim right over unlimited height.
9. In this regard he also placed reliance on the judgement passed by coordinate bench of this Court in SRF Limited vs. State of M.P. and Others 2005 (1) MPLJ in which the Single Bench of this Court has held "While construing a document intentions has to be gathered from the document itself and no extraneous enquiry into what the parties thought or intended is permissible. When the terms of the sale deed are clear it is not permissible to go beyond it to find the intention of the parties. It is well settled in law that if the words of the sale deed or document are clear and specific resorting to external aid is not permissible for the purpose of finding out the intention of the parties. Narration in the document would be the sole guiding factor in determining the question as Digitally signed by VARSHA SINGH Date: 2019.09.24 13:32:16 +05'30' 6 to what has been transferred by the instrument in question."
10. Per contra plaintiffs in his written argument stated that in the sale deeds (Ex.D-1 & Ex.D-2) by which defendant purchased the property from the seller, it is clearly mentioned that passageway of 2.9 inches would be put to use as a common passageway for Ingress and egress. It is further mentioned that the defendant won't be able to sell the said passage in favour of some other person nor would anyone obstruct the usage of the common passageway. From the recital of that sale deeds, it is absolutely clear that by the sale deeds defendant have not acquired any title over the common passageway and hence any construction made by him over the common passageway is illegal since it would cause inconvenience to the plaintiffs in using the common passageway. In the sale deeds (Ex.P-3 to Ex.P-7) by which plaintiffs purchased the house no.32 from its former owner, it is clearly mentioned that the common passageway will be used for ingress and egress by the plaintiff and no one shall obstruct the plaintiffs in using common passageway. In the sale deeds (Ex.P-3 to Ex.P-
7), the description of the dimensions of the existing wall is mentioned to illustrate the passage for recognition. Moreover, the burden of proving the fact that he has title over the common passageway was on the defendant as it was the defendant who was doing construction over the passageway while the defendant has failed to prove this fact. So learned trial court, as well as appellate court, did not commit any mistake in holding that the common passageway is of common use and the defendant has no right to do any construction over it. So this second appeal has no force.
11. This court has gone through the record and arguments of both the parties. Going by the latin maxim "cujus est solum, ejus est usque est ad coelum et ad inferos," The ordinary rule of law is that whoever has got the site is the owner of everything up to the sky and down to the centre of the earth. In this case it is clear from the findings of both the courts below Digitally signed by VARSHA SINGH Date: 2019.09.24 13:32:31 +05'30' 7 that when the owner of the common passageway sold the right of using that common passageway to plaintiffs by way of sale deeds along with a part of his house, there was no construction over it, that 44 feet long common passageway was open up to the sky. All the construction has been done by the defendant after purchasing the part of the house no.32. Although in the sale deeds (Ex.P/3 to Ex.P/7) by which plaintiffs purchased the house no.32 and the right to use of said common passageway, it is mentioned that there is a 2.6 feet wide 44 feet long 11 feet high common passageway for ingress and egress to the sold property from the municipal road, it does not mean that former owner of that common passageway which was open to the sky has kept the space above 11 feet from the floor of that common passageway with him and has a right to sell it to anybody. Because it is not specifically mentioned in the sale deeds that former owner of that common passageway which was open to the sky kept the space (air column) above 11 feet from the floor up to the sky with him and he could sell it to anybody.
12. Immovable property is defined by Section 3 of the General Clauses Act, 1897 as including land, benefits arising out of land and things attached to the earth, or permanently fastened to anything attached to the earth. "Attached to earth‟ is defined in Section 3 of the Transfer of Property Act as meaning (a) rooted in the earth, as in the case of trees and shrubs; (b) imbedded in the earth, as in the case of walls or buildings; or
(c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached.
13. The empty column of space only filed with the air situated 11 feet above the ground floor of the common passageway is not immovable property as defined in Section 3 of the General Clauses Act, 1897 and in Section 3 of the Transfer of Property Act. So it can not be sold separately. Even if it is assumed that the former owner of the common passageway Digitally signed by VARSHA SINGH Date: 2019.09.24 13:32:44 +05'30' 8 only gave the right to use that common passageway only up to a height of 11 feet from its floor to plaintiffs still the space above the 11 feet height of that common passageway can not become the no man's land where anyone can construct a building.
14. The judgement of the coordinate bench of this Court passed in SRF Limited vs. State of M.P. and Others (Supra) do not assist the defendant because in this case the question is not as to what has been transferred by the vendor to plaintiffs by the sale deeds (ExP-3 to Ex.P-7) but the question for determination is whether on the basis of recital of the sale deed defendant has a right to make construction over the common passageway.
15. Although, the learned senior counsel for the defendant also submitted that in the sale deeds of the defendant (Ex.D-1 & Ex.D-2) by which defendant purchased the part of the house no. 32 or use of the common passageway it is mentioned that defendant has a right to construct the building over the common passageway but this argument also has no force since in one of the sale deeds of the defendant (Ex.D-2), it is only mentioned that defendant will always be able to use the 2 feet 9 inch common passageway (shown on the south side of the house being sold) for ingress and egress upto unlimited height and vendor (former owner) will not be able to sell the same to any other person nor he would obstruct the defendant in usage.
16. On the basis of the above recital of sale deed of the defendant (Ex.D-2) it can not be said that the vendor sold him the right to construct the building over the common passageway. Although defendant also produced a consent letter (Ex.D-20) written by former owners of the house i.e. Sudha Rani & Jayaram Sahu who executed the sale deed (Ex.D- 1 & Ex. D-2) respectively in favour of the defendant. In that consent letter, it is mentioned that if there is any construction work done by the Digitally signed by VARSHA SINGH Date: 2019.09.24 13:32:58 +05'30' 9 defendant over the common passageway, they have no objection and agree with that. That letter was written by Sudharani and Jairam Sahu on a plain paper after selling the whole property. After selling whole property they had no right remaining in the said property. So that letter has no value. Even otherwise, Jairam Sahu (DW-3) in his cross- examination clearly admitted that when he bought the house number 32 from its previous owner, Mrs. Jayantibai Pathak and others, they also had only given him the right to disposal in the common passageway from which it appears that the former owner of the property also had given to Jairam and Sudharani only the right to use of common passageway. So they had no right to give consent to the defendant to do construction over the common passageway as it was not given to them by the previous owners of the said common passageway. So in the considered opinion of this court, the Courts below did not commit any error in granting decree in respect of common passage towards it height to unlimited extent.
17. So this second Appeal has no force. Hence dismissed.
18. Appellant/defendant shall bear his cost of proceedings and of respondents/plaintiffs. The advocate fees Rs. 5000/- of certified.
19. Accordingly, decree shall be drawn.
(Rajeev Kumar Dubey) JUDGE vs Digitally signed by VARSHA SINGH Date: 2019.09.24 13:33:13 +05'30'