Indian Kanoon - Search engine for Indian Law

23.The details as shown in the schedule to the documents executed by the Official Liquidator in favour of the purchasers as well as subsequent documents including the document executed in favour of petitioner and the respondent shows that 33 feet pathway was kept as a common pathway.

24.The learned trial Judge as well as the Appellate Judge proceeded on the basis that the claim was on the ground of easement of necessity. However there was no pleading anywhere in the plaint or in the affidavit filed in support of the application for interlocutory injunction that the claim put up by the revision petitioner was one of easement of necessity. The consistent case of the revision petitioner was to the effect that the 33 feet passage was intended to be a common passage for all the plot owners and as such it was not permissible for the respondent to set up an independent right in respect of the said pathway.

26.The common passage in this matter is akin to that of property earmarked as open reservation or for providing amenities while approving the lay out. In case in the approved lay out, a particular portion was earmarked for community purposes, the said portion has to be maintained as such, and all the plot owners would be at liberty to use the common area. None of the plot owners would be entitled to claim independent right in respect of such common area. The property is common to all the plot owners.

39.The learned counsel for the petitioner as well as learned Additional Advocate General filed a memo without prejudice, indicating their actual requirement during the pendency of the suit. On a careful consideration of the said memo, I am of the view that usage of 33 feet passage has to be regulated in the interest of both the parties during the pendency of the suit.

The disposal :-

40. Accordingly the following directions are issued.

(1) The 33 feet passage shall be used only as the common passage for the owners of the property in plot Nos.1A,1B,1C,2,3 and 4.

(2) Since the 33 feet passage is a common pathway none of the plot owners including the petitioner and the respondent are entitled to put up any kind of construction.

(3) The Advocate Commissioner has noted that there is a small opening in plot No.4 towards the passage with a shutter. There should be no attempt on the part of the revision petitioner to widen the said opening.

(4) The common passage is only for the purpose of ingress and egress for the respective plot owners. It should not be used as a parking place.