Indian Kanoon - Search engine for Indian Law

iv)issuing a mandatory injunction directing the defendants to remove the gate put up by them in the middle of the common passage at point-X and also remove the annexation of the rear portion of the common passage measuring about 11‟-0"x 15‟-0" and to make the entire common passage available for free, unobstructed and unfettered common use of the plaintiff."

3. The basic dispute between the parties is as to whether the passage which adjoins the two plots of the respective parties is a common passage or that the portion of the passage which adjoins the portion of the defendants/respondents is in their exclusive ownership and not a commonly owned passage with the appellant/plaintiff. On a decision of this issue as to whether the complete passage is or is not the common passage, other reliefs whether the same be with regard to putting a ramp from the main road to come to this passage or for putting up a gate by the respondents/defendants in roughly around the middle of the common passage or the entitlement/disentitlement of the respondents/defendants to take their vehicles in the passage, will stand automatically decided. I say so that the same will be consequentially and automatically decided because if the passage is a common passage in common ownership of both the parties, then the appellant/plaintiff is not entitled to prevent making of the ramp or for preventing the vehicles of the respondents/defendants from using the passage, and similarly, the respondents/defendants will not be entitled to claim the passage adjoining their portion as being exclusively owned by them and they will also not be entitled to put a gate in the middle of the passage that is at the point of the passage where their property begins or prevent the appellant/plaintiff from using that portion of the passage which adjoins the property of the respondents/defendants.

15. There is hardly any ambiguity to the word "common" when the same is used in the expression „common passage‟. Common passage therefore is common to owners of both the plots of 699 square yards, i.e. common to both the plaintiff and the defendants. The argument of the respondents/defendants that the passage adjoining their portion is not a common passage defeats the whole intention of the entire 15 feet wide passage being a common passage. I also do not place any importance to the argument raised by the learned counsel for the respondents that why should a portion of the passage which adjoins the property of the respondents/defendants be treated as common when the appellant/plaintiff would have no use of the same, because once the passage is common, both the parties can use it in different ways for common purposes whether they be for parking of cars or in any other manner, and it is not therefore permissible for any one party to exclusively appropriate any portion of this common passage as belonging only to them, as is contended by the respondents/defendants. It is not unknown as to many areas in a property which form part of the larger plot may be left as a common for joint benefit of the parties, and therefore, to introduce logic as to what right an opposite party will have to a common passage which adjoins a portion of the opposite party, is a self-defeating argument inasmuch as once a passage is common if the appellant/plaintiff wants she can use the same for any purposes including for parking of her cars. The entire object of a common portion is joint and common user thereof by the parties and it is an antithesis of the word common for the same being used as being exclusively appropriated by any one person. I have already stated in the beginning of this judgment, that both the documents/sale deeds are part and parcel of the same transaction of sale of the larger plot of 1398 square yards and therefore it is necessary that both the parties who were well aware of the respective sale deeds, should be held bound by totality of all the aforesaid relevant clauses in both the sale deeds along with the accompanying site plans. To do otherwise will be to allow one party to steal a march over another which is not permissible.

16. Once there is a joint reading of the respective clauses of both the sale deeds and taken together with the respective plans, the passage which is carved out from each of the owners‟ portion of 699 square yards has necessarily to be taken as a common passage to be jointly used by both the parties. This is the categorical intention of the parties on a literal construction of both the sale deeds taken together.

17. The issue then arises is whether the appellant/plaintiff is entitled to all the reliefs as claimed in the plaint. I have already reproduced the prayer clauses of the plaint above. So far as the prayer no. (i), i.e. to restrain the defendant from putting a ramp is concerned, the same cannot be granted. The ramp is only a means of access to this common passage, but for which, the common passage cannot be effectively used and therefore prayer (i) is declined. Same is the position with respect to prayer (iii) inasmuch as once the passage is a common passage the appellant/plaintiff cannot prevent the defendants/respondents from bringing their vehicles in the common passage including for reasonable parking of the vehicles. I must hasten to add that nothing in this judgment should be taken as a license for any of the parties to cause parking of their vehicles in such a way in this common passage that another person is prevented from effectively using common passage. Of course, for the period of the night hours, and which would be depending upon the season, the parties would be entitled to park their respective vehicles in this common passage in such a way that none of the parties prevents user of the passage by the other and the passage is used equally by both the parties for parking of their vehicles. I would further add that it would be advisable for the appellant/plaintiff not to object to parking of the vehicles by the respondents/defendants on the portion of the common passage which adjoins their plots, unless and until the appellant/plaintiff really has any need to go to that portion of the common passage which adjoins the portion of the respondents/defendants, and in which case the respondents/defendants will not cause any obstruction for the necessary or immediate use of that common passage adjoining the portion of the respondents/defendants. The appellant/plaintiff will however be entitled to the reliefs prayed for in prayers (ii) and (iv).

18. While therefore accepting the appeal and setting aside the impugned judgment dated 22.2.2002, it is directed that the respondents/defendants are restrained from, in any manner, preventing the appellant/plaintiff from use of the entire common passage which runs right from the beginning of the plot to the end of the plot, i.e. the passage adjoining not only the portion of the appellant/plaintiff but also the passage adjoining the portion of the respondents/defendants. Since the putting of the gate by the respondents at a point „X‟ shown in the respective site plans amounts to prevention of access to the portion of the common passage adjoining the portion of the respondents/defendants to the appellant/plaintiff, such gate would ordinarily be liable to be removed. Counsel for the respondents/defendants has however contended that the gate had been put because passage was used as ingress and egress by some persons of the public inasmuch as the properties of the parties adjoin the famous Tirath Ram hospital, therefore, I modulate the relief prayed for by the appellant/plaintiff with respect to removal of the gate to allow the gate to remain, however, whenever the same is locked for a reasonable time, the respondents/defendants will give one key of the lock to the appellant/plaintiff.