Dismissed

Smt Shivamma v. Mr Taraknath Goswami

Karnataka HC20 Mar 2024MFA/737/2023

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against an interim injunction order granting the plaintiff possession of a northern passage. The court held that since the defendants had access via a southern passage, they were not entitled to disturb the plaintiff's possession of the northern passage, subject to conditions regarding construction and underground pipes.

What did the court decide?

Appeal dismissed; impugned interim injunction order upheld with conditions prohibiting construction on the passage/vacant land and protecting underground pipes.

Smt Shivamma Vs Mr Taraknath Goswami — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:11412 MFA No. 737 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ MISCELLANEOUS FIRST APPEAL NO. 737 OF 2023 (CPC)

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BETWEEN:

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SMT.SHIVAMMA W/O LT. NANJUNDAPPA AGED ABOUT 75 YEARS

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SRI. SADHASHIVAIAH S/O LT. NANJUNDAPPA AGED ABOUT 50 YEARS

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SRI.CHANDRASHEKAR S/O LT. NANJUNDAPPA AGED ABOUT 37 YEARS

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SMT. MANJULA N D/O LT. NANJUNDAPPA AGED ABOUT 35 YEARS

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Digitally signed by BS RAVIKUMAR Location: HIGH COURT OF KARNATAKA

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SRI. BASAVARAJ AGED ABOUT 50 YEARS

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ALL ARE R/AT NO. 109/3, NEXT TO K.V. NO 1 SCHOOL S.M. ROAD KAMMAGONDANAHALLI JALAHALLI WEST BENGALURU -560 015

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…APPELLANTS (BY SRI. HARSHA KUMAR GOWDA H.R., ADVOCATE)

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AND:

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MR. TARAKNATH GOSWAMI S/O. RAM CHARAN GOSWAMI AGED ABOUT 82 YEARS C/O MAYA CLOTH CENTRE KAMMAGONDANAHALLI JALAHALLI WEST BENGALURU -560 015

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…RESPONDENT

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(BY SRI.SHAKEEL AHMAD, ADVOCATE)

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THIS MFA FILED U/O 43 RULE 1(r) R/W SECTION 151 OF CPC, AGAINST THE ORDER DATED 05.11.2022 PASSED ON I.A.NO. 5 IN OS.NO.2089/2018 ON THE FILE OF THE XXXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CCH-36 ALLOWING THE I.A.NO.5 FILED UNDER ORDER 39 RULE 1 AND 2 OF CPC.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal arises out of an order dated 05.11.2022 passed by the XXXV Addl. City Civil and Sessions Judge Bengaluru in O.S.No.2089/2018, by which an application filed by the plaintiff under Order 39 Rule 1 and 2 of C.P.C., for interim injunction to restrain the defendants from interfering with the possession and enjoyment over the suit item No.4 was allowed, subject to the condition that

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3 - NC: 2024:KHC:11412 MFA No. 737 of 2023

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the plaintiff shall file an affidavit that in case, if he fails in the suit he would indemnify the defendants.

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The suit in O.S.No.2089/2018 was filed for

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perpetual injunction to restrain the defendants from interfering with the possession of the plaintiff in the suit item No.4. The suit item No.4 appears to be a passage measuring East to West 3 feet and North to South 40 feet which opens in to the road on the Northern side.

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The plaintiff claimed that, he is the owner of a property in survey No.17, new BBMP No.3, Balaji layout at Kammagondanahalli, which comprises of 3 portions and in all measured 1944.50 square feet. He claimed that he purchased the suit item Nos.1 to 3 from A.R.Narendranath in terms of a sale deed dated 10.10.2017. He claimed that there was some discrepancies in the boundaries of item Nos.1 to 3 in the sale deed dated 10.10.2017. Therefore, a rectification deed was executed in favour of plaintiff on 03.02.2018. The plaintiff claimed that a 3 feet passage was left by him to enter the suit item Nos.2 and 3.

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However, the defendants insisted the plaintiff not to undertake any repair or construction activities to close item No.4, as they claimed that they were entitled to use the passage for their ingress and egress from the said passage. The plaintiff claimed that from the date of its purchase, he was using the Northern side passage and the defendants were using the passage on the Southern side to access their property and therefore the defendants did not have any manner of right, title or interest to claim access through the passage on the north. The plaintiff claimed that the defendants had reared dogs in their house, which use to wander into the house of the plaintiff and at times to used attack him and his family members. Therefore, the plaintiff installed a gate on Northern passage to ensure that the defendants do not use the passage which belonged exclusively to the plaintiff.

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An application was also filed for interim

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injunction to restrain the defendants from interfering with

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the possession of the plaintiff in the passage mentioned above.

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The defendants contested the suit and claimed

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that he purchased the property on 10.07.1981. He contends that he constructed a house in the properties that he purchased and placed a door facing the North. He contended that, he had been using the passage lying on the Northern side of the property and all water connections and sewage lines were drawn below the passage on the Northern side of his property. He submits that the defendants had been using the said passage from the day of its purchase and the plaintiff is now attempting to close the passage, as a result of which, the defendants would be unable to take their vehicles through the Southern side of the passage which is hardly 1.7 feet wide. The Trial Court after considering the contentions urged as well as the documents placed, found from the documents of the defendants that there was nothing to

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establish that he had any right to access his property through the Northern passage.

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The Trial Court therefore held that, the defendants who could reach their property from the passage on the Southern side, were not entitled to disturb the possession of the plaintiff in the passage on the north. Therefore, it granted an Order of injunction and restrained the defendants from interfering with the possession of the passage on the north by the plaintiff. However, it imposed a condition on the plaintiff that he shall indemnify the defendants if it is found that the defendants had a right to enter their property from the northern passage. Being aggrieved by the said order, this appeal is filed by the defendants.

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When this appeal was taken up for admission, since there was some difficulty in understanding the location of the passages to reach the respective properties of the plaintiff and the defendants, this Court appointed a Commissioner to visit the property and submit a sketch of

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the property. The Commissioner has submitted a sketch which is self explanatory. Since the learned counsel for both the parties admitted the accuracy of the sketch, the same shall form part of this order and a copy of the said sketch is attached to a copy of this order.

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The learned counsel for the plaintiff submitted that item Nos.1, 2 and 3 found in the sketch belongs to the plaintiff and the “vacant land” also belongs to the plaintiff. He submitted that the gate on the Northern side which is described as item No.4 leads to the properties of the plaintiff namely item Nos.1, 2 and 3. He contends that the defendants have constructed three shops in their property which were marked as shop Nos.1, 2 and 3 and the defendants have a house behind the shops. He submits that the passage is left on the Eastern side of the shop Nos.1, 2 and 3 which leads to the house of the defendants. Therefore, he contends that the defendants were never using the passage on the Northern side and were always using the passage on the Southern side.

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The learned counsel for the defendants on the

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other hand contended that the property bearing Nos.1, 2 and 3 belongs to the plaintiff, but the vacant land does not belong to the plaintiff and item No.4 was passage used by both the plaintiff and defendants to access their respective properties. He submits that the entrance to the house of the defendants is on the Northern side, which indicated that the defendants have been using the passage on the Northern side from a long time. Therefore, he contends that neither the plaintiff nor defendant has any exclusive right over the Northern passage, but the same needs to be

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construed as a common passage to be used by both the plaintiff and the defendants.

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I have considered the submissions made by the learned counsel for the appellant and learned counsel for the defendants.

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The question whether the passage on the Northern side as found in the sketch was used by only the plaintiff or was used in common by the plaintiff and

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defendants is a matter of fact that has to be established before the Trial Court. The question whether water supply and sewage pipes to and from the house of defendants run through the passage or not is again a question of fact, which has to be established after a trial. Since, the shop Nos.1, 2 and 3 constructed by the defendants has an entrance on the Southern side of the road and the house of the defendants also can be accessed through the passage heading to the road on the Southern side, the defendants cannot complain that they do not have an access to reach their property. The defendants have chosen to set apart only 1.7 feet passage to reach their house and therefore, it is their own making and they cannot claim the right to access their property from the Northern side.

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Therefore, the Trial Court has rightly granted interim injunction in favour of the plaintiff restraining the defendants from disturbing the possession of the plaintiff in the item No.4. However, these findings are always

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tentative and subject to change after the evidence is recorded in the case. Since, for the present, the defendant has separate access to reach his property, the impugned order passed by the Trial Court cannot be found fault with.

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In that view of the matter, the impugned order passed by the Trial Court is upheld and this appeal is dismissed. However, it is made clear that, neither the plaintiff nor the defendants shall put up any construction in the portion marked as vacant land or the “item No.4” in the sketch which is attached to this Order and shall not damage any underground sewage/water supply pipes if running under “vacant land” or “item no.4” in the sketch attached. Since, the Commissioner has executed the warrant issued by this Court efficiently, the same shall be forwarded to the Trial Court to treat it as a part of the record.

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Office is directed to forward the Commissioner’s

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report to the Trial Court after retaining a photocopy.

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Encl.: Copy of the sketch prepared by the Commissioner.

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Sd/JUDGE

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GSR List No.: 1 Sl No.: 5

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NC: 2024:KHC:11412 MFA No. 737 of 2023

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Sd/JUDGE

Smt Shivamma v. Mr Taraknath Goswami

Case brief

What is this about?

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Smt Shivamma v. Mr Taraknath Goswami

Case brief

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