Disposed

Smt.Reddipalli Satya Kumar v. Sri Moturi Eswara Rao

Telangana HC18 Apr 2013SA/1251/2012

Case brief

AI extract

What is this about?

In a second appeal, the court disposed of a suit for perpetual injunction. It held that while the plaintiff cannot claim exclusive rights over the common passage, the appellants cannot deny him access to the toilet facility located within the partitioned property that opens onto the common passage.

What did the court decide?

The first respondent shall be entitled to have access to the common lane for the bathroom and toilet forming part of the appellant's property; no party has exclusive rights over the common lane.

Smt.Reddipalli Satya Kumar Vs Sri Moturi Eswara Rao — Partition | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY SECOND APPEAL No.1251 of 2012

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ORDER:

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Defendants 1 and 2 in O.S.No.10 of 2007 on the file of the II Additional Junior Civil judge, Visakhapatnam are the appellants. The 1^st respondent herein, who is none other than the brother of the 1^st appellant, filed the suit for the relief of perpetual injunction in relation to the use of toilets described in the suit schedule. It was pleaded that the father of the 1^st appellant and the 1^st respondent, Sri M.Lakshminarayana, owned premises in an area of about 150 square yards in Door No.48-13-21, Allipuram Ward, Visakhapatnam and that the same has been partitioned by making into ‘A’ and ‘B’ schedule properties. While ‘A’ schedule property has fallen to the share of the 1^st appellant, ‘B’ schedule abutting the road has fallen to the share of the 1^st respondent. ‘C’ schedule is a passage in an extent of 13 square yards providing access to ‘B’ schedule property.

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The 1^st respondent pleaded that there is a toilet comprising of bathroom and latrine on the rear side of his property in ‘B’ schedule with its opening into the common passage in ‘C’ schedule and that the appellants, who are spouses, and other person, the 2^nd respondent herein, are preventing him from using the toilets. Therefore, he prayed for

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the relief of perpetual injunction.

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The trial Court dismissed the suit through its judgment, dated 18.08.2009. Thereupon, the 1^st respondent filed A.S.No.271 of 2009 in the Court of the Principal District Judge, Visakhapatnam. The appeal was allowed through judgment, dated 25.07.2012. Hence, this second appeal.

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Sri P.Satyanarayana, learned counsel for the appellants, submits that the ‘C’ schedule property is nothing but a common passage and the 1^st respondent wanted to use part of it exclusively for himself. He submits that the trial Court recorded a finding to the effect that the 1^st respondent does not have any right to use common passage exclusively and accordingly, dismissed the suit and the lower appellate Court has erroneously granted the relief of perpetual injunction. He submits that when the suit is for the relief of perpetual injunction, the lower appellate Court proceeded to decide the easementary rights, which are not at all claimed in the suit.

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Sri K.V.Subrahmanya Narusu, learned counsel for the 1^st respondent, on the other hand, submits that his client never claimed exclusive rights over the suit schedule property and the effort was only to have free access to the common lane. He contends that the appellants are very much using the ‘C’ schedule property not only to have access to their house in ‘A’ schedule, but also using their facilities which are similar to the suit schedule property.

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The suit filed by the 1^st respondent was the one for injunction simplicitor. The trial Court framed only one issue for its consideration covering the controversy.

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On behalf of the 1^st respondent, P.Ws.1 to 4 were examined and Exs.A1 to A8 were filed. On behalf of the appellants, D.Ws.1 to 3 were examined and Exs.B1 to 5 were filed. The suit was dismissed and the lower appellate Court framed a point namely “whether the plaintiff is having any easementary right over ‘C’ schedule property”. The appeal was allowed.

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While the appellants are spouses, the 1^st respondent is the brother of the 1^st appellant. They have other brothers and sisters also. However, the property comprising of ‘A’, ‘B’, and ‘C’ schedule either has fallen to the share of the 1^st appellant and the first respondent or has been settled upon them. The entire property is relatively small in extent, being about 150 square yards. Out of that, 13 square yards is covered by a common passage. The 1^st appellant is the owner of rear portion, marked as ’A’ schedule, and the 1^st respondent is the owner of ‘B’ schedule in front side.

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Neither the appellants nor the 1^st respondent can claim exclusive rights over ‘C’ schedule property. Though the ‘B’ schedule property abuts road, the 1^st respondent does not have the right to have access to ‘C’ schedule also on that side.

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During the life time of M.Lakshminarayana itself, there existed bathroom and toilet forming part of ‘A’ schedule and that had opening into the ‘C’ schedule. The facility cannot be utilised unless one enters ‘C’ schedule property. It appears that the 1^st respondent faced resistance from the appellants in the context of using the said toilet facility, which formed part of ‘A’ schedule, but has its opening into ‘C’ schedule.

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The trial Court made a detailed reference to the manner in which the parties got rights over the property and the proceedings that have ensued between them. It, however, proceeded on the assumption that the toilet in question is part of ‘C’ schedule property and in that view of the matter, the 1^st respondent cannot claim exclusive rights over it. That impression is not at all correct. The 1^st respondent never claimed any exclusive right over ‘C’ schedule property. His effort was only to have access to the toilet through ‘C’ schedule property. As long as the 1^st respondent does not enter the ‘B’ schedule property and does not encroach any part of ‘C’ schedule property, he does have the right to have access to the common passage.

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While the decree was drawn by the trial Court as though the dispute is about the use of a septic tank, the operative portion of the judgment rendered by the trial Court gives an indication that the toilet claimed by the 1^st respondent is at the end of ‘C’ schedule property. Both the aspects need to be clarified.

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Hence, the second appeal is disposed of directing that the 1^st respondent shall be entitled to have access to the common lane in the suit schedule for the bathroom and toilet which form part of ‘A’ schedule property and that neither the appellants nor the 1^st respondent shall be entitled to make claims of exclusive rights over any part of common lane in ‘C’ schedule. There shall be no order as to costs.

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The miscellaneous petition filed in this second appeal shall also stand disposed of.

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L. NARASIMHA REDDY, J.

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Dt: 23.04.2013

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kdl

Smt.Reddipalli Satya Kumar v. Sri Moturi Eswara Rao

Case brief

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Smt.Reddipalli Satya Kumar v. Sri Moturi Eswara Rao

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