SPRING BOREWELLS CO. PVT. LTD., NO. 41 (OLD NO. 28), CUBBON ROAD BANGALORE - 560001 REP. BY ITS DIRECTOR SHRI K.L. SWAMY S/O LATE K. LAKSHMANSA Vs. UNION OF INDIA BY ITS PRINCIPAL SECRETARY MINISTRY OF DEFENCE NEW DELHI - 110001, MR. A.K. KAPILA

JUDGEMENT

(1.) THE appellant herein is the plaintiff in O.S. No. 7123/2006. The said suit was filed by the plaintiff seeking for the relief of permanent and mandatory injunction. The Court below considering the rival contentions has dismissed the suit by its judgment and decree dated 19.12.2009. The plaintiff claiming to be aggrieved by the same is before this Court. The parties would be referred to in the same rank as assigned to them before the trial Court for the purpose of convenience and clarity.

(2.) THE case of the plaintiff is that it is a private limited company and is the absolute owner of the property bearing No. 41 (Old No. 28), Cubbon road Bangalore with old buildings therein. The plaintiff claims to have purchased the said property under four sale deeds dated 07.12.1984, 10.12.1984, 11.12.1984 and 10.12.1984 respectively. The property owned by the plaintiff is described in schedule 'A' to the plaint. The property of the plaintiff is stated to be bound on the east by the military property belonging to the second defendant; west by St. Andrew's Church: North by Private property and South by Government land and thereafter Cubbon Road. The plaintiff is stated to be using the vacant property towards the south of its property for the purpose of ingress and egress through the gate which is towards the Cubbon Road. It is averred that except the said entry, there is no other place to enter the plaintiff's property. The property on the east belonging to the military is the Station Head Quarters Cell, K and K Sub Area and there are buildings on infantry cross road and there is a pakka compound in between the property belonging to the military and the plaintiff in bifurcating the same. To the West, there is a Church and thereafter M/s. L and T property. Accordingly, the plaintiff claims to be using the entry from the Cubbon road for more than 22 years from the date of the purchase without any let of hindrance from anybody including the defendants. It is stated that the erstwhile land owners were also using the same entry from time immemorial. Due to such continuous use beyond the prescriptive period, the plaintiff claims to have acquired easementary right over the pathway.

(3.) THE defendants on being served with the suit summons have appeared and filed their written statement. The defendants contend that in the sale deeds referred by the plaintiff it is indicated that Defence/Government land is existing towards the southern side of the property bearing No. 41. It is therefore contended that Government land does not form part of property bearing No. 41, Cubbon Road. Reference is made to recital therein about permission under agreement dated 01.09.1925. Though sale deed copies are produced, the plan has not been produced. In any event, the terms of the plaintiff's sale deed does not bind the Defence Department and does not confer any right to the plaintiff's over the Defence land. It is denied that the property on the southern side is the only road for ingress and egress from the suit schedule property. The rough sketch is not reliable. The agreement dated 01.09.1925 based on which right is being claimed has not been produced. The defendants have referred to the letter dated 20.03.1982 from the Deputy Commissioner (Revenue), City Corporation, informing the defendants that the unauthorised compound created in between property Nos.95 and 96, Infantry Cross Road, has been demolished on 11.02.1982 and the land is kept open which can be used as 'thoroughfare' by the owner of property No. 41, Cubbon Road. That establishes the existence of an access from East of the plaintiff's property. The defendants have disputed the indication of the southern boundary as Cubbon Road. It is averred that all this is only an effort of the plaintiff to falsely claim the Government land. Hence, the case of the plaintiff has been denied in toto regarding the same being the only entry to the property of the plaintiff. The defendants have further contended that about 25 -30 years ago an effort was made by the plaintiff's vendor to gain entry through Military property by closing the eastern boundary and that was cleared by the City Corporation. Reference is also made to the property owned by plaintiff's group which provides direct access to Infantry Road. The Vendors of the plaintiff having filed a suit in O.S. No. 10445/82 claiming similar right and they having failed is also submitted. The defendants have thereafter traversed each of the averments of the plaintiff made parawise and have sought for dismissal of the suit.