VALLIAMMAL Vs. P. BALASUBRAMANI

JUDGEMENT

(1.) This appeal is preferred by the plaintiffs challenging the judgment and decree dtd. 25/11/2013 passed in Original Suit No.2614 of 2006 on the file of the XXVII Additional City Civil Judge, Bengaluru City (for short, hereinafter referred to as 'Trial Court'), wherein the suit filed by the plaintiffs for mandatory injunction came to be dismissed; consequently, allowed the counter claim sought for by the defendants 1 to 3 and thereby restrained the plaintiffs from interfering with the possession and enjoyment of defendants in the suit property as shown in the written statement.

(2.) For the sake of convenience, the parties in this appeal are referred to as per their ranking before the Trial Court.

(3.) The necessary facts for adjudication of this appeal as averred in the plaint are that the plaintiff No.1 is the absolute owner of Western half portion of Site No.59/1 in land bearing Survey No.91 of Kadirannapalya, Bengaluru shown in Schedule-A and defendant No.1 is the owner of Eastern half portion of Site No.59/1 of Kadirannapalya, Bengaluru shown in Schedule-B. It is further stated in the plaint that the defendants 1 to 3 are the joint owners of Site No.57 of Kadirannapalya, Bengaluru in Survey No.91 shown in Schedule- C. The Schedule-C property is situated abutting the Western side of the property of the plaintiff No.1. It is also stated in the plaint that, one late Subramaniam was the owner of the land bearing Survey No.91 of Kadirannapalya, Bengaluru measuring East-West 92 feet and North-South 30 feet and the father of the plaintiff No.1-T Ponnuswamy purchased an extent of East- West 46 feet and North-South 30 feet along with suit passage 5 feet width and 46 feet in length throughout the Western portion of the land bearing Survey No.91. Thereafter, the mother of the defendants viz., Dhanalakshmi Ammal had purchased the remaining Western portion of the land, leaving 5 feet width passage measuring East-West 46 feet; North-South 25 feet. It is further stated that the said Dhanalakshmi Ammal encroached the suit passage and as such, the father of the plaintiff No.1 viz., T. Ponnuswamy filed Original Suit No.166 of 1970 before the Additional Munsiff, Civil Station, Bengaluru, seeking relief of declaration and injunction. The said suit came to be decreed on 17/11/1975, declaring his right over the suit passage of 5 feet width, consequently restrained the said Dhanalakshmi Ammal, mother of the defendants from interfering with the suit passage on the 5 feet width. The said judgment and decree is confirmed in Regular Appeal No.140 of 1980, by judgment and decree dtd. 18/8/1982 before the X Additional City Civil Judge, Bengaluru. Thereafter, the said Dhanalakshmi Ammal filed Miscellaneous Petition No.10130 of 1982 before the Additional City Civil Judge, Bengaluru, which came to be dismissed as withdrawn on 23/7/1983 on the basis of a withdrawal memo filed on behalf of the said Dhanalakshmi Ammal. It is also stated that the said Dhanalakshmi Ammal filed Original No.10260 of 1983, seeking relief of cancellation of the judgment and decree passed in Original Suit No.166 of 1970 and the said suit also came be dismissed on 13/2/1987. Further, it is stated in the plaint that the passage of 5 feet width, 46 feet length abutting Southern side portion purchased by the said Dhanalakshmi Ammal was the exclusive passage forming part of the rear portion purchased by T. Ponnuswamy, the father of the plaintiff No.1. By virtue of Partition deed dtd. 16/8/1984 and the plaintiff No.1 and her sister Smt. Bhakiyhavathi became absolute owners of the said property.