R JANAKI Vs. P P BHASKAR

JUDGEMENT

(1.) The plaintiffs in O.S.8537/2006 on the file of City Civil Court, Bengaluru has preferred this appeal. The material facts pleaded in the suit are as follows:

(2.) The suit is in respect of a passage. The entire property bearing No.18, East Anjaneya Temple, Basavanagudi, measuring East to West 110 ft. and North to South 30 ft. earlier belonged to Lakshminarayana Rao. After his death in the year 1967, his wife Sundaramma and children sold a portion of the said property measuring East to West 50 ft. and North to South 30 ft. to one Sathyoji Rao along with a passage measuring 41/2 ft. x 60 ft. This Sathyoji Rao thereafter sold the said property in two portions, one to the 1st plaintiff, measuring East to West 20 ft. and North to South 30 ft; and another portion to one Sri. T.N.Krishna Murthy. These sales took place in the year 1982. Thereafter T.N.Krishna Murthy sold the portion purchased by him to 2nd plaintiff on 4.11.2004. The property purchased by the 2nd plaintiff measures East to West 30 ft. and North to South 25.6 ft. The defendants claiming to be purchasers of the remaining portion of the entire property from one Mohan Krishna started asserting that the passage was meant for use by all including himself. They started parking their vehicles in the passage. The plaintiffs brought to the defendants' notice that the passage belonged to them exclusively, but the defendants did not stop using the passage. Therefore the plaintiffs brought a suit seeking decree of permanent injunction to restrain the defendants from using the passage.

(3.) It is the case of the defendants that the plaintiffs do not have exclusive right over the passage. They assert that it is a common passage. They specifically pleaded that after the sale of a portion of the entire property to Sathyoji Rao, the daughters of Lakshminarayana Rao, i.e., the original owner relinquished their right over the remaining portion of the property in favour of their brothers viz., B. Shankar Rao, B. Krishna Rao, B. Suryanarayana Rao and the legal heirs of B. Rajashekar Rao by executing a release deed. Thereafter there took place a partition among the sons of B. Lakshminarayana Rao on 27.02.1985. Again on 29.05.1986 the wife and daughters of B. Rajashekar Rao released their right, title and interest in the property allotted to them in favour of Smt. B.R. Geetha. In the partition deed dated 27.02.1985 and the release deed 29.05.1986, the Southern boundary of the property is shown as 4 ft. common passage. On 30.03.1992 Smt. B.R. Geetha sold the property released in her favour to S. Mohanakrishna, who in turn, on 29.05.2006 sold the property in favour of the defendants. In these two sale deeds also the Southern boundary is shown as common passage. Therefore according to the defendants, the Southern boundary to their property is a common passage and the plaintiffs cannot claim exclusive right over the same. They also pleaded that except this passage there is no other way that provides ingress and egress to their property and therefore they have every right to make use of the passage. They claimed easementary right arising from necessity. This passage was being used by their predecessors in title also and the defendants continued to make use of the same; because of continuous use of passage by them and their predecessor in title, they have acquired right over the passage and the plaintiffs cannot object. For these reasons they sought for dismissal of the suit and a declaration by way of counter claim with regard to right make use of the passage.