SMT. SANTOSH DESWAL Vs. KRISHAN KALRA AND OTHERS

JUDGEMENT

(1.) In view of the fact that by the judgment being passed hereinafter in RSA No.48/2015 filed by the respondents in the present appeal is being dismissed, counsel for the appellant accordingly does not press the present appeal.

(2.) Challenge by this Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (CPC) is by the appellants/defendants to the concurrent Judgments of the courts below; of the Trial Court dated 14.5.2011 and the First Appellate Court dated 15.4.2014; by which the courts below have held that the passage 9 feet wide which runs adjacent to the property of both the parties in the North side will be a common passage as a whole right from the entry gate on the road to the extent of the complete passage ending at the end point of the plot of the appellants/defendants. Putting it in another words the portion of the passage adjoining the property of the appellants/defendants is a common passage for the benefit of the respondent/plaintiff also i.e the respondent/plaintiff in addition to having rights in the passage adjoining his portion of the plot also has rights in the passage which adjoins the portion of the plot with the appellants/defendants and which portion of the passage is also a common portion of the passage.

(3.) The crux of the matter is the interpretation of the applicable paras of the sale deeds from the original predecessor -in -interest of the entire plot which was divided into two parts and the two parts sold to the father of the appellants and the first predecessor -in -interest of the respondent. In the original sale deed by the original owner in favour of the predecessor of the appellants and the respondent the relevant clause is Clause 10. The respondent/plaintiff is a successor -in -interest through a chain of title deeds and the appellants are effectively the first purchasers because they are the legal heirs of the first purchaser Sh. Bakshi Ram Kalra. Therefore tracing of title by sale deeds so far as the appellants/defendants are concerned, is not necessary because appellants/defendants claim under the first/original Sale Deed dated 8.1.1968 executed by the five original owners, namely Sh. Bhima, Sh. Mohinder, Sh. Savachand, Sh. Deep Chand and Sh. Hari Singh. The flow chart and flowing of title to the present respondent/plaintiff will be as under: -