The defendant in OS.No.486/1993 on the file of the VII Additional City Civil Judge (CCH-19), Bengaluru, has come up in this appeal impugning the judgment and decree dated 24.6.2003 in decreeing the suit of the plaintiff for the relief of permanent injunction.

2. Brief facts leading to this first appeal are as under: Plaintiff – B.P. Devaraj is son of late Pathiyappa. It is not in dispute that the plaintiff’s father Pathiyappa and his two brothers were the owners of two portions of properties which they acquired under two registered sale deeds somewhere in the years 1912 and 1913. In fact, what is the extent of land that was purchased by them under the said two sale deeds and their boundaries is not placed on record. But, what is seen is that when they were in possession and enjoyment of said properties, they have sold a portion of said properties on its western portion to one Y.V. Subramanyam, Proprietor of Central Tiffin Room on 01.10.1934. The said portion is bounded on its West by Avenue Road, North by Krishna Building, South by Cubbonpet Main Road and East by remaining portion of the property belonging to Pathiyappa and two of his brothers, who were the vendors.

3. It is also not in dispute that said Y.V. Subramanyam was put in possession of the property purchased by him on 1.10.1934 and thereafter, remaining property continued with the three brothers and their family members. It is further not in dispute that subsequently, in the month of March, 1935, there was a partition in the family of Pathiyappa and his two brothers, wherein the property of joint family is divided among three brothers and their children. In fact, by the time partition took place, Pathiyappa was no more. Item No.13 of ‘A’ schedule of Partition Deed, is the suit schedule property and another portion adjoining to it was given to the share of the plaintiff and his brother Cheluvappa.

4. Subsequently, there was a suit for partition between Cheluvappa and plaintiff herein, in the year 1964. The said suit for partition in OS.No.1277/1964 was filed by the plaintiff herein against his brother – Cheluvappa and his son and others, which resulted in a decree being passed in dividing the property which was in their joint possession hitherto in dividing the same in to two portions. Out of which Portion No.1 as could be seen from Ex.P6(a) – sketch, which is appended to the Commissioner’s Report is allotted to the share of plaintiff, who is said to be in possession and enjoyment of the same. It is stated that there is an open space in front of both the properties of the plaintiff and defendant, where it is stated, they have provided common passage to both portion leaving some open space for both of them to reach their respective properties from Cubbonpet Main Road, which is on the southern side of their property. It is the use and enjoyment of said common open yard and common passage which is in dispute between the plaintiff and defendant resulting in filing of the suit for permanent injunction by the plaintiff against the defendant in the Court below, who is appellant herein.

5. Admittedly, property in possession of the defendant is initially sold to one Y.V. Subramanyam by the ancestors of the plaintiff, who was the owner of Central Tiffin Room as on that date and it is that Subramanyam who was in possession and enjoyment of the portion sold to him by his vendors. Subsequently, said Subramanyam sold the portion purchased by him in favour of one Muniswamy Rao s/o Siddoji Rao under a registered sale deed on 15.3.1940, which is produced and marked as Ex.P2 in the Court below, whereas the sale deed in favour of Subramanyam is marked as Ex.P1. It is seen that said Muniswamy Rao subsequently sold the property which was initially sold in favour of Subramanyam to the defendant under a registered sale deed dated 4.6.1953, which is at Ex.P3 thereby indicating that defendant has come to that place in the year 1953. In the meanwhile, with reference to the property which