The judgment establishes that a disputed passage is deemed a common passage, rejecting claims of exclusive ownership when the claimant fails to provide adequate evidence of possession.

JUDGMENT :

V.SRISHANANDA, J.

Heard Sri M.B.Chandra Chooda, learned counsel for the appellants and Sri.Lakamapurmath Chidanandayya, learned counsel for the contesting respondents in RFA No.475/2006 and RFA No.476/2006.

2. The legal representatives of unsuccessful plaintiff are appellants in both these appeals. They are challenging the validity of the common judgment and decree dated 09.12.2005 passed in O.S.No.2006/1996 and O.S.No.6156/1997 on the file of the VIII Additional City Civil and Sessions Judge, Bengaluru (CCH-15).

3. The parties are referred to as plaintiff and defendant as per their original ranking before the Trial Court, for the sake of convenience.

4. Facts in the nutshell, which are utmost necessary for disposal of these appeals are as under:

The plaintiff-Sanjeevappa filed a suit in O.S.No.2006/1996 with a prayer for grant of permanent injunction restraining the defendant-Kamalamma from putting up unauthorised construction over ‘A’ schedule property and restraining the defendant from opening any door at point CH leading towards Schedule ‘B’ passage and for mandatory injunction directing the defendant to demolish the unauthorised structure put up by her on ‘A’ schedule property.

5. The schedule to the suit in O.S.No.2006/1996 reads as under:

SCHEDULE ‘A’ PROPERTY

Property bearing No.70, Chikkathayappa road, 7th Cross, Vasanthanagar, Bangalore-52 belonging to Kamalamma, measuring East to West 17 feet and North to South 22 feet bounded on the:

East by: Property of Sanjeevappa,

West by: 5 feet common passage,

North by: Nanjamma’s Property,

South by: Property belonging to Kamalamma,

SCHEDULE ‘B’ PROPERTY

Property bearing Old No.26, New No.71, Chikkathayappa road, 7^th Cross, Vasanthanagar, Bangalore-52, private passage measuring 5½ feet North to South and 27 feet East to West bounded on the:

East by: 7^th Cross road,

West by: property belonging to defendant,

North by: Property of Muninanjamma,

South by: Property of the plaintiff,

6. The plaintiff filed the said suit in O.S.No.2006/1996 by contending that he is the owner in possession and enjoyment of the property bearing Old No.26 New No.71 of Chikathayappa Road, Vasanthanagar, Bengaluru. The suit property was purchased by father of the plaintiff by name B.Thimmarayappa under a registered sale deed dated 27.08.1926.

7. The plaintiff-Sanjeevappa contended that his father viz., B.Thimmarayappa was in possession of the suit property. Thereafter plaintiff-Sanjeevappa continued to be in possession of the suit property as owner and was in enjoyment of the same which consists a private passage measuring 5½ feet North to South and 27 feet East to West, which was part and parcel of the suit property having been mentioned in the sale deed dated 27.08.1926.

8. It is the further contention of the plaintiff-Sanjeevappa that the defendant-Kamalamma tried to put up construction on the adjacent property situated on the western side of the suit property on the pretext that she has purchased the said property from erstwhile owner and she has obtained necessary plan and license for the purpose of putting up the construction.

9. The property alleged to have been purchased by the defendant-Kamalamma is described in ‘A’ schedule to the plaint and the defendant's previous owner, viz.,, Bande Channappa was having access to the scheduled property from the road existing on the western side of their property. Said Bande Channappa had also left a similar passage measuring 5½ feet North-South throughout his property on northern side leading to the road and Western side of the suit property.

10. The property of the plaintiff is shown in English alphabets as ‘ABCD’ in the rough sketch and property of the defendant is mentione