The captioned appeal is filed by the unsuccessful plaintiff

who has questioned the judgment and decree passed in

O.S.No.7228/2005.

2.

For the sake of convenience, the parties are

referred to as per their rank before the Trial Court.

3.

The facts leading to the case are as under:

The subject matter of the suit schedule property is a

common passage measuring East West 3 ft. and North South

108 ft. which is part and parcel of house property bearing

Municipal No.132 which is referred as schedule 'B' property.

The plaintiff claims that he is the absolute owner of property

3

bearing Municipal No.132 totally measuring 900 sq.ft. The

suit schedule 'A' property is a residential house comprising of

ground and first floor with a common passage of 3 ft. and a

common staircase. The common passage is the subject

matter of the suit and the same is referred as schedule 'B'

property. The plaintiff is asserting right and title on the basis

of registered sale deed executed by defendant No.1 on

11.03.2002 for valuable sale consideration. The plaintiff has

further pleaded that schedule 'A' property is situated on the

hind portion of the main road and is given access to schedule

'A' property through a common passage measuring 3 ft. East

West which is situated on the eastern side of schedule 'A'

property. The plaintiff claims that right to use common

passage is reflected in the sale deed and therefore, plaintiff

claims that it is the only access to schedule 'A' property from

the main road which is situated on the southern side.

4.

The plaintiff has further pleaded that defendant

No.2 is his brother and the defendant No.1 is the wife of his

4

brother. On account of misunderstanding, the present

residential house which is an ancestral property was allotted to

the plaintiff herein. The plaintiff further contends that instead

of partition deed, the defendant No.1 has executed a

registered sale deed. On account of ill-will, plaintiff alleges

that defendants are unnecessarily harassing plaintiff and his

tenants from utilizing the common passage. The plaintiff has

further averred that defendants are unnecessarily placing

huge plastic vessels and defendant No.2 is parking his scooter

so as to obstruct free movement in the common passage. The

plaintiff

also

claims

that

he

is

aggrieved

by

the

highhandedness of defendants in installing a gate and

therefore, the present suit for bare injunction came to be filed.

5.

The defendants, on receipt of summons, have filed

separate written statement. The defendant No.2 has stoutly

denied the entire averments made in the plaint and has

specifically denied the existence of 3 ft. common passage.

The defendant No.2 has contended that said area is not at all

5

common passage as alleged in the plaint. The defendant No.2

has alleged that after securing schedule 'A' property, the

plaintiff has turned hostile and has filed a frivolous suit in

respect of non-existing property. On these set of defence, the

defendant No.2 sought for dismissal of the suit. The

defendant No.1, who is the wife of defendant No.2 has filed a

memo and has adopted the written statement filed by

defendant No.2.

6.

Based on rival contentions, the Trial Court has

formulated the following issues:

"1) Whether the plaintiff proves that he is in

lawful possession of the suit schedule property on the

date of suit?

2) Whether the plaintiff further proves that the

defendants are interfering with his possession of the

suit schedule property?

3) Whether the plaintiff is entitled to the

injunction prayed for?

4) What order or decree?"

6

7.

The plaintiff in support of his contention has led in

ocular evidence by examining himself as PW.1 and to

substantiate his claim has adduced documentary evidence vide

Exs.P-1 to P-7. The defendants to counter the allegations in

the plaint, examined defendant No.2 as DW.1 and has

produced 4 photographs which are marked as Exs.D-1 to D-4.

8.

The

Court

below

having

assessed

oral

and

documentary evidence has answer