The High Court ruled that the necessity for essential services justifies the use of a common property passage, overriding temporary injunction constraints improperly imposed by the Trial Court.

JUDGMENT :

HANCHATE SANJEEVKUMAR, J.

The appeal is filed by the appellants/proposed plaintiff Nos.3 and 4 questioning the order dated 11.02.2025 passed on I.A.No.XVII filed under Order XXXIX Rules 1 and 2 of CPC by defendant Nos.1 and 2 in OS.No.3938/2015 on the file of LXXV Addl. City Civil and Sessions Judge, (CCH-76), Bangalore, thereby, restraining appellants No.3 and 4 or their agents/henchmen or anyone claiming under them from entering or in any manner carrying out any work in the schedule properties/suit schedule properties till the disposal of the suit.

2. Respondent Nos.3 and 4 who are plaintiff Nos.1 and 2 have filed the suit against respondent Nos.1 and 2 who are defendant Nos.1 and 2 for permanent injunction restraining the defendants from interfering with the plaintiffs’ peaceful possession and enjoyment of schedule ‘B’ property through common passage for ingress and egress and other legally permitted usages such as laying of water, drainage and electricity pipes and also for permanent injunction restraining defendant Nos.1 and 2 to remove the illegal structure put up by them in this space of 5 feet passage on the eastern side and also prayed for mandatory injunction directing the defendants to remove pipes fixed by defendant Nos.1 and 2, which are projecting to the set back left by the plaintiffs on the northern side of schedule ‘B’ property and also for mandatory injunction issuing direction to the defendants to remove the windows/window frames put up on the walls erected by the defendants on the southern side of the property without leaving any set back.

PLAINT:

3. Plaintiff Nos.1 and 2/respondent Nos.3 and 4 in this appeal have filed the suit by contending that the defendants were joint owners in possession of suit schedule ‘A’ property No.298 measuring 40 x 60 feet as described in the schedule by virtue of the sale deed dated 31.08.2005 executed by the Bangalore Development Authority.

4. It is pleaded that the defendants sold a portion of property measuring 30 x 40 feet on the southern side of schedule ‘A’ property in favour of plaintiff Nos.1 and 2 under the registered sale deed dated 05.12.2008, which is described as schedule ‘B’ property. The Bangalore Development Authority (BDA) has approved the division of schedule ‘A’ property and assigned new numbers as 298/1 and 298/2 on 22.09.2011 and also issued separate katha certificates in respect of schedule ‘B’ property.

5. It is submitted that there are terms and conditions while making the division of schedule ‘A’ property by bifurcating the same and new property as schedule ‘B’ property and there are terms and conditions in the sale deed dated 05.12.2008 with regard to usage of passage and relinquishing the rights over 2 and ½ feet on the northern side of schedule ‘B’ property by the plaintiffs in favour of defendant Nos.1 and 2. The same is found in the said sale deed at paragraph No.3 in page No.3. It is further pleaded that by virtue of the said sale deed dated 05.12.2008 the defendants retained a portion in the schedule property as a clear approach on its northern side, since it is facing towards northern side.

6. The plaintiffs have only approach through 5 feet passage (located on the northern side of schedule ‘B’ property and western side of the property retained by the defendants). It is submitted that the plaintiffs have agreed to part with 2 and ½ feet in favour of defendants for the purpose of putting up of steps and staircase out of the portion of the property agreed to be sold in favour of the plaintiffs and in turn, the defendants have agreed to leave 5 feet on the eastern side of sche