IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR MISCELLANEOUS FIRST APPEAL No.5059 OF 2019 (CPC) BETWEEN:
Mrs. Zaiba Nishanth Bano W/o Mr. Riaz Ahmed D/o Late Abdul Khaliq Aged about 52 years R/at No.33/1 Rashtriya Vidyalaya Road Basavanagudi Bengaluru – 560 004 (By Sri Nagaiah, Advocate) AND:
1. Mr. Mohammed Khalid Ebadulla S/o Late Abdul Khaliq Aged about 51 years R/at No.205, Elagance Brindavan Apartment 7th Main, 36th B Cross 4th Block, Jayanagar Bengaluru – 560 041 2. Mr. Mohammed Shahid Kaleemulla S/o Late Abdul Khaliq Aged about 47 years R/at No.301, #67 …Appellant Ayeshatranquill Mosque Road, Basavanagudi Bengaluru – 560 004 3. The Commissioner Bruhat Bengaluru Mahanagara Palike, N.R.Square Bengaluru – 560 002 ... Respondents (By Sri B.Pramod, Advocate for C/R1 & C/R2) This MFA is filed under Order 43 Rule 1(r) of CPC, against the order dated 27.04.2019 passed on IA No.1 in O.S.No.5528/2018 on the file of the XXIX Additional City Civil and Sessions Judge, Bengaluru (CCH-30), dismissing the IA No.1 filed under Order 39 Rules 1 and 2 CPC.
This MFA coming on for admission this day, the Court delivered the following:
JUDGMENT Heard the appellant’s counsel and the respondents’ counsel.
2. This appeal is filed by the plaintiff. She is aggrieved by the dismissal of her application IA No.1 filed under Order 39 Rules 1 and 2 CPC. The suit is with respect to three feet common passage which is situated towards northern side of the plaint ‘B’ schedule property. It is also another grievance of the appellant that the defendants are undertaking construction without leaving setback and they have deviated from the sanctioned plan.
3. The trial Court has expressed an opinion that when the construction work is in progress, certainly construction materials would scatter around the premises and cause some inconvenience in using the passage and after completion of work, the plaintiff can use the passage comfortably.
4. Though learned counsel for the appellant argues that the defendants have blocked the passage, it is the submission of the learned counsel for the respondents that the passage is not at all touched while undertaking construction. The passage as shown in the sketch annexed to the partition deed is maintained and the defendants will not encroach upon this passage. It is also submitted that it is not the intention of the respondents to encroach upon the passage. The passage will be kept intact.
5. I have perused the sketch annexed to the partition deed. It shows the existence of common passage in the northern side of the plaintiff’s property and the defendants’ property. Therefore, there is evidence to show that common passage is in existence. This common passage shall be kept intact by both the parties till the trial Court takes a decision on merits. With these observations, the appeal is disposed of.
KMV/-
SD/- JUDGE