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Judgment
Huluvadi G. Ramesh
These three first appeals pertain to the same property and between the same parties. Hence, they are disposed of by this common judgment. The property involved in these matters is No. 67/1 situated in 5th Main Road, Chamarajpet, Bangalore. The dispute is between two sisters and in relation to a passage running 4 x 36 feet on the Western side and 2 feet in the middle portion.
These three appeals arise out of three suits filed by the sisters against each other. O.S. No. 7024/1980 is filed by Smt. Dakshayanamma to declare that she is the exclusive owner of the passage and for permanent injunction. O.S. No. 115/1986 is filled by Smt. Mahadevamma for a declaration that she is entitled to make use of the passage and for injunction. O.S. No. 3870/1987 is also filed by Smt. Dakshanyanamma for a declaration that she is the absolute owner of the passage in question and for a direction to remove the water and drain pipes and manholes and to close the ventilators. The Court below has decreed the suits partly. Being aggrieved by the same, both the sisters are in appeal before this Court.
The brief facts of the case are, the property in question belonged to S. Chandrasekharaiah, the father of the sisters. Under a registered Will dated 8-6-1971, he bequeathed the property in favour of these two sisters. The front vacant portion was bequeathed in favour of Smt. Mahadevamma and the hind portion comprising of a house was bequeathed in favour of Smt. Dakshayanamma. The 4 feet passage was to be used by Smt. Mahadevamma for three years, during which period she had to construct a house. After three years, the hind portion house and the passage have to be left to Smt. Dakshayanamma.
Even prior to the aforementioned Will, on 3-12-1969 Smt. Mahadevamma executed a Release Deed in favour of her father. The recitals of the said deed disclose that she obtained permission only to keep windows with shutters inside while constructing house towards the open passage, to connect the sanitary pipes to the chamber on the other side etc,. It is in this background that the parties approached the Civil Court for the aforementioned reliefs.
On the basis of the pleadings, the trial Court framed issues and disposed of the suits by partly decreeing the same. Though the judgments & decrees under appeal are passed by the same Court, the same are conflicting and meaningless. In the light of the recitals in the two documents, namely, the Release Deed and Will, these appeals can be disposed of conveniently. Accordingly, these appeals are disposed of by modifying the judgments and decrees of the trial Court as under:-
a) Smt. Mahadevamma can use the 4 x 36 feet passage and also 2 feet middle passage for effecting repairs to her house and for white washing her portion. She shall not keep the shutters of windows meant for air and light towards the said passage and she shall not open/instal any doors towards this passage;
b) Smt. Mahadevamma can use the existing underground drainage/sanitary pipes and water pipes in the 2 feet middle passage for repairs, replacement etc,.
c) Smt. Mahadevamma shall not throw any waste or garbage on this passage;
d) Smt. Dakshayanamma shall not put-up any construction on the passage in question;
e) Smt. Dakshayanamma can instal a gate at the entrance of the passage and lock it. She has to hand-over a key of the lock to Smt. Mahadevamma so that as and when requires, she can attend to the aforementioned works.
d) Except the right of usage of the passage as aforementioned, Smt. Mahadevamma has no independent right whatsoever over the passage.
e) The passage measuring 4 x 36 feet shall be exclusively used by Smt. Dakshayanamma for her ingress and egress and Smt. Mahadevamma has only a limited right for the purposes indicated above.