IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.191 OF 1989. APPEAL NO.191 OF 1989. APPEAL NO.191 OF 1989. Chander Krishna Thombare ...Appellant Versus. Vithoba Dhondiba Homkar (since deceased) by heirs: Damodar Vithoba Homkar & Ors ...Respondents --- Shri G.R.Rege for Appellant. Shri Y.V.Diwekar for the Respondent No.1. --- CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 04th March, 2008. : 04th March, 2008. : 04th March, 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: 1. The submissions of the learned counsel appearing for the parties are heard. The appellant is the original third defendant. The first respondent is the original plaintiff. 2. With a view to appreciate the submissions made by the learned advocates appearing for the parties, it will be necessary to refer to the facts of the case in brief. Subject matter of the dispute is a passage (hereinafter referred to as the suit passage) bearing city survey No.71-C situated at Khanbhag, Sangli which is more particularly described in paragraph No.1 of the plaint. It is contended that the suit passage was of joint ownership of the original plaintiff and original : 2 : 2 : 2 : defendant Nos.5 and 6. It is contended that the original defendant Nos.1 to 4 have no right, title and interest in respect of the suit passage. It is stated in the plaint that on the eastern side of the suit passage there are house properties bearing city survey Nos.72/2, 72 72/7 and 72/6 and on the western side there is house bearing city survey No.71 which is owned by the plaintiff. It is alleged that the first and second defendants while carrying out alterations to house property bearing city survey Nos.72/2, 72, 72/7 and 72/6 installed five windows in the wall of the house property bearing city survey No.72 and also carved out a door in the said wall. Therefore, a notice was issued by the plaintiff to the defendant Nos.1 and 2. After issuing notice, a suit was filed for mandatory injunction enjoining the said defendants to close door and windows. The suit was contested by the second defendant as well as the appellant-defendant No.3. According to the case of the appellant- third defendant, he was in possession of a portion of house bearing City Survey No.71 owned by the plaintiff. He stated that he has purchased extreme southern portion as well as extreme northern portion of house bearing City Survey No.72. 3. The trial Court framed various issues. The : 3 : 3 : 3 : trial Court held that the plaintiff has established that the suit passage was owned by him alongwith the defendant Nos.5 and 6. The trial Court, however, negatived the contention of the plaintiff that the defendants have opened five windows and a door on eastern side of suit passage in the wall in house property bearing city survey No.72. The trial Court accepted that the appellant-third defendant has acquired a right of user over the suit passage for last more than 40 years. In the appeal preferred by the original plaintiff, the District Court has interfered and has passed a decree of mandatory injunction directing the defendants to close the door standing in property bearing city survey No.72/2-B and 2A. The defendants were restrained from opening any door in the western side wall of city survey No.72 and its sub-numbers. However, prayer made by the plaintiff for mandatory injunction for closing the windows and removal of projecting eaves was dismissed by the Appellate Court. 4. On 22nd June, 1989 Second Appeal was admitted by observing that grounds 5, 6 and 7 raise substantial questions of law which read thus: "(5) The Court below failed to see that the : 4 : 4 : 4 : sale deed makes specific statement that the right on the common Bol is also sold to the Appellant. (6) The approach of the learned Judge that the Appellant who is the purchaser of the rights to the Bol must exercise the rights only while enjoying the said property and cannot use the same while enjoying his own other property, is totally erroneous. (7) The learned Judge erred in holding that the owner of the property has no freedom to use and enjoy his property in the manner he likes." 5. The learned advocate for the appellant-third defendant pointed out that the appellant purchased the share of Appa Dhondiba Homkar in the house property bearing city survey No.71. He pointed out that registered Sale Deed was placed on record of the trial Court. He pointed out that under the registered Sale Deed a right to use suit passage was conferred on the appellant-third defendant while he purchased the share of the said Appa Homkar out of property bearing city : 5 : 5 : 5 : survey No.71. He submitted that the Appellate Court itself found that by virtue of acquisition of the share of Appa in property bearing city survey No.71, the appellant-third defendant has acquired a right to use suit passage. He submitted that admittedly the appellant-third defendant is the owner of a part of city survey No.72 which is situated on the eastern side of the suit passage. He submitted that it is obvious that the right of the appellant-defendant No.3 to use the suit passage is available to him even for entering the part of the property held by him out of city survey No.72. He submitted that when the defendant No.3 has a right to use the passage for entering a part of property bearing city survey No.71 which is on the western side of the suit passage, nothing prevents the said defendant No.3 from using the suit passage for entering the house property bearing city survey No.72 which is situated abutting the eastern boundary of the suit passage. He, therefore, submitted that the Appellate Court has committed an error by directing the closure of the door in the wall of property bearing city survey bearing No.72. He submitted that the result of the decree passed by the Appellate Court is that the third defendant will be restrained from enjoying the suit passage though his right to use suit passage has been : 6 : 6 : 6 : established as held by the Appellate Court. 6. The learned advocate for the respondents supported the impugned judgment and decree. 7. I have carefully considered the submissions. It is an undisputed position that the suit passage bearing city survey No.71-C was kept in common by Appa Dhondiba Homkar, Rajaram Dhondiba Homkar and Vithoba Dhondiba Homkar (original plaintiff). A part of the property bearing city survey No.71 was acquired by the defendant No.3 from the said Appa Homkar. By virtue of acquisition of a part of property bearing city survey No.71, the defendant No.3 stepped into the shoes of the said Appa and became entitled to use the suit passage. The said fact is evidenced by the Sale Deed produced on record. The Appellate Court has referred to a registered Deed of Partition dated 20th January, 1943 recording partition between the first respondent-plaintiff, his brothers Rajaram, Shankar and Appa. The said document shows that land bearing city survey No.71 went to the share of Appa and Vithoba as well as Rajaram. 8. In paragraph No.13 of the judgment, the District : 7 : 7 : 7 : Court has held thus: "13. Therefore, in view of the above considerations, I hold that the Bol in question is of the exclusive ownership and enjoyment of the present plaintiff and his brothers and nephews and their successors-in-title. But the owners of the property CTS No.72 or occupants of CTS No.72 have neither title nor enjoyment as of right of the suit Bol". Thus, the right to use suit passage which forms a part of city survey No.71 is not available to the owner of the city survey No.72. It is obvious that right to use passage is available for approaching different parts of city survey No.71. It is not the case of the appellant-third defendant that right to use suit passage is available to the owner or occupants of City Survey No.72. It is his case that being the owner of a part of City Survey No.71 he can use the suit passage for entering his house bearing City Survey No.72. It is not in dispute that the owner of City Survey No.72 has no right to use the suit passage. The net result is that the owner of city survey No.72 has no right of entry to : 8 : 8 : 8 : the City Survey No.72 from the suit passage or vice versa. 9. The defendant No.3 is the owner of parts of city survey No.71 and city survey No.72. The right created in favour of the appellant-defendant No.3 by the Sale Deed executed by Appa Homkar is of using suit passage as an access for approaching that part of city survey No.71 which is purchased by him. There is nothing on record to show that the owner of any part of city survey No.72 has a right to use the suit passage. The right to use the suit passage is not annexed to the property bearing City Survey No.72. The the Appellate Court has therefore rightly passed a decree for mandatory injunction directing the defendants to close the door in their property bearing city survey No.72 abutting the suit passage on its eastern side more particularly shown in the sketch at Exhibit 104. The District Court has also passed a decree of perpetual injunction restraining the appellant from opening any door in the western side wall of City Survey No.72. It is difficult to find fault with the aforesaid findings recorded by the Appellate Court and the decree passed by the Appellate Court. The decree does not affect the rights of the appellant in relation to suit passage in his capacity as : 9 : 9 : 9 : the owner of a part of the property bearing City Survey No.71. 10. Before parting with the judgment it must be stated here that when the appeal was finally heard before this Court on earlier occasion, this Court suggested a workable arrangement provided the appellant gives an undertakings as suggested by this Court. Before the undertaking of the appellant could be taken on record and the views of the first respondent on the suggestion could be heard, it was brought to my notice that the appellant made an application dated 25th January, 2008 representing before the trial Court that this appeal has been allowed. The said application was made in another suit pending between the parties. When this fact was brought to the notice of this Court by advocate for legal representatives of respondent No.1, the appellant has tendered an affidavit of apology. In view of the apology tendered, this Court has refrained from taking any action against the appellant under the Contempt of Courts Act,1971. Nevertheless, looking to the said conduct of the appellant, this is not a case where leniency should be shown to the appellant by suggesting a workable arrangement between the parties. : 10 : 10 : 10 : 11. As stated above, there is no merit in the appeal and the same is accordingly dismissed. There will be no orders as to costs. Judge. Judge. Judge.