HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No.53 OF 2009 DATE:10-06-2011 BETWEEN Krishna Apartments, Rep. by its President, Naidu Brahmaiah, Krishna Apartments, Nara Chandrababu Naidu Colony, Benz Circle, Vijayawada And others …Appellants AND V.Sambasiva Rao and another …Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A. GOPAL REDDY SECOND APPEAL No.53 OF 2009 JUDGMENT: This second appeal by the defendants is directed against the judgment and decree allowing the appeal filed by the plaintiffs in A.S.No.75 of 2008, dated 06.01.2009 by II Additional District Judge, Vijayawada decreeing the suit of the plaintiffs for perpetual injunction by setting aside the judgment and decree of the Principal Junior Civil Judge, Vijayawada in O.S.No.1803 of 2003, dated 24.03.2008 dismissing the suit. For the sake of convenience, the parties hereinafter will be referred to as per their array before the trial Court. The case of the plaintiffs is that they are the brothers and joint owners of site to an extent of 3872 sq.yds., situated in R.S.No.72/2, Patamata lanka in Vijayawada, that out of the said extent they sold an extent of 2640 sq.yds. to the builders under a registered agreement of sale-cum-General Power of Attorney, (Ex.A.1) dated 13.7.1998 for the purpose of construction of apartments and that they retained an extent of 1232 sq.yds. towards Southern side. Since there is no separate access to the unsold property, they retained a right of passage at the South-East corner of the property sold, which is necessary to obtain permission for the construction of building from the town-planning department. Clause 15 of Ex.A.1 recites that the vacant land “BCEF” would be provided with 12 feet wide entry for ingress and egress on its south-eastern corner from the set backs of the approved Municipal plan out of their property i.e. plaintiffs. Both the owners and their nominees shall have to use the entry rights in set backs of their property. A plan was also attached to Ex.A.1 providing 12 feet wide entry showing the passage as “BJ”. But the said plan was not marked before the trial Court and there is no dispute with regard to the said passage. After construction of the apartments, the flat owners tried to construct a wall to close IJ space which is left for ingress and egress of the plaintiffs for their unsold land. Therefore, the plaintiffs filed the suit for perpetual injunction. The associations of the apartments being the defendants resisted the claim of the plaintiffs inter alia stating that there is no such recital for creation of right of passage in the plan submitted to the Municipal Corporation, that the first plaintiff had a right of passage towards the south of his property i.e. from the property of one V.Seetharavamma apart from having 33 feet road on its north-east corner of the unsold property. The plaintiffs are not using IJ portion but the public began to use it as a road and thus the guards of apartments could not protect the properties of the flat owners and there were occasions of small thefts. Therefore, to protect the properties of flat owners, the defendants laid a barbed wire fencing in the said IJ portion, leaving gap of 2 feet for the ingress and egress of the first plaintiff and his family members. The first plaintiff left the vacant site without being used till date and as such the public began to use the same as a road to reach the main road through the space left open. It is pleaded that the suit is not maintainable for mis-joinder of second plaintiff who is neither necessary party nor proper party, since he had no property after the sale in favour of the builder. On the above pleadings, the trial Court settled necessary issues for trial. To prove the case, on behalf of the plaintiffs, first plaintiff himself examined as P.W.1 and two more witnesses were examined as P.Ws.2 and 3 and Exs.A.1 to A.5 were marked on their behalf. The Secretary of the first defendant association was examined as D.W.1; President of the second defendant association was examined as D.W.2; the Secretary of third defendant association was examined as D.W.3 and one Rama Mohana Raju was examined as D.W.4 and Exs.B.1 to B.8 were marked on their behalf. The Xerox copy of agreement was marked as Ex.R.1 through D.W.4. The trial Court, on appreciation of oral and documentary evidence found that the first plaintiff started construction of apartments in the southern side site i.e. unsold portion of 1232 sq.yds. for which he is claiming right of way. In the approved plan under Ex.B.8, dated 21.7.2007 the first plaintiff had handed over site to an extent of 40’ x 40’ to the Municipal Corporation for the purpose of road, which is on the eastern side of the proposed apartment. Therefore, in view of the availability of the said road, there is no necessity of easement for the first plaintiff to use the passage of 12 feet as reflected under Ex.A.1. Observing so, the trial Court dismissed the suit of the plaintiffs. On appeal being filed by the plaintiffs, the lower appellate Court took into consideration of the pleas taken by the respective parties and the recitals in clause 15 of Ex.A.1-agreement, wherein 12 feet passage was left for entering into the unsold property of the plaintiffs at “BJ” point, which is shown in the plan appended to Ex.A.1. Though the said plan was not marked before the trial Court, the same has been admitted by the parties. The lower appellate Court held that once the plaintiffs retained a right of passage for their ingress and egress to the unsold land, mere availability of the alternative passage will not be a ground to deprive them of their right to passage retained in Ex.A.1- agreemnt and accordingly allowed the appeal. Heard the learned counsel for the appellants and learned counsel for respondents at length and I have gone through the reasoning adopted by the Courts below. Admittedly, the defendants, who are purchasers of individual flats and who formed into associations, admitted that the plaintiffs are not using the said 12 feet passage earmarked in Ex.A.1-agreement, but the public began to use it as a road and to guard the apartments from thefts etc., the defendant-associations laid a barbed wire fencing in the said IJ portion, leaving a gap of 2 feet for the ingress and egress of the first plaintiff and his family members. As rightly observed by the lower appellate Court, when the recitals under Ex.A.1-agreement clearly disclose that 12 feet passage was left for ingress and egress of the plaintiffs to their unsold property, merely because the first plaintiff while developing the unsold land, left 40’ x 40’ space for road in the approved plan, will not extinguish the right of the plaintiffs over the 12 feet passage earmarked in Ex.A.1. It is common knowledge that if the unsold property will have passage from two sides, its value will be increased. Therefore, leaving the site of 40’ x 40’ by the first plaintiff in the plan approved by the Municipal Corporation for the purpose of road cannot be an adverse circumstance against the plaintiffs to say that the plaintiffs do not require the 12 feet passage which was left under Ex.A.1-agreement. Therefore, the lower appellate Court after taking into consideration the factual aspects and admitted facts rightly decreed the suit of the plaintiffs. The findings of facts recorded by the lower appellate Court will not give rise to a question of law much less any substantial question of law to admit the second appeal. The second appeal fails and the same is accordingly dismissed. No order as to costs. _______________ A. GOPAL REDDY, J. JUNE 10, 2011 Tsr.