M. Asha Latha vs. G. Sudarsan Reddy

THE HON'BLE MR JUSTICE L.NARASIMHA REDDY Civil Revision Petition No.4498 of 2010

ORDER:

The respondent filed O.S.No.421 of 2010 in the Court of III Additional Junior Civil Judge, Kadapa against the petitioner for the relief of perpetual injunction in respect of a lane between two houses, bearing D.Nos.1/444 and 1/445. It is stated that the house bearing D.No.1/444 fell to his share in a family partition with his brother, by name Mallikarjuna Reddy, the vendor of the petitioner herein, and that his brother did not have any right vis-à-vis the lane. The petitioner, who is the purchaser of the house from its owner, is claiming right of passage over it. The respondent filed I.A.No.475 of 2010 under Order XXXIX Rule 1 of CPC. After hearing both sides, the trial Court passed an order, dated 12.07.2010, directing that status quo as on the date of the order shall be maintained by both the parties. Aggrieved thereby, the petitioner filed C.M.A.No.11 of 2010 in the Court of IV Additional District Judge, Kadapa. The lower appellate Court dismissed the C.M.A. Hence, this revision.

The learned counsel for the petitioner submits that there is a clear recital in Ex.B2, deed of partition executed in the year 1999 between the respondent and his brother, Mallikarjuna Reddy, to the effect that the former shall have a right of passage and thereby, the petitioner got a right to use the passage along with the respondent. He contends that the trial Court as well as the lower appellate Court has misread the evidence and have passed orders under revision.

The passage was common between two houses that fell to the share of the respective coparceners i.e., the respondent and his brother. petitioner purchased one house bearing D.No.1/445 from the brother of the respondent. It needs to be seen as to what right did said brother get in the partition that has taken place in the family.

It has come on record that there are two partitions among the brothers, first in the year 1999 through Ex.B2 and second in the year 2001 through Ex.A1. It is no doubt true that in Ex.B2 there is a recital to the effect that the respondent shall have a right to use the common passage. Had the same state of affairs continued, things would have been different altogether.

Another partition took place among the brothers in the year 2001. In Ex.A1 that was executed in that context, it was clearly mentioned that the respondent shall have exclusive right over the passage. In other words, the vendor of the petitioner ceased to have any right over the passage, as the things stand now. The question as to whether Ex.A1 was genuine and if so, the purport thereof needs to be gone into at the time of hearing the suit.

As the things stand now, the respondent has derived exclusive right over the passage in question, through Ex.A1. Therefore, this Court is not inclined to interfere with the order under revision.

The civil revision petition is accordingly dismissed. However, in case the petitioner or her vendor had any pre-existing right vis-à-vis the property to have ingress and egress, it shall be open to her to file an independent application. As and when such application is filed, it shall be dealt with on its own merits.

There shall be no order as to costs.

L.NARASIMHA REDDY, J.

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Date:19.10.2010 VGB