Supreme Court of India
Kamal Kishor Sehgal(D) Thr.Lrs vs Murti Devi (Dead) Thr. Lrs on 19 September, 2024
Author: Pankaj Mithal
Bench: Abhay S. Oka, Pankaj Mithal
2024 INSC 707 NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9482 OF 2013
KAMAL KISHORE SEHGAL (D)
THR. LRS. & ORS. …APPELLANT(S)
VERSUS
MURTI DEVI (DEAD) THR. LRS. …RESPONDENT(S)
JUDGMENT
PANKAJ MITHAL, J.
1. The suit of the plaintiff now represented by her heirs and
legal representatives (respondents herein) for the decree of
permanent injunction in respect of the use of passage,
more commonly described as ‘common passage’, was
dismissed by the court of first instance, but in appeal the
judgment and order of the Trial Court has been reversed
and the suit stands decreed.
2. In the above circumstances, the defendants and their
Signature Not Verified
legal representatives (appellants herein) have preferred
Digitally signed by
Anita Malhotra
Date: 2024.09.19
17:33:59 IST
Reason:
this appeal.
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3. We have heard Mr. S. K. Sharma, advocate for the
appellants and Mr. Gaurav Agrawal, Sr. Advocate for the
respondents.
4. The pleadings of the parties reveal that Sh. Jaspal Singh
along with Smt. Raj Rani and Smt. Sudesh Rani jointly
purchased a piece of land measuring 3116 square yards,
more popularly/particularly described as plot no. 8C,
Rajpur Road, Civil Lines, Delhi vide sale deed dated
30.09.1972. Out of the aforesaid 3116 square yards of
land, Sh. Jaspal Singh became the absolute owner in
possession of 1398 square yards of land with all
easementary rights and this area in his possession came
to be marked as Municipal No. 8C/1, Rajpur Road, Civil
Lines, Delhi. The said plot of land faces the Battery Lane
on the northern side and on one side of it is Tirath Ram
Hospital and on the other two sides there are properties of
two other private persons. It means that the said plot had
no other access except through the Battery Lane.
5. Sh. Jaspal Singh divided his plot of land measuring 1398
square yards in two equal halves of 699 square yards and
marked them as A (front portion) and B (back portion). He
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sold both portions A and B each having an area of 699
square yards vide separate registered sale deeds dated
12.04.1974. Portion A was sold to plaintiff-respondents
and portion B to the defendants-appellants. Since portion
B was in the back and had no access to the Battery Lane,
the sale deed of the plaintiff-respondents, categorically
provided that she would leave a 15 feet wide common
passage on side of portion A for the common use of the
owners of portions A & B both. However, in the sale deed
of the defendants-appellants, there was no similar
stipulation that they would also have to leave any such
passage, much less to be used by the owners of portion A.
6. It is worth noting that the size of both the portions A & B
transferred by Sh. Jaspal Singh were exactly the same.
The sale deeds were executed on the same day and on the
same sale consideration. In other words, plot A, which
was in the front and plot B, which was on the back side
were valued at the same rate. It may be relevant to note
that since the portions which were sold, were little
elevated vis a vis the Battery Lane, a ramp was
constructed at the entry point of the passage. It is also
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important to note that though the respective sale deeds
refer to a 15 feet wide common passage, but in reality, the
said passage is only 10-11 feet wide to which no one has
objected as of date.
7. The plaintiff-respondents sometime in the year 1991,
brought about the aforesaid suit for permanent injunction
inter-alia alleging that the 15 feet wide common passage
shown in green colour is not the passage adjoining only
portion A of the plaintiff-respondents, but it also includes
the passage which runs across the portion B of the
defendants-appellants as well. Therefore, the plaintiff-
respondents have a right to use the said entire common
passage shown in green colour in the map attached to the
sale deeds. The defendants-appellants cannot obstruct
the use of the said common passage by the plaintiff-
respondents. As such, they may be, apart from other
things, restrained from causing any obstruction in the
use of the said entire common passage by the plaintiff-
respondents.
8. The suit was contested by the defendants-appellants by
filing written statement contending that according to the
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sale deed of the plaintiff-respondents, they alone were
required to leave a common passage of 15 feet wide for
use of defendants-appellants, as they had no other way to
access their property i.e., portion B. The said common
passage has been marked as X to Y in the map forming
part of the sale deed. The open space left by the
defendants-appellants in their portion B in alignment with
the common passage X-Y which is marked in the map as
Y-Z or Z-Z1, was never intended to be used as common
passage but was exclusive part of portion B purchased by
them.
9. On the pleadings of the parties, issues were framed by the
court of first instance and finally the suit was dismissed
holding that the plaintiff-respondents under their sale
deed had to leave the common passage X to Y for ingress
& egress of defendants-appellants as an access to their
back portion B to be used jointly by both the parties.
There was no stipulation that portion Y-Z is to be used by
the plaintiff-respondents.
10. Aggrieved by the aforesaid judgment and order of the Trial
Court, plaintiff-respondents preferred Regular First
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Appeal in the High Court which has been allowed by the
impugned judgment and order dated 01.11.2011. It has
been held that the entire common passage X-Z1 is a
common passage which is usable by both the parties i.e.,
the owners of portions A and B.
11. The basic issue before this Court is whether the entire so
called ‘common passage’ shown in the green colour in the
map annexed to the sale deeds which is in 3 parts, and
marked by letters X to Y, Y to Z and Z to Z1 is to be used
by both the parties i.e., the plaintiff-respondents and
defendants-appellants or the portion of the said passage
marked by X to Y alone is to be used as a ‘common
passage’ by the parties and the passage marked Y to Z
and Z to Z1 are the exclusive properties of the defendants-
appellants.
11.A. A sketch map as per that enclosed to the sale deeds
showing the position of portion A & B with the alleged
common passage X-Y, Y-Z & Z-Z1 is produced below for
the easy understanding of the controversy:
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12. The answer to the said issue largely depends upon the
interpretation of the recitals of the sale deeds and as to
whether the ‘common passage’ in use by both the parties
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refer to the entire common passage from X-Y, Y-Z and
Z-Z1 or only to X-Y.
13. The sale deed of portion A executed in favour of plaintiff-
respondents dated 12.04.1974 in unequivocal terms
provides that the vendor is transferring his absolute
rights in the said land portion A together with right to use
of 15 feet wide common passage which has been left for
access to the back portion. The relevant extract of part of
clause 1 of the said sale deed in context with 15 feet wide
common passage is extracted below for ready reference:
“…… the said seller doth hereby sell, convey,
transfer and assign by way of absolute sale his
share to the extent of 699/3116 in Plot No. 8-C,
Rajpur Road, Delhi i.e., 699 square yards out of
his own 1398 square yards as shown and
marked as portion A in the plan annexed
together with right of use of 15 feet wide common
passage which has been left for access to the
back portion as shown in green colour in the plan
annexed unto the purchaser along with all his
right, title, interest, option and privileges. The
vacant possession in respect of the demised
property has already been given to the purchaser
on spot.”
(emphasis supplied)
14. A plain reading of the above recitals of the sale deed would
make it crystal clear that the plaintiff-respondents were
supposed to leave a 15 feet wide common passage for
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access to the back portion, i.e., for the defendants-
appellants of the portion B, but, the plaintiff-respondents
would also have the right to use the same. Therefore, by
necessary implication the said 15 feet wide common
passage refers to the passage to be left by the plaintiff-
respondents, meaning thereby, the passage marked X-Y
only. The aforesaid recitals in the sale deed are in
continuation with the agreement to sell between the
parties dated 11.06.1973 which also provides for leaving of
15 feet wide passage by the plaintiff-respondents for use of
the owner of the back portion. The aforesaid sale deed
nowhere contains any stipulation that the plaintiff-
respondents, the purchaser of portion A, will have any
right, in any manner, over portion B or to use the passage
if any existing or to be constructed in part of portion B
owned by defendants-appellants.
15. Now coming to the sale deed dated 12.04.1974 executed in
favour of the defendants-appellants, it categorically states
that the vendor Sh. Jaspal Singh is transferring portion B
with the right of use of 15 feet wide common passage for
access thereto as left by Smt. Murti Devi (plaintiff-
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respondents) for that purpose, to whom the whole of front
portion A belongs. The said recitals as contained in clause
6 of the aforesaid sale deed are reproduced herein below:
“The seller agreed to sell his 699/3116 share in
Plot No.8-C, Rajpur Road, measuring 1398/3116
square yards i.e., 699 square yards out of his
1398 square yards more specifically shown in
the plan annexed i.e., being the areas measuring
699 square yards with right of use of 15 feet
wide common passage for access thereto as left
by Smt. Murti Devi for that purpose, to whom the
whole of the front portion measuring 699 square
yards facing Battery Lane has been sold, unto
the purchasers for a total sale price of
Rs.98,000/- (Ninety eight thousand) and the
purchasers agreed on 06.11.1973 to purchase
the same vide terms and conditions in the
agreement of sale registered as No. 1219 in addl.
Book No. I, Vol. No. 3084 on pages 54 to 58 in
the office of the sub-Registrar, Delhi on
28.03.1974.”
(emphasis supplied)
16. There is no recital in the said sale deed that the
defendants-appellants also have to leave a 15 feet wide
passage in their portion B for use as a common passage by
the plaintiff-respondents, the owner of portion A.
17. On a harmonious reading of the above recitals contained in
both the sale deeds, it is implicit that portion A was
purchased by the plaintiff-respondents whereas portion B
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in the back was purchased by the defendants-appellants.
The plaintiff-respondents have agreed to leave a 15 feet
wide common passage in their portion A for common use
by the defendants-appellants and the plaintiff-respondents
for the purposes of ingress and egress to their portion from
the Battery Lane. This passage alone has been referred to
as the ‘common passage’ to be used by both the parties
and has been marked as X-Y. The defendants-appellants,
purchaser of portion B has no-where agreed to leave any
passage in portion B for use by the plaintiff-respondents.
Therefore, implicitly the defendants-appellants are the
exclusive owner of the entire portion B.
18. It is a cardinal principle of interpretation that where the
language employed in the instrument is clear and
unambiguous, the common literary meaning ought to be
assigned in interpreting the same and one should not fall
back on any other inference. Only the expression in clear
words contained in the instrument/document must be
considered and not the surrounding circumstances. In
short, literal construction must be considered first, rather
than going into the intention behind what is said in the
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instrument/document if the language of the instrument is
clear and unambiguous.
19. The court of first instance, applying the above principle of
interpretation and upon proper and due consideration of
the recitals in the two sale deeds, categorically ruled that it
was only the plaintiff-respondents, the owner of the front
portion A, who had to sacrifice for the 15 feet wide passage
and not the defendants-appellants who own the back
portion B. It would be beneficial to reproduce Paragraph 14
from the Trial Court judgment which reads thus:
“A perusal of these clauses clearly goes to show
that in the sale deed of plaintiff, he was required
to leave 15 feet wide common passage for access
to the back portion and there was no clause that
she will have access to the passage in front of
the portion of the defendants. Similarly, in the
sale deed of the defendants, it has been provided
that they will have access to the back portion
from the front portion while the plaintiff was to
leave 15 feet wide common passage no such
condition was imposed on the defendants to
leave passage as common to be jointly used by
plaintiff and defendants. It was admitted by the
attorney of the plaintiff that the sale deed of both
the parties was drafted by him. He also admitted
that no agreement took place between the
parties with regard to passage and its user. He
also admitted that agreement to sell Ex.DW1/2
executed between Jaspal Singh and the
defendants is witnessed by him and bears his
signature at point A. In pursuance to a specific12
question put by the learned counsel for the
defendant to Shri R.P Bansal as to whether there
was condition in the sale deed in favour of the
plaintiff that she will leave passage of 15 feet for
access to the back portion of the plot owned by
Jaspal Singh and sale deed Ex.DW1/1 executed
by Jaspal Singh in favour of the plaintiff had a
rider that the plaintiff will leave a passage of 15
feet for access to the rear portion and that in the
agreement to sell Ex.DW1/2 there was no such
condition or rider that defendant will leave
common passage for use of occupants of front
portion out of defendants property measuring
699 sq. yards and on the other hand, it was
mentioned that purchaser agreed to purchase
the remaining 699 square yards being the back
portion after leaving 15 feet side passage for
access to back portion agreed to be sold to the
site plans attached to the respective sale deeds
of the parties. Relevant clauses of the sale deeds
as reproduced above makes it amply clear that
while in the sale deed Ex.DW1/1 executed by
Jaspal Singh in favour of plaintiff there was a
rider that the plaintiff will leave passage of 15
feet for access to the rear portion but there was
no clause in her favour that she will have
corresponding right of common passage in front
of the portion of defendants more specifically
shown in portions Y to Z and Z to Z-1 in the site
plan. It may be mentioned that true intention of
parties is not correctly reflected in the site plan
attached with the sale deeds of respective parties
because both of them are exactly similar.
Moreover, there is no ambiguity in the sale deed
so that any clarification may be sought from the
site plan. There is force in the contention of the
learned counsel for the defendants that since the
plaintiff was getting front portion and the
defendants was getting rear portion for the same
consideration amount, the plaintiff had to
sacrifice passage of 15 feet. It is common
knowledge that market value of front portion is
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practically more when both the parties were
purchasing exactly same land, why the
defendants would have agreed to pay same
consideration except for the fact that since the
plaintiff was deriving all the benefits of being
purchaser of front portion that she was required
to sacrifice passage of 15 feet wide for access to
the defendants and there was no such rider on
the part of the defendants. If the plaintiff
intended to use 214 feet wide passage as
common, there could have been no hitch in
marking specific mention of it in the sale deed
which was drafted by none else but the attorney
of the plaintiff who is a senior advocate and each
and every clause must have been drafted very
carefully. Further in para 10 of the plaint, it has
been alleged that parties agreed/arrived at an
understanding that entire common passage 214
ft deep passing adjacent to the portion A and B
should be made of marble by the parties at their
own costs. The defendants put up kota stones in
the portion of the common passage in front of
their portion B while the plaintiff put up crazy
marble tiles in the portion in front of her portion
in front of her portion A. So, the fact that the
different constructions of both the portions
between X and Y and Y and Z have taken place
this also reflects the intention of the parties that
these portions are in occupation of two different
persons and while portion shown X to Y in the
site plan was to be a common passage, since the
defendants was to have access to his portion
from that passage, rest of the passage from point
Y to Z is part of property of the defendants and
plaintiff has nothing to do with that portion.”
20. Upon the reading of the entire sale deeds and even
considering the map attached thereto, we are satisfied that
the court of first instance has rightly interpreted the two
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documents to conclude that the common passage referred
thereto is only in respect of common passage marked in
the letters X-Y as this was the passage supposed to be left
aside by the plaintiff-respondents, the owners of the
portion A for common use by both the parties, with no
stipulation that the owners of the back portion are also to
leave a similar passage in their portion for use by the other
party.
21. The first appellate Court completely misconstrued the two
sale deeds and simply for the reason that the passage Y-Z
and Z-Z1 were in alignment with the passage X-Y left by
the plaintiff-respondents for common use held that the
entire passage from X-Z1 is a common passage for the use
of both the parties. This is something which is completely
erroneous and in conflict with the clear recitals of the sale
deeds. The first appellate Court has unnecessarily laid
undue emphasis on the words ‘common passage’ to hold
that it refers to the entire passage from X-Z1 otherwise it
would defeat the whole intention behind using the phrase
‘common passage’ in the two sale deeds.
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22. In view of the aforesaid facts and circumstances, on the
simple reading of the contents of the two sale deeds, we
are of the opinion that the common passage referred to in
those sale deeds and the map thereto is only in context
with the common passage X-Y which was supposed to be
left by the purchasers/owners of the portion A i.e.,
plaintiff-respondents for ingress and egress of the owners
of portion B as they have no other alternative way of
access to the Battery Lane or as a matter of fact to any
other road or lane. Since the defendants-appellants under
their sale deed were not supposed to leave any such
passage in the portion purchased or owned by them, the
plaintiff-respondents have no right to use any part of
portion B which exclusively belongs to the defendants-
appellants.
23. There is otherwise no justification for allowing the plaintiff-
respondents to have access or use of the passage Y-Z or Z-
Z1 comprised in portion B as there is no access to their
portion from the said passage. Simply for the reason that
the said passage is in alignment with the common passage
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X-Y, the plaintiff-respondents cannot claim any right over
it.
24. Accordingly, in our opinion the judgment and order of the
First Appellate Court dated 01.11.2011 cannot be
sustained in law and is hereby set aside and that of the
court of first instance dated 22.02.2002 is restored.
25. The appeal is allowed with no order as to cost.
………..………………………….. J.
(PANKAJ MITHAL)
…..……………………………….. J.
(R. MAHADEVAN)
NEW DELHI;
SEPTEMBER 19, 2024.
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