O S ANCHAN Vs. GRACE W ENTHAT

JUDGEMENT

(1.) This is a plaintiff's second appeal against his partial failure hi his suit in the Courts below though the partial failure has been different in extent in the lower Courts.

(2.) The parties to this appeal will be referred to by the rank and position assigned to them in the trial Court.

(3.) The plaint iff is the perpetual lessee of about 44 cents of land bearing T.S. No. 152/1B2 within the Municipal limits of Mangalore City. The lessor is the United Basel Mission Church, in India Trust Association (hereinafter referred to as the Trust). His perpetual lease was fsrst granted in the year 1951 and later on, a small area was added to the first lease in 1957. In this circumstance in 1960 a composite lease of the two bits of properties was executed. It was plaintiff's case in the trial Court that he had acquired under the three lease deeds an exclusive right to the pathway leading from what is known as 'Balmatta new Road' to the leased property. In the first instance the entire pathway was restricted to 12 ft. in width and subsequently in 1960 on his representation the Trust allowed him a wider pathway from a point below the entrance to certain other Church premises occupied by the defendants, This was made clear by the plaintiff by attaching a sketch to the plaint showing that point E to El as the entrance to the defendant's compound. On account of the unevenness of the terrain and different level of the main pathway, the main road, the defendant's property and the plaintiffs property, he wanted to level the road as well as build stone rivetment so that the earth between point E 1 to Point F in the plaint sketch would not be eroded by the rains. When his workmen went to carry out these operations, the defendants obstructed and the plaintiff being a peace loving citizen chose to approach the Court for appropriate reliefs and did not cany out the work in the light of the opposition from the defendants. On these main averments his prayer was, (1) for a permanent injunction restraining the defendants and others claiming through or under them from interfering with the plaintiff's right to level the approach road right upto his entrance making it easier for his vehicles to move in and out using the right of way; (2) for a permanent injunction restraining the defendants and others claiming through or under them from interfering with the plaintiff or his workmen in the act of building stone rivetment to the northern elevated edge of the pathway adjoining the property leased to the defendants; (3) for a permanent injunction restraining the defendants, their people and servants from cutting any portion of the pathway particularly in the portion adjoining the defendants property.