SHEKARAPPA VEERAPPA HARAYABAL Vs. MAHAMMADSAB MALIKSAB NADAF

JUDGEMENT

(1.) THE appellant was the Plaintiff and respondent was the defendant in the trial Court for the sake of convenience, the parties are referred to as per their rank in the trial Court.

(2.) THE plaintiff filed the suit in O. S. No. 86/90 for declaration that he is using prescriptive right over the portion marked as EFIJ in the hand-sketch produced and for permanent injunction against the defendant. The defendant filed written statement resisting the suit and denying the case pleaded by the plaintiff. According to him, the hand-sketch is not correct and there is no road in the portion claimed by the plaintiff. On the basis of the pleadings, the trial Court framed issues. Both the parties led evidence by examining witnesses and producing documents. On appreciation of the material on record, the trial Court by its judgment dated 23-11-1996 decreed the suit directing the defendant to keep open 4 feet width way in the portion EFIJ to have free access to the plaintiff to reach the main road. Defendant was also restrained from causing any obstruction in the said portion. Against the said judgment, the defendant filed first appeal in R. A. No. 86/96. The first appellate Court by its judgment dated 4-9-1998 allowed the appeal, set aside the judgment and decree of the trial Court and dismissed the suit. Aggrieved by the same, the plaintiff has preferred this second appeal.

(3.) THIS appeal was admitted to consider the following substantial question of law :-Whether the first Appellate Court is right in setting aside the order of the trial Court without proper assessment of the evidence including the Commissioner"s report?