D B GADAGKAR Vs. BANGALORE DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) This is a plaintiff's appeal preferred against the judgment and decree of the trial Court which has dismissed the suit of the plaintiff filed for declaration that the plaintiff is the absolute owner of the schedule property or in the alternative for declaration that plaintiff has easementary rights with respect to the schedule property and for a decree of permanent injunction or in the alternative, a direction to the defendant to allot marginal land. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

(2.) The subject matter of the suit is property measuring East to West 30 feet, North to South 30 feet with structures thereon and bounded on the East by property in possession of Smt. Rajamma, West by property in possession of Sri. Gangappa, North by property of the plaintiff bearing No. 171/F and South by BDA Road.

(3.) The case of the plaintiff is that he is the owner of premises bearing No. 171/F new No. 8/1, 8th cross, III Block, Thaygarajanagar, Bangalore-28. The plaintiff purchased the said property in the year 1979. On the northern side of the property that was purchased by the plaintiff, there was a road. On the southern side that was purchased by the plaintiff, Chennamma Tank was there. As there was a tank on the southern side, the gradient was such that, drainage could have been provided only on the southern side. Thus, the drainage water was released on the southern side. He was not able to make use of the premises bearing No. 171/F and the passage existed therein for the reason that there is a well in the passage. Because of the well in the passage, the plaintiff cannot make an entry to the built up portion. In view of that, the plaintiff has kept one more door on the southern side of this property which is in existence from the beginning. Somewhere in 1976 the Chennamma Tank got drained out. The vendor of the plaintiff occupied the said land on the southern side of the property that he had purchased. After the purchase, the plaintiff is in quite and peaceful enjoyment and uninterrupted enjoyment of the said property. The plaintiff has put up constructions in the portion, which originally was part of Chennamma tank. He has been in possession in his own rights continuously without interruption and in hostility to the rights of any other person. Plaintiff is also having a sewerage lines on the southern side of the property and because of the gradient, drainage cannot be provided on the northern side. In the alternative, the plaintiff pleaded that he has perfected his title to the property. In the alternative, again he has pleaded that easementary right both by way of necessity to have sewerage line and by way of prescription.