K.T. ANANDAKUMAR Vs. MUNIRAJU K.C.

JUDGEMENT

(1.) These two appeals are filed challenging the order dtd. 26/9/2015 passed on I.A.Nos.1 and 3 filed under Order XXXIX Rules 1 and 2 of CPC and under Order XXXIX Rule 4 of CPC in O.S.No.7510/2014 on the file of XLIII Additional City Civil and Sessions Judge, Bengaluru.

(2.) Heard the learned counsel appearing for the respective parties.

(3.) The factual matrix of the case of the plaintiff before the Trial Court is that the plaintiff has filed a suit for the relief of declaration to declare that the plaintiff is the uninterrupted user of the easementary right of way in respect of three feet passage running east to west in between the properties of plaintiff and defendant and also for the relief of mandatory injunction against the defendant directing him to remove forthwith the unauthorized construction with steel gate put up in the three feet passage by him and also for the relief of permanent injunction against the defendant and his people claiming through him from obstructing the easementary right of three feet passage lying between the properties of the plaintiff and the defendant. It is the claim of the plaintiff that he has purchased the property under the registered sale deed dtd. 15/5/2004 from Smt.Rabiya Bee represented by Mehaboob Bee as GAP holder and the plaintiff is in peaceful possession and enjoyment of the said property without any hindrance from anybody and he is in lawful possession of the same. It is also the contention of the plaintiff that under the partition deed dtd. 23/5/1965, the father of the defendant K R Thimmaiah was allotted schedule 'A' property and the defendant is in possession and enjoyment of item No.4 of schedule 'A' property after the death of his father. The plaintiff also got transferred the katha from BBMP in respect of his properties and he is paying tax of the said properties. It is further contended that the vendors of the plaintiff were using un-interruptedly three feet passage running towards east to west on the northern side of the plaintiff's properties and the same is only ingress and egress as an easementary right for a long period and the same continued after purchase of the properties from the plaintiff. The plaintiff is openly using the three feet passage for his ingress and egress to the rare portion of plaintiff's property bearing gramattana katha No.2510/1023 and property No.204.