PARVATHAMMA Vs. NARAYANAPPA @ PILLAPPAIAH

JUDGEMENT

(1.) This appeal is by the plaintiffs against the concurrent findings of fact dismissing the suit for injunction by the Trial Court and the Lower Appellate Court. Appellants instituted O.S. No. 365 of 2004 before the Principal Civil Judge (Junior Division), Kolar on 23-9-2004 to restrain respondents arraigned as defendants 1 and 2, respectively, from interfering with the enjoyment of 'A' and 'B' Schedule property viz., right of way over the road demarcated with alphabets ABCD in the sketch appended. The plaint averments are that the plaintiffs are the absolute owners, in possession and enjoyment of the house property described in 'A' Schedule, engaged in agriculture and vending flowers to eke out their livelihood and that their house is situated on the northern end of the road leading to Padiganahalli Road which passes between the house of defendants and the open site of one Pangappa. According to the plaintiffs the width of the road is 7 feet and is in existence from time immemorial, recognised by the panchayat and mentioned in the Assessment Demand Register. But for that road, it is claimed, there is no other road for ingress and egress to and from the plaintiffs' house to reach the main road. It is the allegation of the plaintiff that during March 1993 trouble having arisen between the late husband of the 1st plaintiff and defendant and his brother viz., regarding use of the road for movement of bullock carts and cattle, which was sought to be prohibited by erecting a building, a panchayat was held and settlement arrived at, which was reduced into writing on 26-3-1993, though captioned as "sale agreement" while it was a settlement. The width of the road, it was asserted is 7 to 8 feet and its length 78' while on the western side of the road is the house and site property of the defendant as well as that of one Pangappa of Kyalanoor. The road described in 'B' Schedule property, it is said, is used by the public of the village. The cause of action for the suit is said to have arisen when the defendants tried to put up construction thereon.

(2.) The suit was resisted by filing written statement of the defendants denying the plaint assertions and contended that there exist no road while 'B' Schedule property described as road and demarcated with the alphabets 'ABCD' in the rough sketch, in fact, is the property belonging to the defendants bearing old No. 638/61-62 measuring East to West 25 yards and North to South 21 yards. 1st defendant asserted that in a partition dated 24-1-1971 the eastern portion measuring 6 x 21 yards fell to his share on which he put up a construction apart from a old house, by leaving 7 feet front yard. It is the allegation of the defendant that the front open yard is sought to be termed as road by the plaintiff.

(3.) The Trial Court having regard to the pleadings of the parties, framed the following issues: