BIBI JAN Vs. RABIYA,

JUDGEMENT

(1.) LEGAL representatives of deceased plaintiff are before this Court. Respondent is the defendant in O.S.No.148/2004, which was pending on the file of the Court of Principal Civi l Judge (Jr.Dn. ), Dharwad.

(2.) SUIT f i led for the relief of declaration and for mandatory injunction by deceased plaintiff Bibi jan came to be dismissed after contest vide judgment dated 15.12.2007. Against the said judgment and decree, an appeal was f iled under Section 96 of CPC in R.A.No.8/2008 before the Court of I Addl. Civi l Judge (Sr.Dn. ), Dharwad. The said appeal has also been dismissed vide considered judgment dated 25.04.2009. Hence concurrent f indings are cal led in question before this Court by f il ing an appeal under Section 100 of CPC. Parties wi l l be referred to as plaintiff and defendant as per their ranking given in the trial Court. The facts leading to the fil ing of the suit are as fol lows:

(3.) DEFENDANT has resisted the suit by f il ing detailed written statement denying al l the material averments and has cal led upon the plaintiff to prove the averment made in the plaint strictly. According to the defendant, plaintiff is not the owner of the open space and that the said open space has been used by the defendant and other adjoining property owners. Defendant is stated to have acquired a right of easement by prescription as the same has been used for more than 20 years. According to the defendant, the property in question is not at all part and parcel of CTS No.739/C. Plaintiff is stated to have put up some constructions in the open space used by adjoining owners and she has caused obstruction.