H V DATTATHRI SHASTRI Vs. VAMANA RAO APTE

JUDGEMENT

(1.) This is an appeal under Rule 1 of Order XLIII CPC and by the plaintiff in OS.249 of 1969 on the file of the Prl Munsiff, at Shimoga. He is aggrieved by an order of remand made by the Addl Civil Judge, Shimoga, in RA.188 of 1972.

(2.) The suit as laid by the appellant was for an injunction restraining the defendant from making use of his open space in order to effect repairs to his own building. The suit was resisted by the respondent on the ground that he was entitled to such a right by prescription. The trial Court framed two issues, and they are: (1) "Whether the plaintiff proves that he was in exclusive possession of the plaint schedule land at the time of suit? (2) Whether the plaintifi is entitled to the permanent injunction sought against the defendant?

(3.) The plea of the defendant that he had a prescriptive right as contended has been exhaustively considered by the learned Munsiff in the context of Issue No.2. Indeed, parties have.led evidence on a proper understanding of their respective cases. The suit was decreed by the trial Court. On appeal, the learned Civil Judge, after making some general observations as to the cases of the parlies, found fault with the trial Court for not having framed an issue bearing on the plea of the defendant that he had acquired an easementray right to make use of the open space of the plaintiff in respect of which the injunction had been granted.