R PARAMASIVAN Vs. T ANASUYA

JUDGEMENT

(1.) THIS regular first appeal is filed under Section 96 read with Order 41, cpc. This is the appeal filed by the defendants being aggrieved by the judgment and decree passed by the VI Additional City Civil Judge, bangalore in O. S. No. 4900 of 1993 wherein the respondent herein had filed a suit for mandatory injunction. The parties are referred according to their ranking in the Court below.

(2.) THE plaintiff who is the respondent herein had filed the suit before the lower Court seeking for mandatory injunction and also for an order of perpetual injunction restraining the defendants from putting up any construction or obstruction on the passage abutting the house of the defendants wherein the defendants have denied easementary right in respect of the passage of 8 ft. situate on the south-west corner of the suit schedule property running east-west to the pipeline road.

(3.) THE plaintiff is said to have purchased the property from one byanna in Sy. No. 37/1 of Kempapura Agrahara near Hosahalli, bangalore, a portion as shown in the sketch produced by the plaintiff, in the year 1977 wherein the plaintiff had put up construction on the said property in the year 1978. According to the plaintiff, there was a passage of 8 ft. north-south and 30 ft. east-west available to reach the pipeline road from the house. Except that there was no other passage and as a matter of easement of necessity, she was using the said passage. It is also stated that the passage was also used by one Mr. Vijayan for the purpose of air and light. Byanna had sold the property to the 1st and 2nd defendants i. e. , one Arukani Animal had purchased the property from Byanna who in turn had sold the portion of the property to the 1st defendant and the remaining portion was given to the daughter in law of Arukani Ammal who is the 2nd defendant. The passage is situate also to the northern side of the property of the 1st and 2nd defendants. According to the plaintiff, Arukani Ammal had put up illegal construction on the passage. When the plaintiff asked to remove the construction put up in the passage, it was assured that it will be removed but, the defendants failed to keep up the promise and the 2nd defendant also had put up another construction in the said passage although neighbouring house owner one Vijayan who was using the passage for the easement of light and air, complained to the corporation. Since the defendants have put up construction on the passage which was available, the plaintiff having no alternative started passing through the property belonging to Sitalakshmi who is the wife of vijayan on the south-west corner wih their permission. Stating that at any time the said Sitalakshmi may withdraw the permission to use the passage and that there is no other alternative passage expect the passage on which the defendants have put up construction and also when the defendants did not heed to the request of the plaintiff to leave the passage for reaching pipeline road, she filed a suit.