RAVINDRA BHANDARY Vs. SURENDRA N. GADIYAR AND ORS.

JUDGEMENT

(1.) HEARD Sri. V.R. Prasanna, learned counsel appearing for petitioner and Sri. K.N. Mahabaleshwara Rao, learned counsel appearing for respondent No. 1. Petition stands dismissed against respondent No. 2. By consent of learned advocates petition is taken up for final hearing.

(2.) SHORT point involved in this case is whether order of rejection of application filed by plaintiff for appointment of court commissioner to visit suit schedule and to ascertain as to whether there exists road or not in O.S. No. 123/2012 is to be sustained or set aside.

(3.) IT is contended by learned counsel appearing for petitioner that schedule 'C' property is held by 1st defendant and is a vacant land and mother of the plaintiff had leasehold rights over schedule 'C' property as also schedule 'A' and 'B' property having obtained the lease from 1st defendant. It is contended Land Tribunal by its order dated 18.08.1980 granted entire extent of land comprised in Sy. No. 227/1E measuring 4.58 acres which was challenged by 1st defendant and matter was remitted back to the Land Tribunal and Land Tribunal was directed to survey, measure and prepare a sketch relating to said survey number and accordingly surveyor demarcated 3 acres of land in Sy. No. 227/1E separately and rest of the property measuring 1.58 acres separately and on the basis of said survey report Tribunal passed fresh order on 28.05.1992, whereunder the right of road was reserved in favour of plaintiff in Schedule 'C' property. It is further contended that plaintiff and other occupants of Schedule 'A' property have been using the said road as of right even prior to the first order of the Tribunal and such right of road is not only an easement by grant but also easement by necessity. Plaintiff further contended that schedule 'A' property is landlocked and is surrounded by properties of others and have no other approach road than the said road. Hence, to ascertain this factual aspect appointment of commissioner was sought for and submits that it has been erroneously rejected.