LAKSHMAMMA AND ORS. Vs. GANGAPPA AND ORS.

JUDGEMENT

(1.) This regular second appeal is preferred challenging the concurrent findings recorded by the Principal Civil Judge & JMFC, Gauribidanur, in O.S. No. 9/2007, vide judgment dated 22.11.2011 and the Principal Senior Civil Judge & CJM, Chickballapur, in R.A. No. 7/2012, vide judgment dated 22.7.2014.

(2.) For the purpose of convenience and easy understanding and to avoid confusions, ranks of the parties are retained as per their rankings before the trial Court.

(3.) The plaintiffs (respondents herein) have filed a suit against the defendants (appellants herein) for the relief of declaration that they have acquired prescriptive right of easement of way over the suit property and for the relief of permanent injunction retraining defendant, his men, legal heirs, servants or anybody claiming through him from interfering with the use and enjoyment of the pathway which is running on the portion of suit schedule property i.e. survey No. 62/1, belonging to the defendants. It is the contention of the plaintiffs that the first plaintiff is having agricultural land in survey No. 60 measuring 2 acres 34 guntas, survey No. 61 measuring 1 acre 8 guntas and they also have residential/farm house in Nushkunte village, Gouribidanur Taluk. The second plaintiff is also having agricultural land in survey No. 62/2, measuring 1 acre 1 gunta, in survey No. 73/1 measuring 33 1/2 guntas and also a residential/farm house in Nushkunte village. To the east of their properties, at a distance of 180 fts., there is a public road formed by P.W. D. running from Gouribidanur to Myalya and other places. To reach the said road, the plaintiffs are having a path way of 15 ft. width which is passing through north -eastern extreme portion of land of defendant in survey No. 62/1 of Konapura village. The defendant is claiming his right in survey No. 62/1 of Konapura village. The said pathway passes through the defendants' property which connects the land in survey No. 62/2 as well as main road between Gauribidanur and Myalya. The plaintiffs have been making use of said pathway since more than 50 years for the ingress and aggress of their movement and transportation of men and materials to reach the main road. It is also contended that at the request of plaintiffs, the Local Panchayath has developed the same as metallic road. The defendants claiming right over survey No. 62/1 of Konapura village, started interfering with the plaintiffs' ingress and egress though the said pathway and therefore, it was forced the said plaintiffs to file a suit before the trial Court. It is also admitted that the defendants have also filed a suit in O.S. No. 191/2004 and on the basis of the said suit, they attempted to block the road by putting some thorn plants on the road. In fact, the plaintiffs have removed those plants and prevented the defendants from further blocking the road etc. Therefore, they claimed relief as noted above before the trial court. Defendants appeared through their counsel and filed a written statement. It is their specific contention that the said pathway is available in survey No. 62/2, belonging to the plaintiffs, it is further contended that the plaintiffs are making arrangements to encroach upon the property in survey No. 62/1 under the guise of the pathway. After the death of defendant, defendant Nos. 1(a) to (c) have been brought on record and they also contested the suit. It is contended that in O.S. No. 191/2004, the plaintiffs have admitted that the defendant is the owner of property i.e. survey No. 62/1, measuring 36 guntas. It is further contended that on 15.1.1995 there was a division among the members of family of the plaintiffs under a registered partition deed and in the registered partition deed, there was an averment that some space was left out in their property for formation of the road. Therefore, the defence taken by the defendants is that they claim that there is no road in their land in survey No. 62/1 and on the other hand, they submitted that the plaintiffs have got a separate road through their land to reach Myalya -Bychapura village.