VEERAPPA MALLAPPA HADLI Vs. NAGAPPA FAKIRAPPA HADLI

JUDGEMENT

(1.) This second appeal by the defendants is directed against the judgment and decree passed against them by the Second Additional District Judge, Dharwar in Civil Appeal No. 342 of 1958 directing the issue of a permanent injunction restraining them from putting up a structure over their open space marked JKMN in the sketch and from constructing a katta thereon exceeding three feet in height.

(2.) The plaintiff instituted Civil Suit No. 192 of 1958 for the reliefs granted to him by the appellate Court, alleging that he was the owner of the house marked ABCD in the sketch attached to the plaint and of the katta with a roof over it. To the front of the katta is the Hanuman temple. The house bears Village Panchayat No. 846. Adjoining the plaintiff's house on its south is the house owned by the defendant, bearing V.P.C. No. 847 with a similar katta to its front. The open space marked JKNM in the sketch in the sketch belongs to the Government and is being used by the plaintiff, defendants and a divided member of their family by name Karkappa, for parking their carts and keeping their agricultural implements. The plaintiff further alleges that he had acquired an easementary right to take light and air from the open space in front of the defendant's house to his own house and that the defendants were trying to obstruct the enjoyment of that right by putting up a structure unauthorisedly on the katta. The defendants resisted the claim on the ground that the open space and the katta were of their exclusive ownership and that the plaintiff had neither easementary right to take light and air over it to his house nor to make use of it in any manner. They asserted that they had a right to construct a structure as they liked.

(3.) On the evidence adduced by the parties, the learned trial Judge came to the conclusion that the plaintiff had no right to use the open space and had not acquired any right of easement to take light and air, by prescription. He accordingly dismissed the suit with costs.