RASOOLKHAN ALLABAKSHA URF BAKSHAKHANJAMKHANWALE Vs. VAJEERKHAN

JUDGEMENT

(1.) this is plaintiffs second appeal from the judgment and decree dated 16-11-1984 delivered by the additional civil judge (Sri D.Basavaraju) in regular civil appeal No. 31 of 1984, whereby the lower appellate court has dismissed the plaintiffs appeal and an application which was filed and numbered as la. No. Ii in the appeal and affirmed the judgment and decree of the trial court dismissing the plaintiffs claim in o.s. No. 608 of 1981.

(2.) the facts of the case in brief are that the plaintiffs-appellants filed the above mentioned suit for decree declaring that the plaintiffs and defendants are common owners of the suit property and further prayed for the consequential relief of grant or decree for permanent injunction restraining the defendants or any person claiming on their behalf from, obstructing and interfering with the plaintiffs-appellants peaceful possession and enjoyment of the suit property as common passage and for mandatory injunction directing the defendant 1 to remove the katta, latrine and water tank constructed in the said passage so as to make the common passage available and accessible to the plaintiff to pass and repass to his house.

(3.) the plaintiffs claimed that the suit property, namely, the disputed passage has been used as a common passage, bearing No. Cts 4138 of cts ward No. I, measuring 707/9 square yards, situated in bandiwad base at hubli. According to the plaintiffs case, this open space has been in common use for passing and repassing there through by the plaintiffs and defendants. According to plaintiffs case, to the east of the passage in dispute there had been a house of defendant 1 bearing No. Cts 4139 and adjoining to defendants house to the north there are two houses bearing nos. Cts 4140 and 4141 belonging to plaintiffs and according to plaintiffs case this land in dispute was used as a common passage by the plaintiffs and defendants. The defendants have constructed the katta towards the west nearby the road in the common passage and also constructed latrine as well as water tank and because of these constructions obstacles have been created in the plaintiff-appellants right to make use of the common passage to reach their house. The plaintiffs in Order to reach their house have to go from the west to the east to the end and then have to take turn from the east to west. The plaintiffs claimed the common ownership of the land in dispute and according to them, the defendants have no right to construct the latrine, water tank and katta in the common passage. Plaintiff 2 agreed to take property bearing No. Cts 4141 on usufructory mortgage from the plaintiff 1 and he has paid advance and took possession of the same. The defendants caused obstruction to the plaintiffs to make use of the common passage, so plaintiff 2 also been made a necessary party. The plaintiffs further alleged that defendants have no right whatsoever because the obstruction in the plaintiffs or his tenants user of the disputed passage but defendants openly declare that they will not allow any person to make use of the common passage. As such, the plaintiffs had been forced to file the suit for declaration of their right as common ownership with the defendants and for injunction.