S MADAIAH Vs. SIDDANAIKA

JUDGEMENT

(1.) this is plaintiffs second appeal. This appeal arises out of judgment and decree dated 30-7-1988 delivered by Sri K.L.Anantharaman, judge of the court of small causes, mysore, as the first appellate court allowing the defendant's first appeal from the judgment and decree dated 19-7-1986 delivered by munsiff, t. Narasipura, in o.s. No. 496 of 1985, whereby the trial court had decreed the suit but the appeal court has set aside the judgment and decree of the trial court and dismissed the plaintiffs claim in the suit. The facts of the case in brief are:

(2.) the plaintiff-appellant filed the suit for seeking decree for declaration to the effect that there exist a passage measuring 4 1/2 feet east to west and 120 feet north to south in between the houses of the plaintiff and defendant, and seeking decree for permanent injunction restraining the defendant from putting any construction on the alleged passage. According to the plaintiffs case, plaintiff is the owner of the house schedule-a and defendant is the owner of house schedule-b. That in between two houses, according to the plaintiffs case, there exists a lane measuring 4 1/2 feet east to west and 120 feet north to south. Plaintiff claimed that, the said land was being used by the plain tiff-appellant and defendant-respondent as common passage for the past 40 years and that the plaintiff used to take his cattle through this space as well as the members of the family have also used this land as common passage. According to the plaintiff, the house, of the defendant being in dilapidated condition and almost all the walls have collapsed, except for a portion of the northern wall and defendant took the construction work and in that process he is attempting to enclose about 3 1/4 x 120 feet space which according to the plaintiff was part of common passage. The plaintiff took various pleas that the defendant had not obtained the necessary licence from the village panchayat and it was further alleged that the construction or enclosure of the space will deprive the plaintiff of his right of way to use the common passage. No doubt, in para 5 it has been mentioned "defendants ACT of enclosing would amount to depriving the plaintiff easementary right to use the common passage". So, plaintiff sought the relief for decree and injunction.

(3.) the defendant denied the plaintiffs case except the one thing that the plaintiff is the owner of schedule-a property and defendant himself is the owner of schedule-b property. The defendant denied that, there is a common passage alleged or claimed by the plaintiff-appellant. The defendant contended that, the plaintiff has constructed the house to the whole extent of the suit property without leaving an inch of the space. Defendant further alleged that his house was constructed 15 years ago and the site of the defendant was being used by the defendant for the purpose of tying catties and storing hay-stack. The defendant has asserted and alleged in written statement that he will not put any construction until he got the valid licence from the panchayat and he has only dug drain on eastern and western side to take out the foundation stones of the dilapidated house and the drain dug by defendant was within his own site. The defendant asserted that, the plaintiff has no right whatsoever in and around the defendant's land nor any right of way as easement.