THULAHALLIKOTRABASAPPA Vs. PUJARI RANGAPPA

JUDGEMENT

(1.) this second appeal has got a chequered history of remand after remand which has been done in this case and the litigation in this case has continued for more than a quarter of century. This second appeal arises out of a judgment and decree dated 9-1-1987, delivered by the district judge, bellary, in civil regular appeal no, 48 of 1974, dismissing the defendant's appeal and affirming the judgment and decree dated 16th june, 1971, passed by munsiff, hadagalli, in o.s. no. 174 of 1969, whereby, the learned munsiff had decreed the plaintiffs claim in the suit.

(2.) the facts of the case in nutshell are that the plaintiff-respondent had filed the suit for a declaration and permanent injunction alleging that plaintiff-respondent was the owner of survey nos, 67, 68a and 69a/1 and that the defendant-appellant had been the owner of 68bc, 68d, 68e and a portion of survey nos. 69a/1 and 69b of ittige village. According to the plaintiff's contention, the plaintiffs land has been situated to the west of the land belonging to the defendant. That in between the land belonging to the plaintiff and the defendant-appellant, there has been a stone bund in the land of the plaintiff and it was erected to prevent erosion of soil. Further, the plaintiffs case is that the defendant had purchased the land from different persons belonging to the family of the plaintiff. The plaintiff further alleged that defendant began to form a road along his land on the northern end turning towards south breaking the bund and then turning towards east to reach his land. That this ACT of the defendant was without any legal right and so, it was illegal. That the defendant had no right of way over the plaintiffs land. That this attempt to form a road or passage on the part of the defendant over the plaintiffs land has been the recent one and so, it gave a cause of action to file the suit in question. That there is a route marked 'a' in the sketch which leads to the land of the defendant and this is an old way available to the defendant for his land. The plaintiffs case is that when the plaintiff tried to prevent the defendant from crossing over his land along the route 'b', he was threatened by the defendant and his men of dire consequences if the plaintiff-respondent created obstruction in defendant or defendant's agents or servants, defendant's user of the land belonging to the plaintiff along with route 'b' and so, cause of action having accrued to the plaintiff in july, 1969. Plaintiff filed this suit claiming decree declaring that defendant has no right of way to go to his land referred in relief clause through the plaintiffs land bearing nos. 67, 68a, 69a/1, along route 'b', as per the sketch. The plaintiff further claimed the decree for permanent injunction restraining the defendant-appellant, his servants, assignees, agents and relatives restraining them from passing through the plaintiffs land along route 'b',

(3.) the defendant contested the plaintiffs claim in the suit.according to the defendant's case, the land belonging to plaintiff-respondent are adjoining the defendant's land and the defendant's predecessors-in-title had purchased those lands from the ancestors of the plaintiff. It was further asserted by the defendant that defendant purchased his land as mentioned above from the father of the plaintiff. The defendant denied the plaintiffs case that the defendant had no right of way from the plaintiffs land. That defendant did not dispute the existence of kottur road. But, the defendant pleaded that allegation that the defendant has been using the way of kottur road to reach to his land since long but now avoids since it is longer is false and is known to be false to the plaintiff. It is alleged in written statement that on the northern side of the plaintiffs land, there is a road or passage which passes through the northern portion of the lands of harijan guddappa, bannihalli kenchanna goud, khyatanahalli basalingappa and of the plaintiff and takes a turn towards the south after going some distance and turns to east and reaches defendant's land. That defendant and his predecessors in title were exercising the right of way as easement of necessity without obstruction and hindrance from any one and none objected to the same. Lastly, the defendant asserted that plaintiff had no right, title or interest to obstruct the user of plaintiffs land by the defendant by way of passage. The pleadings in the written statement per se show that defendant has claimed the right of easement of passage or right of way of easement of necessity. The written statement does not indicate that defendant had been claiming the right of easement by prescription nor any particulars of right of prescription has been given or stated in the written statement.