PUTTEGOWDA ALIAS AJJEGOWDA Vs. RAMEGOWDA

JUDGEMENT

(1.) this is the defendant's second appeal under Section 100 of the Civil Procedure Code from the judgment and decree dated 29-1- 1985, delivered by civil judge, chickmagalur, in regular appeal No. 28 of 1981, out of the judgment and decree dated 31-3-1981, in original suit No. 341 of 1978, by the court of munsiff, chickmagalur.

(2.) the facts of the case in brief are that the plaintiff-respondent claims to be the owner of the land shown in the schedule a to the plaint. According to the plaintiff's case, the entire area of the survey number concerned was 4 acres 29 guntas. Out of that area, an area of 2 acres 141/2 guntas belonged to the defendant-appellant and the remaining half of the land measuring 2 acres 141/2 belonged to the plaintiff, who had purchased it from the previous owner. According to the plaintiffs case, the original owner of the land was one beeramma and that beeramma transferred this land in two parts of 2 acres 141/2 guntas to two persons, namely, patel puttegowda, from whom the plaintiff claims to have purchased first half of the land measuring 2 acres 14 1/2 guntas, while, the other half measuring 2 acres 14 1/2 guntas was transferred by beeramma sometimes in 1948, to the defendant-appellant. The schedule b land according to the plaintiffs case belongs to the defendant. The plaintiffs case is that in plaint schedule a property, there is no approach from outside, except bypassing over or bypassing through the land of schedule b which belongs to the defendant. The plaintiff claimed that the plaintiff has got a right of easement of necessity of passage over the land which is mentioned in schedule b. Plaintiff has further alleged that apart from claiming easement of necessity to the passage, the passage has been utilised and used as such for long by the plaintiff, and that the plaintiff has also acquired the said passage by way of an easement by prescription and that the width of the path, that is, the passage is about 10 feet. That the defendant is determined and insistent to create obstruction in the use of the passage which is in the land as mentioned in schedule b, so, the need for filing the suit for injunction arose and the plaintiff did file this suit for perpetual injunction restraining the defendant from interfering with the plaintiffs alleged peaceful use and enjoyment of the passage over schedule b land as shown in the sketch to schedule b to the plaint.

(3.) the defendant-appellant filed the written statement and admitted himself to be the owner of 2 acres and l41/2 guntas of land out of survey No. 82/2, but, he denied the correctness of the boundaries given in the plaint. Defendant no doubt, admitted that the portion which plaintiff claims to be his own (plaintiff) belong to beeramma, the original owner of the entire plot and from beeramma the same portion was purchased by patel puttegowda. The defendant has disclosed that the other portion which has been shown as schedule b land to the plaint was purchased by him as per registered sale deed dated 20th april, 1948. The defendant denied that plaintiff has got any right of passage or path by way of easement of necessity over the land belonging to defendant, namely, plaint schedule b property. The defendant further denied the plaintiffs case to the effect that the plaintiff has acquired right of easement by prescription. According to the defendant's case, plaintiff has not used the alleged passage over plaint schedule b property at the time of purchase, nor is there any right in existence on that land. The defendant's further case is that plaintiff and other persons made use of the ridges attached to the fields for the purpose of going to their fields which is called 'badu', as there is no road or pathway passing through the defendant's field. That as such, plaintiff is not entitled to relief for injunction and further asserted that the suit for bare injunction without seeking the decree for declaration is not maintainable. That the defendant denied that schedule b land had remained uncultivated from 1948 instead, asserted that the said field had been cultivated every year and during every crop period.