RUKMINIYAMMA Vs. H B RAMESH

JUDGEMENT

(1.) O.S.No.229/2005 was filed by the respondent, on the file of Prl.Civil Judge and JMFC., Chikmagalur to pass a decree of permanent injunction and restrain the defendants from causing obstruction to the plaintiff, in the matter of use of the suit pathway. The defendants contested the suit by filing the written statement. By a judgment dated 27.01.2010, the suit was decreed. The said decree was assailed by the defendant No.1, in R.A.No.119/2011. By a judgment dated 26.09.2011, the Presiding Officer, Fast Track Court, Chikmagalur set aside the impugned decree and remanded the case to the Trial Court, with a direction to appoint a Court Commissioner and secure the report and decide the suit afresh. A Taluka Surveyor was appointed as Court Commissioner. By conducting the spot inspection, a report was submitted. The Court Commissioner was examined as CW1. By Judgment dated 23.11.2012, the suit was decreed in part and the defendant No.1 was permanently restrained from preventing the plaintiff in the matter of use the pathway, described in the plaint schedule. Assailing the said decree, R.A.No.6/2013 was filed. Considering the rival contentions and on appreciation of the record of the case, the appeal was dismissed and the decree passed by the Trial Court, impugned in the appeal was affirmed. Assailing the said decrees, this second appeal was filed.

(2.) Sri N.Vinayak Kamath, learned advocate, contended that the plaintiff having no right to file the suit, the conclusions arrived at and the decree passed by the Trial Court and affirmed by the Appellate Court, suffer from illegality and the substantial questions of law formulated in the appeal memorandum arise for consideration. Learned counsel contended that the suit filed for perpetual injunction, without seeking a declaratory relief being not maintainable, the impugned decrees are liable to be set aside.

(3.) Perused the record. Based on the pleadings, the Trial Judge raised 6 issues as under: