N. VIJENDRA RAO Vs. VASUDEVA PAL AND ORS.

JUDGEMENT

(1.) This appeal filed under Sec. 100, C.P.C. is directed against the divergent judgment passed in a regular appeal in R.A. 138/99 which was pending on the file of Senior Civil Judge at Mangaluru, Dakshina Kannada District.

(2.) The appellant herein is the sole plaintiff of an original suit in O.S. 276/94. Respondents herein are the defendants in the said suit. Parties will be referred to as plaintiff and defendants 1 to 4 as per their ranking before the trial court. Defendants 2 to 4 are the sons of the 1st defendant.

(3.) A suit had been filed for the reliefs of declaration that the plaintiff has absolute title to the right of easement marked in letters 'RRR' by way of prescription and for the consequential relief of permanent prohibitory injunction against the defendants or their men claiming through them. The said suit came to decreed as prayed for against which an appeal was filed under Sec. 96, C.P.C. Later, the appeal was allowed and the matter was remitted to the trial court to frame few more issues and to examine the commissioner. After remand, the suit was again decreed as against which an appeal came to be filed in terms of Sec. 96, C.PC. The said appeal is allowed and thereby the judgment and decree of the trial court is set aside. Hence this divergent judgment and decree which is not helpful to the plaintiff is called in question before this court on various grounds as set out in the appeal memo.