MUTHYALAPPA Vs. PALLAKKA

JUDGEMENT

(1.) The defendant in O.S.No.297/1992 has preferred this appeal, assailing judgment and decree passed in R.A.No.121/1999 dated 01.06.2009 by the Civil Judge (Sr.Dn.) and JMFC., at Madhugiri by which the judgment and decree of the Trial Court dated 24.03.1999 passed in O.S.No.297/1992 by the Civil Judge (Sr.Dn.), Madhugiri has been set-aside and the suit filed by the respondent plaintiff has been decreed.

(2.) For the sake of convenience, the parties shall be referred to, in terms of their status before the Trial Court.

(3.) The respondents plaintiffs filed the suit seeking the reliefs of declaration and permanent injunction against the defendant to declare them as the owners in possession and enjoyment of CDEF portions in the suit rough sketch and for permanent injunction restraining the defendant, his agents or servants or anybody claiming under him from opening any door or window at points D and E as shown in the rough sketch. It is the case of the plaintiffs that one Hanumanthappa, the husband of plaintiff No.1 and father of plaintiff No.2 was the owner of house bearing Katha No.290/126 morefully described as plaint schedule and rough sketch. As Hanumanthappa was aged 80 years and as his eye-sight is decreasing day by day and is unable to move about, plaintiffs have filed the suit against the defendant. Plaintiffs house is shown as ABCD in the rough sketch which is their ancestral property with East-West side measuring 10 feet, North South side measuring 30 feet and Western side has been kept open for tethering cattle and for storing haystack etc., Plaintiffs house is facing towards the road on the northern side. Plaintiffs house as well as the suit site totally measures 30 ft., East-West and 30 ft., North-South. Plaintiffs and prior to them their ancestors were enjoying the house without any disturbance from anyone. Defendant is the owner of the house situated towards the southern side which is shown by the letters AEGH in the rough sketch. This house is facing on the eastern side since time immemorial. The defendant attempted to open the door towards the plaintiffs' passage open space CDEF at points D and E and trying to make use of the open space to reach the road on the northern side of the plaintiffs' house and that the defendant is not entitled to do so, as the defendant has no right, title and interest on CDEF to open the door at point DE and to make use of the passage. If the defendant was allowed to do so, plaintiffs' right over the open space or passage would be lost or it would cause irreparable loss and injury. Hence, they filed the suit seeking the aforesaid reliefs.