T RANGANNA Vs. BHAGIRATHI BAI

JUDGEMENT

(1.) This is plaintiff's second appeal arising out of O. S. No. 748 of 1971 filed by him in the Court of the Principal Munsif, Mysore.

(2.) The undisputed facts giving rise to the suit of the plaintiff may be stated as follows. The plaintiff and one Ugrappa were brothers. The property abutting Sayaji Rao Road, Mysore, belongs jointly to them. Ramachandra Rao whose wife and son are the defendants, occupied the entire building as a tenant. The entire building consists of shop portion and residential portion. On 1-5-1935 partition of the property took place between the plaintiff and Ugrappa. Southern half portion was allotted to the share of the plaintiff. The whole building had only one lavatory and that lavatory is still in existence. That is in the portion that has fallen to the share of the plaintiff. On 15-9-1937 Ramachandra Rao purchased Ugrappa's share under a registered sale deed Exhibit D-3. The plaintiff filed O. S. No. 498 of 1940-41 praying far eviction of Ramachandra Rao from the property that had fallen to his share and for arrears of rent. The suit was decreed as per Exhibit P-7 for possession also. The plaintiff took possession on 16-10-1942 under Exhibit P-2. Thereafter, he applied for licence to the Municipal Corporation, Mysore, to enable him to erect a wall partitioning his share of the property from the share purchased by Ramachandra Rao. Licence was granted and he did erect the partition wall. The construction of the partition wall cut off the use of the conservancy lane and lavatory by Ramachandra Rao and his people. Ultimately Ramachandra Rao filed O. S .No. 599 of 1951-52 in the Court of the I Munsiff, Mysore for reliefs including mandatory injunction to pull down the partition wall to the extent that was necessary for his use of his conservancy lane and lavatory. The trial Court granted a decree in his favour. In R. A. No. 109 of 1953 the decree was modified to the following effect:

(3.) In view of the aforementioned facts, the plaintiff filed the suit on hand for declaration that he is the absolute owner of the lavatory and the passage leading to the conservancy and the defendants have no manner of right in them and for grant of permanent injunction restraining the defendants from executing the decree passed in O.S. No. 599 of 1951-52 referred to above.