TUKARAM SHESHAGIRI SHANBHAG Vs. CHAIRMAN GRAM PANCHAYAT TORKE

JUDGEMENT

(1.) AN unsuccessful plaintiff has come up with this appeal under Section 100 of CPC to set aside the judgment and decree dated 25. 1. 2002 passed in RA 15/98 on the file of the Prl. Civil Judge (Senior Division) Karwar, confirming the judgment and decree dated 8. 12. 1997 in O. S. No. 44/88 on the file of the Civil Judge (Jr. Division) at ankola.

(2.) INITIALLY, the appellant/plaintiff herein Tukaram Sheshagiri shanbhag filed a suit against the respondents/defendants 1 and 2 and two others with a prayer to restrain the respondents to form a road in the lane bearing Sy. No. 2-B measuring 1 Gunta 41/2 Annas and Sy. No. 2-A2 measuring 16 Guntas of Madanakeri Village in Ankola Taluk.

(3.) THE case of the appellant/plaintiff is that the suit schedule property belong to himself and his family members and they are in possession and enjoyment of the suit schedule property and they are actually cultivating the lands in question and he has constructed a residential house in the suit schedule property i. e. , Sy. No. 2-A2 shown as 'b' of the hand sketch and the shop is shown as 'a' and in another Sy. No. 2b measuring about 1 gunta 11/2 Annas belong to his brother and he has also constructed his house and both of them are in actual vahivat and cultivation of both the sy. Nos. In between these two Sy. Nos there is a vacant place measuring about 4 or 5 feet in width and the same is shown as 'ef' in the plaint hand sketch and the same is in actual vahivat among the family members of the plaintiffs and therefore, neither the defendant nor any public have got any right over the land shown in the hand sketch 'ef' and the appellant and family members are using the 'ef' portion as their pathway for their convenience and public are not entitled to use the same. Since the defendants 1 and 2 have tried to install electric pole in 'ef' portion of the hand sketch, therefore, a legal notice was sent to respondents through their Advocate inspite of that the defendants formed the route in 'ef' portion and the respondents/defendants are bent upon to start with repair as well as construction of the road in 'ef' portion and to convert the same into a public road and tried to cause loss to the foundation stone of the appellant's building. Hence, they filed a suit against the respondents seeking permanent injunction restraining them from making any road in 'ef' portion as shown in the plaint sketch and also not to cause damage to the foundations of the appellant's building and other portion of the suit properties.