SOWMYA R SHETTY Vs. VENKAPPA GOWDA

JUDGEMENT

(1.) The plaintiff filed the present writ petition against the order dated 9th January, 2017 passed on I.A.III made in O.S. No.363/2016 on the file of the Principal Civil Judge and JMFC, Bantwal, Dakshina Kannada dismissing the application filed by the plaintiff under Order 26 Rule 9 of the CPC.

(2.) The plaintiff filed O.S. No.363/2016 for a declaration that she is entitled to use the plaint 'B' schedule road marked as 'RRR' in the plaint sketch as of right and as an easement under the concept of prescription and easement of necessity and also for permanent injunction restraining the defendants, their men, servants, agents, legal heirs or any persons claiming under them jointly and severally in any way obstructing or objecting use of plaint 'B' Schedule road 'RRR' by the plaintiff, contending that she is the absolute owner and in possession of the 'A' Schedule property purchased under registered sale deed dated 11.12.2012. Ever since then the plaintiff is in possession of the same as absolute owner and has been using the Plaint 'B' Schedule Road 'RRR' for ingress and egress. All the revenue records are entered in her name. It is further contended that though the defendants have no manner of right, title and interest, are trying to interfere and are obstructing the plaintiff from using the said road to reach her property. Therefore the suit was filed for the relief sought for.

(3.) The defendants filed written statement denying the plaint averments and contended that the plaintiff never perfected title over the alleged road under the concept of easement by prescription and that user of road is not easement of necessity since the averments in the plaint do not attract the ingredients of easement of necessity. The defendants further contended that the alleged road is not necessary to the plaintiff since she has got a separate road to reach her property. Hence, prayed for dismissal of the suit.