MUDDAPPA Vs. MALLAPPA

JUDGEMENT

(1.) THIS second appeal is by the legal representatives of defendant in os No. 92 of 1987, on the file of Civil Judge (Jr. Dn.) and JMFC, Malavalli, who are aggrieved by the judgment and decree passed by the lower appellate Court allowing the appeal and decreeing the suit, though the suit had been successfully resisted by the defendant before the trial Court and had been dismissed.

(2.) THE suit of the plaintiffs - four in number - was for a declaration that the suit schedule property measuring about 20' x 400' is a road which is meant for better enjoyment of the properties of the plaintiffs, in the sense, this stretch of land acts as an access to the properties of the plaintiffs on one side of their properties and that such a manner of user of the suit schedule property was in vogue ever since the year 1940 when two of the plaintiff's purchased their respective portions from their common vendor one Kenchaiah Naik, but the defendant who had purchased the property along on the northern side of the properties of the plaintiffs, had started obstructing the plaintiffs from making use of the suit schedule property; that having improved the said stretch of land by forming a road, the defendant had started to prevent the plaintiffs from making use of the suit schedule property, which necessitated for the plaintiff to file the suit for a declaration that the suit schedule property is a road for the better enjoyment of the properties of the plaintiffs and for a consequential relief of injunction. The plaintiffs later by way of an amendment had also sought for a mandatory injunction to direct the defendant to remove some coconut plants, which the defendant had planted in the suit schedule property.

(3.) THE defendant on being notified contested the suit. The case of the defendant is that the suit schedule property is admittedly in the ownership of the defendant and the plaintiffs having not claimed either any easementary right to have access to their lands and more over the plaintiffs having separate access to their respective lands on the southern side of their properties, the prayer as sought for in the suit is not tenable and the suit is liable to be dismissed. The defendant has also pleaded that there was no road as claimed by the plaintiffs measuring 400 feet south and 20 feet east west. It is also pleaded that the fourth plaintiff himself had entered into an agreement to sell a portion of the land in Sy. No. 828/1a in favour of the defendant and the boundary description of St. No. 828/1a in that agreement did not indicate the existence of any road as claimed in the plaint and that it is a strong piece of evidence to indicate that there is no road as claimed by the plaintiffs. The defendant accordingly sought for dismissal of the suit.