BANDARU VENKAYYA Vs. LAKSHMI NARASAYYA ALIAS LAKSHMAYYA DIED

JUDGEMENT

(1.) The defendants are the appellants in this second appeal. The plaintiff and the defendants are the owners of neighbouring fields separated by a pathway for some distance. The suit was laid by the plaintiff for a declaration of his easementary right to a way along ABEF and ND TV pathways shown in the plan and for a mandatory injunction directing the defendants to remove the thatti wall CGRS put up by them and also a bund for a kunta lying in their land in so far as it had been extended. There was also a prayer for a prohibitory injunction against the defendants restraining them from causing obstruction to the two pathways in the future and thereby causing damage to the plaintiff. The suit was dismissed by the trial Court but decreed on appeal by the learned Subordinate Judge.

(2.) The defendants admitted the existence of the two pathways but alleged that the plaintiff had agreed to the putting up of the thatti wall and that they had also left sufficient space to the east of the wall on their land for the villagers to pass through the defendant's land. They also pleaded that the plaintiff had no cause of action because he had not sustained any special damage. The Courts below found that the agreement set up by the defendants was not true. A commissioner was appointed to inspect the locality and to prepare a plan. The plan prepared by the commissioner was marked as Exhibit P-1(a) and the commissioner was examined as P.W. 2. Admittedly the defendants raised a thatti wall in the portion CGRS quite recently and the finding is that it caused obstruction to both the pathways referred to in the plaint. There was also a finding by the lower appellate Court that the construction of the thatti wall led to a concentration at a few points of water flowing from the defendants' land on to the land of the plaintiff and an erosion of the plaintiff's land by the discharge of water in that manner.

(3.) It is argued by the learned Advocate for the appellant that so long as persons entitled to use the pathway as it existed all along could pass through another portion of the defendants' land, there was no injury caused by the obstruction to the pathway and that the plaintiff had not sustained any special damage by reason of such obstruction so as to entitle him to sue. The learned Advocate also referred to section 22 of the Easements Act which provides that the dominant owner must exercise his right in the mode which is least onerous to the servient owner and that when the exercise of an easement can without detriment to the dominant owner be confined to a determinate part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined.