MADASI RAMU Vs. MADASI KRISHNA RAO

JUDGEMENT

(1.) This is an appeal by the unsuccessful plaintiff against the judgment and decree in T.A. No. 11 of 1985 (T.A. No. 34 of 1984-GDC) passed by the learned 1st Additional District Judge, Berhampur confirming the judgment and decree of learned Additional Munsif-cum-S.D.J.M., Berhampur passed in T.S. No. 76 of 1979.

(2.) The plaintiff appellant and defendants-respondents, who are brothers effected partition of their dwelling house in a family settlement dated 31-7-1978 wherein the house was divided into four shares, the front half facing the main road fell to the share of plaintiff and defendant No. 1 and rear portion fell to the share of defendant Nos. 2 and 3. There is a courtyard in between the front and rear block. According to the appellant, this courtyard was kept joint for common use of the brothers and accordingly, the families residing in the front block used to go to the latrine which situates on the north-west corner of the premises through that courtyard. He alleged that the defendants residing in the rear block suddenly obstructed the tenants of the plaintiffs and did not allow them to go to the latrine through the courtyard, for which he filed the suit claiming permanent injunction against the defendants restraining them from interfering with the user of the courtyard and the passage to the latrine. The defendants-respondents filed joint written statement wherein they admitted the relationship and the fact of partition, but denied that the courtyard was kept joint for common use. Their specific case was that the courtyard fell to the share of defendant Nos. 2 and 3, and neither the plaintiff nor the defendant No. 1 has any right, title or possession over the said courtyard, but as a gesture of good will, they were allowed temporarily to go to the latrine through that courtyard. Defendants 2 and 3 further pleaded that an alternative passage to the latrine is available through the Municipality lane and as such the plaintiff cannot claim right of easement through the courtyard.

(3.) Learned Courts below concurrently held that the courtyard in question fell to the share of defendant Nos. 2 and 3 and that it was never kept as joint property of the brothers. It was also held that the plaintiff-appellant has no right of easement through the courtyard as alternative route to the latrine is available through the municipality lane. These findings are under challenge in this appeal on the ground that the findings are perverse and contrary to the settled principles of law.