The plaintiff established prescriptive easementary right over the disputed portion, and the first Appellate Court erred in considering the ownership over the disputed area and wrongly reversing the judgment of the trial Court.

V. GOPALA GOWDA, J.

( 1 ) THE appellant was the Plaintiff and respondent was the defendant in the trial Court for the sake of convenience, the parties are REFERRED TO as per their rank in the trial Court.

( 2 ) THE plaintiff filed the suit in O. S. No. 86/90 for declaration that he is using prescriptive right over the portion marked as EFIJ in the hand-sketch produced and for permanent injunction against the defendant. The defendant filed written statement resisting the suit and denying the case pleaded by the plaintiff. According to him, the hand-sketch is not correct and there is no road in the portion claimed by the plaintiff. On the basis of the pleadings, the trial Court framed issues. Both the parties led evidence by examining witnesses and producing documents. On appreciation of the material on record, the trial Court by its judgment dated 23-11-1996 decreed the suit directing the defendant to keep open 4 feet width way in the portion EFIJ to have free access to the plaintiff to reach the main road. Defendant was also restrained from causing any obstruction in the said portion. Against the said judgment, the defendant filed first appeal in R. A. No. 86/96. The first appellate Court by its judgment dated 4-9-1998 allowed the appeal, set aside the judgment and decree of the trial Court and dismissed the suit. Aggrieved by the same, the plaintiff has preferred this second appeal.

( 3 ) THIS appeal was admitted to consider the following substantial question of law :- whether the first Appellate Court is right in setting aside the order of the trial Court without proper assessment of the evidence including the Commissioner"s report?

( 4 ) HEARD the learned counsel for the parties and perused the judgments and decrees of the Courts below.

( 5 ) THE trial Court considered the evidence adduced on behalf of both the parties and at the beginning of paragraph 15 it has held as under :- on going through the plaint averments and evidence of witnesses, it is clear that there is EFIJ area i. e. open space and it was being used as a way for the plaintiff and his previous owner since time immemorial. " having held so, at the end of same paragraph it has been held as under :- "but both parties have not produced any material document to show that EFIJ portion is part of public road. Therefore, in my opinion EFIJ portion i. e. , open space is not part of public road. Hence Issue No. 1 is held partly affirmative. " it is thus clear that though the portion EFIJ is not a public road, the plaintiff and his vendor were using it as way since time immemorial.

( 6 ) THE trial Court also considered the report of the Court Commissioner and came to the conclusion that the defendant has caused obstruction on the way. The Commissioner has clearly stated that the plaintiff has to pass through the way in question only and there is no other way for carrying the agricultural implements. Thus, the trial Court rightly held that plaintiff established prescriptive easementary right. Consequently, the suit was decreed.

( 7 ) THE first Appellate Court grossly erred in reversing the judgment of the trial Court. It has considered the case in a wrong approach by stating in paragraph 20 as under:- "when that is a case of the plaintiff, naturally it is a public road only for which the local body will be the owner and it will be required to maintain the road in a proper way". The first Appellate Court instead of considering whether the plaintiff has got easementary right over the portion EFIJ, has wrongly gone to consider the ownership over the said area and the duty to be discharged by the local body. That was not at all the issue involved in the case.

( 8 ) THE first Appellate Court further erred in obvserving at the end of paragraph 20 as under :- "when the disputed portion is a part of the road there is no dominant tenement or servient tenement, both are absent and present. Therefore, the plaintiff as such cannot claim the right of easement over such road. " the fir

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