1. Appellant has called in question the legality of the Judgment and Decree passed on 30.07.2007 in R.A.No.208/2004 by the learned Civil Judge (Sr.Dn.), Mangalore D.K., confirming the Judgment and Decree dated 30.10.2004 passed in O.S.No.424/2004 by the learned Civil Judge (Jr.Dn.), Mangalore, D.K., dismissing the suit filed by the appellant.

2. The material facts in a nutshell are as follows:-

O.S.No.424/2004 was filed by the appellant/plaintiff, to pass permanent mandatory injunction directing the defendant/respondent to close the opening made by the defendant on the north-eastern side of his property for gaining access to ‘PPP way’ existing in the ‘A’ schedule property, being the opening demarcated as ‘AB’ in the plan annexed to the plaint and for passing decree of permanent prohibitory injunction restraining the defendant from entering into ‘B’ schedule property, through ‘PPP pathway’, passing through ‘A’ schedule property and for incidental reliefs.

3. Plaintiff is the owner of the plaint ‘A’ schedule property and defendant is the owner of the plaint ‘B’ schedule property. Both the said items of properties earlier belonged to the late Flora Correa i.e., mother of the Plaintiff, who acquired the same under a sale deed dated 04.01.1957. She released her undivided half share in the suit property in favour of the plaintiff under a release deed dated 24.05.1963. The plaintiff, subsequently settled the said joint property on her father Mr. Camil Pinto. Upon demise of Mr. Camil Pinto, the plaintiff and her brother Joseph Pinto got the joint property divided into two shares under a partition deed dated 24.04.1971, wherein, the property described in the schedule ‘B’ of the said partition deed was allotted to the plaintiff and the property described in schedule ‘A’ of the partition deed was allotted to the share of Mr. Joseph Pinto. Defendant purchased the property of Mr. Joseph Pinto under a sale deed dated 20th June 1984. The southern side of the plaint ‘B’ schedule property abuts public road known as “Suterpet 4th Cross Road”.

4. Defendant had filed O.S.No.533/1986 against the plaintiff herein, for relief of declaration that he has got easementary right of way across ‘A’ schedule property, being the way, shown by him in the plan annexed to the plaint. The said suit was contested by the plaintiff herein. Upon trial, the suit was dismissed on 07.12.1991. The Judgment and Decree passed was questioned in R.A.No.174/1991 on the file of I Addl. Civil Judge (Sr.Dn.) Mangalore. Appeal was allowed by a Judgment and Decree dated 24.03.1992. The said decree was questioned by the plaintiff herein in RSA No.334/1992, which was disposed of as per the judgment and decree dated 11.08.1998, modifying the judgment and decree passed in R.A.No.174/1991.

5. The appellant-plaintiff, averred that after passing of the Judgment and Decree dated 11.08.1998 in RSA No.334/1992, the defendant has made an opening on the northeastern side of the property for the purpose of gaining access to ‘PPP road’ passing through ‘A’ schedule property and this permanent arrangement for gaining access to the property from the southern side was not made by the defendant at the time of passing the Judgment and Decree dated 11.08.1998 in RSA No.334/1992. It was stated that the said arrangement was made on the southern side by laying a concrete way over the storm water drain for ingress and egress from ‘B’ schedule property from the Suterpet road and in view of the said permanent arrangement made by the defendant, there is no need for the defendant to make use of the PPP way, passing through ‘A’ schedule property. Stating that the cause of action to the suit arose in the month of December 2003, when the defendant caused a permanent means of access to ‘B’ schedule property from the southern side of the ‘B’ schedule property, the suit was filed for the said reliefs.

6. Defendant having not appeared in response to the summons, was placed exparte. The learned Trial Judge