A.V. Chandrashekara, J.

1. This is an appeal filed by the defendant of O.S. No. 141/93 pending on the file of Court of Civil Judge (Jr. Dn.), Jamakhandi of Bagalkot District. Respondents herein were the plaintiffs in the said suit. Suit had been filed for the relief of declaration to the effect that plaintiffs have an easementary right to pass through the cart way indicated in letters C D', in the land belonging to the defendant. The said suit came to be decreed in part holding that no cart way is in existence but it is only a pathway. The said judgment and decree passed on 09.03.1998 was called in question, by the plaintiff by filing an appeal u/S. 96 of CPC in R.A. No. 36/1998 before the Court of Senior Civil Judge, Jamakhandi. The said appeal so filed by the plaintiffs has been allowed holding that there is a cart way in the land of the defendant as indicated in letters 'CD' and accordingly appeal is allowed modifying the judgment and decree of the trial Court. Being aggrieved by the divergent judgment and decree of the first appellate Court, defendant is before this Court by filing appeal u/S. 100 CPC. Several grounds have been urged apart from proposing several questions of law. The facts leading to the filing of the suit in O.S. No. 141/93 are as follows:

2. Plaintiffs and defendants have lands adjacent to each other. A rough sketch is appended to the plaint showing the existence of cart track. Plaintiffs have five strips of land in different sub survey numbers of sy. No. 15 and the entire 5 strips of land running East to West are indicated in letters 'IFHG'. The land of the defendant is to the North of the land of plaintiffs and the same is in sy. No. 15/6. The strip of land indicated in letters 'BCED' bearing sy. No. 15/1 is on the North Eastern side of the land of the plaintiffs. The said strip runs North-South. According to the plaintiffs, a cart way is in existence on the boundaryline of land bearing sy. No. 15/1 and it runs South-North. This is stated to be the only access to the land of the plaintiffs and therefore they have been using the same for over a period of 20 years and when the defendants started interfering with the use of this strip they were forced to file a suit for the relief of declaration that they have a right to pass through 'CD' cart track to reach their strips and for consequential relief of permanent injunction.

3. The said suit was resisted by filing a written statement denying all the material averments in respect of existence of cart track on the Eastern side of the land of the defendant and the plaintiffs using the same for quite a long time. Plaintiffs are stated to be most influential persons in the locality and are trying to prejudice him. According to the plaintiffs, there are other ways to the East and West of the plaintiffs" lands just a few yards from their lands and they have been using the same from quite a long time and that buses and taxies are also running through and they are tar roads. Defendant is stated to have all the right to protect his property. Hence he has prayed for dismissal of the suit.

4. On the basis of the above pleadings the following issues are framed:

"1) Whether the plaintiff proves the correctiveness of the plaint hand sketch?

2) Whether the plaintiff's prove that they are using CD cart way since immemorial time?

3) Whether the plaintiffs prove the CD is the only way to reach their respective lands?

4) Whether the defendant proves that the plaintiffs having alternatively way to their land as contended in the W.S.?

5) Whether the plaintiffs are entitled for decree sought?

6) What decree or order?"

5. First plaintiff is examined as P.W. 1 and 2 more witnesses have been examined. As many as 10 exhibits have been got marked. Defendant is examined as D.W. 1 and one Siddagouda is examined as D.W.2. No documents have been got marked on behalf of the defendant. Ultimately, issue No. 1 has been held partly in the affirmative holding that there exists only a pathway on