A.V. Chandrashekara, J.

1. Defendant No. 1 of an original suit bearing O.S. No. 110/1993 which was pending on the file of the Court of Civil Judge (Jr.Dn.), Karwar, is before this Court by filing an appeal under Section 100 CPC.

2. Smt. Prema, Smt. Kasture, Smt. Sharada, were the plaintiffs in the said suit. The said Smt. Prema is no more and is represented by respondent No. 1(a) to 1(c) herein. Similarly, plaintiff No. 2 Kasture is also no more and is represented by respondent Nos. 2(a) to No. 2(c) herein. Third plaintiff Sharada is respondent No. 3 herein. Suit filed for the relief of declaration seeking the right of way and consequential relief of permanent injunction has been decreed as prayed for, vide considered judgment dated 29.06.2002. Appeal filed under Section 96 CPC in R.A. No. 28/2007 before the Court of Addl. Civil Judge (Sr. Dn.), Karwar, is also dismissed. Hence the concurrent findings are called in question before this Court.

3. Perused the judgments of the trial Court as well as the First Appellate Court. Suit had been filed for the relief of declaration to the effect that plaintiffs have got right of way in respect of a space measuring 5 ft. in width and for consequential relief of permanent injunction against the deceased defendant Neelkanth.

4. Case of the plaintiffs is that land bearing Sy. No. 16/1E measuring 5 guntas was purchased from the vendor Sri Laxman Vaman Shenvi on 12.11.1986 through a registered sale deed and that the plaintiffs were tenants under the said vendor. Laxman is stated to have transferred the entire title and right he had in respect of the land in question inclusive of the right of way. Plaintiff and her children have been enjoying the said right of way and this is the only access to their lands for movement of vehicles and cattle. In the year 1993, defendant and his children started denying the right of way and started interfering with the right of way. Hence suit had to be filed.

5. Defendant has specifically denied the hand sketch appended to the plaint and has specifically called upon the plaintiffs to prove all the averments of the plaint strictly. According to defendant No. 1, 1 acre 18 guntas and 12 annas of land in Sy. No. 16 was a samayak right held by Lakshman Vaman Shenvi and Tarabai After the partition amongst themselves, each one got about 29 guntas and 6 annas of land and southern half portion was allotted to Lakshman and northern half portion was allotted to the share of Tarabai. It was agreed between them that Tarabai should leave 4 ft. space on the northern side of her land for the use of one Narayana Deva Pallakki and public of the surrounding area of Sy. No. 12. Plaintiff being the subsequent purchaser of southern side land in Sy. No. 16, which had been allotted to Laxman Shenvi adjoins the government forest land abutting on the southern side of 5 guntas. Defendant's case is that 11 1/2 guntas of land has been purchased by the plaintiff on 12.11.1986 and there is no recital in the said sale deed about the existence of a path way adjoining the northern part of the land of defendant No. 1. Defendant is stated to have put up a compound around the suit land on all the four sites.. The very right of way claimed by the plaintiff has been specifically denied when the plaintiff has space on the southern side of her land to be used as an ingress and egress, more particularly, being the forest land, and hence the question of right of way does not arise, is the contention.

6. On the basis of the above pleadings, following issues came to be framed:

1. Whether plaintiffs prove that they have right of way by an' express grant?

2. Whether plaintiffs prove the existence of suit path way as shown in sketch?

3. Whether plaintiffs prove that suit path way is used by them as of right?

4. Whether plaintiffs prove the alleged obstruction by defendants?

5. Whether suit is not maintainable as stated in Para-15 of the W.S.?

6. Whether plaintiffs are entitled to the relief of declaration and