This appeal filed under Section 100, C.P.C. is directed against the divergent judgment passed in a regular appeal in RA-138/99 which was pending on the file of Senior Civil Judge at Mangaluru, Dakshina Kannada District.

2. The appellant herein is the sole plaintiff of an original suit in O.S. 276/94. Respondents herein are the defendants in the said suit. Parties will be referred to as plaintiff and defendants 1 to 4 as per their ranking before the trial court. Defendants 2 to 4 are the sons of the 1st defendant.

3. A suit had been filed for the reliefs of declaration that the plaintiff has absolute title to the right of easement marked in letters ’RRR’ by way of prescription and for the consequential relief of permanent prohibitory injunction against the defendants or their men claiming through them. The said suit came to decreed as prayed for against which an appeal was filed under Section 96, C.P.C. Later, the appeal was allowed and the matter was remitted to the trial court to frame few more issues and to examine the commissioner. After remand, the suit was again decreed as against which an appeal came to be filed in terms of Section 96, C.P.C.. The said appeal is allowed and thereby the judgment and decree of the trial court is set aside. Hence this divergent judgment and decree which is not helpful to the plaintiff is called in question before this court on various grounds as set out in the appeal memo.

4. The facts leading to the filing of this appeal are as follows;

a) Plaintiff is stated to be in lawful possession and enjoyment of 27 cents of land in Survey No. 99/9 of Kolur village, Mangaluru City and the buildings put up thereon in No. 2/2/87, 98, 99 and 90 along with easementary right of way and water connection appurtenant thereto. According to him, he has easementary right over the space measuring 12 feet width right from Kolur ferry road up to his building in the land of the defendant described as ‘B’ schedule. The house and vacant land of the defendants are is to the south of ‘A’ schedule property.

b) It is stated that the 1st defendant is the lawful owner of ‘B’ schedule property inclusive of the space measuring 12 feet which is a road connecting the plaintiff’s property with Kolur ferry road existing on the southern side. Since the defendants tried to interfere with the plaintiff’s peaceful possession and enjoyment of the 12 feet road which is the only mode of access to his property, he had to file a suit.

c) According to the plaintiff, he had been using this 12 feet road marked as ‘RRR’ for more than 20 years and thus he is stated to have acquired easementary right by way of prescription. It is his case that he purchased ‘A’ schedule property by virtue of a sale deed executed by Vasudev Shetty and Revathi Shetty in document No. 765/73 dated 31.10.1973 and since then he has been in possession and enjoyment along with the easementary right of way, water, light and air appurtenant thereto. The property of the defendant as described in ‘B’ schedule is situated on the southern side of ‘A’ schedule property. Defendants 1 to 4 being members of the same family, are residing in the said house. On the eastern side is the right of way across ‘B’ schedule property connecting Kolur ferry road with the plaintiff’s property and that is the only access to his property.

d) According to the plaintiff, the said road indicated in the letters ‘RRR’ which is 12 feet wide is bounded by mud compound wall on the western side and a compound wall of laterite stones on the eastern side and that the said road is a part and parcel of property bearing Survey No. 99/12 belonging to the 1st defendant and this road is absolutely meant for the plaintiff to have access to his property. It is his case that apart from this piece of land, there is no other road or pathway to approach or to connect ‘A’ schedule property. This right of way, according to the plaintiff, is being used ever since the year 1944 even by his vendor Vasudev Shetty.

e) It