B. Veerappa. J.

The unsuccessful plaintiff is before this Court as a last ditch attempt against the concurrent finding of facts recorded by the Courts below for the relief sought for in the plaint.

2. The plaintiff filed O.S. No. 329 of 1998 against the defendants-the Chief Conservator of Forests and the Research Range Forest Officer to declare that he has right of way in the suit schedule property and for permanent injunction, contending that he is the owner of the property bearing No. 43, measuring 3 acres 22 guntas situate at Vaderahalli of Anekal Taluk and there is a small strip of defendant's land on the western boundary of the plaintiff's land. The said strip of land is 300 ft. x 7 feet. There is no approach road to the plaintiff's land except small passage by 12 x 12 feet. The said passage was being used by the plaintiff from time immemorial after obtaining permission from the defendants through a letter dated 4-4-1991. When the things stood thus, the second defendant's official has suddenly started to put up fence across the said passage. Therefore, the plaintiff was constrained to file the suit.

3. The defendants have filed the written statement. Except admitting the fact that the plaintiff in his property has established a resort by name Tulips Resort', have denied the entire case of the plaintiff and further contend that the plaintiff has not come to the Court with clean hands and suppressed the material facts of the case. It is the case of the defendants that, there is a huge entrance to the plaintiff's resort on the northern side of the resort and the plaintiff in order to grab the forest land by hook or cook has filed the suit and further contended that the plaintiff is carrying immoral and illegal activities in the suit schedule property and the suit property is a part of forest area and the Government has declared the same as a Reserved Forest Area through a notification. It is further contended that the suit schedule property contains experimental plots of eucalyptus clones, of Andhra Pradesh and the plaintiff has no right of way in the suit schedule property and the plaintiff is claiming the suit schedule property for non-forest use. The same is prohibited in view of provisions of Section 2 of the Forest (Conservation) Act, 1980 therefore, sought for dismissal of the suit.

4. Based on the aforesaid pleadings, the Trial Court has framed the followings issues:

"1. Whether the plaintiff proves that he is the absolute owner and in possession of the suit schedule property?

2. Whether the plaintiff proves that right of easement to use passage which was being used from time immemorial?

3. Whether the plaintiff proves that defendants are put up the fence and obstruct the passage?

4. What decree or order?"

5. In order to substantiate the case of the plaintiff, the plaintiff examined himself as P.W.1 and two witnesses as P.W. 2 and P.W. 3 and marked the documents-Exs. P.1 to P. 11. The second defendant examined himself as D.W. 1 and got marked the documents-Exs. D.1 to D. 6.

6. After considering both the oral and documentary evidence on record, the Trial Court recorded a specific finding that the plaintiff has failed to prove he is the absolute owner of the suit schedule property and failed to prove that he has right of easement to use passage, which was being used from time immemorial and ultimately, the Trial Court has dismissed the suit.

7. Aggrieved by the said judgment and decree of the Trial Court, the appellant filed R.A. No. 38 of 2007 before the III Additional District and Sessions Judge, Bengaluru Rural District. The Lower Appellate Court after hearing both the parties dismissed the appeal confirming the judgment and decree of the Trial Court. Against the said concurrent finding of facts recorded by the Courts below, the appellant has filed the present appeal.

8. I have heard the learned Counsel for the parties to the Its.

9. Sri Leeladhar H.P., learned Counsel for the appellant vehemently contended that there i