The main legal point established in the judgment is the recognition of the defendants' right of easement of necessity, while highlighting the inconsistency of granting easement of necessity and prescription together.

JUDGMENT :

K.S. Mudagal, J.

This regular second appeal of plaintiff arises out of common judgment and decree dated 07.11.2014 passed by the Senior Civil Judge & CJM, Madikeri in R.A.No.74/2012 and R.A.No.73/2012. By the impugned judgment and decree, the First Appellate Court dismissed the appeals of plaintiff and confirmed the judgment and decree dated 27.08.2012 passed by the Additional Civil Judge, Madikeri in O.S.No.62/2008.

2. By the said judgment and decree, the trial Court had dismissed the suit of the plaintiff-appellant for permanent injunction and decreed the counter claim of defendants declaring that defendants have right of easement of necessity and easement of prescription over suit schedule pathway and granted injunction against plaintiff from obstructing peaceful usage of the said pathway.

3. Appellant was plaintiff and respondents were defendants before the trial Court. For the purpose of convenience, parties will be henceforth referred to with their ranks before the trial Court.

4. Subject matter of the suit in O.S.No.62/2008 was land bearing Survey No.42/1 which in all measured 6.25 acres situated within the limits of Avandoor village, Bagamandala Taluk, Madikeri Taluk.

5. Case of the plaintiff was as follows: Plaintiff and defendants are descendants of common ancestor of Kalerammana family. But the defendants belong to different branch of Kalerammana family. Plaintiff acquired suit property in a partition. Defendants are obstructing his peaceful possession and enjoyment of the suit property. Though he gave police complaint against obstruction of the defendants, that did not yield results. Therefore, he seeks decree for permanent injunction against defendants.

6. Defendants on appearing, filed written statement as well as counter claim denying acquisition of property by plaintiff under partition. They contended that suit land and their land bearing survey No.47 and their other lands including survey No.49 belonged to Kalerammana family and devolved in plaintiff and themselves by inheritance. They further contended that they are cultivating and enjoying survey No.47 and the family ancestral house called "Iyne Mane" situates in Survey No.47.

7. Defendants further contended that to reach the family house and to go to temple, defendants have to cross the wooden bridge formed across the stream between their land and plaintiff's land and the pathway situated in plaintiff's land since time immemorial. They contended that they have right of easement of necessity and prescriptive easement over the said pathway. They further contended that recently plaintiff came in possession of the suit property and wrongly trying to obstruct the usage of the said pathway. They claimed declaration right of easement of necessity and easement by prescription and permanent injunction.

8. Plaintiff filed rejoinder to the counter claim of the defendants denying the case of easement.

9. On the basis of such pleadings, the trial Court framed the following issues:

1. Whether the plaintiff proves that he is in lawful possession of the suit schedule property as on the date of suit?

2. Whether the plaintiff proves the alleged interference caused by the defendants?

3. Whether the defendant Nos.1 to 3 prove the existence of counter claim footpath in the middle of suit schedule property for the past 60 years?

4. Whether the defendant Nos.1 to 3 prove that they have acquired easementary rights of necessity and prescription over the counter claim footpath?

5. Whether the defendant Nos.1 to 3 prove the alleged interference caused by the plaintiff for usage of counter claim footpath?

6. Whether the plaintiff is entitled for the suit relief?

7. Whether the defendant Nos.1 to 3 are entitled for the counter claim relief?

8. What order or decree?

10. Parties adduced evidence. In the trial Court, Commissioner was appointed to inspect the suit property and to submit his report. Accordingly, he submitted his report. Plaintiff was examined as PW.1 and Ex.P1 to Ex.P9 were marked