JUDGMENT :

1. The appeal is directed against the judgment and decree passed in R.A.No.68/2006 wherein appeal came to be allowed by the Presiding Officer, Fast Track Court-I, Chikmagalur on 29-05-2006 and consequently the judgment and decree dated 29.6.2001 passed in O.S.No.112/1995 by the learned Civil Judge (Jr.Dn), Koppa, came to be set aside and the original suit No.112/1995 was decreed with costs and the defendants, their agents, servants were restrained from interfering with the peaceful possession and enjoyment of the schedule properties. Being aggrieved by the said judgment and decree passed in R.A.No.68/2006, the defendants have come in appeal.

2. In order to avoid confusion and overlapping, the parties are referred hereinafter in accordance with the ranks held by them before the trial court.

3. Originally, the suit was filed by the plaintiff seeking permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit schedule properties.

4. It is necessary to clarify at this stage itself that the dispute between the parties is not regarding the actual possession and enjoyment of the suit schedule properties in toto. But the defendants according to plaintiff have been disturbing the plaintiff’s possession and enjoyment of the schedule properties through trespass by making use of way through out over the schedule properties for their daily activities and also for agricultural purposes to carry equipment, fodder and the related.

5. Plaintiff’s claim is, defendants are not entitled even for entry into the schedule properties let alone the use of the space required for using as path-way or road.

6. The substance of the plaint is that, plaintiff is the absolute owner of the schedule properties bearing survey Nos. 53,57/P,59/1,60/1,192/5,60/2 and 192 situate at Kodur village, Hariharapura Hobli, Koppa.

The defendants are none other than the brothers of the plaintiff. The suit schedule properties originally belonged to the father of the plaintiff, Manjunathaiah. The schedule properties were allotted to the plaintiff in the family partition effected by his father. Consequent to the partition all the siblings started living separately. After the death of Manjunathaiah, father of the plaintiff and defendants, they also succeeded to the share of their father Manjunathaiah and plaintiff and defendant Nos. 1 and 2 partitioned the properties left behind by Manjunathaiah through a registered partition deed dated 18-7-1996. Consequent to the partition, all the original records pertaining to their share were mutated and necessary entries were made in the records maintained by the competent authorities.

7. The grievance of the plaintiff is that, defendants though do not have any right, title and interest of any kind towards schedule properties started interfering with the possession and enjoyment of the plaintiff by way of removing the fence and other mis deeds.

8. The defendants appeared through their counsel and filed their written statement. The objections or defence in substance is that, after the death of their father Manjunathaiah, plaintiff and defendant No.1 made some rectification in respect of some of the survey numbers in the original partition deed dated 04-11-1976 and partitioned the properties of their father’s share and the properties they purchased jointly after the original partition in the year 1976 under the registered deed dated 18-07-1986. There is no dispute regarding the extent of lands allotted to each of them. Their contention is that, common boundary given to Item No.1 of the properties is not correct and plaintiff has not described the nature of the land in item No.1, intentionally to misguide the court and the defendants.

9. According to the defendants both the plaintiff and defendants being the members of the same family earlier and their respective shares in the partition were adjoining lands and defendants have to pass through the lands of the plaintiff on ridges to