Easement Right

JUDGMENT :

Though this matter is listed for admission today, with the consent of both the learned counsel it is taken up for final disposal.

2. Heard the learned counsel appearing for the appellants/defendants and the learned counsel appearing for respondent No.1(1)/plaintiff.

3. This appeal is filed challenging the judgment and decree dated 16.04.2019 passed in R.A.No.126/2012 on the file of the I Additional Senior Civil Judge, Mangaluru, D.K.

4. The factual matrix of the case of the plaintiff before the Trial Court is that her vendors had granted the easement right to draw water from the well and also a right to approach road in order to take the water from the well and exclusive possession and enjoyment of ‘A’ schedule property of the plaint and the defendants are causing interference in respect of availing the water from the well and also causing obstructions to the pathway. Immediately within three days of filing the suit, the defendants highhandedly and illegally constructed a compound wall blocking the pathway leading to the well and there is an obstruction to get the benefit as mentioned in the Sale Deeds. Hence, sought for the relief of mandatory injunction to remove the obstruction.

5. The defendants in pursuance of the suit summons had appeared and filed the written statement contending that the first defendant is not the owner or occupier of the property in question. The second defendant is the brother-in-law of first defendant, who is the Deputy General Manager of Canara Bank at Bengaluru. He has not interfered with the alleged rights of the plaintiff. The wife of the first defendant is the owner of the site immediately to the north of the plaintiff’s property. The second defendant is the owner of the site on the west of the plaintiff’s property. The plaintiff is a Mulagenidar of ‘A’ schedule property and hence she cannot assert easement right over the property of second defendant who is the owner of property purchased by him as per Sale Deed dated 18.09.1993. However, the defendants admit the existence of the well but deny the right of the plaintiff to draw water from the well. The second defendant does not admit the alleged easement right of the plaintiff over the well and pathway and denied the contention of the plaintiff.

6. The plaintiff in order to prove her contentions examined the power of attorney holder as P.W.1 and got marked the documents as Exs.P1 to P10. On the other hand, the second defendant examined himself as D.W.1 and got marked the documents as Exs.D1 to D5(a).

7. The Trial Court after considering both oral and documentary evidence available on record, allowed the suit and directed the defendants to remove obstruction caused to the pathway passing through the property of second defendant, leading to the Well situated in his property within three months from the date of its judgment and also restrained from blocking or interfering with the use and enjoyment of the pathway leading to the well and drawing water from the well. Being aggrieved by the judgment and decree of the Trial Court, the defendants had filed an appeal in Regular Appeal No.126/2012 before the First Appellate Court. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record and also the grounds urged in the appeal formulated the points viz., whether the defendants have made out sufficient grounds to allow the appeal and whether the judgment of the Trial Court is illegal, capricious and opposed to law and answered both the points as negative and concurred with the findings of the Trial Court. Hence, the present second appeal is filed before this Court.

8. The main contention of the learned counsel appearing for the appellants is that they are not disputing the right given to the plaintiff for using the well. But learned counsel would vehemently contend that the well is situated by the side of the road and no need to come through the land of the defendants and there is a separate access to the wel