IMPORTANT POINT
The central legal point established in the judgment is the recognition of an easementary right based on continuous usage and the partition deed, allowing for the grant of perpetual injunction even in the absence of a specific prayer for declaratory relief.

JUDGMENT :

This appeal is filed challenging the judgment and decree dated 24.01.2011 passed in R.A.No.10/2009 by the Principal Senior Civil Judge, Puttur, D.K.

2. The factual matrix of the case of the plaintiff before the Trial Court that he has filed the suit in O.S.No.99/2006 for the relief of permanent prohibitory injunction restraining the defendant, his men, servants, legal representatives or anybody claiming through or under him from in any way encroaching upon the plaint ‘C’ schedule roadway or from reducing its width or from blocking the plaint ‘C’ schedule property measuring 12 to 15 feet wide motorable roadway branching from the panchayat road namely Alankar to Kakve at place called Karthutelu and passing across the Sy.No.118/1 of Alankar village, Puttur taluk, D.K. and connecting the house of the plaintiff.

3. It is contended in the plaint by the plaintiff that he is the absolute owner of agricultural kadim warga land bearing Sy.No.116/7 to the extent of 0.47 acres situated at Alankar village, Puttur taluk, D.K. amongst other lands which was acquired by virtue of partition deed dated 03.02.1988. The land described in ‘B’ schedule of the plaint along with other lands form direct frontage kumki to the kadim warga lands mentioned in the ‘A’ plaint schedule. It is further contended that both ‘A’ and ‘B’ schedule properties are in a compact block, enclosed by common physical boundaries like fencing and agalu. The plaintiff has raised vast agricultural improvements in both the plaint ‘A’ and ‘B’ schedule properties and he has also constructed a new residential house in Sy.No.116/7 in plaint ‘A’ schedule property after the partition. It is contended that the road has been more fully described as schedule ‘C’ in the plaint.

4. It is also contended that the defendant is the none other than the direct brother of the plaintiff, being a party to the partition deed. The defendant has got a separate motorable roadway in order to reach his house. However, recently with the consent of the plaintiff, the defendant is also using the said road apart from the other road. It is contended that the plaint ‘A’ and ‘B’ schedule properties as well as the plots held by the defendant and that of one Shankaranarayana Bhat were jointly held by them, they being the co-sharers. Thereafter, as per the partition deed, the property was divided into separate shares, in that partition, the plaintiff got allotted with the ‘A’ and ‘B’ schedule properties along with other lands. It is contended that at the time of partition, there exists mamool and easementary rights of way, water, etc., which were continued even after partition. The plaintiff further submits that the ‘C’ schedule roadway was in existence even at the time of partition and even much prior to it, so as to reach the plot now held by the plaintiff. As such, the defendant has no right to encroach or block the said roadway. The plaintiff further contended that he has got no other road other than ‘C’ schedule road so as to reach his house from the public road mentioned above. If the width of the road is reduced, it will be impossible for the plaintiff to take heavy vehicles like lorry, agricultural produces, manure, hay and other materials, etc. It is also contended that the defendant, on 20.07.2006, with the help of his henchmen erected some wooden sticks and planted some live-plants encroaching upon ‘C’ schedule road and the plaintiff rushed to the spot and objected the act of the defendant and could resist the defendant temporarily with great difficulty.

5. In pursuance of suit summons, the defendant appeared and filed the written statement even denying the correctness of description of ‘A’ and ‘B’ schedule properties. But he contended that there is a separate alternative motorable road which leads to the house of the plaintiff. It is contended that ‘C’ schedule road is formed by the defendant for his purpose and he never closed or blocked ‘C’ schedule road at any point of time as contended by the