The court affirmed that claims for easement by prescription require clear evidence of uninterrupted enjoyment for 30 years and that different causes of action can support distinct suits without invoking res judicata under CPC.

JUDGMENT :

RAVI V. HOSMANI, J.

Challenging judgment and decree dated 03.06.2014 passed by I Addl. Senior Civil Judge, Chikkamagaluru, in RA no.108/2012 and judgment and decree dated 16.8.2012 passed by Civil Judge and JMFC, Shringeri, in OS no.27/2007, this appeal is filed.

2. Brief facts are, appellant was plaintiff in OS no.27/2007 filed for declaration that he has easement by way of prescription for receiving air and light from schedule 'B' property without interruption; directing defendants to remove structure put up on schedule 'B' property by mandatory injunction and restrain defendants from interfering with plaintiff's right to receive air and light uninterruptedly by permanent injunction, etc.

3. In plaint, it was stated plaintiff was absolute owner in possession and enjoyment of house bearing Assessment no.393/382, measuring East to West - 8.60 meters and North to South - 48.20 meters, situated in Harihara street, Shringeri Town (‘A’ property, for short) It was stated, ‘A’ property was purchased by plaintiff under registered sale deed dated 08.06.1973 and thereafter, khata issued in his name. It was stated, except ‘A’ property, he has no other house. It was stated, towards its western side, a vacant site place measuring East to West - 2 ft. and North to South - 123 ft. was existing (‘suit property’, for short). It was stated, defendant without any manner of right, began construction by encroaching open space towards left side of ‘A’ property. It was stated, without leaving setback either to an extent of 2 ft., defendant put up construction in suit property in violation of license and town planning rules. Therefore, plaintiff approached Town Panchayat, Shringeri, to taking suitable action. Due to failure, OS no.06/2004 was filed seeking for bare injunction.

4. It was stated, defendant had entered caveat, entered appearance on 17.04.2004 and on same day they filed joint memo with condition that defendant would not put up construction towards western side of suit property. Taking note of same, Town Panchayat, Shringeri, stayed construction on 04.05.2004 and restrained defendant from further construction.

5. However, after stopping construction for some time, defendant continued construction. Therefore, a Court Commissioner was appointed in OS no.06/2004 for spot inspection and to submit report. Said Commissioner visited spot on 29.10.2004 and submitted report on 12.11.2004, reporting that defendant had not left 2 ft. space as per conditions imposed in building licence. Defendant filed objections against report. Plaintiff filed application for amendment seeking for mandatory injunction. But, application was rejected by trial Court. Thereafter, suit came to be dismissed reserving liberty to plaintiff to file comprehensive suit.

6. It was stated, even at time of spot mahazar by Town Panchayat, Shringeri, plaintiff had objected issuance of licence and requested to prevent obstruction to easementary rights of air and light. Hence, licence was issued directing defendant to leave 2 ft. setback towards ‘A’ property. It was further stated at time of purchase, house purchased was 75-80 years old and even prior to purchase, his vendor was enjoying free light and air from suit property uninterruptedly. It was stated, plaintiff's site was si