Plaintiff failed to establish the existence of an easementary right over the claimed suit way, leading to dismissal of the suit.

ORDER :

M.G.S. Kamal, J.

This appeal is by the plaintiff aggrieved by the judgment and decree dated 01.08.2015 passed in OS No.432/2011 on the file of Principal Civil Judge and I Additional JMFC Court, Ranebennur (for short ‘Trial Court’) which is confirmed by the judgment and order dated 12.01.2018 passed in RA No.88/2015 on the file of II Additional Senior Civil Judge, Ranebennur (for short ‘First Appellate Court’) by which suit of the plaintiff has been dismissed.

2. The above suit in OS No.432/2011 has been filed by the plaintiff seeking declaration of his easementary right over the ‘suit way’ having width of 10 ft., and length of 200 mtrs., which is described in hand sketch annexed to the plaint as ‘GHEF’; and for consequential relief of permanent injunction restraining the defendants from interfering with peaceful enjoyment of the ‘suit way’ by the plaintiff to reach his land situated towards eastern side of the lands of defendants.

3. Case of the plaintiff is that, he is the owner of the land bearing RS No.27/2A measuring 6 acres 17 guntas situated at Kotihala village which is described in the hand sketch as ‘ABCD’. That the land bearing RS No.28/1 measuring 2 acres 25 guntas, which is shown in letters ‘KFLJ’ in hand sketch belongs to defendants No.1 to 4. That the land bearing Sy.No.28/2 measuring 2 acres 25 guntas, which is shown in letters ‘JIEK’ in the hand sketch belongs to defendant No.5. That the aforesaid lands of the defendants No.1 to 5 are situated on the western side of the land belonging to the plaintiff.

4. That Lingadahalli-Holeanvery road running north to south is situated on the western side of the lands of the defendants, abutting Upper Tunga channel on its western side.

5. The ‘suit way’ measuring 10 ft. width X 200 mtrs., shown in letters ‘GHEF’ of the hand sketch is existing on the southern end of the lands of defendants No.1 to 5, connecting the aforesaid Lingadahalli-Holeanvery road and the land of the plaintiff. The said ‘suit way’ has been used by the plaintiff and his antecessors for over 50 years, to reach the land of the plaintiff. As such, the plaintiff has acquired easementary right by way of prescription over the ‘suit way’. That except the ‘suit way’, there is no other alternate way available for the plaintiff to reach his land.

6. That the defendants have caused unnecessary obstructions for the plaintiff in making use of the ‘suit way’. As such, he made a representation to Tahsildar on 11.07.2011. In turn, the Tahsildar directed the Revenue Inspector, Kuppelur to inspect disputed area and submit a report. The Revenue Inspector submitted a report showing the existence of the ‘suit way’. Since the defendants have caused obstruction to the plaintiff in making use of the ‘suit way’, the plaintiff has filed the suit seeking reliefs as noted above.

7. Defendant Nos.1 to 5 appeared through their counsel. Defendant No.2 has filed written statement which is adopted by the other defendants. While denying the very existence of the ‘suit way’ as claimed by the plaintiff, it is specifically contended that, the land in RS No.27 is sub- divided as RS No.27/1A/2 belonging to one Kudarihala Fakkirsab, who has not been arraigned as a party to the suit. It is further contended that, on the western side of the land in R.S No.28, the Government acquired an extent of 1 acre 5 guntas during the year 2005-06 for the purpose of construction of the Upper Tunga Channel. To protect the said channel, the Irrigation Department constructed a bund. Except the Irrigation Department, no other person