The court affirmed the plaintiff’s easementary right to access her property via the RRR road, rejecting claims of res judicata and procedural deficiencies from the defendant.

JUDGMENT :

RAJESH RAI K., J.

1. This is defendant’s second appeal.

2. The plaintiff has filed the suit for declaration that the plaintiff has got right of 12 feet wide road way to reach the suit schedule property from main road through the property of the defendant comprised in Sy.No.98/18 shown as 'RRR' in the annexed plaint plan in red colour by way of easement (for brevity, "RRR road") and also for consequential relief of permanent prohibitory injunction restraining the defendant from in any way blocking or constructing or interfering with or reducing the width or in any way obstructing the user of said road to reach the suit schedule property from the public road.

3. According to the plaintiff, she is the absolute owner in possession of the suit schedule property. She purchased the same vide Sale Deed dated 04.11.1938. The schedule property contains a school building which was constructed by the vendor's of the plaintiff. After purchase, she continued to run the school. The said school is known as 'St.Joseph's Higher Primary School having classes from I to VII standard. The suit schedule property is situated at about 150 feet away from the main public road. The said public road is running from south to north direction and in between the schedule property and the public road, there is defendant’s property. To reach the schedule property from the main road, there is RRR road way at the southern edge of the defendant's property. Apart from the plaintiff, all the students, staff members and the visitors of the school have been using the RRR road without any interruption since time immemorial.

4. Things stood thus, the defendant, obstructed the usage of RRR road by blocking the same. On enquiry, the plaintiff came to know the defendant highhandedly and forcibly tried to interfere with the RRR road. As such, the suit was filed by Catholic Board of Education which was entrusted with the running of the school for the time being in O.S.No.63/1995 for injunction. However, the said suit was dismissed by the Trial Court for non-prosecution. It is the further case of the plaintiff that on 06.04.1998, all of a sudden, the defendant with the help of her henchmen dug the ground on the eastern edge of the RRR road to block the same, however, the plaintiffs managed to protest the same. Hence, the plaintiff filed the present suit.

5. On service of the suit summons, the defendant appeared through her counsel and filed the written statement by denying the plaint averments. It is stated in the written statement that the suit is not maintainable on the ground of res judicata since the earlier suit filed for the similar cause of action was dismissed for non-prosecution.

6. It is also contended that since 1938 onwards, the School was having an approach from the Nanthur Road and there was no approach of whatsoever nature to the said School through the property of the defendant. On either side of the School, the properties of the Catholic School are situated and the School has two approach roads. In such circumstance, to grab the property of the defendant, the present suit is filed.

7. Upon perusal of the rival pleadings, the Trail Court has framed the relevant issues and on assessment of oral and documentary evidence, decreed the suit.

8. On appeal, the First Appellate Court has also affirmed the judgment and decree passed by the Trial Court by dismissing the appeal. Hence, the defendant is before this Court.

9. I have heard Sri. Y. Rajendra Prasad Shetty, learned counsel for the appellant and Sri Cyril Prasad Pais