The court upheld the existence of a right of easement for the defendants over a cart track, affirming prior judgments and applying the principle of res judicata.

Headnote:(A) Indian Easements Act, 1882 - Section 13 - Right of easement - This case concerns a dispute over the ownership and right of easement pertaining to a cart track in the plaintiffs' property - The previous decree established the defendants' easement rights over the cart track, which were upheld in the current appeal - The plaintiffs sought to declare the absence of the cart track, contrary to the principles established by the earlier court ruling. (Paras 16, 18, 20)

(B) Res Judicata - The principle of res judicata was applicable here as the plaintiffs could not challenge the existence of the cart track after an earlier court had granted easement rights to the defendants. (Paras 18, 22)

Facts of the case:
The plaintiffs claimed ownership and peaceful possession of a property but faced interference from defendants creating a cart track on their land. The plaintiffs filed suit for declaration and mandatory injunction against the defendants. The trial court dismissed the suit, a decision affirmed by the first appellate court, which partially allowed the plaintiffs' appeal. (Paras 3, 4, 10)

Findings of Court:
The court held that the plaintiffs cannot seek to declare there is no cart track given that an earlier judgment affirms the defendants' right of easement. The dismissal of the appeal was thus justified. (Paras 19, 22)

Issues: The main issues involved were whether the plaintiffs owned the suit property, the existence of the cart track, and the principle of res judicata. (Paras 1, 6, 10)

Ratio Decidendi: The court ruled that the earlier judgment granting easement rights to the defendants is binding, and the principle of easement allows for the existence of the cart track to be upheld, dismissing the appeal. (Paras 21, 22)

Result: Regular Second Appeal is dismissed.

Table of Content
1. challenging a trial court's decree (Para 1 , 2)
2. ownership and cart track rights (Para 4 , 5)
3. issues framed by trial court (Para 6 , 7 , 8)
4. findings of the first appellate court (Para 10 , 11)
5. right of easement and relevant law (Para 16 , 19 , 20)
6. final order of dismissal (Para 22)

JUDGMENT :

ASHOK S. KINAGI, J.

1. This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 16.09.2010 passed in R.A.No.340 of 2007 by the learned I Additional District Judge, Tumkur, and the judgment and decree dated 08.10.2007 passed in O.S.No.217 of 2001 by the learned Civil Judge (Sr.Dn.) and Addl. MACT, Kunigal.

2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was plaintiff No.1, respondent Nos.1 to 10 were the defendants and respondent Nos.11 to 13 were plaintiff Nos.2 to 4.

3. Brief facts leading rise to the filing of this appeal are as follows:

4. The plaintiffs filed a suit for declaration to declare that they are the absolute owners of the suit schedule property and in peaceful possession and enjoyment of the suit schedule property, and also for declaration that there is no cart track or any other way to the defendants in the suit schedule property and also mandatory injunction directing the defendants to close pathway or cart track. It is the case of the plaintiffs that the suit schedule property is the land measuring 2 acres 6 guntas in Survey No.54/1 situated at Sondekoppa village, Kunigal Taluk. The said suit schedule property fell to the share of the husband of plaintiff No.1 and the father of plaintiff No.3 in the partition effected between the husband of plaintiff No. 1 and his brother Ningaiah, under a registered partition deed dated 15.08.1965. Since from the date of partition, plaintiff No.1's husband was in possession and enjoyment of the suit schedule property. The defendants have no right or interest over the suit schedule property. Plaintiff No.1's husband- Boraiah had executed a settlement deed on 06.09.1986 and the suit schedule property was fell to the share of the plaintiffs. The defendants are creating a pathway in the suit schedule property. Defendant Nos.1 to 5 at the instigation of defendant Nos.6 to 9 had interfered with the plaintiffs' peaceful possession and enjoyment over the suit schedule property. They have cut and removed sugarcane crop and coconut trees grown by the plaintiffs in the suit schedule property. The plaintiffs issued a notice to defendant Nos.1 to 5 on 08.11.2001. Further, defendant Nos.1 to 5 at the instigation of defendant Nos.6 to 9, have cut and removed 30 Ankole trees, 300 bamboo bushes, 30 Honge trees and 30 coconut trees etc., and the defendants are running a tractor and jeep by forming an unlawful assembly in the suit schedule property. Hence, a cause of action arose for the plaintiffs to file a suit for declaration and mandatory injunction.

5. Defendant Nos.1 to 5 appeared through their counsel but they did not file a written statement. Defendant Nos.6 to 9 have filed the written statement. It is contended that there exist a cart track from time immemorial and the husband of plaintiff No.1 and father of defendant Nos.6, 7 and husband of defendant Nos.8 and 9 are enjoying the same even when they were in a joint family. There was a partition effected between Ningaiah and his brother Boraiah i.e., husband of plaintiff No.1, by executing a registered partition deed dated 15.08.1965. In the said partition, Ningaiah and Boraiah got properties in Survey No. 54/1, wherein Ningaiah got 2 acres 6 guntas towards the western portion and Boraiah got properties on the eastern portion. After Ningaiah's death, the defendants being the legal heirs of deceased Ningaiah are making use of the said cart track and perfected the right of easement by prescription and contractual nature, which is now more than 38 years. The defendants have no other alternative way to access their land, except the