Suit for injunction requires ongoing possession and cannot stand alone without declaratory relief on easementary rights, reaffirming trial court findings.

JUDGMENT

1. This second appeal is filed by the appellant challenging the judgment and decree dated 12.12.2012, passed in R.A.No.51/2011 by the Prl. Senior Civil Judge, Shimoga, setting aside the judgment and decree dated 18.03.2009 passed in O.S.No.160/2005 by the II Addl. Civil Judge (Jr.Dn.) & JMFC, Shimoga.

2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellants herein are the legal representatives of the defendant and respondent herein is the plaintiff.

3. The brief facts leading rise to filing of this appeal are as under:

Plaintiff filed a suit for permanent injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the suit schedule property. It is the case of the plaintiff that he is the owner in possession of the suit schedule property, which was allotted to the share of his father under a partition deed 16.05.1969 effected between his father and his 5 brothers i.e., uncles of the plaintiff. In the said partition, western side residential house of the suit schedule property had fallen to the share of the plaintiff’s father, Sri.P.Abdul Hameed Sab and eastern side remaining portion had fallen to the share of his uncle, Sri.P.Abdul Sattar Sab. Since then, the plaintiff along with his father and other family members are in possession and enjoyment of the suit schedule property. The plaintiff’s uncle and his sons are residing in Shimoga and hence, the eastern and western portion of the property are in enjoyment of his father. It is further contended that Sri.P.Abdul Sattar Sab and his two sons have entered into an agreement dated 20.08.1996, agreeing to sell the suit schedule property in favour of the plaintiff and his brother for consideration of Rs.81,000/- and accordingly received advance amount of Rs.48,000/- and handed over the possession. The plaintiff further contended that on both eastern and western sides of the suit property, he has left set back of three feet each and on the eastern side, the set back portion is being used by the plaintiff and other members of his family as passage to reach the backyard of the suit schedule property. The defendant has taken up a new construction work on the southern side of her property and attempting to put up a shopping malige by encroaching upon the property of the plaintiff on the western side. It is further stated that if the defendant is allowed to construct, it will block the passage as well as the air and light to the building of the plaintiff. Hence, the plaintiff requested the defendant not to make any construction in the passage. The defendant did not give any heed to the request made by the plaintiff. Hence, cause of action arouses for the plaintiff to file the suit for permanent injunction.

4. Defendant filed written statement denying the averments made in the plaint and contended that she has got a residential house and backyard. The same was inherited by her husband Late P. Abdul Mazeed. Sri.P.Abdul Mazeed inherited the said property from his father Sri.Chaman Sab, who had purchased the said property under a registered sale deed in the year 1927. The defendant has produced the rough sketch map along with written statement which clearly shows the location and real picture at the spot. As per the sketch, ‘ABCD’ schedule property inherited through late husband of the defendant i.e., Abdul Mazeed, in which ‘ABCD’ shown in the rough sketch appended to the written statement consisted two residential houses, one RCC Malige, one shed and one backyard, in which two coconut growing trees and one arecanut tree and other fruit yielding trees are there. To the southern side of the defend