ORAL ORDER

This regular second appeal is filed by the appellant challenging the judgment and decree dated 18.09.2015 passed in R.A.No.41/2009 by the learned I Additional District and Sessions Judge, Davanagere and the judgment and decree dated 19.02.2005 passed in O.S.No.32/202 by the learned Civil Judge (Jr. Dn.), Jagalur.

2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellant is the plaintiff, respondent Nos.1 and 2 are the LRs of defendant No.1 and respondent Nos.3 to 6 are the defendant Nos.2 to 5. The plaintiff filed a suit for declaration and permanent injunction.

3. The brief facts leading rise to filing of the appeal are as follows:

It is the case of the plaintiff that the plaintiff is the owner of suit ‘B’ schedule properties situated at Thuppadahalli Village in Jagalur Taluk and is in peaceful possession and enjoyment of ‘A’ schedule properties as an absolute owner. The defendants are the owners of Sy.No.44/3P measuring 4 acres 7 guntas (item No.1 of ‘B’ schedule properties of plaint). A big channel passes through the said land of the defendants which runs north- south direction and marked as MNO in the plaint rough sketch. The said channel was formed about 50 years back and there is a bridge at point 'Y' for the said channel and there is a road runs along with the said channel and marked as ABCDE. There is also road from the village, which runs in Sy.Nos.45 to 50 and so on shown as XYZ in the plaint rough sketch. It is contended that the plaintiff has to reach his ‘B’ schedule properties from the village by passing through XYZ road and thereby crossing the bridge at 'Y' point of the channel MNO and passed through BCD channel road and from DE path since for more than 50 years, without any obstruction from anybody, muchless from the defendants. The defendants sold 3 acres 12 guntas of land in Sy.No.44/3P to one Ningappa under a registered sale deed dated 10.02.1956. The said Ningappa used to reach his land through XY road, than through BCDF channel road and passes through the defendants land. It is contended that the defendants in collusion with the persons who are enimical towards the plaintiff have tried to obstruct the plaintiff by passing through the schedule path to reach his B schedule properties. The plaintiff requested the defendants not to obstruct the plaintiff by passing through 'A' schedule path to reach his 'B' schedule properties. The defendants have denied the plaintiff passed through 'A' schedule path. Hence, cause of action arose of the plaintiff to file a suit for declaration and permanent injunction.

4. The defendants filed the written statement denying the averments made in the plaint and it is contended that, there is no such path is existing in ‘A’ schedule properties and the sketch map enclosed along with the plaint is false. It is contended that, the plaintiff was using Ramaghatta road, passing through Sy.Nos.45 to

50 and thereon 51, 54 and down to south between Sy.Nos.55 and 53 on the boundary lines of the same to reach his land. There is no road as alleged in ‘A’ schedule properties. Hence, prayed to dismiss the suit.

5. The trial Court on the basis of the pleadings of the parties framed the relevant issues.

6. The plaintiff in order to prove his case, examined himself as PW.1 and got examined 2 witnesses as PW.2 and PW3 and got marked 21 documents as Exs.P.1 to 21. Defendant No.2 was examined as DW.1 and got examined 4 witnesses as DW.2 to DW.5 and got marked 29 documents as Exs.D1 to D29. The trial Court after recording the evidence, hearing both sides and on assessment of oral and documentary evidence, the suit of the plaintiff was dismissed vide judgment dated 19.02.2005. The plaintiff aggrieved by the dismissal of the suit, preferred an appeal in R.A.No.41/2009 on the file of Learned I Additional District and Sessions Judge, Davanagere.

7. The First Appellate Court after hearing the parties framed the points for consideration and on r