JUDGMENT

This appeal is by the defendants 3 to 5 who are the legal representatives of deceased defendant No.1, aggrieved by the Judgment and decree dated 12.01.2010 passed in O.S.No.136/1999 on the file of I Additional Civil Judge (Jr.Dn), Mangalore, Dakshina Kannada (trial Court) by which the trial court had granted relief of permanent injunction in favour of respondent No.1/plaintiff restraining the appellants/defendants from trespassing into the schedule property or forming any roadway in the suit schedule property or in any way interfering with the peaceful possession and enjoyment of the same by the plaintiff. It further directed the plaintiff to remove the mud dumped in item No.1 of the suit schedule property at the cost of the defendants. The said Judgment and decree has been confirmed by Judgment and order dated 23.04.2018 passed in R.A.No.30/2010 on the file of II Additional Senior Civil Judge and CJM, Mangalore (first appellate Court).

2. The above suit in O.S.No.136/1999 was filed by respondent/plaintiff against appellants herein for the relief of bare injunction contending interalia that the plaintiff is an Educational Institution managed by Catholic Board of Education, Mangalore and plaintiff has been in possession and enjoyment of the suit property since more than 60 years. That the house of the defendant No.1 is situated on the northern side of the suit property and that the house of the defendant No.1 has got approach road from the northern side of the property. That defendant No.1 with an intention to have approach to his property through the southern side of his property illegally attempted to encroach upon suit property. That it is further contended that the attempt of the defendant to encroach upon the suit property of the plaintiff is illegal. It is also contended that the Government authorities have not acquired the suit property for the purpose of forming any road. That the illegal act of the defendant to encroach upon the suit property by way of dumping mud etc., near the school building constrained the plaintiff to approach the Court for the relief of permanent injunction.

3. In the written statement filed by defendant No.1 it is contended that suit was bad for non-joinder of necessary parties. It is contended that defendants are unnecessary parties as they have nothing to do with alleged road repairs. It is also contended that it is the duty of Mangalore City Corporation to maintain road in a good condition. That the Mangalore City Corporation is carrying on the work of metalling the road to be used by public and as such Mangalore City Corporation was a necessary party to the suit. It is further contended that defendant No.1 and his ancestors were using the road from time immemorial and have perfected their right of easement and that cannot be interfered with by the plaintiff and said road is also used by other persons of the locality to access to their respective properties and defendant has been taking his car through this road since several years and plaintiff is thus unnecessarily interfering with right of the defendant. The other allegation of interference by the defendant No.2 is also denied.

4. During pendency of the suit defendant No.1 passed away as such legal representatives are brought on record who file additional written statement contending the suit against them was not maintainable as the suit was one for prohibitory injunction filed against defendant No.1 and there was no cause of action to implead defendants 3 to 5 as party to the suit.

5. On consideration of pleadings, trial court framed issues and recorded the evidence and by Judgment and decree dated 12.01.2010 decreed the suit restraining the defendants from trespassing and or forming any roadway in the plaint schedule property or interfering with the peaceful possession and enjoyment of the plaint schedule properties by the plaintiff. It was further directed that the plaintiff can remove mud at the cost of defendants.

6. Being aggrie