JUDGMENT

This regular second appeal is filed by the appellant challenging the judgment and decree dated 26.07.2013, passed in R.A.No.34/2011 by the I Additional Senior Civil Judge and MACT-V, Chitradurga, setting aside the judgment and decree dated 20.09.2010, passed in O.S.No.68/2006 by the I Additional Civil Judge (Junior Division) and JMFC, Chitradurga.

2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellant is the plaintiff and respondents are the defendants. Plaintiff filed a suit for declaration that, the plaintiff has got right to make use of the suit schedule property for running waste water from her house through the drain and carrying repairs for southern wall of her house and for permanent injunction and mandatory injunction.

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

It is the case of the plaintiff that, plaintiff is the owner in possession of suit schedule property and the plaintiff has purchased the suit schedule property under the registered sale deed dated 23.12.2004 from one Athaulla, son of Mohammed Khasim for valuable consideration of Rs.4,34,000/-. Since from the date of purchase, the plaintiff is in possession and enjoyment of the suit property. The vendor of the plaintiff namely Athaulla had purchased site No.16 from his vendor under the registered sale deed dated 24.01.1983, after obtaining permission from the Competent Authority constructed the house in the year 1983. Towards South of the plaintiff's house there is a conservancy measuring more than 5 ft. When Athaulla constructed his house, Athaulla had put up small drain for running waste water from the house to the conservancy. Defendant No.1, Halima Khanum had purchased the site towards the south of the said conservancy which measures East-West 40 ft., North- South 21 ft. Defendant No.2, the mother of defendant No.1 is trying to encroach the conservancy to the south of the plaintiff's house, particularly towards the drain. The vendor of the plaintiff paid a sum of Rs.6,000/- to defendants No.1 and 2 and entered into an agreement to use 40 ft. X 2 ft. open space to the south of plaintiff's house. After purchasing the suit house by the plaintiff, the said Halima Khanum and others tried to obstruct the drain and she has also constructed a toilet and bathroom on the drain obstructing free flow of waste water. The plaintiff requested the defendants to remove that illegal construction, but the defendants denied to remove the illegal construction and also denied that title of the plaintiff. Hence, cause of action arose for the plaintiff to file a suit for declaration, perpetual injunction and mandatory injunction.

4. Defendants filed written statement denying the averments made in the plaint. It is contended that defendant No.1 is the absolute owner in possession of site No.17 and one Mahaboobi, wife of defendant No.4 - Altaf Hussain is the absolute owner of site No.18, defendant No.3 is the absolute owner in possession of site No.15 and are the owners of site Nos.16 to 18 have constructed their houses in the said sites and they are in peaceful possession and enjoyment of the same without interruption. Towards northern side of the site Nos.17 and 18, there is a conservancy in existence and same is mentioned in the plan approved by the CMC, Chitradurga. The conservancy of the plaintiff towards South of site No.16 which runs in between site Nos.11 to 16 on the south towards north to site Nos.17 to 22. The vendor of the plaintiff had completely encroached the said conservancy and totally he locked that conservancy and the owners of site Nos.11 to 15 and 17 to 22 from entering the said conservancy from the east and there is a 25 ft. road, which is running from South to North and also used for laying pipes and there is blockage of a ventilation for light and air. The vendor of the plaintiff had filed a suit in O.S.No.30/2000 on the file of the Principal Civil Judge (Junior Divis