This

regular

second

appeal

is

filed

by

the

appellant/plaintiff aggrieved by the judgment and decree dated

27.06.2006 passed by the I Additional Civil Judge (Sr.Dn.)

Dharwad (hereinafter referred to as 8the first appellate Court9)

in R.A.No.167/2004 by which the first appellate Court allowed

the appeal filed by the respondent/defendant setting aside the

judgment and decree dated 08.12.2004 passed in favour of the

appellant/plaintiff by the Principal Civil Judge (Jr.Dn.), Dharwad

(hereinafter

referred

to

as

8the

trial

Court9)

in

O.S.No.113/2001.

2.

Parties are referred to as per their ranking before

the trial Court.

3.

Subject matter of the present appeal is the passage

measuring East to West 62.59 in length and North to South 109

in width forming part of the property in Block No.80 situated in

R.S.No.38A of Lakkamananhalli, Dharwad taluk (hereinafter

referred to as 8the passage9).

4.

Brief facts of the case are that;

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a. The property bearing Block No.80 belonged to one

Smt.Suvarnabai Kuri. She sold eastern portion to the defendant

and western portion to the plaintiff No.1. That the portion of

the property of the defendant is situated on the southern side

of the passage. That the defendant has constructed a

compound wall covering the passage thereby blocking the entry

of the plaintiff to his property.

b. That earlier the defendant had filed a suit in

O.S.No.178/1992 before the Additional Civil Judge (Jr.Dn.),

Dharwad for relief of declaration and injunction declaring that

plaintiff No.1 has no legal right, title or interest over the

passage. The said suit was dismissed by the judgment and

decree dated 22.09.2000. Despite the same, the defendant has

constructed a wall blocking the entry of the plaintiff No.1

through the passage in gross violation of the aforesaid Court

decree.

c. That the plaintiff No.1 was working in Malaprabha

Cooperative Sugar Factory and during his absence, defendant

constructed the compound wall on the passage. The plaintiff

No.1 not being able to prevent the illegal construction activities

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carried on by the defendant, had made application to the

Corporation of Hubballi-Dharwad requesting them not to permit

the defendant to raise the compound wall over the passage and

also to demolish the same. Though a notice in this regard had

been issued by the Corporation asking the defendant to

demolish the wall, the defendant persisted his unlawful act,

constraining the plaintiff to file this suit for mandatory

injunction.

5.

The defendant filed his written statement while

denying the existence of the passage contended inter alia that;

a. That the sale deed executed by late Suvarnabai did not

contain the passage. That the plaintiff has misconstrued the

sub-division map prepared by the ADLR reducing his property

by an extent of 8 anas out of the total area of 2 guntas 4 anas

of land. That based on the said misconstrued sub division map,

plaintiff No.1 is causing trouble to the defendant preventing

him from constructing the compound wall. That the said act of

the ADLR affecting the sub-division map has been rectified by

the concerned authority pursuant to the direction of the High

Court of Karnataka making good of loss of 8 anas of the

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property. The plaintiff being aware of this fact, has filed the

present suit for wrongful gain.

b. When the defendant commenced the construction of

compound wall, the plaintiff started troubling him. This

constrained the defendant to file a suit before the Civil Judge

and also before the Land Records Authorities. The construction

of compound wall by the defendant is without causing any

hindrance to the right of way to the plaintiff.

c. The plaintiff has constructed the house on the plot

No.80A knowing fully well that he has got free access through

the passage available to the resident of layout formed by the

Janata Co-operative Housing Society. The plaintiff is therefore

not entitled for any passage over the property of the defendant.

d. That the judgment in O.S.N