AND

DECREE

DATED

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21.08.2008 PASSED BY THE PRINCIPAL CIVIL JUDGE

(SR.DN.), BIJAPUR IN R.A.NO.29/2007 AND CONFIRM THE

JUDGMENT AND DECREE DATED 02.01.2007 PASSED BY

THE PRINCIPAL CIVIL JUDGE (JR.DN.), BIJAPUR IN

O.S.NO.592/1999.

THIS APPEAL COMING ON FOR FINAL HEARING THIS

DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

This appeal is filed challenging the judgment and

decree dated 21.08.2008, passed in R.A.No.29/2007

by the Principal Civil Judge (Sr.Dn.), Bijapur.

2.

For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

Appellant is the defendant and respondent is the

plaintiff before the Trial Court.

3.

Facts giving rise to the filing of the appeal

briefly stated are as under:

Plaintiff filed a suit for declaration that she has

perfected the right of prescriptive easement right over

the ‘Suit ABC way’ as shown in the plaint sketch to

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reach her land bearing Sy.No.212/1A/1 and 212/1B of

Halagani Village and consequential relief of injunction

restraining the defendant from interfering with her

enjoyment over the suit way. It is the case of the

plaintiff that she is the owner in possession of the suit

land. Defendant is the owner of Sy.No.215/3

measuring 8 acres 10 guntas of the same village. The

situations of the said lands are explained in the plaint

sketch. As plaintiff’s land is situated towards south of

defendant’s land, the plaintiff uses to go to her land

from Halagani village, starting from her village

towards southern direction through Government road

leading to Village Mamadapur. Thereafter, at point ‘A’

she turns and passes through the road leading to

Yakkundi Village and thereafter at point ‘B’, she takes

a turn towards south up to point ‘C’ and then she

enters her land. It is contended that ‘AB’ is

Government road and ‘BC’ is the well beaten cartway

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and since from the date of purchase of said land by

her predecessor in title, they have been using the ‘suit

way’ to reach their land. It is contended that she has

been using the said way for more than the statutory

period and as such she has acquired right of

prescription. It is further contended that she has no

other way to reach her land. It is alleged that the

defendant is obstructing for using the suit way.

Hence, cause of action arose for the plaintiff to file

suit.

3.1. Defendant filed written statement admitting

the ownership of plaintiff over lands, but denied

situations shown in the plaint sketch. It is contended

that the plaintiff never used ‘BC’ way, as such,

question of acquisition of right of prescription does not

arise. It is further contended that recitals of the sale

deed dated 08.10.1971 are not binding on him.

According to him, plaintiff uses pass through R1-R2-

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XYZ way to reach her land. On these grounds, the

defendant prayed to dismiss the suit.

3.2. The Trial Court, on the basis of pleadings of

parties, framed the following issues:

1.

Whether plaintiff proves she has acquired

right of prescriptive easement over ‘suit ABC

way’ for her ingress and egress?

2.

Whether she further proves the alleged

interference caused by defendant?

3.

Whether defendant proves there exists no

‘BC’ way and plaintiff never used it for

ingress and egress?

4.

Whether plaintiff is entitled for suit reliefs?

5.

What order or decree?

3.3. Plaintiff in order to prove her case, examined

the power of attorney holder by name Hanamantraya

Biradar as PW-1. His evidence was struck off as per

order dated 12.01.2006. Again plaintiff examined

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herself as P.W.1 and examined one witness as PW-2

and got marked the documents as Ex.P1 to P20. On

the other hand, defendant examined himself as D.W.1

and got marked the documents as Exs.D1 and D2.

The Court Commissioner was examined as CW-1 and

got marked Exs.C1 to C5. The Trial Court, after

recording evidence and considering the material on

record, held that the plaintiff has failed to prove that

she has acquired right of prescriptive easement over

‘Suit ABC Way’ for