DECREE

DATED

30.06.2003 PASSED IN O.S. NO.85/2002 ON THE FILE OF CIVIL

JUDGE (JR.DN.), MUNDARAGI.

THIS RSA COMING ON FOR FINAL HEARING THIS DAY,

THE COURT, DELIVERED THE FOLLOWING:

3

JUDGMENT

Challenging

the

judgment

and

decree

dated

21.04.2006 passed by the Additional Civil Judge (Sr.

Dn.), Gadag in R.A. No.88/2003, this second appeal is

filed by the plaintiff – appellant.

The appellant was plaintiff in O.S. No.85/2002

and respondent in R.A. No.88/2003 while respondent

Nos.1 to 5 herein were defendants 1 to 5 before Trial

Court and appellants 1 to 5 respectively in R.A.

No.88/2003.

For the sake of convenience, parties will

hereinafter be referred to as per their respective ranks

before Trial Court.

Appellant – plaintiff filed O.S. No.366/2001

(later renumbered as O.S. No.85/2002) seeking for

declaration of easement rights by prescription over suit

way “MNOP” and as shown in the plaint hand sketch for

consequential relief of injunction restraining defendants

4

permanently

from

obstructing

and

interfering

with

plaintiff’s use and enjoyment of same. In the plaint, it

was stated that plaintiff was owner of agricultural land

bearing R.S. No.412/5 measuring 4 acres 4 guntas

marked as “CDEF” in plaint hand sketch situated at

Dambal Village in Mundaragi Taluk. It was stated that

defendants were owners of land bearing R.S. No.412/1

measuring 4 acres 1 gunta adjoining plaintiff’s land and

situated towards its western side marked with letters

“ABCD”. It was asserted that suit way marked with

letters “MNOP” was 15 feet in width. It was stated that

from Dambal main road, plaintiff would proceed from

point “M” towards west to point “N” and thereafter

turning north upto point “O”, thereafter turning towards

east and proceed to point “P” to reach his agricultural

land. It was stated that said way was being used by

plaintiff continuously and without any interruption or

obstruction for more than 50 years. Therefore, plaintiff

acquired easement right by prescription.

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It was also stated that plaintiff’s land was

surrounded by land belonging to others and except the

suit way, there was no other means for ingress and

egress. Therefore, plaintiff was having easement right

by necessity also.

It was further stated that with ulterior motive

defendant no.1 had closed suit way at point “O” by

digging pits. It was stated that cause of action for suit

arouse during first week of November when defendants

failed to heed to plaintiff’s request not to cause

hindrance to suit way.

6.

Upon service of summons, defendants entered

appearance and filed written statement denying plaint

averments except admitting ownership of respective

properties. Uninterrupted user of suit way by plaintiff or

his forefathers was vehemently denied. It was however

asserted that plaintiff was using a different path way

i.e., “HIJK” to reach his land. It was stated that said

6

path way was passing through land belonging to his

cousins. Suppressing said fact, plaintiff had come up

with a false claim over “MNOP” suit way. The defendant

annexed a hand sketch depicting “HIJK” path way.

7.

Based on pleadings, trial Court framed the

following issues:

“1.

Does

the

plff.

Prove

the

easementary right by prescription

and necessity in M.N.O.P. of plaint

had sketch map?

2.

Does the plff. Prove the obstruction?

3.

Does the plff. Entitled to any relief?

4.

What Order or Decree?”

8.

In

order

to

establish

his

case,

plaintiff

examined

himself

as

PW.1

and

also

examined

neighbouring land owners as PWs.2 and 3. An advocate,

Court Commissioner was appointed by Court, who was

examined as CW.1. Exs.P1 to P10 and Exs.C1 to C5 were

marked. On behalf of defendants, defendant No.1 was

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examined as DW.1 and three other witnesses were

examined as DWs.2 to 4. Exs.D1 to D4 were marked.

9.

In

his

deposition,

PW.1

reiterated

plaint

averments. In the cross-examination, it was elicited

that plaintiff was not in good terms with Hydersab and

Haider from time of his great-grandfather and as

Dadarsab and his own