An easementary right by prescription cannot be claimed by a lessee without the true owner, and claims barred by limitation are unsustainable.

ORAL JUDGMENT

Captioned appeal is by the unsuccessful plaintiffs calling in question the judgment and decree rendered in O.S.No.3217/2012 wherein the plaintiffs' suit seeking the relief of declaration that schedule 'B' property is a public road and that original plaintiff has acquired easementary right by prescription is dismissed by the trial Court .

2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

3. The facts leading to the case are as under:

In the present suit, the plaintiffs assert that Schedule “A” property bearing Site No.22, formed in Survey No.95, was purchased by the grandfather of the original plaintiff, namely late Kittappa, under a registered sale deed dated 25.07.1956. It is further pleaded that the original plaintiff’s father leased the said property in favour of the original plaintiff under a registered lease deed dated 21.01.1976 and that ever since the year 1976, the original plaintiff has been running small-scale industrial units in the said premises.

4. The plaintiffs further contend that abutting Schedule “A” property on the northern side, there exists a conservancy road, now described as Schedule “B” property. According to the plaintiffs, Schedule “B” property is the only means of ingress and egress to Schedule “A” property. It is their specific case that Schedule “B” property constitutes a public road vested in the Town Municipal Council, Kengeri, and that the defendants have neither right nor title over the same. Alleging that the defendants are attempting to obstruct and close Schedule “B” property by treating it as part of Site No.30, thereby blocking access to Schedule “A” property, the present suit is instituted seeking declaration that Schedule “B” property is a public road and consequential declaration of easementary right by way of prescription.

5. The defendants, on service of summons, entered appearance and filed their written statement stoutly denying the plaint averments. The defendants contend that the present suit is nothing but a continuation of the original plaintiff’s unsuccessful attempt in an earlier round of litigation. It is pointed out that the original plaintiff had instituted O.S.No.693/1984 seeking injunction simpliciter not only against the present defendants but also against the Kengeri Town Municipal Council and the BBMP. According to the defendants, the local authorities in the earlier proceedings had unequivocally admitted that the disputed property, now sought to be described as a public road, is in fact Site No.30, which was lawfully allotted to the defendants’ father, late H.V. Lakshman Shetty, pursuant to a public auction conducted on 17.10.1971. The defendants further contend that though the original plaintiff had initially questioned the validity of the said auction and allotment, the challenge was abandoned by withdrawing the appeal in RFA.No.1132/2002. Having failed in the earlier litigation, the present suit is filed without impleading the local authorities. On these grounds, dismissal of the suit is sought.

6. On appreciation of the oral and documentary evidence, the Trial Court answered Issue Nos.2 and 3 in the negative. Issue No.4 relating to limitation was answered in the affirmative and against the plaintiffs. Consequently, the suit came to be dismissed.

7. Learned counsel appearing for the plaintiffs, reiterating the grounds urged in the appeal, vehemently contended that the Trial Court failed to prop