ON

06.06.2022,

THIS

DAY,

THE

COURT

PRONOUNCED THE FOLLOWING:

J U D G M E N T

Challenging judgment and decree dated 20.12.2006

passed in R.A.No.271/2006 by District Judge, Fast Track

Court-II, Chikmagalur, and also judgment and decree dated

12.11.2001 passed in O.S.No.101/1998 by Principal Civil

Judge (Jr.Dn) & JMFC, Mudigere, this second appeal is filed

by plaintiff.

2.

Appellant herein was original plaintiff, while

respondent herein was defendant in suit. For sake of

convenience parties to this appeal are hereinafter be

referred to as per their ranking in original suit.

3.

O.S.no.101/1998

was

filed

seeking

for

declaration that plaintiff got right of easement by way of

3

prescription of path situated in ‘B’ schedule property shown

in Commissioner’s report in O.S.No.126/1995 to reach ‘A’

schedule property and for mandatory injunction directing

defendant to remove fence put up across path etc.

4.

In plaint, it was stated that plaintiff was absolute

owner of lands bearing Survey no.94 measuring 01 acre 26

guntas and Survey no.83/1 measuring 02 acres 04 guntas

situated at Halase village, Mudigere taluk (‘A’ schedule

properties). It was further stated to reach ‘A’ schedule

properties only path was passing through land belonging to

defendant bearing Survey no.93 measuring 01 acre 28

guntas (‘B’ schedule property). It was stated that width of

path was 6ft., and that plaintiff and his predecessors are

entitled

and

were

using

it

from

time

immemorial

uninterruptedly and openly used for transportation of men,

manure, material and draught animals to knowledge of

defendant. Thus, plaintiff had prescriptive right of easement

over land of defendant for pathway.

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5.

It was further stated that defendant had earlier

filed

suit

in

O.S.no.126/1995

against

plaintiff

and

H.K.Nanjunda, obtained ex-parte temporary injunction.

Thereafter,

defendant

fenced

‘B’

schedule

property

including pathway shown in Commissioner’s sketch. After

entering appearance, plaintiff herein got appointed Court

Commissioner for spot inspection. Court Commissioner

submitted his report along with sketch showing existence of

pathway. Considering same, trial Court vacated temporary

injunction. Aggrieved by order, M.A.No.25/1995 was filed

and it was dismissed vide order dated 04.09.1996 by before

Civil Judge (Sr.Dn.) Chikmagalur. Later, on 05.11.1997,

O.S.no.126/1995

came

to

be

dismissed

for

non-

prosecution. It was stated that during pendency of suit,

under ex-parte temporary injunction, defendant had put up

fence across pathway and after dismissal of suit, failed to

remove fence. Hence, plaintiff was unable to cultivate ‘A’

schedule properties. Since, defendant did not heed to

5

plaintiff’s request for clearing pathway, present suit was

filed.

6.

Upon

service

of

suit

summons,

defendant

entered appearance and filed written statement denying

plaint averments in toto. Filing of O.S.no.126/1995 and

dismissal of suit for non-prosecution was also admitted.

However, fencing of ‘B’ schedule property after obtaining

temporary injunction was denied. Though Commissioner’s

report was obtained in said suit, no orders were passed

accepting report. Therefore, said report could not be relied

upon and plaintiff was not entitled for any relief. Description

of ‘B’ schedule property was also disputed. It was

specifically asserted that plaintiff was passing through

property belonging to H.K.Nanjunda and Raju since many

years and had come up with instant false suit only to harass

defendant. Stating that defendant had fenced his land

bearing Survey No.93, defendant contended that no cause

of action accrued for filing suit.

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7.

Based on pleadings, trial Court framed following

issues and additional issues:

1. Whether the plaintiff proves that he is the

absolute owner in possession of the ‘A’

schedule properties?

2. Whether the plaintiff proves that ‘B’

schedule pathway is the only way to reach

the ‘A’ schedule properties?

3. Whether the plaintiff proves that, himself

and his predecessors