Though appeal is listed for admission, it is

taken up for final disposal.

Challenging judgment and decree dated

07.02.2014

passed

by

Senior

Civil

Judge,

Hunagund in R.A.no.39/2013 and judgment and

decree dated 22.07.2013 passed by Additional Civil

Judge and J.M.F.C., Hunagund in O.S.no.175/2007,

this appeal is filed.

While appellants herein were plaintiffs,

respondents herein were defendants no.1 to 5

respectively

in

original

suit.

For

sake

of

convenience, parties to this appeal will hereinafter

be referred to by their rank in original suit.

O.S.no.175/2007 was filed seeking for

declaration that plaintiffs had got prescriptive

rights of easement of way over defendants land

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and for permanent injunction restraining them

from interfering with its use and enjoyment.

In plaint, it was stated that defendant

no.3 was owner of land bearing Sy.no.246/1B,

while defendant no.2 was owner of Sy.no.260 and

defendant no.4 owner of Sy.no.246/2. It was

stated that there existed a road at ‘NOPE’ points

passing through his land which was in existence

since more than a century and used by plaintiffs’

ancestors and by plaintiffs for beneficial enjoyment

of their property. However, when defendant began

interfering with same, suit was filed.

6.

On service of suit summons, defendant

no.1 filed written statement admitting ownership

of lands as pleaded by plaintiffs, but denied using

his land by plaintiffs and their ancestors to reach

their lands. Existence of road marked with letters

‘NOPE’ in plaint hand sketch was specifically

denied. It was alleged that plaintiffs were using

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another road situated towards eastern side of their

land

and

that

suit

was

filed

only

to

cause

harassment.

7.

Based on pleadings, trial Court framed

following issues. On 02.11.2010, issue no.2 was

recast as follows:

(1) Whether the plaintiffs prove that there is

an

existence

of

pathway

in

the

defendants’ land as mentioned in the

sketch to reach their lands?

(2) Whether the plaintiffs prove that they

have got prescriptive easementary right

to

use

the

said

pathway

in

the

defendants’ land?

(3) Whether the plaintiffs prove that the

defendants made an interference to use

the said pathway?

(4) Whether the plaintiffs prove that they are

entitled for injunction:

(5) What order or decree?

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Recast issue no.2:

(2) Whether the plaintiffs prove that they

have got prescriptive easementary right

to

use

the

said

pathway

in

the

defendants’ land?

8.

Thereafter,

plaintiffs

examined

four

witnesses as PWs.1 to 4 and got marked Exs.P1 to

P8. Defendant no.3 was examined as DW.1. Court

Commissioner was examined as CW.1 and Exhibits

C1 to C7 were marked.

9.

On consideration, trial Court answered

issues no.1 to 4 in negative and issue no.5 by

dismissing suit.

10. Aggrieved by said decree, plaintiffs filed

R.A.no.39/2013

on

several

grounds.

It

was

contended that judgment and decree passed by

trial Court was erroneous against law evidence and

probabilities

of

case.

There

was

no

proper

appreciation of evidence. There was failure to

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consider cumulative effect of evidence and proper

issues were not framed. Trial Court misunderstood

admission of PWs.1 to 3 about existence of bunds

which were pertaining to point F to N. Conclusion

that

commissioner’s

report

did

not

disclose

existence of NOPE road was contrary to record. On

failure of defendants to prove alternative way

contended by them, trial Court ought to have

decreed suit etc.

11. Based

on

contentions

urged,

first

appellate Court framed following points for its

consideration:-

(1) Whether

appellants

–

plaintiffs

prove that they are using the suit

NOP way in the land of defendants

bearing Sy.no.260/2 to reach their

respective lands openly, peaceably,

as of right without interruption for a

continuous period of 20 years?

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(2) Whether

appellants

–

plaintiffs

prove that except NOP suit way in

the land of defendants, they have

no other alternative way to reach

their respective lands?

(3) Whether

appellants

–

plaintiffs

prove th