JUDGMENT :

This appeal of the legal representatives of the defendant arises out of judgment and decree in RA No.17/2005 dated 27.08.2014 passed by the Senior Civil Judge, Kundapura.

2. By the impugned judgment and decree, the First Appellate Court set aside the judgment and decree dated 07.01.2005 in OS No.427/1997 passed by the Principal Civil Judge (Junior Division), Kundapura.

3. By judgment and decree dated 07.01.2005, the trial Court had decreed the suit of the plaintiff declaring that plaintiff has acquired easementary right to make use of suit pathway running over property bearing Survey No.63/7 belonging to defendant and granted permanent injunction.

4. Suit was filed by one Sheena Acharya S/o. Subraya Acharya. When the matter was pending before the First Appellate Court, Sheena Acharya died and the present respondents are his legal representatives. Defendant in the suit was Panduranga Bhat S/o. Laxmana Bhat. He had preferred RA No.17/2005. After disposal of RA No.17/2005 and before filing of this appeal, he died. Therefore, present appellants preferred this appeal as his legal representatives.

5. Plaintiff was owner of land bearing Survey No.4/18 measuring 5 cents and 4/28 measuring 8 cents situated within the limits of Moodahadu Village, Udupi Taluk. Defendant was the owner of land bearing Survey No.63/7 which situates on the southern side of the land bearing Survey No.4/18 and 4/28.

6. Plaintiff contended that he is in lawful possession and enjoyment of plaint ‘A’ schedule properties and he has acquired prescriptive easement of way to reach national highway No.17 passing through defendant’s land bearing Survey No.63/7 and Survey No.61/7 which is situated in western side of defendants’ land.

7. ‘A’ schedule land was granted to the plaintiff by the Land Tribunal, Udupi on 19.10.1981 under Karnataka Land Reforms Act, 1961. Ex.P1 Form No.10 was issued to him in that regard. He claims that he was in possession of the property as tenant since 50 years and he was using the pathway of about 3 to 5 feet on southern and western portion of Survey No.63/7 and he was using that to reach the main road. It was shown in the sketchEx.P4 by letters ‘C’, ‘D’ and ‘E’.

8. Plaintiff claimed that he has acquired that as easement of necessity as well as mamul right. He claimed that defendant objected him in use and enjoyment of the same. Hence, he sought declaration of right of easement of way by prescription, necessity and mamul user as well as for permanent injunction.

9. Defendant contested the suit denying existence of pathway or right of any kind of easement. He further denied the use of said pathway at any time and contended that pathway mentioned by plaintiff in defendant’s land is for his exclusive use. He claimed that it was his private pathway. Defendant further contended that the plaintiff has another way to reach the main road and therefore, there is no question of easement of necessity and easement of mamul user or prescription.

10. On the basis of such pleadings, the trial Court framed the following issues:

1) Whether plaintiff proves that suit pathway is public pathway and he is using it since 50 years openly peacefully and have acquired a right over it by way of prescription?

(2) Whether defendant proves that suit pathway is a private pathway and meant for his personal use?

(3) Whether defendant proves that plaintiff is having alternate way as contended in para 5 of plaint?

(4) Whether plaintiff proves that defendant has interfered with his peaceful possession and enjoyment of suit pathway as alleged in para (d) of the plaint?

(5) Whether plaintiff is entitled for the relief of declaration as prayed for?

(6) Whether plaintiff is entitled for the relief of permanent injunction as prayed for?

(7) What order or decree?

11. Parties adduced evidence. The trial Court on the application of the plaintiff appointed commissioner. He has submitted his report. The commissioner was not examined before the trial Court. However, since nobody summoned the