FAKKIRAPPA Vs. TIPPANNA

JUDGEMENT

(1.) This is an unsuccessful plaintiffs Regular Second Appeal against the judgment and decree dated 5.8.2011 made in R.A. No. 169/2009 on the file of the District Judge (Fast Track Court), Haven, confirming the judgment and decree dated 17.3.2008 made in O.S. No. 43/2005 on the file of the Addl. Civil Judge (Jr.Dn) & JMFC, Haven, dismissing the suit for declaration.

(2.) It is the plaintiffs case that, the plaintiffs father Nagappa and defendant's grandfather Hanumanthappa are the brothers and they partitioned their family properties and in the said partition 'A' schedule property was allotted to the share of the plaintiffs father and 'B' -schedule property was allotted to the share of defendant's grandfather. The claim of plaintiff is that towards the southern boundary of defendant's property, there is a 4 feet width East -West passage from the plaintiffs property to reach the eastern government road, which is shown in letters 'YZ' in the sketch annexed to the plaint and the plaintiff is using the said passage for the last 40 years and also claims that there is no other alternative road to the plaintiffs ingress and egress to his property, etc. and the defendant is obstructing the use of the suit passage. Therefore, he filed the suit.

(3.) The defendant filed written statement and denied the entire plaint averments and disputed the annexed sketch and specifically made out a case that there is no road as claimed by the plaintiff shown in letters "YZ" in the sketch annexed to the plaint. It is the specific case of the defendant that, there is Government road towards the west immediately after the plaint 'A' schedule property of the plaintiff The plaintiff is using the said road for his ingress and egress to his property. The defendant further stated that he has already sold 'B' -schedule property to one Channaveeragouda Thirukanagoudar and he was in actual possession and enjoyment of the suit property and the said Channaveeragouda Thirukanagoudar was a necessary party to the suit. The plaintiff has deliberately not made the said Channaveeragouda Thirukanagoudar as a party to the suit. The defendant further claimed that there is a road in the plaintiffs property towards northern to reach plaint 'B' -schedule property. It is also stated that the plaintiff and defendant are using the road existed towards the west of plaintiffs property for their ingress and egress. The defendant categorically denied the existence of road towards the eastern side of his property and he never used the passage claimed in the suit. Therefore, he sought for dismissal of the suit.