Siddanna gowda vs Vishwanath

N. Ananda, J.—The appellants herein are plaintiffs'' in O.S. No. 128/1997. They had filed a suit for declaration of their easementary rights on suit schedule pathway shown as ''ABC They were successful before the trial court. The defendants were before the I-appellate court.

The learned judge of the I-appellate court on reappreciation of evidence has held that plaintiffs cannot claim easementary right on ABC pathway. There are no pleadings to justify the contention of plaintiffs that they had enjoyed easementary rights for a period of 20 years before the date of institution of suit.

The learned judge of the I-appellate court has held that judicially recognised easementary rights in O.S. No. 40/1977 with regard to ABC pathway and sketch map does not refer to pathway between ''B'' and ''C The learned judge of I-appellate court has set aside the judgment and decree passed in O.S. No. 128/1997. Therefore, plaintiffs are before this court.

I have heard learned counsel for appellants.

It is not in dispute that there was a compromise decree in O.S. No. 40/1977 wherein, the defendants herein conceded the plaintiffs easementary rights in land bearing Sy. No. 177. In other words, plaintiffs agreed that defendants will have right to pass on the cart way situate on the north portion of Sy. No. 177 which is shown as cart way between point ''A'' and ''B''.

In the instant suit, plaintiffs are now trying to stretch easementary rights to land bearing Sy. No. 179. Admittedly, there are no pleadings that plaintiffs had acquired easementary rights by prescription. There are no pleadings that they had enjoyed easement as of necessity.

The learned judge of I-appellate court having regard to nature of pleadings and compromise arrived between the parties in O.S. No. 40/1977 has held that plaintiffs have failed to prove that they had acquired easementary rights either by prescription or as of necessity of pathway shown between points ''B'' and ''C''

At this juncture, it is necessary to state that defendants are the owners in possession of land bearing Sy. No. 177. This land is situate between the defendants land bearing Sy. No. 179 and Moratagi Ranjanagi village road.

The plaintiffs have claimed easementary right to reach their land bearing Sy. No. 180 and 181. The plaintiffs have not pleaded that they had acquired easementary rights as of necessity. The plaintiffs have not pleaded that they had acquired easementary rights by prescription. In other words, plaintiffs'' have not pleaded that they had enjoyed easementary right for 20 years before the date of institution of suit.

The compromise decree in O.S. No. 40/1977 relied upon by plaintiffs would establish that plaintiffs had easementary right on the northern part of Sy. No. 177 i.e., cart track shown between points ''A'' and ''B'' in the plaint schedule. In the circumstances, the learned judge of the I-appellate court was justified in reversing the judgment of trial court and dismissing the suit.

The plaintiffs have filed an application under Order VI Rule 17 CPC.

After the amendment of Order VI Rule 17 CPC, by Act No. 22/2002, no application for amendment shall be allowed after the trial has commenced, unless the court has come to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial.

It is not the case of plaintiffs that they could not raise this plea despite due diligence. If the amendment sought for is accepted, that would result in denova trial. There are no reasons to accept the application.

Therefore, the appeal and the application for amendment (I.A.-I/2005) are dismissed.