BASAVANTAPPA AND OTHERS Vs. BASAPPA AND OTHERS

JUDGEMENT

(1.) THE appellants are the defendants in O.S. No. 33/1989. Being aggrieved by the judgment and decree dated 5/11/2003, made in RA No. 78/96, passed by the Civil Judge (Sr. Dn.), Saundatti, setting aside the judgment and decree dated 21/9/1992, made in OS No. 33/1989 passed by the Munsiff, Saundatti, have filed this appeal.

(2.) THE facts of the case are as follows: The respondents 1 to 3 herein are the plaintiffs. They filed a suit seeking for declaration, declaring that the plaintiffs are the absolute owners of the suit schedule property and for permanent injunction restraining the defendants from putting up any construction and also for recovery of the suit schedule property. In the plaint, it was contended that that the property bearing VPC Nos. 561/1 and 561/2 situated at Sirsangi village in all measuring 36 ™ east -west and 75 ™ north -south belongs to Venkappa Hanamappa Bhovi, who is the grandfather of the plaintiffs. The VPC records for the year 1943 -44 stands in the name of Venkappa Hanamappa Bhovi. After his death, his only daughter Basawwa succeeded the assets of the deceased. The plaintiffs are the children of the said Basawwa. After the death of the grandfather of the plaintiffs, Basawwa became the absolute owner. After her death, the plaintiffs became the absolute owners of the property. They have been in lawful possession and enjoyment of the suit schedule property. However, by inadvertence and due to the ignorance, the mother of the plaintiffs has not made an application for mutation of her name in VPC records, in respect of the suit schedule property. It continues to be in the name of their father Venkappa Hanamappa Bhovi. In the year 1986, the second plaintiff came to Sirsangi village to pay the VPC tax in respect of the said property. Then only he came to know that the name of the original owner in respect of the suit schedule property has been changed, without notice to the plaintiffs. Immediately, thereafter, an application has been made to the VPC, Sirsangi, to mutate their names. However, the VPC has not taken any action. Hence, one more application has been made on 26/9/1987 to enter their names. Further, the MPC did not take any action. However, the MPC Sirsangi passed a resolution on 28/9/1987 to enter the name of the second defendant in respect of the suit schedule property. Before mutating the name of the second defendant, no notice has been given to the plaintiffs. Their application is still pending consideration before the competent authorities. Further, the VPC bifurcated the site into VPC No. 561/1 and 561/2, which is also contrary to law. Further, it was alleged that the second defendant has recently constructed the building in the suit schedule property without the permission of VPC and they encroached upon 5 feet area towards eastern side of the suit property. The second defendant is very influential person in the village and with the highhanded manner had put up the construction. Further, the land of the plaintiffs is being measured and the defendants started digging to lay further construction and laying further foundation. In view of the same, the plaintiffs have filed the suit with the above prayer.

(3.) ON the basis of the pleadings of the parties, the Trial Court framed the following issues: (i) Whether the plaintiffs prove that they are owners and possessors of the suit property? (ii) Whether the plaintiffs prove that defendant No. 2 has encroached 5ft. area towards western side in the suit property? (iii) Whether the plaintiffs are entitled for mandatory injunction sought? (iv) Whether plaintiffs prove the alleged interference? (v) Whether plaintiffs are entitled for mesne profits? (vi) What Decree or Order?