P.VISHWANATH SHETTY Vs. RAMESH

JUDGEMENT

(1.) Challenging impugned judgment and decree dtd. 28/10/2013 passed in R.A.No.5/2010 by III Addl. Senior Civil Judge & JMFC., Mangalore, D.K., allowing appeal and dismissing judgment and decree dtd. 16/11/2009 passed in O.S.No.270/2004 by Prl. Civil Judge (Jr.Dn.), Mangalore, D.K., appellants have filed this second appeal.

(2.) Appellants herein were original plaintiffs, while respondents herein were original defendants. For sake of convenience, parties shall hereinafter be referred to as per their rank in suit.

(3.) O.S.No.270/2004 was filed by plaintiffs seeking for relief of perpetual injunction restraining defendants from interfering with plaintiffs' peaceful possession and enjoyment of immovable property bearing survey no.30/12 measuring 61 cents situated at Mooduperur village, Mangalore Taluk, (hereinafter referred to as 'suit property'). In plaint, it was stated that plaintiffs were owners in possession and enjoyment of suit property, which was acquired by plaintiffs under Will dtd. 2/1/2000 executed by their grandfather. After death of their grandfather, they were in possession and enjoyment thereof. Their names were also mutated in revenue records. It was stated that government formed public road by acquiring portion of property belonging to plaintiffs running North-South on eastern side of suit property. Plaintiffs had put up barbed wire fence with pillar all along eastern boundary. It was stated that defendants were residing nearby suit property granted to them by government without having any right, title or interest insofar as suit property is concerned attempted to remove barbed wire on eastern side and trespassed over plaintiff's property. Despite resistance by plaintiffs, defendants did not stop their activity, constraining plaintiffs to file suit.