MAHADEVAPPA SHIVAPPA SOMANAKATTI Vs. SHANKARAPPA SHIVAPPA NALAVADI

JUDGEMENT

(1.) THIS Regular Second Appeal is filed by the plaintiff in O.S. 209/2002 assailing the judgment and decree passed in R.A. 79/2003 dated 30.6.2008 by the Principal Civil Judge (Sr. Dn.) at Gadag, reversing the judgment and decree passed in O.S. 209/2002 dated 19.4.2003 passed by the Principal Civil Judge (Jr. Dn.), Gadag. For the sake of convenience, the parties shall be referred to in terms of their status before the trial Court. The appellant who is the plaintiff, filed a suit seeking permanent injunction against the defendant restraining the defendant from obstructing the plaintiff in his enjoyment and possession of Plot No. 42 in R.S. No. 24/3 of Adavisomapura village, (hereinafter referred to as the suit schedule property). According to the plaintiff, the suit property measuring 35' x 40' is bounded on the East by Plot No. 43, West by: Road, North by Plot No. 41 and South by Road. According to the plaintiff, the said plot was allotted to him by the Government of Karnataka under the 'Ashraya Scheme' on 20.9.1994 and that he had taken possession of the said property having become the owner of the same, that his name has been entered in the panchayat records. Thereafter, he has put up a temporary shed and has been residing therein since the year 2002 and he intended to put up a permanent construction by demolishing the temporary shed. He applied for permission to construct on the said property in April 2002 by paying the requisite fee and was granted permission on 10.4.2002. When the plaintiff made preparations for digging the foundation, the defendant started interfering with the plaintiffs possession. Therefore, the plaintiff filed the suit seeking a decree of permanent injunction against the defendant.

(2.) ON receipt of suit summons and notice, the defendant appeared and filed his written statement denying the averments made by the plaintiff. He denied the description of the property given by the plaintiff. According to him, he was allotted Plot No. 37 and that he has been living with his family in the said plot and Plot No. 37 is bounded on the East by: Plot No. 48, on the West by: Road, on the North by: Plot No. 38 and on the South by Road. That the said plot has also been allotted to him under the 'Ashraya Scheme' on 20.9.1994 and he has been in possession of the said plot since then. He, therefore, submitted that the plaintiff has no cause of action against the defendant and sought dismissal of the suit.

(3.) IN support of his case, the plaintiff examined himself as P.W. 1 and another witness as P.W. 2 and produced four documents which were marked as Ex. P.1 to P.4. While the defendant examined himself as D.W. 1 and two other witnesses as D.W. 2 and D.W. 3 and produced seven documents which were marked as Ex. D.1 to Ex. D7.