CHANDRASHEKAR Vs. GORGE ALBUQUERQUE PAI

JUDGEMENT

(1.) The plaintiff in O.S.No.156/2004 has filed a suit against defendant Nos.1 and 2 for the relief of declaration that he has got a right to excavate and extract the clay in the suit schedule property on the basis of the agreement dtd. 4/7/1996 with one Late Sri.Koragappa Poojary, father of defendant No.1 and that the sale deed dtd. 8/10/2001 executed by defendant No.1 in favour of defendant No.2 is not binding on him and on the suit schedule property. The plaintiff also sought the relief of injunction against the defendants from alienating, obstructing and excavating and extracting clay from the suit schedule property, till the period of agreement dtd. 4/7/1986 ie., 50 years. The plaintiff has also sought the relief of cancellation of the sale deed dtd. 8/10/2001 executed by defendant No.1 in favour of defendant No.2. The said suit came to be dismissed by judgment and decree dtd. 24/6/2010. Aggrieved by the judgment and decree, the plaintiff filed an appeal in R.A.No.100/2010 and the same came to be allowed in part, setting aside the judgment and decree of the Trial Court and decreeing the suit of the plaintiff in part holding that the sale deed executed by defendant No.1 in favour of defendant No.2 is not binding on the right of the plaintiff and the plaintiff is having right to excavate the clay from the suit property and restrained defendant No.2 from causing any obstruction in excavating the clay from the suit schedule property, till the period of agreement. Aggrieved by the said judgment and decree of the First Appellate Court, defendant No.2 has filed R.S.A.No.1485/2004.

(2.) Defendant No.1 in the said suit namely Sri.Chandrashekar Poojary had filed a suit in O.S.No.767/2002 against the plaintiff ie., Mr.George Albuquerque seeking the relief of injunction restraining him from committing trespass or encroaching or causing damage to the suit schedule property. The suit schedule property involved in the suits is Sy.No.7/7P1 (part measuring 40 cents) situated in Tenka Ulipady Village of Mangaluru Taluk. The said suit came to be decreed by the judgment and decree dtd. 24/6/2010. Aggrieved by the same, the defendant of that suit filed R.A.No.101/2010 before the III Additional Senior Civil Judge and J.M.F.C., Mangaluru. The said appeal came to be allowed and the judgment and decree passed by the Trial Court came to be set-aside. Aggrieved by the judgment and decree passed by the First Appellate Court, the plaintiff in that suit has filed R.S.A.No.1484/2014.

(3.) Heard learned counsel for the appellant and learned counsel for respondent No.1 in both the appeals on admission.