GALEPPA Vs. GUDUMA

JUDGEMENT

(1.) Appellants/defendants in R.S.A.No.5281/2008 and appellants/plaintiffs in R.S.A.No.5282/2008 feeling aggrieved by judgment and decree of the first Appellate Court on the file of Addl. Civil Judge (Sr.Dn.), Hospete, in R.A.No.33/2007 and R.A.No.34/2007 dtd. 26/8/2008 preferred these appeals.

(2.) The suit under O.S.No.105/2005 is filed by Smt.Gudumabi against defendants for the relief of permanent injunction. Whereas defendant Nos.1 and 2 in the said suit filed comprehensive suit in O.S.No.129/2005 for the relief of declaration of title, possession and mandatory injunction. The evidence in both suits are recorded separately. In view of the order of trial Court dtd. 30/6/2008, both the suits were clubbed and common judgment came to be passed by the trial Court. Similarly, the first Appellate Court in R.A.No.33/2007 arising out of O.S.No.105/2005 and R.A.No.34/2007 arising out of O.S.No.129/2005 also passed common judgment. Therefore, parties to both the appeals are referred with their ranks as assigned in the trial Court in O.S.No.129/2005, since the said suit being comprehensive suit, for the sake of convenience.

(3.) The factual matrix leading to the case of defendant Nos.1 and 2 who are plaintiffs in O.S.No.129/2005 can be stated in nutshell to the effect that defendant No.1 - Habibulla and father of defendant No.2 Dodda Irappa jointly purchased an extent of 4 acres 67 cents in Sy.No.182 of Hospet, under registered sale deed dtd. 27/6/1988 from Smt. Mahalakshmi. Thereafter, they effected division in the said property and Sy.No.182/1 has fallen to the share of Dodda Irappa and Sy.No.182/2 fallen to the share of Habibulla. There is a Municipal road to the south of the suit property measuring 75 links (49.06 ft.) which belongs to defendant No.3-CMC, Hospet. The sketch map is produced and schedule 'A' property bearing Sy.No.182/2 has fallen to the share of Habibulla, schedule 'B' property bearing Sy.No.182/1 fallen to the share of Dodda Irappa and schedule 'C' property bearing Sy.No.181 road belongs to CMC, Hospet. If the measurement of all these schedule properties are put together then it measures North South - 23 ft. and East-West 42.06 ft. In this area, Smt.Gudumabi, Aktar Banu and Peeran Sab have encroached and constructed semi permanent house structure. The major portion of encroachment is in 'C' schedule property belongs to CMC, Hospet, and portion of encroachment is covered in 'A' and 'B' schedule properties. The notice dtd. 27/4/2005 was issued to remove the encroachment and deliver the vacant possession of encroached area. However, no any action was taken to remove the encroachment. Therefore, suit came to be filed for seeking the relief claimed in the said suit.