T.M. KRISHNAPPA Vs. CHIKKAMUNIYAPPA

JUDGEMENT

(1.) The appellants have filed this regular second appeal challenging the judgment and decree dtd. 20/7/2011 passed in O.S.No.119/2006 on the file of the Prl. Civil Judge at Chickballapur and also the judgment and decree passed in R.A.No.144/2011 dtd. 14/7/2014 on the file of the Additional Senior Civil and JMFC at Chickballapur.

(2.) The parties are referred to as per their ranking before the trial Court. The appellants are the plaintiffs and the respondents are the defendants.

(3.) Brief facts of the case are as under: The plaintiffs filed a suit for permanent injunction in respect of the suit schedule property. It is the case of the plaintiffs that the plaintiffs are in peaceful possession and enjoyment of the plaint schedule property. Plaintiff No.1 is in possession of item No.1 of the suit schedule property and plaintiff No.2 is in possession of item No.2 of the suit schedule property. Item No.1 of the plaint schedule property was granted in favour of 1st plaintiff's father and he died on 13/5/2005 leaving behind plaintiff No.1 and plaintiff No.1 continued to be in possession of the suit schedule property. Plaintiff No.1 made an application before respondent No.4 to accept the katha and mutation through inheritance. The 1st plaintiff's father filed a suit in O.S.No.150/1981 against the father of defendant Nos.1 to 3 and also against defendant Nos.2 and 3 with regard to house and vacant site comprised in Sy.No.236 (Old Sy.No.128) of Kanithahalli for an extent of 20 guntas . The suit was compromised and the defendants agreed that the aforesaid property belongs to G.Munisonnappa. In the said proceedings it was ascertained that there was gramatana on the northern side of Sy.No.236. Out of gramatana property an extent of 60 feet X 30 feet was granted in the name of 1st plaintiff's father which is item No.1 of the plaint schedule property. Defendant Nos.1 to 3 and others have challenged the validity of issuance of the house lists in favour of 1st plaintiff's father and defendant No.2. The defendant Nos.1 to 3 and others filed a suit against the plaintiffs for mandatory injunction to withdraw the house lists entries issued in the name of 1st plaintiff's father and plaintiff No.2 in O.S.No.17/2001 on the file of Civil Judge (Jr.Dn.), Chickballapur and ultimately, the suit was dismissed by holding that the defendants therein are not in possession of the suit schedule property. After dismissal of the suit, the defendants have tried to remove the compound wall on the eastern side of the plaint schedule property and trying to occupy the plaint schedule properties by force. Hence, the plaintiffs requested the defendants not to cause any interference. Inspite of it, the defendants did not gave any heed to the request made by the plaintiffs. Hence, the cause of action for the plaintiffs to file the suit for permanent injunction. Defendant Nos.1 to 3 filed the written statement denying the plaint averments and also denied that the plaintiff are the owners of the suit schedule property and it is contended that the defendants have challenged the validity of the issuance of house lists issued in favour of the plaintiffs by filing a petition before the Executive Officer in G.P.A.3/2000-01 and the said appeal was dismissed. The defendants admitted about the filing of suit in O.S.No.17/2001 and also the dismissal of the said suit. It is denied that the defendants are trying to remove the compound wall erected on the eastern side of the suit schedule property. It is denied that the defendants are trying to tress pass and by using the force get the physical possession from the plaintiff and removing of standing trees. There is no cause of action for filing a suit. The cause of action shown in the plaint is false and imaginary. It is contended that the 1st plaintiff's father by name Sri G. Munisonnappa filed a suit in O.S.No.239/1973 on the file of Munsiff, Chickaballapur and the said suit was ended in a compromise between one of these defendants and their father that the defendants granted sites by the Government in gramatana which was far away from the plaint schedule properties and survey numbers. The said Sri G. Munisonnappa has agreed to live 5 feet of space to make road for their ingress and egress of the defendants to enter their huts. Again in the year 1981, the said G. Munisonnappa unnecessarily brought another suit in O.S.No.150/1981 and later on, the advise of the villagers that suit was also compromised as the defendants have not encroached any of the suit schedule properties and they are within the limits of gramatana, which was granted to them and also contended that the defendants aggrieved by the judgment and decree passed in O.S.No.17/2001 preferred an appeal in R.A.No.103/2006 on the file of Civil Judge (Sr.Dvn.) Chickballapur and both the appeals are pending for adjudication. On these grounds, sought for dismissal of the suit.