ALAMENGADA D. BELLIAPPA Vs. THANACHIRA K. KUTAPPA

JUDGEMENT

(1.) Heard the learned counsel for the appellants and learned counsel for the respondent No.1.

(2.) The factual matrix of the case of the plaintiffs before the Trial Court while seeking the relief of permanent injunction, declaration and possession and future damage is that the first plaintiff is the son of the second plaintiff and they are absolute owners of the suit schedule property. The said property came to the share of the second plaintiff in the family partition and the Jamabandhi stands registered in the name of the first plaintiff. He has cultivated the major portion of it about 5.00 acres with coffee and on the southern side, they have left the balance area of 2.90 acres as grazing land enclosed with fence. They had fenced the said land long back and using it for cattle grazing, firewood and also to go to forest land located closely. No one else has any claim or right over the said area. The defendants have lands in the southern side of suit property which is a vacant Bane land. Since about 30/6/1997, it was found that the defendants were clearing jungle of the area in their adjacent land for which the plaintiffs had no objection. But on 3/7/1997 at about 10.00 a.m., the first defendant with big gang workers damaged the southern side fence of the suit property and attempted to trespass into the suit property and forcibly occupy the same. The same was prevented by rushing to the spot and found that southern fence of the suit property was fully damaged and removed and the first defendant and his men were arranging to cut the jungle growth in the suit property. The plaintiffs have protested at the highhandedness of the first defendant and his men but, they threatened the second plaintiff and A.P. Ganapathy and also forcibly occupied the suit vacant land on the southern side. The second plaintiff has lodged the police complaint to Ponnampet and Balele immediately. But, the police have not taken any action.

(3.) After filing the present suit, the plaintiffs have got amended the plaint and submitted that subsequent to filing the suit, taking advantage of the plaintiffs and his family members living away from the suit schedule property. During August 1997, the defendants have trespassed into the suit property forcibly and occupied it and enclosed it within their area. It is also contended that as per the application filed by the plaintiffs, a Commissioner was appointed and the said Court survey had revealed that the defendants have encroached upon an area measuring 2.90 acres in the suit property about 1 1/2 years back. The area stated to be in possession of the plaintiffs in Sy.No.42 has already been purchased by the plaintiffs from the defendants under registered sale deed dtd. 21/2/1986. Hence, the plaintiffs constrained to convert this suit for the relief of declaration and recovery of possession of suit property.