AKBARSAB Vs. TIPPAWWA

JUDGEMENT

(1.) THE appellants of an original suit bearing OS No.75/2000, which was pending on the file of Court of III Additional Civil Judge (Jr.Dn.), Gadag have approached this Court being aggrieved by the concurrent findings of the trial Court and the First Appellate Court. The respondent herein was the defendant in the said suit. Parties will be referred to as plaintiffs and defendant as per their ranking given in the trial Court.

(2.) A suit came to be filed by the plaintiffs before the Court of III Additional Civil Judge (Jr.Dn.), Gadag, with a request to declare that the defendant has encroached a portion of the area belonging to them and has illegally put up construction and for mandatory injunction. According to the plaintiffs, they are the owners in possession of the suit property bearing CTS No.6311/5/A and CTS No.6586/55B. These two properties are stated to be in one block bounded on the east by road, West by property of defendant, North Nil and South by Pala -Badami Road. Plaintiffs had produced a hand sketch map along with the plaint for better explanation. The plaintiffs' property is indicated in letters 'ABCDE' and the property of the defendant existing on the western side of the schedule property is indicated in letters 'AEFG'. According to the plaintiff, their property indicated in letters 'ABE' measuring 4'x29' is said to have been encroached by the defendant. They had relied upon the report of City Surveyor in regard to the measurement.

(3.) DEFENDANT had appeared before the Court and had denied all the material averments and had called upon the plaintiffs to prove the contents of the plaint strictly. The case of the defendant is that, no property belonging to the plaintiffs has been encroached and that the alleged encroachment is false and untenable. Defendant is stated to be in actual possession of the schedule property from the date of purchase made in the year 1963. According to her, there was an old house, which was in a dilapidate condition and in the year 1983 -84 itself she obtained permission from the Town Planning Authority and City Municipality, Gadag vide order dated 08.09.1983. On getting approval from the City Municipality and Town Planning Authority, she has put up a pakka house and it has been in existence from more than 16 - 17 years. Alternatively she has averred that, she has perfected her title by way of adverse possession and hence she had prayed for dismissal of the suit. On the basis of the above pleadings following issues came to be framed: