MANJAPPA Vs. GOURAMMA

JUDGEMENT

(1.) APPELLANTS are defendants in O.S.21/1997 pending on the file of Civil Judge (Jr.Dn.) & JMFC, Hirekerur. Respondents herein were plaintiffs in the said suit. Suit had been filed for the relief of declaration, permanent injunction and for mandatory injunction in respect of property as described in the schedule appended to the plaint and hand sketch appended which is signed by the learned Counsel for the plaintiffs on 15.1.1997.

(2.) ACCORDING to the plaintiffs, the suit property consists of house and open space bearing VPC No.1366 of Yellapur Chikkerur Village. The property of the defendants consists of red tiled house with backyard bearing VPC No.1367 of the same village. According to the plaintiffs, the suit schedule property is in between the houses of plaintiffs and defendants. The houses of the plaintiffs and defendants are specifically indicated in the hand sketch appended to the plaint. The space indicated in letters FKCG is the property belonging to the plaintiffs and is stated to be the part and parcel of the plaintiffs property bearing VPC No.1366. It is the case of the plaintiffs that they were tethering cattle in the open space as it is their ancestral property.

(3.) THE case of the defendants is one of the total denial of material plaint averments. It is averred that the property bearing VPC No.1367 measures 33ftx22ft East -West. The plaintiffs have no manner of right, title or interest over this open space. According to the defendants, there is wild fence in existence between the properties of plaintiffs and defendants from times immemorial and plaintiffs, with an oblique motive to destroy the evidence of demarcation have cut the fence. It is further averred that the property of defendants extends upto 15 feet in the East -West direction beyond their western KC Wall and plaintiffs in previous suit bearing O.S.No.67/1996 had pleaded that property of the defendants East -West measures 27 feet. In the present suit, they have pleaded inconsistently and therefore, plaintiffs are estopped from pleading contrary to their own earlier suit. The plaintiffs are stated to have not mentioned boundaries or measurement of open space measuring FKCD purposefully, lest they would be exposed. According to them, the property of the defendant extends to upto 33 feet East -West and plaintiffs have specifically not mentioned the measurement. With these pleadings, defendants have requested for dismissal of the suit.