UFM SRI NAGESH Vs. SHRIKANT

JUDGEMENT

(1.) THIS second appeal is filed under Section 100 of CPC is filed challenging the concurrent findings given by the Court of Civil Judge (Jr. Dn.) Ankola in O.S. No. 49/2004 and affirmation of the same in R.A. No. 366/2006, dated 22.04.2009. The appellant herein is the plaintiff in the said suit and the appellant in R.A. No. 366/2006. The respondents herein were the defendants in O.S. No. 49/2004 and respondents in R.A. No. 366/2006. The parties will be referred to as the plaintiff and the defendants as per their ranking given in the trial Court.

(2.) THE plaintiff had filed a suit for the relief of permanent injunction and mandatory injunction in respect of a house bearing 537, put up in an area of one gunta, out of total extent of 21 guntas of land in Sy. No. 90/1 of Bobruwada village in Ankola Taluk. According to the plaintiff, the defendants have unauthorisedly put up a house in one gunta of land, out of 21 guntas of land possessed by the plaintiff in Sy. No. 90/1. The defendants have not seriously questioned the possession or title in respect of the 20 guntas of land belonging to the plaintiff. The plea of the defendants in the said suit was that they had put up a house way back in the year 1977 and that they have spent sufficient amount and that they have been living in the said house. The averments of the plaintiff that they were only licenses under him had been specifically denied. According to the defendants, the suit for permanent injunction and mandatory injunction was not at all maintainable without seeking the relief of declaration of title and without seeking the relief of recovery of possession of the same.

(3.) AFTER hearing the arguments, the learned civil Judge (Jr. Dn.) has answered the issue Nos. 1, 3, 8 and 10 in the affirmative, issue No. 6 partly in the affirmative and remaining issues in the negative. The plea of adverse possession taken up on behalf of the defendants has been rejected vide finding on issue No. 5. Ultimately, the suit has been dismissed solely on the ground that no relief of recovery is sought for. So far as injunction in respect of 20 guntas of land is granted, it is held that the same belongs to the plaintiff. But the defendants have been permitted to make use of the land held by the plaintiff as an access to their house.