CHIDAMBAR AND BASAPPA Vs. MANOHAR AND PRABHAKAR @ FAKIRAPPA

JUDGEMENT

(1.) PRESENT appeal is directed against the divergent finding of the first appellate Court. The present appeal is filed by the plaintiffs of an original suit bearing O.S. No. 149/1991 which was pending on the file of the Civil Judge (Jr. Dn.), Saundatti. The suit of the plaintiffs had been decreed as prayed for. Being aggrieved by the said judgment and decree passed in O.S. No. 149/1991, the defendants therein had filed an appeal under Section 96 of CPC before the first appellate Court i.e., the Court of Senior Civil Judge, Saundatti in R.A. No. 2/2000. The said appeal came to be allowed in its entirety and thereby the relief of permanent injunction granted in favour of these appellants was set aside. Being aggrieved by the said judgment and decree passed in R.A. No. 2/2000, plaintiffs have approached this Court under Section 100 of CPC challenging the same on various grounds as set out in the appeal memo. The appellants were plaintiff Nos. 1 and 2 and respondents herein were defendant Nos. 1 and 2 before the trial Court. Parties will be referred to as plaintiffs and defendants as per their ranking given in the trial Court.

(2.) THE suit schedule properties, according to the plaintiffs, plot Nos. 3 and 4 measure 40 feet x 80 feet each and TMC Nos. 2514/1+2 and 2514/1+3 of Savadatti town, Belgaum district. According to them, these plots were granted to them by the Special Land Acquisition Officer, Malaprabha Project, Saundatti as they had lost their properties due to submersion. According to them, both these plots exist side by side and being a compact block are commonly bounded by east and west by road and north, plot No. 2 belonging to Smt. Sudhatai and south tank area. Plaintiffs are stated to be in lawful possession and enjoyment of them right from the year 1985, i.e., the year in which the grant was made in their favour. When the plaintiffs were intending to construct residential houses in their respective plots, the defendant interfered with their possession and as such, they had to file a suit for injunction. According to the plaintiffs, temporary injunction was in force till disposal of the suit and during the pendency of the suit, both of them have put up construction.

(3.) PLAINTIFF No. 1 has been examined as P.W. 1 and two witnesses have been examined on their behalf and 28 documents have been got marked. Defendant No. 1 alone has been examined as D.W. 1. After hearing the arguments, the learned Judge of the trial Court has answered issue Nos. 1 and 2 in the affirmative and has consequently decreed the suit as prayed for vide considered judgment dated 13.01.2000. Against this considered judgment and decree, an appeal was filed under Section 96 of CPC before the Court of Senior Civil Judge, Saundatti, which came to be numbered as R.A. No. 2/2000. After hearing the arguments and perusing the records, the learned Judge of the appellate Court has set aside the judgment and decree passed by the trial Court and has thereby dismissed the suit vide considered judgment dated 16.07.2004. It is this judgment and decree of the first appellate Court, which is called in question on various grounds as set out in the appeal memo filed before this Court under Section 100 of CPC.