RAJASHEKHAR Vs. HANAMANTHREDDY

JUDGEMENT

(1.) FIRST defendant of an original suit -bearing O.S. No. 353/2001 is before this Court challenging the judgment and decree passed in O.S. No. 353/2001 against him and the affirmation of the same in Regular Appeal bearing No. 104/2004. Respondent No. 1 is the plaintiff in the said suit and respondent No. 2 is the second defendant in the said suit. Parties will be referred to as plaintiff and defendants as per their ranking given in the trial Court.

(2.) PLAINTIFF chose to file a suit for the relief of mandatory injunction requesting the Court to direct defendants to remove the illegal construction of permanent road made over northern boundary of the suit schedule property and for compensation of Rs. 15,000/ - as damages. The said suit was contested by the defendants and ultimately suit came to be decreed directing the defendants to remove the pucca road formed towards the northern portion of the suit property. The relief for awarding damages has been rejected vide considered judgment dated 01.06.2004. The said judgment and decree came to be challenged by filing an appeal under Section 96 in R.A. No. 104/2004 before the Court of II Addl. Civil Judge (Sr. Dn.), Dharwad. The said appeal has been dismissed by confirming the judgment passed by III Addl. Civil Judge (Jr. Dn.), Dharwad, on 09.04.2008. These concurrent findings are called in question.

(3.) PLAINTIFF is the owner of land bearing No. 72/1 measuring 1.0 acre which is situated in Navalur Village, Dharwad Taluk. The said suit property has been specifically described with reference to the boundaries in the schedule appended to the plaint. It is the case of the plaintiff that the defendants have illegally formed a pucca road measuring more than 12 ft. in width on the northern side of the suit schedule property and that such formation of the road is illegal and they have no right whatsoever to form such a road. The fact that defendants are the adjacent land owners is not in dispute. The evidence placed or, record before the trial Court would disclose the existence of a pathway on the northern side of the suit schedule property belonging to the plaintiff. The trial Court as well as the First Appellate Court have specifically held that there existed a pathway on the northern edge of the suit schedule property and it was not pucca road. It is in this regard, a direction has been given by way of a mandatory injunction to remove the said pucca road so formed by defendant Nos. 1 and 2 on the northern side of the road.