RAJU Vs. BABURAO

JUDGEMENT

(1.) Plaintiffs are before this Court as they axe aggrieved by the dismissal of their suit filed for the relief of permanent injunction in O.S. No. 185 of 2005, which was pending on the file of the Court of Principal Civil Judge (Junior Division) and JMFC, Chikodi and the affirmation of the same in regular appeal filed under Section 96 of Civil Procedure Code, 1908 in R.A. No. 61 of 2007, which was pending on the file of the FTC-I, Chikodi, dated 28-8-2009. Respondents herein were the defendants in the said suit. Parties will be referred to as plaintiffs and defendants as per the their ranking given in the Trial Court. According to the plaintiffs, suit had been filed in respect of an open space bearing GPC No. 489 of Nainglaj/Village, Chikodi Taluka abutting the house of the plaintiffs. It is stated to be measuring 18.5 feet North and 16.3 feet East. The case of the plaintiffs is that suit schedule property i.e., the house and the open space abutting the house was their ancestral property and they have been enjoying the same from the time of their grandfather and great grandfather. Plaintiffs are stated to be residing in the suit house enjoying adjoining open space as described in the schedule. Defendants are stated to be strangers and since they attempted to interfere with their possession, plaintiffs had to file a suit for permanent injunction.

(2.) Defendants have denied all the material averments and have called upon the plaintiffs to strictly prove the contents of the plaint. According to defendant 1, his name is till entered in the records of property bearing GPC No. 489 even prior to 1970 and it continues to be in his name. His father one Mr. Rayagouda was Policepatil of this village and died in the year 1958 leaving behind him defendant 1 and other four sons. After defendant 1 constructed a building over the open space prior to 1955 with black tiles and some open space is left surrounding the suit property and the building measure East-West 24', South-North 40' having main door of 6' width on northern side and there are ten windows on four sides of the building and the rain waterfalls from four sides of the building, and there are two water tanks on southern side of the building and the building was used for Flour Mill. Nobody had questioned the title or possession for the past 55 years and that the plaintiffs have filed a frivolous suit and hence they prayed to dismiss the suit. On the basis of the above pleadings, following issues came to be filed:

(3.) Plaintiff 1 is examined as P.W. 1 and two witnesses have been examined on his behalf. Defendant 1 is examined as D.W. 1 and on his behalf, as many as four witnesses have been examined. 11 exhibits have been got marked on behalf of the plaintiffs and 21 exhibits, have been got marked on behalf of the defendants. After hearing the arguments and assessing the evidence, both issues have been answered in the negative and consequently suit is dismissed. As against the said judgment and decree, an, appeal came to be filed under Section 96 of C.P.C. in R.A. No. 61 of 2007. The learned Judge of the First Appellate Court has also dismissed the appeal and thereby the judgment of the Trial Court is confirmed. These concurrent findings which are called in question before this Court. The learned Counsel for the appellants has submitted his arguments.