RAGHAVENDRA RAO Vs. SANJEEVAMMA

JUDGEMENT

(1.) THE appellants instituted O.S.No.864/89 on the file of the Civil Judge, Jr. Division, Kundapura and obtained a judgment and decree dated 21 -10 -2003 directing the defendants/respondents, herein, to deliver possession of 'B" Schedule properties to the plaintiffs within six months therefrom. Defendants 4 and 5 aggrieved by the said judgment and decree preferred R.A.58/03 before the Civil Judge, Sr. Division, Kundapura which was allowed by judgment and decree dated 26 -2 -2009 whence the judgment and decree of the trial court was set aside, and the suit dismissed. Hence the second appeal.

(2.) IN the suit instituted by the appellants it was alleged that the A schedule property being agricultural land in Sy.No.15/9 belonged to the plaintiffs since conferred with occupancy rights by the Land Tribunal bounded on the east by the land in Sy.No.15/1 of Kumbhashi village held by one Srinivasa Aithal and on the North lands in Sy.No.15/10 and 15/11 while on the South property in Sy.No.15/11 belonging to defendants 1 to 3. It was alleged that during the last Karti Paddy cultivation and in the middle of June 1999 defendants 1 to 3 along with defendants 4 and 5 removed the Northern portion of the suit 'A' schedule property and added it on to their paddy field in Sy.No.15/11 and transplanted paddy seedlings thereon as also removed the Northern portion of Sy.No.15/10 and added it on to their paddy field in Sy.No.15/11. The reasonable request of the plaintiffs to restore the encroached land to the plaintiffs when not heeded to by the defendants, led to the institution of the suit.

(3.) BEFORE the Trial Court Defendants 1 to 3 were placed ex -parte, while defendants 4 and 5 entered appearance and resisted the suit by filing written statement, inter alia, in the first instance advancing a plea of adverse possession. However, in the additional written statement filed after amendment of the plaint, defendants 4 and 5 withdrew the plea of adverse possession and advanced a plea that the plaintiff was not entitled to the 'B' schedule property to an extent of 5 cents alleged to be encroached upon by the defendants.