SHIVAMMA Vs. AMBIKA

JUDGEMENT

(1.) This matter is listed for admission. Heard the learned counsel for the appellants.

(2.) The factual matrix of the case of the plaintiff before the Trial Court that she is the absolute owner and in possession of the suit schedule property as on the date of the suit. The defendant is interfering with the peaceful possession and enjoyment of the suit schedule property and hence claimed the relief of permanent injunction. The defendant appeared and filed written statement i.e., defendant No.2. The defendant No.1 adopted the written statement filed by the defendant No.2. The plaintiff's case is that the suit schedule property is measuring East-West 23 feet and North-South 69 feet and claim of the defendant is that they are the absolute owners of the property measuring East-West 29 feet and North-South 69 feet consisting of house property, vacant space. It is also their case that there is a vacant space between the properties of the plaintiff and defendant Nos.1 and 2. The plaintiff and defendant Nos.1 and 2 have been using the said vacant space to reach the lavatory since the said lavatory was dilapidated condition, the defendant Nos.1 and 2 have demolished the lavatory. Taking undue advantage of the same, the plaintiff has been claiming right over the vacant space. Further the plaintiff and her husband have colluded together and tried to close the vacant space by putting the fence. When the defendant Nos.1 and 2 have resisted illegal act of the plaintiff and her husband, the plaintiff has filed the suit with an intention to harass the defendant Nos.1 and 2. The parties are allowed to lead evidence before the Trial Court and plaintiff examined himself as PW1 and got marked Ex.P1 to Ex.P26. On the other hand, defendant No.2 has been examined as DW1 and got marked Ex.D1 to Ex.D7.

(3.) The Trial Court having considered both oral and documentary evidence particularly considering the admission on the part of DW1 that he has constructed the house in respect of measurement of 29 x 69 feet i.e., entire measurement of his property, the same is also taken note of by the Trial Court while considering issue between the parties particularly in paragraph No.11 and also taken note of the commissioner report. In paragraph No.15 discussed with regard to the commissioner report. An observation is made with regard to the plaintiff has got the house property measuring 90.10 feet and sketch also taken note of that there is a vacant space measuring 4.9 feet towards northern side, in the middle 7.1 feet and towards southern side 8.4 feet existed between the property of the plaintiff and defendants and having taken note of construction of defendants' house in entire property measuring 29 x 69 feet comes to the conclusion that defendant is interfering with peaceful possession and enjoyment of the property of the plaintiff and answered issues accordingly and granted the relief of permanent injunction. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.46/2014.