D.K. HUTCHAPPA Vs. K.C. VENKATESH

JUDGEMENT

(1.) AGGRIEVED by the concurrent findings recorded by both the courts below in dismissing the plaintiffs suit for injunction, the legal representatives of the plaintiff have filed this second appeal.

(2.) THE case of the plaintiff is that he is the absolute owner in possession of the suit schedule property by virtue of a registered partition deed dated 5.5.1942. Mutation has been effected in his name and he has been paying taxes. He is in peaceful possession and enjoyment without any interruption. The suit schedule property is presently in grama tana and he has been residing therein along with his family members. There is a passage to the Western side of his house as shown in the schedule. The defendants who are husband and wife having their house on the western side of the suit schedule property were attempting to put up a new construction without leaving set back, are trying to install windows and making provision for drain of rain water to pass through the passage left by the plaintiff and that the defendants have no right to use the same. The suit property consists of two portions. Southern portion is owned by plaintiffs' father and northern portion was purchased by plaintiffs' father from one Ramegowda and Dasegowda under a registered sale deed in the year 1937. The said purchased land is on the Western side of the land of Kemparamaiah to an extent of 48 x 12 years over which the defendants have no right or title. Both the portions were merged together for convenience of plaintiffs' father and a Mangalore tiled roof house was built with a vacant space on the Northern side. The father of the plaintiffs used to grow vegetables in the said passage. The first defendant and his father lived in a small portion of mud roofed house and a hut situated on the back side of alleged property i.e., Southern side. The said house does not have windows on the Eastern side. But during the pendency of the suit, the defendants constructed a Mangalore tiled house and RCC roof in the place of the hut and installed windows in disobedience of the interim order passed by the Court. A complaint was filed by the plaintiffs son on the same day. The police directed the plaintiff to approach the Civil Court. Further the defendants managed to shift the telephone pole to the passage of the petitioner. Notice was also given to the Department to relocate the pole. But nothing has happened. Hence they filed the said suit seeking for a decree of permanent injunction restraining the defendants from putting up windows or leaving rain water and from interfering with peaceful possession of the plaintiffs and enjoyment of the suit schedule property and to grant mandatory injunction against the defendants by either demolishing or removing the water pipes and zinc sheet cover lying on the front portion of the Mangalore tiled house; to remove or close three windows and hole made on the Mangalore tiled roof house pertaining to the defendants' property; to remove stone boulders, stone slabs and other materials placed by the defendants on the Northern side of the plaintiffs property, to shift and remove the telephone pole from the suit schedule property to its original/actual place where it was erected formerly by the defendants and for consequential reliefs.

(3.) ON the basis of the pleadings, the trial Court framed the following issues for consideration: