ASHWIN ALMEIDA Vs. DEVARAO BELLE

JUDGEMENT

(1.) PETITIONER , who is the plaintiff in O.S. No. 449/2007 being aggrieved by the order dated 16.11.2013 made on I.A. No. V, filed under Order 23 Rules 1 and 2 of C.P.C., in O.S. No. 449/2007 on the file of III Addl. Civil Judge and JMFC, Mangalore, D.K. filed this writ petition.

(2.) PETITIONER is the plaintiff. He filed a suit seeing for permanent prohibitory injunction restraining the defendant from trespassing the suit schedule property or putting up any construction within the schedule property or committing any acts of waste or damages to the suit property. In the plaint, it was contended that grandfather of the plaintiff one Mr. Benedict Almeida was a mulgeni tenant in respect of land bearing Sy. No. 87/3 measuring 0.50 cents situated at Panchanady village, Mangalore Taluk. The said Mr. Benedict Almeida has purchased the mulgeni right from one Mr. Antony D'Souza as per registered mulgeni deed dated 28.10.1958, since then the grand father, thereafter the father of the plaintiff and the plaintiff were in possession of the suit schedule property. The land tribunal has granted occupancy right in favour of Mr. Benedict Almeida. However, the defendant was interfering with his peaceful possession and tried to put up construction within the suit schedule property. In view of that, the present suit was filed. The contesting defendant filed written statement denying the title and possession of the plaintiff and also entire averments made in the plaint. In the written statement, it was contended that wife of the defendant purchased the suit schedule property, constructed house and residing therein. But she was not made a party. The defendant further contended that the plaintiff has nothing to do with the same and sought for dismissal of the suit.

(3.) SRI Cyril Prasad Pais, learned advocate appearing for the petitioner contended that order passed by the trial Court is contrary to law. The plaintiff had filed a suit seeking for bare injunction and he had not sought for any declaration. The defendant filed written statement, deriving the title and possession of the plaintiff over the suit property. In view of that, the plaintiff thought to file a suit seeking for declaration and also possession. The plaintiff will not get any relief from the suit filed in the present form. Hence, he filed an application I.A. No. V, seeking permission to withdraw the suit. The reasons assigned by the trial Court in rejecting the application is contrary to law. Hence, he sought for allowing the writ petition by quashing the impugned order.