RUDRAPPA Vs. BASAVANTAPPA

JUDGEMENT

(1.) THE unsuccessful plaintiff filed this second appeal, against the judgment and decree dated 27.03.2010 made in RA No. 79/2008 on the file of the I Addl. Senior Civil Judge and CJM, Dharwad, dismissing the appeal confirming the judgment and decree dated 16.08.2008 made in O.S. No. 86/1995 on the file of the III Addl. Civil Judge (Jr.Dn.), Dharwad, dismissing the suit for declaration and permanent injunction.

(2.) THE appellant/plaintiff filed the suit against the defendant for declaration to the effect that the plaintiff has got easementary right of air and light in the suit schedule property by way of prescription and also consequential relief of mandatory injunction to demolish the wall constructed by the defendant by closing the windows on the northern side of the plaintiff's house and for permanent injunction restraining the defendant from construction any wall in the suit property.

(3.) THE defendant filed written statement and denied the plaint averments and contended that the very suit filed by the plaintiff is false, frivolous and not maintainable either in law or on facts of the case and hence, the suit of the plaintiff is liable to be dismissed. The defendant has denied that the very description of the suit schedule property as well as the hand -sketch produced by the plaintiff along with his plaint as false and also denied the physical possession of the plaintiff since 50 years and contended that he is the owner in exclusive possession of house bearing Nos. 28 & 29 situated at II Block, Pudakalkatti village, Dharwad Taluk. The property bearing Nos. 28 & 29 are the ancestral property of the defendant and the buildings in the suit properties have been in existence since time immemorial. The buildings, owned by the defendant, required some repair works in order to keep them in tact and for proper maintenance. The defendant has started the repair works in his property in the year 1995. The plaintiff has filed the suit against the defendant with an intention to harass the defendant without any right or interest in the suit schedule property. The plaintiff has filed the present suit against the defendant with concocted contentions. The dispute between the plaintiff and defendant was settled at the intervention of the village elders on 02.03.1995, but instead of withdrawing the suit, the plaintiff has created false story and continued the suit with an intention to cause irreparable loss to the defendant, etc. Therefore, he prayed for dismissal of the suit.