SHALINI B SHETTY Vs. GULABI SHETTY

JUDGEMENT

(1.) HEARD the arguments of learned counsel for the appellants plaintiffs on admission.

(2.) LEARNED counsel appearing for the appellants during the course of the arguments made submission that the plaintiffs filed the suit before the trial court seeking the relief of ownership by adverse possession and permanent injunction against the defendant therein. It is his submission that the trial court dismissed the suit mainly on the ground that the present suit is hit by Section 11 of C.P.C. i.e., principles of resjudicata and this approach of the trial court is not correct and not in accordance with law. The earlier suit filed by Ganapa Shetty against the defendant therein was only for permanent injunction to restrain her from causing interference to his possession and enjoyment over the suit schedule property, whereas the present suit was filed seeking the relief of declaration by adverse possession. Therefore, the plaintiffs claim the ownership of the suit schedule property by adverse possession with consequential relief of permanent injunction. The nature of the suit filed by Ganapa Shetty and the nature of the suit filed by the present plaintiffs is not one and the same and the issues framed in the said suits are not one and the same and this aspect of the matter is not properly appreciated by the courts below. The learned counsel further submitted that the portion of the property when it was acquired and the compensation amount was awarded, the amount was also shared by the plaintiffs and this aspect of the matter also clearly goes to show that they are having right over the suit schedule property. It is further submitted that even looking to the admission during the course of evidence of D.W.1 in the suit, D.W.1 has admitted that Ganapa Shetty made construction after obtaining permission from the competent authority, which would indicate that after the demise of Ganapa Shetty, the predecessor in title of the plaintiffs, the present plaintiffs are in possession and enjoyment of the suit schedule property. It is his further submission that in the earlier suit, the trial court held that the plaintiff has failed to establish his lawful possession over the suit schedule property. Hence, the learned counsel making distinction between the lawful possession and mere possession and submitted that the dismissal of the earlier suit will not come in the way of maintaining the present suit. These material aspects so also the documents produced on the side of the plaintiffs were not referred or considered by the courts below. Hence, the matter requires reconsideration by this Court. There are substantial questions of law involved in this appeal. Hence, submitted to admit the appeal.

(3.) PERUSED the grounds urged in the appeal memorandum, the judgment and decrees passed by the courts below and considered the submissions made by the learned counsel appearing for the appellants.