IRAPPA BASAPPA KUDACHI Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) this is plaintiffs second appeal from the judgment and decree dated 28-11-1984 in r.a. No. 32 of 1983 delivered by the additional civil judge, chikodi, whereby the learned civil judge reversed and set aside the judgment and decree dated 21-7-1983 passed by the learned principal munsiff, hukeri, decreeing the plaintiffs appellant claim in the original suit No. 54 of 1981, and thereby allowing the defendants appeal and dismissing the plaintiffs claim in toto.

(2.) the facts of the case in brief are:that the plaintiff-appellant filed a suit for permanent injunction restraining the defendants-respondents from obstructing the plaintiffs-appellant in his peaceful use and enjoyment of the suit land viz., revenue survey nos. 116/2 and 93/1 of hattargi village. The plaintiffs case has been that the plaintiff has been and is in actual possession and enjoyment of the suit property but the defendants were trying to encroach the plaintiffs land, referred to above, by removing the bunds with the help of bulldozers. The plaintiff further alleged that the defendants did not have title to the land nor any right or interest therein nor defendants had acquired the suit lands. According to the plaintiff, mango trees have been in existence near and just touching the bunds and defendants were attempting to destroy the mango trees. So, the plaintiff having apprehended that his possession is likely to be interfered, filed the suit for decree for permanent injunction restraining the defendants from committing any encroachment on the plaintiffs suit land.

(3.) on behalf of the defendant-respondents, written statement was filed by the tahsildar, hukeri, which has been adopted by the other defendants. According to the defendants case on the southern side of the suit land, there is gairana land bearing survey No. 251-a/1, which land has been used, as admitted by both the parties before the courts below for grazing of the catties and it has been reserved by the Karnataka government for the rehabilitation of the persons of those areas. The defendants further alleged that the plaintiff was trying to encroach upon the gairana land viz., an area of 1 acre of gairana land and this was detected by the special tahsildar on 27-2-1981. So, according to the defendants, a notice was issued to the plaintiff on 5-3-1981 calling upon him to remove the encroachment, but the plaintiff did not pay any heed. The defendants/respondents further asserted that the suit was not maintainable as no notice had been given under Section 80 of the code of civil procedure and further on account of the fact that no cause of action had accrued in favour of the plaintiff against the defendants. The defendants/respondents claimed compensatory costs also.