MUDDARANGAPPA Vs. GANGAMMA

JUDGEMENT

(1.) this is defendants second appeal arising out of judgment and decree dated 26th august, 1988, in regular civil appeal No. 73 of 1985 (Mudddrangappa and Another v. Gangamma), whereby the learned civil judge, namely Sri T.S.Palanethra, dismissed the defendants first appeal and affirmed the judgment and decree dated 8-11-1985 passed by the munsiff, madhugiri in original suit No. 276 of 1980, (Gangamma v. Muddarangappa and Others), decreeing the claim of the plaintiffs in the above mentioned suit for the relief of declaration, possession and injunction directing the defendants-appellants to remove the spouts fixed on the western wall of their house within the time prescribed.

(2.) the facts of the case in brief are that the plaintiff-respondent filed the suit for the above mentioned reliefs alleging herself to be the owner in possession and enjoyment of survey No. 89/2 more specifically described in the body of the plaint. According to the plaintiffs case, the defendant was the owner of survey No. 89/3. According to the plaintiffs case, the defendants who are the owners of survey No. 89/3 have encroached upon a portion of the plaintiffs survey No. 89/2 as mentioned in paragraph 3 of the plaint. The plaintiff further averred that the defendants inserted in the western wall of the defendants house, a spout so as to throw out the rain water of their house and other water on the land of the plaintiff. Panchayat was called upon, but no avail. According to the plaintiff, the cause of action arose in may, 1980 and because of the acts of the defendants and the plaintiff had to file the suit for the reliefs claimed. The defendants filed the written statement and admitted that survey No. 89/3 of koratagere village did belong to them i.e., defendants. But they denied the plaintiffs claim of title in respect of survey No. 89/2. The defendants further denied that they committed any trespass or encroachment on the plaintiffs land to the extent of 6' east-west and 33' south-north, at any time within six months time prior to the filing of the suit. The defendants also denied that they inserted any spout. The defendants case has been that two spouts did exist there ever-since the mantap in which the defendants live and were constructed, according to the defendants, 40 years back. The defendants denied the right, title and interest of the plaintiff over 11/2 feet width land to the west of the mantap and claimed they belonged to defendants. The defendants further claim right of easement over the land in dispute and further asserted that plaintiff had no cause of action and that the land in dispute measuring 200 sq. Feet did not form part of survey No. 89/2 and survey No. 89/2 is proved to be belonging to plaintiff. The trial court on the basis of the pleadings of the parties framed the issues which read as under:

(3.) the trial court decreed the plaintiffs suit after having recorded the following findings: