SADASHIVA DEVADIGA Vs. MUDDU DEVADIGA

JUDGEMENT

(1.) THIS second appeal is by the defendant being aggrieved by the judgment and decree passed by the learned II additional Civil Judge (Sr. Dn.) D. K. Mangalore, in R. A. No. 122/1992 in allowing the appeal filed by the plaintiff.

(2.) PLAINTIFF filed a suit for declaration to declare that he has preferred his title over C schedule property by adverse possession and also for permanent injunction. C schedule property is a portion of S. No. 28/8 measuring about 10 cents and contains fence, field, bund, trees and is situated at Madya village of Mangalore Taluk. According to the plaintiff he is in lawful possession of the same as a long standing tenant. The disputed property is in between S. No. 28/9 and 28/8 and it appears to be part of 28/8. Plaintiff claims to be in lawful possesssion and also filed a suit for declaration that he has perfected title by adverse possession on the ground that occupancy rights were granted in his favour as tenant and the defendant is the owner of S. No. 28/8 situated on the northern side of schedule B property. C schedule property is a field bund on the northern side of plaint B schedule property. Plaintiff states that there is also a fence which separates the remaining portion of S. No. 28/8. Jackfruit and tamarind trees exist on the field bund. Plaintiff states that defendant has no manner of right, title and interest. Suit was resisted by the defendant contending that as per the survey report disputed property belongs to him and the trees at the bund in the C Schedule property also belong to him. Boundary has been fixed not only by the survey department but also by the Assistant Commissioner. Mangalore, after proper, enquiry. Defendant states that plaintiff has deliberately suppressed the fact regarding survey and the existence of the kattapuni and the trees thereon in the property of the defendant in s No. 28/8 and has made out a false case. Based on the pleadings as many as five issues were raised and also report of the Commissioner was obtained After trial and hearing the parties, the trial Court dismissed the suit of the plaintiff tor injunction. Thereafter plaintiff preferred appeal before the Additional Civil Judge (Sr. Dn.) Mangalore, wherein appeal was allowed. Meanwhile, plaintiff had given up claim for adverse possession As such plaintiff was granted an order of permanent injunction against which this appeal is by the defendant. At the time of admission on 16-2-2004, the following substantial questions of law were raised for consideration in this appeal

(3.) HEARD the learned counsel for the respective parties.