VEERABHADRAPPA DANDAPPA HANCHINAMANI Vs. NANNESAB GOUSUSAB PATHAN

JUDGEMENT

(1.) THIS second appeal is by the defendants being aggrieved by the judgment and decree passed by the Civil Judge (Sr. Dvn), Ranebennur in RA 33/1989 reversing the finding of the Prl. JMFC, ranebennur in OS 11/1985 filed by nearly fourteen plaintiffs against the defendants seeking for a mandatory injunction in respect of the suit schedule way.

(2.) ACCORDING to the plaintiffs, they have got property in different survey numbers and the portion in which the property has been encroached by the defendants is a public way and the said encroachment has been causing inconvenience to them to use their land and in that capacity, they have together filed a suit seeking for the relief of mandatory injunction to remove the obstruction and to remove the encroachment The defendants contended that the suit was a frivolous one and the plaintiffs have not come to the court with clean hands and also denied the entire averments made in the plaint According to them, no way was available on the land since long time and the plaintiffs do not have lands as mentioned in the plaint and there is no way as mentioned in the suit schedule. The suit was filed only at the instigation of the 7th plaintiff and there was difference of opinion between the 7th plaintiff and the defendants in respect of construction of rice mill and cinema theatre and there is no basis for the plaintiffs to file a suit Based on the pleadings, the trial court has raised as many as six issues. Although the trial court has found that there is encroachment by the defendants and the same has been proved by the plaintiffs, on the ground that the plaintiffs have approached the court belatedly, the suit came to be dismissed against which, the plaintiffs approached the appellate court in appeal. The appellate court allowed the appeal by directing the defendants to remove the encroachment as shown in the plaint sketch at ABC and also permanently injuncted defendants 5 to 10 from cultivating on the suit way and not to obstruct the plaintiffs from using the suit way. Aggrieved by the same, defendants have come up in this second appeal.

(3.) AT the time of admission, this Court on 1. 4. 2004 raised the following substantial question of law for consideration - "whether the suit filed by the respondents was maintainable in view of order 1 Rule 8, CPC