M. NAGESH SUVARNA Vs. NARAYANA

JUDGEMENT

(1.) The unsuccessful defendant filed this Regular Second Appeal against the judgment and decree dated 18.03.2013 made in R.A.No.78/2010 on the file of the II Addl. Senior Civil Judge, Mangalore, D.K., dismissing the appeal, confirming the order dated 07.06.2010 passed in Misc.Case No.5/2008 on the file of II Addl. Civil Judge, Mangalore, D.K., dismissing the Misc. petition filed under Order 9, Rule 13 read with Sec. 151 of C.P.C.

(2.) The respondent, who is the plaintiff before the trial Court, filed the O.S.No.230/2006 against the appellant-defendant Daivasthana for a relief of declaration that the appellant-defendant has no right to trespass, encroach upon or interfere with the possession of the plaintiff in respect of the suit schedule property and also for permanent injunction restraining the appellant-defendant or anybody claiming under them from trespassing, encroaching upon or putting up any construction in the plaint schedule property and also direction to the defendant to remove the earth dumped on the plaint schedule property and to remove the concrete pillars under construction in the plaint schedule property, etc.

(3.) The present appellant-defendant, filed vakalath on 29.05.2006, but the written statement was not filed. In the meanwhile, defendant's counsel, who was representing before the trial Court, had retired on 02.11.2006 without issuing notice to the present appellant about his retirement from the case and the trial Court without issuing Court notice to the party-defendant proceeded to decree the suit in part directing defendant and its Trustees headed by its President by way of mandatory injunction to remove the concrete pillars under construction over the plaint 'A' schedule property and also granted permanent injunction restraining the defendant, its Trustees or any one claiming under the said Trust from trespassing or interfering over the plaint schedule property or putting up any construction. The claim of the respondent-plaintiff for the relief of declaration has been dismissed.