SHANKARAPPA AND ORS. Vs. KRISHNAPPA AND ORS.

JUDGEMENT

(1.) Defendant Nos. 1 and 3 in O.S. No. 321/2012 have preferred this Appeal assailing the judgment and decree of the II Addl. Senior Civil Judge, Hubli, dated 27.6.2015 passed in R.A. No. 59/2013 by which, judgment and decree of the trial court dated 11.3.2013 is modified.

(2.) For the sake of convenience, the parties shall be referred to, in terms of their status before the Trial Court.

(3.) The 1st Respondent/plaintiff filed the suit seeking the relief of mandatory injunction and permanent injunction against the defendants in respect of suit properties comprising of VPC. No. 617 measuring East -West 24.6 feet and North -South 35 feet, situated at Mantur village. According to the plaintiff, in the year 1988, Government of Karnataka had allotted the suit property to him and he was handed over vacant possession of the same. On 10.2.1989 a certificate was issued, mentioning measurements of the suit property and mentioning the boundaries to it. Subsequently, Government of Karnataka constructed houses in the suit property to an extent of East to West 16 feet and North to South 13 feet. In the plaint, the entire suit property is shown in the plaint sketch by letters 'ABCD'. The constructed portion is shown as 'AEFK' and vacant space is depicted by letters 'EFGHKBID'. According to the plaintiff, defendants have no manner of right, title and interest in the suit property. The father of defendants 5 to 9 by name Kenchappa, with a view to keep agricultural equipments, wood, etc., in the portion of the suit property, started interfering with plaintiff's peaceful possession and enjoyment of the suit property. Plaintiff filed O.S. No. 540/1988 against him, but the suit was dismissed. He preferred appeal in R.A. No. 84/2000 against the judgment and decree passed in O.S.540/1998 and the said appeal was allowed. Father of defendants 5 to 9 disobeyed the judgment passed in R.A. No. 85/2000. Plaintiff filed E.P. No. 121/2008. During the pendency of the said petition, father of defendants 5 to 9 died and defendants 5 to 9 were brought on record. A Court Commissioner was appointed in E.P. No. 121/2008. The Court Commissioner requested for police help. On 29.11.2011, the Court Commissioner went to the spot with the help of police. But the defendants obstructed the Commissioner with the help of their supporters. Consequently, Court Commissioner could not complete his work. According to the plaintiff, defendants have encroached upon land measuring 15 feet x 8 feet and they have put up a shed illegally therein, which is shown in the plaint sketch marked as 'GHIC. The Court Commissioner submitted a report stating that one Shankarappa Navalgund -defendant No. 1 in O.S.321/12, had illegally put up a shed in the portion of the suit property. That father of defendants 5 to 9 was a party in O.S. No. 540/1998 and R.A.84/2000. Therefore, judgment and decree passed in R.A. No. 84/2000 is binding on the said defendants. That, plaintiff sought for relief of mandatory injunction and permanent injunction against defendants.