DEVAKI JOGI @ PURUSHA Vs. M. SHASHISHEKAR KAMATH

JUDGEMENT

(1.) Heard the learned counsel for the appellant and also the respondent with regard to Admission.

(2.) The concurrent findings of the trial Court, as well as the first Appellate Court in O.S.No.240/1997 and RA.No.58/2007 respectively, are called in question before this Court. This Court has to ascertain on the basis of materials on record, whether the trial Court and the first Appellate Court have committed any serious legal error in decreeing the suit of the plaintiff? whether any legal aspects are involved in this case? whether the trial Court and the first Appellate Court, only on the basis of appreciation of the factual aspects, arrived at a conclusion in decreeing the suit of the plaintiff?, has to be ascertained. If the conclusion is only on the appreciation of facts, then this Court has no jurisdiction to interfere with such appreciation of facts by the trial Court and the first Appellate Court.

(3.) The factual matrix reveal that the plaintiff - M.Shashishekhar Kamath, claimed that he acquired the suit schedule property i.e., Survey No.125/5 of Nadsal village, Udupi Taluk, which comprise of a house in two parts, numbered as Door No.5/11, that is, eastern and western portion of a house, situated in the said survey number. The plaintiff claimed that he acquired the suit schedule property by way of registered Will executed by his father, who was the absolute owner in possession and enjoyment of the same. It is also stated that there is a thatched house in which the defendant has been residing in the western portion and in the eastern portion, one Devaki Poojarthy was residing. It is stated that the defendant has been in permissive possession from the time of father of the plaintiff. Even after the death of plaintiff's father, the defendant continued to be in permissive possession without any consideration. Subsequently, the defendant unauthorisedly encroached and built a thatched pent roof with knitted coconut leaves. As the plaintiff objected for the said illegal act of the defendant, at that time, the defendant has told that it is only a temporary arrangement and the same would be removed after rainy season. In spite of rainy season being over, the defendant did not comply with the assurance. The plaintiff issued a legal notice on 31.1.1996 and also subsequently issued another legal notice on 19.4.1996, revoking and canceling the licence or permission and called upon the defendant to deliver the possession. As the defendant did not heed to the request of the plaintiff, the plaintiff filed a suit for recovery of possession of the suit schedule property, with other ancillary reliefs of mandatory injunction.