IRANNA @ VEERANNA Vs. AMBUBAI

JUDGEMENT

(1.) The defendant in O.S.No.177/2006 has preferred this second appeal assailing judgment and decree in R.A.No.243/2010 dated 06/09/2011, passed by the 4th Additional District Judge, at Gulbarga by which, the judgment and decree passed in O.S.No.177/2006, dated 30/01/2009, by the 1st Additional Senior Civil Judge (Jr.Dn.) at Gulbarga, has been confirmed.

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

(3.) The respondent-plaintiffs filed the suit seeking the relief of permanent injunction against the defendant restraining him, his servants, agents or any other person claiming through them from interfering with the peaceful possession and enjoyment of plaintiffs' suit property. According to the plaintiffs, suit property is a courtyard in a triangular shape and it is part of house No.3-266 and 3- 263, situated at Milan Chowk, Gazipura, Gulbarga. The said house belongs to the ancestor of the husband of the plaintiff. In the partition, which took place between the husband of plaintiffs and his brothers (bahubandhas), the suit property fell to his share, therefore, it became his absolute property. The brother of plaintiffs' husband by name, Dattatraya, filed a suit in O.S. No.532/1974 against the husband of the plaintiffs in respect of the suit property. The trial Court dismissed the said suit on 29/01/1982. Being aggrieved by the dismissal of the suit, R.A. No.164/1982 was filed, which also came to be dismissed on 13/09/1988 by the first appellate Court and regular second appeal was also dismissed. Therefore, the finding in O.S.No.532/1974 became conclusive and final. In the said judgment, it has been held that the suit property is owned and possessed by the husband of the plaintiffs- Pundalik, who died on 12/02/1980. His sons and daughters divided the properties under a memorandum of family arrangement cum partition on 24/04/1999. In the said partition, the suit property fell to the share of the plaintiffs. That the defendant is in no way concerned to the suit property. Defendant's house is situated towards eastern side of the suit property. On 25/06/2006, defendant collected building materials to construct the rooms without obtaining any licence. He was trying to make illegal construction by encroaching upon the suit property. Defendant has no right to use suit property for ingress and egress. Plaintiffs also submit that the father of the defendant filed O.S.No.27/1/1958 against Dattatraya, seeking declaration of his right of passage and permanent injunction in the suit property. During the pendency of suit, he died and defendant came on record and the suit was dismissed on 28/02/1961. Against which, R.A.No.30/1964 and thereafter, R.S.A.No.636/1969 were filed and they too were dismissed. Defendant has no right and interest over the suit property, but he is trying to encroach the same by illegal construction. Plaintiffs are old and widows, but defendant is threatening them. Hence, having no other option, plaintiffs filed suit seeking the relief of permanent injunction.