MAHABALA SHETTY Vs. VASUDEVA BHAT

JUDGEMENT

(1.) The defendant in O.S.Nos.37/1996 & 21/2002 on the file of the Principal Civil Judge & JMFC, Udupi, has come up in these second appeals impugning the common judgment and decree dated 22.02.2012 passed in both the suits in decreeing the suit of the common plaintiff for the relief of possession as claimed in O.S.No.37/1996 and for the relief of permanent and mandatory injunction in O.S.No.21/2002 filed by him. In both the suits, the common defendant is appellant Mahabala Shetty. The suit schedule property in both the suits are lands bearing Sy. No.51/12 measuring 10 cents and Sy. No.51/20 measuring 13 cents of Alevoor village of Udupi Taluk and District.

(2.) The case of the plaintiff originally in O.S.No.37/1996 is to the effect that the suit schedule property i.e., Item Nos.1 & 2 as stated supra are the properties of the plaintiff s family which have fallen to his share in a partition which has taken place between himself and other members of the family and accordingly he has been in possession and enjoyment of the same. The averments in the plaint in so far as O.S.No.37/1996 is concerned, discloses that the plaintiff permitted the defendant to be in possession of Item No.2 of the suit schedule property, but while residing in Item No.2, defendant encroached the adjacent land Item No.1 of the suit schedule property during the period when he was in permissive possession of Item No.2. Therefore, he has sought for possession and at the same time, he has sought for permanent injunction restraining the defendant from disturbing his possession after the suit is decreed.

(3.) It is seen that the said suit O.S.No.37/1996 continued from 1996 to 2002. In the meanwhile, appellant herein is said to have put up construction in a portion of Sy. No.51/12 measuring to an extent of 10 cents which gave raise for a new cause of action to file O.S.No.21/2002 for the relief of permanent injunction as well as mandatory injunction to remove the construction which was unauthorizedly put up in suit schedule property Item No.1 and also seeking to restrain the defendant from dealing with the said property in any manner during the pendency of the suit and thereafter.