NAGAPPA GOWDA Vs. AKKU HENGSU

JUDGEMENT

(1.) This second appeal is one filed by the plaintiff against the judgment and decree d/ 26-6-72 passed by the Principal Civil Judge, Mangalore, Dakshina Kannada in RA.111/71 dismissing the appeal filed by him against the judgment and decree d/23-6-71 passed by the Munsiff, Puttur, dismissing the suit filed by him against one Choma Gowda for permanent injunction to restrain him and his servants from trespassing or interfering with the peaceful possession and enjoyment of the plaint 'A' schedule property.

(2.) The facts relevant for the disposal of this appeal are these: The plaintiff brought the suit OS.314 of 1969 for permanent injunction against one Choma Gowda in respect of the suit schedule property comprised in RS.44/2 situate at a place called 'Ana' in Ramakunja village of Puttur Taluk on the allegation that he was in exclusive possession and enjoyment thereof as a lessee under one Srinivaga Upadhyaya since 1935. Later on, the suit property was allotted to the share of one Susheelamma in a partition suit OS.4/41 on the file Of the Sub-Judge, Mangalore in the family of the said Srinivasa Upadhyaya. The plaintiff continued as a tenant under the said Susheelamma. One Vasudeva, Upadhyaya purchased Mitha Ana properties in Court auction in REP.447 46 in OS.153/45 and took delivery of those properties on, 5-4-48. Thereafter Choma Gowda, the defendant in the suit took certain fields on lease from the said Vasudeva Upadhyaya and continued to be a tenant under him. The defendant got measured his fields obtained on lease with the help of the Shanbhogue for the purpose of fixing the fair-rent. At the time of the measurements, it was found that the plaint 'A' Schedule property was part of RS.44/2 in which one of the fields obtained by the defendant on lease from Vasudeva Upadhyaya was also included. The plaint schedule property forms part and parcel of the lease-hold of the plaintiff and the plaintiff has been in exclusive possession and enjoyment of the same since the year 1935 without any obstruction from any quarter. Even though there was change of ownership of the plaint schedule property, no one disturbed the possession of the Pltff and his enjoyment. In the beginning of June 1969, the Pltff planted some area and banana plants in the vacant portion of the plaint schedule property which was forming the back-yard of the plaintiff's house. At the instigation of the village shanbhogue, the defendant trespassed into the plaint schedule property on 26-7-1969 for taking forcible possession of the same which was resisted by the, plaintiff. The defendant and his men retreated threatening that they would come with added force and take possession of the suit property by force. Hence the plaintiff has filed the suit for permanent injunction.

(3.) The suit was resisted by the Deft on the ground that it formed part and parcel of his lease-hold. According to him, the suit property was in the possession and enjoyment of his family from three generations. He has further claimed that he had executed a chalageni lease in favour of Vasudeva Upadhyaya in respect of the suit schedule property. He denied that Susheelamma was the owner of it. He pleaded that the suit was bad for non-joinder of Susheelamma under whom the plaintiff claimed to be the tenant and Vasudeva .Upadhyaya, his landlord. His further plea was that he had constructed a small thatched shed in the plaint 'A' schedule property to store manure and there was a well in it since his fore-father's time. He allowed the plaintiff to use a portion of the thatched shed to Store his firewood and to use it as bath-shed. Taking undue advantage of such a concession given by him, the plaintiff set up the title in himself. The plaintiff was not in possession of the uit schedule property at any time in his own right. He prayed for the dismissal of the suit on these grounds.