STATE OF KARNATAKA Vs. BASALINGAPPA

JUDGEMENT

(1.) This second appeal by the defendant arises out of the suit O.S.No. 22/1973 filed by the respondent-plaintiff for damages of Rs.1200/-; for perpetual and mandatory injunction pertaining to land bearing S.No. 231 measuring 13 acres 14 guntas assessed at Rs.37.12 situated at Malkhed village, Sedam Taluk, Gulbarga District.

(2.) It is not in dispute that the plaintiff is the owner of the suit land. It is also not in dispute that the State in the purported exercise of its power of eminent domain, without acquiring the land in question, attempted to lay a road on the land in question in spite of the objection raised by the plaintiff.

(3.) The trial court on the basis of the pleadings of the parties, raised the following issues: 1) Does plaintiff prove that the breadth of the road constructed in the suit land is 75' as averred in the plaint? 2) Does defendant prove that plaintiff is estopped from challenging the construction of the road as he did not object while constructing the said road as contended in para 6 of his written statement ? 3) Whether plaintiff is entitled for mandatory and perpetual injunction? 4) Is plaintiff entitled for damages and if so, to what amount? 5) What order? The trial court answered issue No. 1 in the affirmative and issue Nos. 2 and 4 in the negative. It also held on issue No. 3 that the plaintiff was not entitled to mandatory injunction but he was entitled to perpetual injunction. Accordingly it passed a decree in the following terms;