ROSILY Vs. ANNAM

JUDGEMENT

(1.) I will refer to the parties as they were before the trial court. According to the plaintiffs, 'b' schedule property is part of 'a' schedule property having a total extent of 2 acres and 12. 540 cents. 'a' schedule is described as comprised of 2. 09 acres in Survey Nos. 214 and 3. 280 cents in Survey No. 228/5 and 0. 260 cents in Survey No. 228/3. 'a' schedule property is also described as property covered by Will No. 71/89 executed by vareed and described in the commission report in O. S. 715/97, a previous suit between the parties. According to the plaintiffs, 'a' schedule property stood separated from the defendants' property on its south by well-defined boundaries and the first plaintiff's father had maintained a retaining wall with jungle stones on its southern boundary. According to the plaintiffs, a portion of this retaining wall was destroyed by the defendants and O. S. 715/97 was instituted by the plaintiffs against the defendants seeking mandatory and prohibitory injunction. The case of the plaintiffs is that the Commissioner appointed in that suit has reported about the nature of the retaining wall. The plaintiffs state that in violation of the order of temporary injunction passed against the defendants in the suit - O. S. 715/97, the defendants destroyed the retaining wall completely and thereafter lodged a counter claim in O. S. 715/97 seeking fixation of boundaries. The Advocate Commissioner in that suit measured the property with the assistance of the surveyor and such measurement revealed that

(2.) 540 cents of land situated on the northern side of the retaining wall in survey Nos. 228/5 and 228/3 was under the possession of the plaintiffs. The court dismissed the counter claim on 7. 4. 2000. During the night of 9. 5. 2000 and early morning of 10. 5. 2000 while the plaintiffs were away, the defendants, it is alleged, trespassed into the aforementioned 'b' schedule property having an extent of 3. 540 cents and reduced the same into their possession by putting up a fence. Apart from putting up the fence, the defendants tilled the 'b' schedule property so as to make it appear that the 'b' schedule property lies contiguously to the properties of the defendants. The plaintiffs allege that the decree dismissing the counter claim lodged by the defendants in O. S. 715/97 has become final and that what the defendants did, instead of preferring an appeal against the dismissal of the counter claim, was to file a fresh suit for injunction-O. S. 736/00 without disclosing the true facts. Thus the suit is instituted seeking recovery under S. 6 of the Specific Relief Act on the premise that the plaintiffs who were in possession have been dispossessed within six months other than through legal process.

(3.) HEARD Sri. T. A. Shaji, learned counsel for the revision petitioners and Sri. R. D. Shenoi, learned counsel for the respondents. The learned counsel supplied me with copies of relevant papers for perusal.