P S RAMA BHAT, P S VENKATRAMANA,P G SUBRAMANYAN,GOVINDA HEBBAR AND S K RADHA,S V KESHAVAN Vs. K A ABOOBACKER,LATE ABBA,ZUHARA, K A ABOOBACKER AND S V KESHAVAN,S K VENKATAN

JUDGEMENT

(1.) Defendants 2 to 4 in O.S.38/1999 on the file of Munsiff Court, Kasaragod are the appellants. Plaintiffs are the respondents. Respondents instituted the suit seeking a decree for permanent prohibitory injunction and recovery of possession. Plaint A schedule property belongs to respondents and plaint B schedule property to appellants. Plaint C schedule property is alleged to be portion of plaint A schedule property trespassed upon by appellants. It was contended that in between A and B schedule properties, there has been compound wall along the major portion of the boundary and a portion of the northern wall of the building constructed above the wall also serve as a boundary and to a length of about 14ft. there was a barbed wire fence and originally there was an old building in the plaint B schedule property and one month prior to the institution of the suit, appellants demolished major portion of that building and started construction of a new building. It was alleged that while so constructing, appellants encroached upon a portion of plaint A schedule property, having a width of 2 feet and length of 14 ft which is shown as plaint C schedule property, and started construction of a building with laterite stones and inspite of the objection by respondents, appellants did not remove the structure or surrender vacant possession of the building and therefore suit was filed seeking recovery of possession of plaint C schedule property and for a permanent prohibitory injunction restraining further encroachment into the remaining portions of the plaint A schedule property. Appellants in the written statement contended that plaint C schedule property does not form part of plaint A schedule property and they did not encroach upon any portion of plaint A schedule property or the property of respondents. It was contended that the original building in the plaint B schedule property was demolished and a new building was constructed and respondents have no right to get any portion of their property recovered or and are not entitled to the mandatory injunction for demolishing of the structure in the plaint C schedule property.

(2.) Learned Munsiff on the evidence of Pw1, Dws.1 and 2, Exts.A1 to A5, Exts.B1 to B7 and Exts.C1 and C2 found that plaint C schedule property is part of plaint A schedule property. Learned Munsiff also found that in plaint C schedule property a temporary structure was put up with hollow bricks and respondents have title to the property and are entitled to get a decree for recovery of possession of plaint C schedule property after getting the structure removed. A decree for perpectual injunction in respect of the remaining portion of plaint A schedule property and a mandatory injunction for removal of the structure in plaint C schedule property and recovery of R.S.A.1112/2006 4 possession of plaint C schedule property was granted. Appellants challenged the decree and judgment before Sub Court, Kasaragod in A.S.121/2002. Learned Sub Judge on reappreciation of evidence confirmed the findings of learned Munsiff that plaint C schedule is part of plaint A schedule property and it belongs to respondents. Learned Sub Judge also confirmed the findings of learned Munsiff that the structure in plaint C schedule property is a temporary one made of hollow bricks and respondents are entitled to a decree for recovery of possession of plaint C schedule property. Though a plea of estoppel by acquiescence was projected, courts below did not accept the same and held that respondents are entitled to the decree for recovery of possession and perpectual injunction. It is challenged in the second appeal.

(3.) Second appeal was admitted formulating the following substantial question of law.