ISHWARA BHAT Vs. ANNAPPA NAIKA

JUDGEMENT

(1.) The plaintiff in OS No. 284/82 on the file of the Munsiffs Court, Kasaragod whose prayer for declaration of title and permanent prohibitory injunction in respect of plaint A schedule properties is rejected by the Trial Court as well as the first appellate Court, is the appellant herein. Though the plaint A schedule properties consisted of four items, since in the written statement the respondent defendant stated that he has no dispute with regard to items 2 to 4 of the plaint A schedule properties and confined his contention with regard to item No. 1 of an extent of 42 cents comprised in RS No. 201/3 of Enmakaje Village, the parties are in issue only with regard to that item one of the plaint schedule properties. Though the appellant contended that the plaint A schedule properties form part and parcel of RS No. 201/2 which was obtained by him on darkhast from the Government, subsequently it is admitted by both sides that the disputed property is Government land. That item alone is the subject matter in this appeal.

(2.) According to the appellant the properties in the possession of the appellant and the respondent are separated by a compound wall and the properties in the possession of the respondent in the possession of the respondent are bounded by a very old compound wall adjoining the disputed property. According to him, he has been in possession of item No. 1 of plaint A schedule properties along with other properties and has effected valuable improvements in that property also.

(3.) The Trial Court found that the appellant was not in possession of item No. 1 of the plaint schedule properties and accordingly dismissed the suit by judgment and decree dated 29.8.1986. Though the Trial Court negatived the contention of the respondent that the suit is bad for non joinder of the State, in appeal AS No. 135/86 preferred by the appellant against the judgment and decree of the Trial Court, the lower appellate court reversed the finding of the Trial Court that the suit is not bad for nonjoinder of the State and held that the suit is bad for non joinder of the State and dismissed the suit, even though, it was found that the appellant was in possession of item No. 1 of plaint A schedule properties on the date of suit.