KASTHURI BAI Vs. MADHAVA KINI

JUDGEMENT

(1.) The suit for declaration of title, recovery of possession and for injunction -- both prohibitory and mandatory- was decreed by the trial court. The decree and judgment were interfered with by the first appellate court and the suit was dismissed, against which this appeal by the plaintiff.

(2.) Under Ext.A1 Partition Deed of the year 1996 executed in the family of the plaintiff. The plaintiff was party no.2 in the said partition and was allotted 28.5 cents, described as item no.2 therein. From out of the said property, the plaintiff alienated an extent of 4 ¾ cents. The remaining extent of 23 ¾ cents is described as the plaint 'A' schedule. The defendants are the western property owners. Alleging that they trespassed into the plaint 'A' schedule and reduced a portion thereof, which is described as plaint 'B' schedule, the suit is filed for recovery of the same on the strength of title. The fence and a gate alleged to have been put up encroaching into the plaint 'A' schedule property is sought to be removed by way of mandatory injunction. The defendants disputed the title of the plaintiff.

(3.) The trial court issued a survey commission to identify the properties. Accepting the Commissioner's Report and Plan, the trial court granted a decree in favour of the plaintiff. But mandatory injunction with regard to the gate was refused on the ground of laches. However, the plaintiff was permitted to remove the same at his expense. The plaintiff did not challenge the same in appeal. Challenging the decree, the defendants filed appeal. The learned Sub Judge reversed the decree and judgment of the trial court and dismissed the suit holding that the property has not been correctly identified. Aggrieved, this appeal is filed by the plaintiff.