M MUTHUROYAPPA Vs. MUNIAPPA

JUDGEMENT

(1.) This appeal is directed against the judgment of the learned Subordinate Judge, Krishnagiri in A.S. No. 8 of 1986 in reversing the judgment of the learned District Munsif, Hazur in I.A. No. 344 of 1981 in O.S. No. 356 of 1968.

(2.) I.A. No. 344 of 1981 was filed under Order 20, Rule 12 of C.P.C. by the appellant herein and in the affidavit in support of the said petition, the appellant has contended as follows:-He filed the suit against the defendants for declaration of his easementary right of passage to take his cattle to the suit lands through the lands of the defendants and for a permanent injunction and for recovery of damages for Rs. 2,000/- per year for the loss of agricultural operations and for future mesne profits. The defendants contested the suit and ultimately a decree was passed against the defendants on 24-7-1973. Against the decree, the defendants filed petition under Order 9, Rule 13 of C.P.C. to set aside the decree and the said application was dismissed. A further appeal was filed in C.M.A. No. 29 of 1977 and after the disposal of the same by the District Court on 28-4-1978, a revision was filed by the defendants in C.R.P. No. 1530 of 1978. By Order dated 23-10-1978, this Court had dismissed the revision petition. Therefore, the decree passed in the suit became final. According to the petitioner, on account of the protracted litigation, the plaintiff was not able to carry out his cultivation of the suit lands from the time of the plaint till now and even now he was unable to carry on his cultivation on account of the fences put up by the defendants. The report of the Commissioner also shows about the existence of the fence. The suit lands are wet lands, where two crops were being grown. The plaintiff had incurred heavy loss and damage as a result of the conduct of the defendants. A total sum of Rs. 1,19,040/- was claimed as compensation.

(3.) In the counter filed by the respondents, it was contended that as per the decree, costs of Rs. 351/- and damages of Rs. 2,000/- was payable. Subsequent payments have also been effected in the Execution Petition filed by the plaintiff and the execution petition was ultimately dismissed on 5-7-1980. The various allegations contained in the petition were denied by the respondents. The petitioner was in possession of the land and he has been cultivating the lands regularly without any hindrance from the respondents. The claim of Rs. 1,19,040/- was untenable and not bona fide. The petitioner had not stated how the amount as claimed was arrived at. The court-fee paid by the plaintiff was not correct.