Gulaiah S./O Hutchappanna Gulaiah vs Karigulaiah S/O Lt Hutchappanna ... on 24 January, 2011

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Karnataka High Court

Gulaiah S./O Hutchappanna Gulaiah vs Karigulaiah S/O Lt Hutchappanna ... on 24 January, 2011

- confirined: by the first appellate court. The appellan of the.c Cours. below are preferring SEEN EMSS OEE NZL UP ARINATARA FGF CUUKI UF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COI te THIS RSA FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE. DATED 13.11.2009 PASSED IN R.A.NO. 1/2007 ON 'THE. re OF THE CIVIL JUDGE (SR.DN.) ) KUNIGAL, DISMISSING. -- THE APPEAL AND CONFIRMING THE JUDGMENT AND ©. :

DECKEE DATD:20/ 11/ 2006 - PASSED IN... O.8.NO.476/1997 ON THE FILE OF THE ADDL. CIV. JUDGE (JR.DN) JMFC, KUNIGAL. .

THIS APPEAL COMING ON. FOR HEARING THIS DAY, THE COURT DELIVERED THE. FOLLOWING:

This suit. is filed by the plaintifis, for the relief of ane inj ction in' respect | of the suit schedule Additional Civil property. on "the file | of the Learned Judge (Jr-Dn) at. Runigel a O.8.No.476/1997 which came ts be decreed vide j judgment dated 20.11.2006, being aggrieved} by the impugned judem ~~ Appeal.

a | 2. The ground s @ppellants/defendants is that the respondents have a & filed O.S.No.476/1997 for the relief of permanent veceant injunction in respect of suit schedule property | They admitted tl VEN GWU WP MARNAIARA FGF GUUKE UP RAKNAIAKA MIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH C Kad site with fence formed in Survey No.2/20A now K.No.530 measuring East-West: 22 feet, North- Seuth:9S _ feet, approximately 0.2 % guntas, claiming 'that the © property fallen to the share of 7 plaintiff No. 1 ne tary partition effected between himself and} hie brother. The euit schedule site was 4. part of Sy. No 2} 20A 3 has SeTL included to Gramathana of innagare s plaintiffs had 1p put up 00 constr ation, in the year 1994. The defendant: oa clams tw be the brother. of plaintifiz and there is 2. -feinily dispute going on between the plaintitis arid defendants for longer period and it is out ee tained by the plaintiffs that there is "threat.from-the defendants causing interference. A. "The 'defendants app d and filed written a ee * statement: and they have admitted that the suit site was part of Sy.Wo.2/20A ard that it has new Ketha No.S30. it to the extent of East-West: 22 feet, ' North-South:95 feet is the property of the plamtifis, but they have denied that the said measurement is not as i 4 . the partition deed ~x.P3 and Ex.D1, but the defend ea game has been widened and VEE MINE OE NARIVALARATIMT WMI UT RARINALARA FGM CUUKE UF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COL that of 2% guntas. Accordingly the defendants disputed the suit.

4. Itis further submitted that, the respondents got examined four witnesses as PW.1 to PW.4. arid produced and got mat doz une f as per Ex.Pl to PL7.

5. It is further: submitted 'that, the Courts below have erred isi not povicing that both the plaintiffs and defendarits have admitted the extent of 0.2 % had. iallen to the share of 1* plaintiff and 1* defendant in. the suit echedule Survey number as per "have taken specific contention that towards the western side. of the suit scl terti.side of the property tha Amruthur ~ Mandya Koad and " Western portion of the suit schedule property and portion of the 1* defendant's property had gone to road and thereby the "submits that, both the Courts have com:

TIMES ENGINE MOE TARINAATAINA THOTT UMURE UP RAKNAIARA HIGH COUKI OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH C€ Sadi extent was reduced the plaintiffs-respondenits _ have East-West: 22 feet and North-South: 95. feet. ins the - echedule and not 2% gumntas.

6. The Trial Court framéd the following: issues for comaideration:

ther | the plantifi 'prove that the ey are in lawful 'Possession of the | fob suit: schedule. property as on the date, of the. su vite

2. 7 : Whether they further proves that to interfere : over the suit schedule property?

the defendants are tried t cm * Both the issues have been answered in the : ciative: - Against the decree, the defendar learned courmsel for the defendants itted an error in considering the prayer for relief sought for. If the Courts have taken the averments made in the written ¥ en correct measurement of their land to the extent of. o, 8 Ned have lost some 63 survey number. Therein on the northern side of the Sen MEME NTINE Ne IMAIRIVATAIVATINGTT MAUUIRE WT RARNALIARA FIG COUKL OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COL & ae

9. Itis further submitted that, the father of the i* defendant, the 1* plaintiff, and their other brothers | have partitioned the family propertica irs, ths, year 1965- 66 through r registered" palupatt, Ab. that time suit Sy.No.2/20A measured 0-1 1 our P a. inl it ding kharab. Aa per the palo spot, the us 'lain arid the father of the 1# defendant have taken | 2 -guntas arul other brothers have: tal nO2 guntas 'each. After that in the western side af the' plaints 'amd the defendant's land, the road was 'formed for 'public usage, which links to Keg from. Me adya. At that time some extent of ty of suit Survey number was gone for the road ent of property in reapect of suit 7 number property a path way measuring im the suit schedule nchayath. Therefore the extent of the suit schedule property is only east-west 22 ue defendant has. sold part

24. The defen _ 17 documents. Witnesses OEE ENE ME MARINATAMA FUMTT GUURE UP KAKNAIAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH C feet and north-south 95 feet. There is no 2 % guntas of or site in the suit schedule property. - The. a ned authority has converted the jand.aa, the -- Gaonthana. The concerned Grama | -panchayath has, :

sured the site and- chave 7 inentinied | "the ster anc measurement of the site in the concerned a iseued assessment extract E to. 'the plaintif in respect of suit schedule property.

10. As Per, the bowndanes of the plaint in the southern sidé of t the suit ochedule there is @ property of the 14 deienda nt. 'The defeniant and his brother have ided that property ong themselves. The i* t of the portion of hie prop 997 to the extent of 22 x 19 at Qet defendant on 8/5/1 in kath: No wel.

& have produced and n ~~. 4 and documents wer arked as Ex.D.1 to DI?. oon a es "reduced, the defendants have not produced : material D.W4 - G.K.R ig in the possession of ple TEE NR RENERE EERSTE MMM MIT ARINATARA FIGTT CUUKE UF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COI &

12. Ihave heard on both sides.

13. As it ia a suit for permanent idqjunction,. © burden to prove the possession ard interference of the -- defendants is on the plaintiff. As the defendants hove admitted plaintiffs possession ov » the si2it t property 'the burden on the plaintt. to atten extent is" "reduced. herefore, the omus to prove 'contrary shifts upon the defendants. For eoguiring any property 'there has to be notification. Unites 'and' santil. fa prop is acquired, question: of foreeing any road « or "widening any existing road will not arise. The one to prove that the road in the suit property. was" widened sh is a witness for the oe ; defendan ts has categorically admitted that said property Wit since from date of the tition. The oral and documentary evidence on record possession over the suit VM GVYRE VT RARNAIARA MIG WUUKE UP KRAKNAIAKA HIGH COUKI OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH € property and interference caused by the defendanis. Under these circumeta ., plaintiffs being in- lawful.

pessession of the suit sche protect their possession. The submission of the. . resporidents counsel is well founded and accepted, a y, this appeal. is diamissed being devoid of any merits.

- Gadge

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