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2013 DIGILAW 355 (KAR)

BHARATHBAI v. BABU

2013-03-19

D.V.SHYLENDRA KUMAR

body2013
JUDGMENT D.V. SHYLENDRA KUMAR, J.-This second appeal is by the plaintiff in O.S. No. 67/1991. Plaintiff claiming to be the owner in respect of land measuring to an extent of 2 acres 18 guntas in Sy. No. 253 of Kitta village in Basavakalyan Taluk, had filed a suit for perpetual injunction against defendants 1 to 3. The allegation is that the defendants are trying to interfere and encroach upon the subject land, though they had no right, title or interest in the subject land etc. 2. Defendants disputed plaint averments, filed the written statements contending that plaintiff is not the owner of 2 acres 18 guntas of land in Sy. No. 253. They also denied that they had encroached over the property of the plaintiff. 3. It was also the further version of the defendants that Sy. No. 253 which was measuring a total extent of 5 acres 18 guntas, a part of which had been used by the Government for formation of 60 feet wide road and thereafter the Government had also acquired further extent of 3 acres for Janata Housing scheme and had allotted the sites formed in this extent of 3 acres to people belonging to the Backward Communities and they are residing after constructing houses. The Gram Panchayat has also formed a 30 feet wide road in Sy. No. 253 to provide access to these people and if at all the plaintiff was left with about 1 acre of land from out of the original 5 acres 18 guntas of land and if the plaintiff was only owner in possession of 1 acre and odd guntas out of Sy. No. 253 and not to the extent as ascertained in the plaint, i.e., 2 acres 18 guntas, she cannot seek for relief on such premise. They asserted that they are only in possession of the land acquired by the Government, i.e., 3 acres and a part of which was used for formation of sites and having been allotted by the Government and in such sites they are in possession and occupation by constructing the houses in the sites and while there is no encroachment, it is only an attempt on the part of the plaintiff to dispossess them from the suit land etc. 4. 4. In the wake of such pleadings, the Trial Court had framed the following issues: "(1) Whether the plaintiff proves that the defendants are trying to encroach upon his land sy. No. 253 measuring 2 acres 18 guntas towards east shown by red colour in the map? (2) Whether the defendants prove that suit is bad for nonjoinder of necessary parties? (3) Do they prove that suit is not maintainable in view of judgment and decree in O.S. No. 194/1995 on the file of Hon'ble Civil Judge (Jr. Dvn) Basavakalyan? (4) Whether the plaintiff is entitled for the relief of injunction? (5) What decree or order?" 5. Parties went to trial on these issues. On behalf of the plaintiff, the plaintiff herself and three more witnesses were examined, Exhibits P-1 to P-5 were got marked. No evidence was let in on behalf of the defendants. 6. However, during the course of arguments by counsel for defendants, the earlier judgment and decree in O.S. No. 194/1995 was pointed out and according to which the plaintiff who had sought for declaration and injunction in respect of 2 acres 18 guntas of very same land had been given relief only in respect of 1 acre 20 guntas and therefore it was obvious that plaintiff was neither owner nor in possession of entire extent of 2 acres 18 guntas in Sy. No. 253, which was the basis for the present suit. 7. In fact the learned Trial Judge also noticed that during the course of arguments it was conceded that the defendants were in possession of the subject land and not trying to interfere with the land of the plaintiff etc. and were in possession of the part of the land in Sy. No. 253 but as encroachers. 8. The learned Trial Judge found that while the plaintiff was not able to make good her possession and title to the entire extent of 2 acres 18 guntas, which was subject matter of the suit, also found that it was conceded on behalf of the plaintiff that the defendants were already in possession of some part and were not trying to encroach or interfere with the land belonging to plaintiff and in this view of the matter neither the possession nor title having been established for entire extent of land, dismissed the suit. 9. 9. Appeal by the plaintiff did not make any difference to the plaintiff as the learned Appellate Judge who formulated the following two issues: "1. Whether the learned Civil Judge (Jr. Dvn.) Basavakalyan was justified in holding that the plaintiff has failed to prove possession over the suit schedule property as on the date of suit and the alleged encroachment by defendants? 2. Whether the judgment and decree is calls for interference?" Based on the arguments addressed at the Bar and the grounds raised in the appeal, found the points formulated against the appellant-plaintiff and accordingly dismissed the appeal. 10. It is against these two concurrent findings, the present second appeal. 11. Appearing on behalf of the appellant-plaintiff, submission of Sri Ameet Kumar Deshpande, learned counsel is that while it is true that the plaintiff could not sustain the claim of ownership and possession of the subject land to the entire extent of 2 acres 18 guntas, but even as per the earlier decree to an extent of 1 acre 20 guntas having been found to be in possession and ownership of the subject land, the declaration and injunction had been granted to this extent, at least the suit should have been decreed by the Courts below after formulating or moulding the relief suitably. 12. The plaintiff was aware of the developments earlier and if the plaintiff herself did not seek for suitable alternative relief, no blame can be laid at the door of the Court to say that relief should have been properly moulded. If the plaintiff is not able to establish the attempt of encroachment or interference with the plaintiff's property and the subject property of which the encroachment was attempted or interference being caused by the defendants is also not indicated. The relief of bare injunction does not lie as it can be only in respect of ascertained and identified area in the possession of the plaintiff for which the relief can be sought for. 13. In the present case, the defendants were already in possession and therefore question of granting a restraint order against them, on the premise that the plaintiff was in possession, does not arise. Plaintiff also having not made good any attempt of encroachment by the defendants in respect of 1 acre 18 guntas said to be in her ownership and possession, yet again relief does not follow. 14. Plaintiff also having not made good any attempt of encroachment by the defendants in respect of 1 acre 18 guntas said to be in her ownership and possession, yet again relief does not follow. 14. I do not find any question of law wrongly decided by the Courts below which requires examination in this second appeal. Accordingly, this second appeal is dismissed.