In permanent injunction suits, issues of title must be explicitly framed and addressed to ensure procedural fairness, enabling parties to substantiate their claims.

JUDGMENT :

RAVI V HOSMANI, J.

Challenging judgment and decree dated 17.03.2023 passed by Principal Senior Civil Judge and JMFC, Bantwal, D.K., in R.A.no.9/2021 and judgment and decree dated 09.06.2021 by Principal Civil Judge and JMFC, Bantwal, Dakshina Kannada, in O.S.no.109/2012, this second appeal is filed.

2. Sri Divakara K.N., Akshay S., learned counsel for appellants no.1 and 3 to 5 submitted that appeal was by plaintiffs in O.S.no.109/2012 filed for relief of permanent injunction restraining respondents/defendants from widening existing 3 metre roadway in plaint 'A' schedule properties bearing Sy.no.200/4A, measuring 0.56 cents and in Sy.no.200/5, measuring 0.28 cents, situated at Kedila village, Bantwal Taluk, Dakshina Kannada District (hereinafter referred to as 'Suit Properties') or from interfering with peaceful possession of same, except to extent of making use of 3 metre roadway and directing defendants to restore it to its original condition etc.

3. In plaint, it was stated that one K. Ananda Rao was absolute owner of Suit Properties and on death of K. Ananda Rao, plaintiffs succeeded to same and that there existed 3 metre width road in it running from Karimajal to Patrakodi locality and that it was private properties and defendants did not have any manner of right to widen 3 metre roadway. However, defendants no.1 to 5 had engaged defendant no.6 to form concrete road on said 3 metre roadway. Plaintiff no.2 filed objections on 09.03.2012 before defendant no.5 against widening of road. However, due to bonafide mistake, he had mentioned only item no.1 of Suit Properties.

4. It was further stated, at instance of defendants no.1 to 5, defendant no.6 and his men forcibly trespassed into Suit Properties and began spreading earth on either side of road to widen 3 metre road to 6 - 7 metres width. On 19.03.2012, plaintiffs lodged complaint with Puttur Police Station and issued legal notice on 23.03.2012. However, Police did not take any action and defendant no.6 commenced laying of concrete road. It was alleged that in process of laying of concrete road, defendants had shifted portion of road towards northern portion of Suit Properties, where there existed, no road earlier. Therefore, Suit Properties were required to be restored to original state.

5. On service of suit summons, though defendants no.1 to 5 appeared through counsel and filed written statement. Defendant no.6 did not appear and was placed ex- parte. In their written statement, defendants denied plaint averments and disputed right of plaintiffs over any portion of existing road. It was stated that road in question existed since 50 years and was not being widened as alleged. Level of road was raised by dumping mud before laying of concrete road thereon and work carried out was only to develop existing road and not to lay any new road. Defendants also stated that work was taken up and completed in March 2012 and there was no water tank as alleged by plaintiffs and therefore allegation of water tank having been closed by defendant no.6 was not true. On said pleadings sought for dismissal of suit.

6. Based on pleadings, trial Court framed following:

ISSUES

1) Whether the plaintiffs prove that, they are in peaceful possession and enjoyment of the suit schedule property?

2) Whether the plaintiffs prove that the defendants are trying to widen 3 meter width roadway into 7 meter?

3) Whether the plaintiffs prove that the defendants formed concrete road to a width of 3 meter by violating the court order?

4) Whether the plaintiffs prove that they are entitled for relief as sought in the suit is entitled for reli