The courts affirmed the right to a permanent injunction, ruling that the plaintiff demonstrated both ownership and possession, while the defendants failed to prove their claim of land being used as a burial ground.

JUDGMENT :

RAVI V. HOSMANI, J.

1. Challenging judgment and decree dated 25.07.2023 passed by II Additional Senior Civil Judge, Chikkamagaluru, in R.A.no.41/2022 and judgment and decree dated 07.09.2022 by Principal Civil Judge, Chikkamagaluru, in O.S.no.444/2015, this second appeal is filed.

2. Sri Gururaj R., learned counsel for appellants submits that appeal is by defendants (except defendant no.6) in O.S.no.444/2015 filed by respondent no.1 (plaintiff) seeking for permanent injunction restraining defendants from trespassing into property bearing Sy.no.80, Block no.2, measuring 30 guntas, situated at Koduvalli village, Vasthare Hobli, Chikkamagaluru Taluk (hereinafter referred to as 'Suit Property') of which plaintiff was owner.

3. In plaint, it was stated that Suit Property had fallen to share of plaintiff in partition dated 01.07.2015 and by virtue of same, plaintiff had become absolute owner and was in possession and enjoyment of Suit Property. Defendants being villagers without having any right objected plaintiff fencing Suit Property by claiming that said land was required for burial ground. It was stated that Suit Property was never used as burial ground nor reserved for same and that there was 2 Acres of land situated near Kesarike road of Koduvalli village for said purpose. It was stated, since defendants objected against plaintiff’s possession and enjoyment of Suit Property, on 14.10.2015, a police complaint was lodged before Aldur Police Station, who directed complainant to approach Civil Court. Therefore, suit was filed.

4. On appearance, defendant no.4 filed written statement adopted by other defendants stating that land bearing Sy.no.80 of Koduvalli village was totally measuring 1 Acre 25 guntas, out of which 0.6 guntas was reserved as burial ground for villagers used for same since 50 to 60 years. It was stated that their application for grant of said land was pending before Revenue Authorities and even Anoor Grama Panchayath had passed a Resolution on 15.10.2015 reserving 0.6 guntas in Suit Property as burial ground for villagers. Taking undue advantage of property situated towards western and southern side of burial ground, plaintiff was trying to encroach on it by showing wrong boundaries. It was alleged that plaintiff had not approached Court with clean hands and sought for dismissal of suit.

5. Based on pleadings, trial Court framed following:

ISSUES

1) Whether plaintiff proves he is possession over suit schedule land as on the date of filing of suit?

2) Whether plaintiff proves alleged interference by defendants over suit schedule land?

3) Whether plaintiff is entitle for the relief of permanent injunction against defendants?

4) What order or decree?

6. In trial, plaintiff examined himself as PW.1 and got marked Exhibits-P1 to P23. On other side, defendant no.4 examined himself and another witness as DW.1 and DW.2 and got marked Exhibits-D1 to D11.

7. On consideration, trial Court answered issues no.1 to 3 in affirmative and issue no.4 by decreeing suit. Aggrieved, defendants preferred appeal in R.A.no.41/2022 on various grounds. Based on which, first appellate Court framed following points for its consideration:

1) Whether the appellants/defendants have proved the existence of burial ground in suit schedule property to an extent of 6 guntas before trial Court?

2) Whether the appellants/defendants have proved the plaintiff is trying to encroach upon the burial ground and put fence including the burial ground?

3) Whether the appellants have made out the trial Court has wrongly appreciated the evidence and returned with wrong conclusion therefore the judgment of trial Court is required to be set aside?

4) Whether the appellants h