Concurrent findings of lower courts upheld; lack of evidence for obstruction and indeterminate property claims negate injunction request.

JUDGMENT :

H. P. SANDESH, J.

1. This matter is listed for admission. Heard the learned counsel for the appellants.

2. This second appeal is filed against the concurrent finding.

3. The factual matrix of the case of the plaintiff before the Trial Court in O.S.No.65/2019 while seeking the relief of permanent injunction, it is contended that the plaintiff is in possession of the suit schedule property as on the date of suit. It is further contended that ‘A’ schedule property is the house property bearing Sl.No.221, assessment No.219/19-19 measuring 18.5 x 14.5 yards, situated at Kariganuru Village, Channagiri Taluk, Davanagere District. The plaintiff also described the suit ‘B’ property as mud road, situated towards the north of the suit schedule ‘A’ property and the defendants’ house. It is contended that suit schedule ‘A’ property is ancestral property. His father had constructed black tiled house in it in the year 1947. Since then the family of the plaintiff is occupied and is residing in the said property without interference of anybody else. The property of the defendants is on the eastern side of the suit schedule ‘A’ property. They purchased the said house in the year 1973. The defendants purchased the house property in the year 1973. The erstwhile owner of the said property constructed the building with an understanding and using the eastern wall of the plaintiff’s house. Thus, the said wall is treated by both parties as common wall. The defendants in the last week of February threatened to demolish the said eastern wall and claiming that it is their own wall. The plaintiff has no objection to use the eastern wall of suit schedule ‘A’ property for the proposed construction of the defendants that is with demolishing the existing house. The plaintiff also contended that the defendants have stored construction materials over the northern road i.e., suit schedule ‘B’ property and thereby caused hindrance for the smooth use of the same. The property of the plaintiff mentioned at suit ‘A’ property is facing towards north. The family members of the plaintiff are using the northern suit schedule ‘B’ property to reach the eastern panchayath road since long time. The defendants stored brick stone, siege stone, sand and other construction materials over the suit schedule ‘B’ property. Since 19.06.2017, they are causing obstruction to user of it. The son of the plaintiff gave the complaint against the defendants to the police and the police advised not to obstruct the user of such road. However, the defendants continued their obstruction in suit schedule ‘B’ property and hence, filed the suit.

4. The defendants appeared and filed the written statement contending that the averments made in the plaint are false. However, the defendants admitted the existence of suit schedule ‘B’ property and also the situation of suit schedule ‘A’ property on the western side of their property bearing assessment No.71. The defendants denied the cause of action. It is also the contention that the brother of father of defendant No.1, namely A.Channabasappa S/o Basappa purchased the property bearing assessment No.71, consisting of 5 ankanas tiled house including eastern and southern canopy and southern backyard measuring east to west 13 yards, north to south 21 yards. The said property was purchased on 15.07.2022 from Mallikarjunappa, Basavarajappa and Gangamma W/o Channappa. The plaintiff did put the construction illegally, in and over the open space belonging to the defendants. There are no records as to the measurement of the suit schedule ‘A’ property and no records are standing in the name of the father of the plaintiff insofar as the said property is concerned. At the time of mutating the name of