ORAL JUDGMENT

This regular second appeal is filed by the appellant challenging the judgment and decree dated 18.03.2015 passed in R.A.No.10/2013 by the Additional Senior Civil Judge and JMFC, Bhadravathi, and the judgment and decree dated 04.12.2012 passed in O.S.No.298/1999 by the learned II Additional Civil Judge and JMFC, Bhadravathi, wherein the suit of the plaintiff was decreed.

2. For the sake of convenience, parties are referred to as per their ranking before the trial Court.

Appellant is the defendant and respondent is the plaintiff.

3. The brief facts leading rise to filing of this appeal are as under:

The plaintiff filed a suit for perpetual injunction restraining the defendant from closing of suit schedule property, with demarcated letters ABCD oni portion. It is the case of the plaintiff that, plaintiff had purchased the house property bearing Junger No.98, which originally belonged to one Usman Sab and he was residing in the said house. There is a oni measuring 12 feet X 110 feet and the defendant is interfering in using of the oni by the plaintiff. The plaintiff requested the defendant not to close the ABCD, oni portion, but the defendant refused the same. Hence, cause of action arose for the plaintiff to file a suit for perpetual injunction.

4. The defendant filed written statement denying the averments made in the plaint and it is contended that the alleged oni is a part and parcel of the defendant's property and defendant has right to use the said property. It is contended that plaintiff is not having any right, title or interest over the suit schedule property. It is also contended that the defendant has left open space which is the suit property for storing cattle shed, etc. Hence, prayed to dismiss the suit.

5. The Trial Court, on the basis of the above said pleadings, framed the relevant issues.

6. The plaintiff in order to substantiate his case, examined himself as PW.1 and examined one witness as PW.2 and got marked 5 documents as Exs.P1 to P5. The defendant was examined as DW.1 and got marked 15 documents as Exs.D1 to D15. During the pendency of the suit, the plaintiff filed an application for appointment of the Court Commissioner. The trial Court allowed the application and Court Commissioner was appointed. The Court Commissioner submitted a report to the trial Court and the plaintiff and defendant both filed their objections to the Court Commissioner's report. The Court Commissioner was examined as CW.1 and got marked 11 documents as Exs.C1 to 11.

7. The trial Court, after recording the evidence, hearing on both sides and on the assessment of oral and documentary evidence, held that plaintiff is in possession of the suit schedule property and decreed the suit of the plaintiff with cost and restrained the defendant to close the ABCD portion shown in the sketch produced along with the plaint, marked as Ex.P1.

8. The defendant, aggrieved by the judgment and decree passed in O.S.No.298/1999, has preferred an appeal in R.A.No.10/2013 on the file of Additional Senior Civil Judge and JMFC, Bhadravathi.

9. Initially, the said suit was decreed by the trial Court vide judgment dated 06.03.2006. The defendant aggrieved by the same, preferred an appeal in R.A.No.20/2006. The said appeal came to be dismissed vide judgment dated 23.11.2006. The defendant aggrieved by the judgments and decrees passed in O.S.No.298/1999 and R.A.No.20/2006, had preferred the regular second appeal in RSA No.581/2007.

10. During the pendency of the second appeal, the defendant filed an application for production of additional evidence and this court allowed the appeal and set aside the judgments and decrees passed in the suit as well as in the regular first appeal and remitted the matter to the trial Court.

11. The defendant has not availed the benefit of marking of the documents produced before this Court, in RSA No.581/2007 and also written statement was not amended. The trial Court on the basis of oral and documentary evidence decreed the suit