AND

DECREE

DATED

15.04.2016

PASSED

IN

2

RA.NO.86/2012 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE,

AND CJM, TUMAKURU, DIMISSING THE APPEAL AND CONFIRMING

THE JUDGMENT AND DECREE DATED 13.09.2012 PASSED IN

OS.NO.239/2005 ON THE FILE OF THE I ADDL. CIVIL JUDGE AND

J.M.F.C, TUMKUR.

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT ON 23.08.2022, COMING ON FOR PRONOUNCEMENT OF

JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

The captioned second appeal is filed by the unsuccessful

defendant who is questioning the concurrent findings of the

Courts below in granting injunction and thereby restraining the

defendant herein from interfering with plaintiff9s peaceful

possession and enjoyment over the suit schedule property.

2.

For the sake of brevity, the parties are referred to

as per their rank before the Trial Court.

3.

The subject matter of the suit is site No.40 situated

at Ward No.20, Tumakuru Town measuring 30x40 feet. The

plaintiff has specifically pleaded that suit site is part of an

approved layout allotted to one Smt. Narasahanumakka W/o

late Chikkarangaiah under resolution dated 25.01.1979. The

3

plaintiff further pleaded that Narasahanumakka who was the

absolute owner of suit site sold the same in favour of her

daughter Rangamma W/o Gangahanumaiah. The said

Rangamma who acquired right and title under registered sale

deed gifted the property to the present plaintiff who is none

other than the daughter of the said Rangamma. The plaintiff

contended that the defendant has purchased site No.42 which

is situated towards Eastern side of the suit schedule property.

The present suit for injunction is filed alleging that defendant

tried to encroach by digging the foundation on the Eastern

side of the suit schedule property by attempting to encroach

over the suit schedule property.

4.

The defendant, on receipt of summons, tendered

appearance and filed written statement and stoutly denied the

entire averments made in the plaint. The defendant in her

written statement however pleaded her ignorance in regard to

allotment of site No.40 in favour of Narasahanumakka.

However, defendant claimed that she is the absolute owner of

4

site No.42 and further contended that she has constructed

house by obtaining license from the competent authority. The

defendant claimed that the width of the road is increased by

20 feet and therefore, CMC, Tumakuru has virtually utilized

site Nos.40 and 41 and has issued a modified plan and

therefore, seriously disputed the existence of site Nos.40 and

41.

5.

The plaintiff to substantiate her claim let in

evidence

by

examining

three

witnesses

and

adduced

documentary evidence vide Exs.P-1 to P-20. While defendant

examined herself as DW.1 and adduced documentary evidence

vide Exs.D-1 to D-8.

6.

The Trial Court having referred to the clinching

evidence vide Exs.P-2 to P-14 found that plaintiff has

succeeded in establishing her lawful possession over the suit

site bearing No.40. The Trial Court while taking note of the

approved layout plan in Sy.No.302/1 vide Ex.P-17 has come to

5

conclusion that situation of plot Nos.40, 41 and 42 are clearly

depicted in the approved layout and therefore, the contention

of defendant that site Nos.40 and 41 are not in existence was

out-rightly rejected by the Trial Court. The Trial Court while

considering the rebuttal evidence however declined to

entertain the defence set up by the defendant that a portion

measuring 20 feet in site No.40 was utilized for the purpose of

widening road. Referring to the title documents and also

possession certificate, Trial Court held that plaintiff has

succeeded in proving her lawful possession as on the date of

filing of the suit and interference having been proved,

proceeded to dismiss the suit.

7.

Feeling aggrieved by the judgment and decree of

the Trial Court, the defendant preferred an appeal before the

Appellate Court.

8.

The Appellate Court being the final fact finding

authority

has

independently

assessed

the

ora