ORAL JUDGMENT

Heard Sri.Chowda Reddy T.M., learned counsel for the appellant.

2. None appears for the respondents.

3. The unsuccessful plaintiff is the appellant in the second appeal challenging the judgment and decree in O.S.No.603/2012 whereby, suit of the plaintiff for permanent injunction came to be dismissed in respect of the following property (hereinafter referred as 'suit property') which has been confirmed in R.A.No.118/2019:-

"Property bearing H.L.No.24/B, measuring East to West 36 feet and North to South 34 feet, situated at Rayappanahalli Village, Kasaba Hobli, Chickballapur Taluk, bounded on:-

East by : Plaintiff’s own property,

West by : Road,

North by : Road,

South by : Property of defendants No.1."

4. Facts in brief which are utmost necessary for disposal of the present appeal are as under:-

4.1 A suit for permanent injunction came to be filed by the plaintiff in respect of the suit property contending that she is the Donee in the gift deed executed by her father, in view of the fact that her father had no male issues in respect of the suit property.

4.2 It is further contention of the plaintiff that based on the gift deed, she is in possession and enjoyment of the property. Defendant Nos.1 to 3 being uncles of the plaintiff, without having any right, title or interest over the suit schedule property are interfering with the suit property.

4.3 Thus, suit is filed seeking an order of permanent injunction against the defendants in respect of the suit property.

5. Pursuant to the suit summons, the defendants entered appearance and took a specific contention that in the suit, which was filed earlier in O.S.No.94/2011, which was filed for partition and separate possession, father of plaintiff did not include the suit property. Therefore, the same is not subject matter of the O.S.No.94/2011 and all the parties including the father of the plaintiff are having right in the suit property and thus, registered the suit.

6. Learned Judge after framing necessary issues and additional issues, recorded the evidence of the parties and dismissed the suit of the plaintiff inter alia holding in paragraph Nos.32 to 34 as under:

"32. Further, at this stage it is essential to refer Ex.D2 and 3 which are the house list of property in No.24 and measurement is 12 yards towards East to West and 32 ½ yards towards North to South and Ex.D3 also contains the same measurement and at this stage it is essential to refer Para 2(a) of amended plaint, wherein the plaintiff has clearly stated the total measurement of house list No.24 and also the measurement of properties allotted to father of plaintiff and defendants in family partition and the total measurement of property in house list No.24' is 12 X 32 ½ yards (36x97½ feet) and he has also recited boundaries, but DW.1 in his cross examination has admitted the boundaries as correct and for that reason the same will be not discussed in length.

33. Further, the property is divided as A,B,C,D and 'A' schedule property is allotted to defendant No.1 and the extent is 36X16.8 and also to an extent of 36X11.6, 'B' schedule property is allotted to father of plaintiff and the measurement is 36 X 34 feet, 'C' schedule property is allotted to defendant No.2 and the measurement is 36 X 31 feet and finally 'D' schedule property measures 36 X 22, but in the plaint it is not mentioned that, to whom the said property is allotted, but however the only person left among defendant is defendant No.3 and for that reason for the sake of convenience let us consider that, the said property is allotted to defendant No.3.

34. On the above discussion it is clear that, the property allotted to father of plaintiff and defendant No.1 to 3 is 36 feet towards East to west and the said fact is not in dispute, the next thing is that, property allotted to defendant No.1 towards North-South is 16.8 11.6 = 28.4, property allotted to father of plaintiff towards north-south is 34 feet, property allotted to defendant No.2 towards north-south is 31 f