THIS RSA FILED UNDER SECTION 100 ORDER XLII RULE 1 OF CPC-1908 AGAINST THE JUDGMENT AND DECREE DATED 03.11.2022 PASSED IN RA.No.58/2021 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 20.03.2021 PASSED IN OS No.249/2017 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, SHIVAMOGGA.

THIS RSA, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

ORAL JUDGMENT

1. This appeal is preferred by the defendants No.1 and 3 challenging the judgment and decree rendered by the Principal Civil Judge and JMFC, Shivamogga in O.S. No.249/2017, whereby the suit filed by the respondent No.1/plaintiff came to be decreed which, on challenge before the I Appellate Court in RA No.58/2021 before the Principal Senior Civil Judge and CJM, Shivamogga came to be affirmed by dismissing the appeal preferred by the appellants herein.

2. Parties to the proceeding shall be referred to as per the status before the trial Court as ‘plaintiff’ and ‘defendants’.

3. The Plaintiff filed a suit against the defendants for relief of permanent injunction contending that the plaintiff is the lawful owner, in peaceful possession and enjoyment of the suit schedule property, measuring to an extent of 20 feet x 65 feet situated at Nidige Grama Panchayat, Shivamogga taluk. Plaintiff acquired the suit schedule property by way of a registered sale deed dated 31.05.2011 from defendant No.2- Smt.Channabasamma, wife of Navilappa, who registered the sale deed in favour of the plaintiff No.1. It is also the case of the plaintiff that in pursuance to a sale deed, half of the suit schedule property is transferred and the plaintiff has been paying tax in respect of the said property. Defendant No.1 is none other than the brother of defendant No.2. Defendant No.3 is in possession and enjoyment of a property which is adjoining the suit schedule property on its southern side. It is the case of the plaintiff that defendants No.1 and 3 have no manner of title or interest over the suit schedule property as the plaintiff having purchased the same from defendant No.2, who is the absolute owner and after purchase, he is in possession and enjoyment of the said property. When the plaintiff planned to construct a house in the suit schedule property, he made an application to the Panchayat’s office, when defendants No.1 and 3 made unnecessary objection in putting up construction and started to interfere with the peaceful possession and enjoyment of the plaintiff over the suit schedule property. Hence, the plaintiff filed a suit.

4. Upon summons being served, defendants No.1 and 3 represented by a counsel and filed written statement denying the averments made by the plaintiff. However, defendant No.2 did not contest the matter and was placed exparte.

5. On the basis of the pleadings, the trial Court framed following issues for consideration:

1. Whether the plaintiff proves that he is in actual possession and enjoyment of the suit schedule property as on the date of filing of this suit?

2. Whether the plaintiff proves that the defendants are interfering in the suit schedule property?

3. Whether the plaintiff is entitled for the relief as sought for?

4. What Order or decree?

6. In order to substantiate the issues and to prove the case, plaintiff examined himself as PW1 and got marked Exhibits P1 to P11, whereas defendant No.1 was examined as DW1 and got marked Exhibits P1 to P5 in support of their case. Based on the materials placed on record, both oral and documentary and upon hearing the arguments of the counsel for both parties, the trial Court agreed with the contentions put forth by the plaintiff. The trial court by relying upon the registered sale deed in the name of plaintiff and the khata having been mutated in favour of the plaintiff and other revenue records in favour of the plaintiff, came to a conclusion that the plaintiff is in