ORAL JUDGMENT

Heard Sri Pundikai Ishwara Bhat, learned counsel for the appellant.

2. This Court did not deem it fit to issue notice to the respondents.

3. Unsuccessful plaintiff is the appellant in this Second Appeal.

4. Parties are referred to as plaintiff and defendants as per their original ranking before the Trial Court, for the sake of convenience.

5. Facts of the case which are utmost necessary for disposal of the present Appeal are as under:

5.1 A suit for bare injunction came to be filed by the plaintiff with respect to the ‘B’ schedule property in O.S.No.2/2007 (old No.2/2006) on the file of the Additional Civil Judge and JMFC, Bantwal, Dakshina Kannada, which is culled out hereunder:

Morefully described in the red color in the eye sketch filed along with the plaint.”

5.2 The suit was earlier numbered as O.S No.2/2006, later on numbered as O.S No.2/2007.

5.3 Plaintiff contended that he is the absolute owner in possession of plaint ‘A’ schedule property and he has purchased the same from Sri Krishna Bhat by way of registered sale deed on 20.05.1989 and he has developed the said land into coconut and arecanut garden. ‘B’ schedule property forms a direct kumki to Item Nos. 1 and 3 of the plaint ‘A’ schedule property and thus plaintiff is in possession in respect of ‘B’ schedule property and he has effected vast agricultural improvements in ‘B’ schedule property by planting mango trees and coconut trees which are now yielding fruits.

5.4 Plaintiff further contented that he has preserved the tree growth in plaint ‘B’ schedule property for effective cultivation of plaint ‘A’ schedule property. Plaintiff also claimed right in respect of the land in Sy.No.57/2 portion measuring 0.43 acres, of Kedila Village.

5.5 It is further contended that plaintiff has no other kumki land other than ‘B’ schedule property and for effective cultivation of ‘A’ schedule property, he has to enjoy the ‘B’ schedule property for which there should not be any obstruction from the defendants. Therefore, sought for an order of permanent injunction against the defendants.

6. Pursuant to the suit summons, defendants entered appearance through their advocate. First defendant filed detailed written statement which was adopted by defendant Nos.2 to 7.

7. In the written statement filed by the defendant No.1, it is specifically contented that the plaintiff cannot take advantage of the kumki privilege as is narrated in the Karnataka Land Revenue Act, inasmuch as, plaintiff is not in possession of the kumki land.

8. It is their specific contention that Kanthu Gowda never constructed any building in ‘B’ schedule property as contended by the plaintiff. It is the husband of defendant No.1 who constructed the house in the plaint ‘B’ schedule property in which Kanthu Gowda was residing as a permissive occupant.

9. It is further contended that the house bearing D.No.2/27A was constructed about 25 years earlier. Kanthu Gowda vacated the said house and defendant No.5 along with his family members are now residing in the said house which is situated in plaint ‘B’ schedule property.

10. It is also contended that there is no access between plaint ‘A’ schedule property and plaint ‘B’ schedule property. Therefore, contention of the plaintiff that he is in possession of plaint ‘B’ schedule property or any portion thereof is denied by the defendants.

11. Further, defendants contended that it is they who have improved plaint ‘B’ schedule property by raising banana plants, pepper plants, coconut, jack fruit and various other fruit bearing plants and flower plants and thus sought for dismissal of the suit.

12. It is further contended by the first defendant that the kumki property in ‘B’ schedule and warg properties in ‘B’ schedule are belonging to the defendants and they are in possession of the ‘B’ schedule property as kumkidars.

13. Based on the rival contentions of the parties, learned Trial Judge raised necessary issues and recorded the evidence of the parties and on cumulative consideration