Challenging the judgment and decree dated

07.11.20051 passed by District Judge, Fast Track

Court II, Uttara Kannada, Karwar in R.A.No.57/2017,

this second appeal is filed by plaintiff.

Appellant

herein

was

original

plaintiff,

while respondents herein were defendants no.1 to 4

respectively in suit. For sake of convenience, parties

to this appeal will hereinafter be referred to by their

rankings before trial Court.

O.S.no.61/1988 was filed seeking for:

a) Declaration

declaring

that

defendant

have absolutely no right, title interest,

no possession of whatsoever in nature

nor

any

kind

of

legal

status

as

defendants

being

trespassers

simplicities in respect of the partition of

suit

land

bearing

Sy.No.38/6

fully

described in hand-sketch at ABCD and

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b) Consequential

relief

of

mandatory

injunction to remove temporary fence

put up by defendant nos.2 to 5 in the

month of January 1988 for first time, at

CD line in plaint sketch and defendants

by way of mandatory injunction may

kindly be directed to remove electricity

line (two lines) overhanging in suit

lands of plaintiffs by approaching KEB

in the interest of justice and equity.

In plaint, it was stated that plaintiff was in

lawful possession of 12 guntas in land bearing

Sy.no.38/6 in Kathinkon village, shown as ‘ABCD’ in

hand sketch appended to plaint (hereinafter referred

to as ‘suit property’). Plaintiff claimed to have

inherited suit property from his ancestors and

constructed his residential house and latrine therein.

And as defendants’ houses lie towards east of suit

property, they had no right title or interest or

possession

over

suit

property.

On

06.7.1987,

plaintiff received a notice from City Municipality,

Karwar

alleging

obstruction

of

public

way

to

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Sy.no.38/7, which he promptly denied in reply.

Thereafter he received a caveat petition filed by

defendant in which 3 ft. wide right of way was

claimed in suit land on basis of survey conducted on

17.11.1987

wherein

Surveyor

falsely

showed

existence of lane in suit land.

5.

Subsequently, defendants sought to erect a

fence at ‘CD’ line alleging that survey was carried

behind back of plaintiff and such attempt amounted

to interference with plaintiff’s right. Hence, suit was

filed.

6.

Despite

service

of

suit

summons,

defendant no.3 did not enter appearance. He was

placed ex-parte. Defendants no.1 and 2 filed written

statement. It was adopted by others. In written

statement apart from denying plaint averments, it

was contended that suit property and property of

defendants were earlier comprised in one survey

number and later subdivided by earlier owner. On

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northern side of suit land, there was pathway

running East to West joining land of defendant no.1.

Defendants residing on eastern side of suit land

were using said pathway to reach their houses from

Bandar road. They were also using it to transport

timber, without interruption and as of right since

more than 50 years. It was also stated that they had

legally obtained electricity line and sought for

dismissal of suit.

7.

Based on pleadings, trial Court framed

following issues and additional issues:

(1)

Whether

the

plaintiff

proves

that

defendants have no right title and

interest over the suit land bearing

Sy.No.38/6 measuring 00.12.00

of

Kathinkon?

(2)

Whether

the

plaintiff

proves

that

defendant no.2 to 5 have encroached

upon the suit land to the extent of

5’6” in width and 100’ in length in the

month of January, 1988 as alleged?

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(3)

Whether the defendants prove the

existence and the use of the alleged

suit pathway of the width of 12’ in

the northern portion of the suit land

since more than 50 years?

(4)

Whether the plaintiff proves that he

is entitle for the relief of mandatory

injunction for removal of the disputed

suit temporary fence?

(5)

Tow ah relief the plaintiff is entitle

for?

(6)

What order or decree?

ADDL. ISSUES

1. Whether plaintiff proves that defendants

have illegally taken electric line from suit

land by encroaching it?

2. Whether plaintiff