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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 13^TH DAY OF SEPTEMBER, 2021

BEFORE

THE HON’BLE MR.JUSTICE ASHOK S. KINAGI

RSA No.7279/2013

Between:

Pandurang S/o Somanna Gavali @ Bhutale

Aged about 57 Years, Occ: Agriculture

R/o Shahapur Base, Near Margamma Temple

Bijapur

Dead by LRs;

1a)

Mahadevi

W/o Pandurang Gavali @ Bhutale

Aged about 54 Years, Occ:Agriculture

1b)

Chandrashekhar

S/o Pandurang Gavli @ Bhutale

Aged about 36 Years, Occ:Agriculture

1c)

Hanamanth

S/o Pandurang Gavli @ Bhutale

Aged about 34 Years, Occ:Agriculture

1d)

Somling

S/o Pandurang Gavli @ Bhutale

Aged bout 31 Years, Occ: Agriculture

1e)

Renuka W/o Ramesh Herkal

Aged bout 27 Years, Occ: Agriculture

2

All are R/o Shahapur Base

Near Margemma Temple

Bijapur

... Appellants

(By Sri Sanjeev Kumar C. Patil, Advocate)

And:

1.

Kutubuddin S/o Rahemansab Mulla

Aged about 47 Years, Occ: Agriculture

R/o Badiger Galli, Near Golgumbaz Pavad

Basaveshwar Road, Bijapur

2.

Mohammad Yusuff S/o Rahemansab Mulla

Aged about 34 Years, Occ: Service

R/o Badiger Galli, Near Golgumbaz Pavad

Basaveshwar Road, Bijapur

3.

Nisarahammad S/o Rahemansab Mulla

Aged about 42 Years, Occ: Agriculture

R/o Badiger Galli, Near Golgumbaz Pavad

Basaveshwar Road, Bijapur

4.

Zakeerhussain S/o Rahemansab Mulla

Aged about 35 Years, Occ: Agriculture

R/o Badiger Galli, Near Golgumbaz Pavad

Basaveshwar Road, Bijapur

5.

Abdulkhadar S/o Rahemansab Mulla

Aged about 32 Years, Occ: Agriculture

R/o Badiger Galli, Near Golgumbaz Pavad

Basaveshwar Road, Bijapur

... Respondents

(By Sri Ameet Kumar Deshpande, Advocate for R1;

V/o dated 31.03.2021 notice to R2 to R5 held sufficient)

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This Regular Second Appeal is filed under Section

100 of Code of Civil Procedure, 1908, praying to set aside

the judgment and decree passed in R.A.No.39/2011 dated

28.06.2013 on the file of I Addl. Senior Civil Judge at

Bijapur

and

the

judgment

and

decree

passed

in

O.S.No.133/2008 dated 09.09.2011 on the file of Prl. Civil

Judge, Bijapur and decree the suit of the plaintiff by

allowing this appeal.

This appeal coming on for Admission, this day, the

Court delivered the following:-

JUDGMENT

This appeal is filed by the plaintiff challenging

the judgment and decree dated 09.09.2011 passed in

O.S.No.133/2008 by the Prl. Civil Judge, Bijapur

confirming in R.A.No.39/2011 by the I Addl. Senior

Civil Judge, Biajpur vide judgment and decree dated

28.06.2013.

2.

For the sake of convenience, the parties

are referred to as per their ranking before the trial

Court.

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3.

The appellant is plaintiff and respondents

are the defendants before the trial Court.

4.

Brief facts giving rise to filing of this appeal

is as under:

The plaintiff has filed the suit against the

defendants restraining them from obstructing the

peaceful possession and enjoyment of his land bearing

Sy.No.157/1B/2, measuring 1 acre 35 guntas situated

at Mahalbagayat, Bijapur by making an encroachment

on the part so claimed. It is contended that the

plaintiff is the owner in actual possession and

enjoyment of suit land. It is further contended that

the defendants are trying to make encroachment by

trespassing on south-west portion of the plaintiff’s

land without having any right, title or interest over the

said portion. The defendants are high handedly and

illegally making an encroachment on the plaintiff’s

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land without any right over the suit property. Hence,

the plaintiff has filed the instant suit.

5.

The

defendants

have

filed

written

statement contending that the suit is not maintainable

and admitted that the plaintiff is the owner of land

Sy.No.157/1B/2, but denied the boundaries of the suit

schedule property. Further, the defendants contended

that they are the owners of the land bearing

Sy.No.112, measuring 1 acre 14 guntas havi