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Judgment
Ram Mohan Reddy, J.—Defendant Nos. 3 and 4 in OS No. 138/1998 on the file of the Additional Civil Judge [Jr. Dn.,] & JMFC, Devanahalli, aggrieved by the Judgment and decree dated 26.10.2005 allowing the suit for permanent injunction and mandatory injunction to demolish the portion of the building put up by the defendants on the southern portion of the plaint schedule property, presented RA No. 1/2008 jointly with the other defendants along with an IA to condone the delay of 23 months, in filing the appeal, whence Fast Track Court, Devanahalli, rejected the IA and by Judgment and decree dated 26.8.2010 dismissed the appeal, hence this second appeal.
1st respondent instituted OS No. 138/1998 for permanent injunction in respect of immovable property bearing K.N. No. 258 measuring East to West-54 feet, North to South-16 feet, Bettahalasoor village, Jala Hobli, Devanahalli Taluk, bounded on the East by:
House belonging to Ramappa, West by: vacant property belonging to Narayana Shetty, North by: vacant property belonging to Kadirappa and South by: House property of Hanumappa, arraigning appellants as Defendants 3 and 4 and 2nd respondent as 1st defendant, 3rd respondent as 2nd defendant and 4th respondent as 5th defendant, alleging that the defendants were trying to trespass and put up construction on the plaint schedule property. In the plaint, it was asserted that the husband of the plaintiff purchased the suit schedule property under a registered sale deed dated 18.10.1973 and having constructed a house in the middle of the said property died nine years before the institution of the suit and that the revenue records disclosed the name of the plaintiffs husband as Khatedar. The allegations against the defendants were that on 22.4.1998 they tried to put up construction on the suit schedule property, which was resisted and again on 28.5.1998, they tried to do so which was once again resisted and hence the suit.
The suit was resisted by filing written statement of the defendants denying the plaint averments, measurements and the boundaries of the suit schedule property and alleging that the same was with an intention to knock off the suit schedule property. According to the defendants, the suit schedule property was attached to the office of the Totiathalvar, duties of which was performed by the defendants and their elders and even after abolition of the Inam, continued to be in the enjoyment of the defendants. The defendants further asserted that the records in Form Nos. 9 and 10 stood in their name, while the 1st defendant claimed to be the owner in possession of house bearing No. 259 measuring 12 x 23 feet, which was demolished and put up construction with Mangalore tiled roof with the assistance of the Government of Karnataka since the old house was in a dilapidated condition. The 2nd defendant claimed to be owner in possession of Sy. No. 265 measuring 28 x 23 feet with tiled roof and since in a dilapidated condition, was demolished and a new construction put up with the assistance of the Government of Karnataka, though on the existing foundation and in view of the interim order of temporary injunction, fixing of the sheet on the roof was not complete.
In the premise of pleadings of parties, the trial court framed the following issues:-
Whether the plaintiff proves that she is in possession of the suit schedule property?
Whether the plaintiff proves the alleged interference by the defendants?
Whether the plaintiff is entitled for the relief of permanent injunction as prayed?
What order or decree?
It appears that the plaintiff alleging that despite the temporary injunction, the defendants had put up construction on the southern side of the suit schedule property which though reported to the Police, had taken no action, filed an application under Order 39 Rule 2[A] CPC and also sought for amendment of the plaint, which when allowed, the plaintiff was permitted to advance the said plea and an additional prayer for mandatory injunction to demolish the said portion of the building put up on the southern side of the plaint schedule property. Defendants did not offer any resistance to the amended plaint. The trial court framed the following additional issues.
Whether plaintiff proves that defendant has illegally put up construction on the southern side of the suit property?
Whether plaintiff is entitled for mandatory injunction as prayed for?
Plaintiff, when examined as PW. 1, was not cross examined though tendered evidence and none of the defendants entered trial nor were examined or documents marked.
The trial court, having regard to the material on record, and evidence both oral and documentary as well as the plaint document, none other than the registered sale deed dated 18.10.1973, conveying the suit schedule property, recorded findings in the affirmative over all the issues and by the Judgment and decree impugned, allowed the suit, restrained the defendants from interfering with the plaintiffs possession and enjoyment of the suit property and directed the defendants to remove the illegal construction put up by them on the southern side of the suit schedule property.
In the appeal before the Lower Appellate Court, an application to condone the delay of 23 months in filing the appeal when filed and the 1st appellant examined, the Lower Appellate Court, did not accept the explanation for the inordinate delay as satisfactory, hence rejected the application and consequently dismissed the appeal.
Having heard the learned counsel for the appellant, perused the pleadings and examined the Judgment and decree of the courts below, undoubtedly, in the first place, the appellants arraigned as Defendants 3 and 4, did offer a defence in the written statement filed on behalf of all the defendants. Yet again, though the appellants were represented by learned counsel, did not choose to cross examine PW. 1-plaintiff, nor did lead evidence to substantiate their case, over the plaint schedule property. RA No. 1/2008 was filed after considerable delay of 23 months. The explanation offered by the appellants for the delay was that Defendants 1 & 2 were prosecuting OS No. 138/1998 on behalf of all defendants and that allegations were against the said defendants 1 and 2 and further believed that the suit would be dismissed. In addition it was asserted that they were not aware of the Judgment and decree of the trial court and became aware only after the execution petition 3/2006 was filed to execute the decree over mandatory injunction to demolish the construction on the southern side of the suit schedule property. The court below, having recorded reasons declining to accept the explanation as satisfactory, since appellants were served with the notice in Execution Petition 3/2006 on 22.2.2006, the filing of the appeal on 24.1.2008 was without satisfactory explanation for the delay, in my considered opinion, no exception can be taken to the reasons, findings and conclusions arrived at by the Lower Appellate Court while rejecting the application to condone the delay of 23 months in filing the appeal.
Since no substantial question of law arises for decision making, the appeal devoid of merit, is dismissed. Misc. Cvl. 21399/2010 is dismissed as unnecessary.