Smt. Chandri Chandran vs Chikkanna, Lakshmane and Rama @ Ramanna, Since dead by his L.Rs. (Smt. Rathnamma and Others) All are

K.N. Keshavanarayana

This appeal by fee unsuccessful plaintiff in O.S.No.365/04 on the file of the Prl.Civil Judge (Jr.Dn), Bangalore Rural District, is against the concurrent judgment of the courts below, dismissing the suit filed by her for the relief of permanent injunction in respect of the two vacant sites bearing Nos.8 & 9 stated to have been carved out in Sy.No.11/2 of Hosahalli Gollarepalya village, Yeshwanthapura hobli, Bangalore North Taluk, measuring East-West 53 ft, North-South 60 ft.

The case of the plaintiff in brief was that, she purchased the suit schedule properly on 30.05.1983 through G.P.A., and subsequently got it registered on 04.12.2000 for valuable consideration and thus she is the absolute owner in possession of the suit schedule property; that the defendants who have no manner of right, title or interest over the property, trespassed on to the schedule property on 17.03.2004 and removed the stone pillars, barbed wires and built a small katcha shed without any occupants living in the shed; that in this connection, plaintiff lodged a complaint with the jurisdictional police on 18.03.2004 and the police called the defendants, held enquiry and instructed the defendants not to interfere with the affairs of the said suit schedule property, thereafter, the defendant absconded; that thus, the defendants are trying to interfere with the plaintiff''s peaceful possession and enjoyment of the suit schedule property; that as, the plaintiff is the absolute owner in possession of the property, she is entitled to protect her possession.

The respondents-defendants who are brothers being sons of one Kempaiah filed written statement denying the case of the plaintiff. They contended that the plaintiff is neither the owner nor in possession of the suit schedule property. According to them, the land bearing Sy.No.11/2 totally measured 1 acre 20 guntas and it in their ancestral property and they along with other two brothers are the co-owners of the said property and to meet their family needs, they sold away an extent of 1 acre and retained 20 guntas as joint property and that the plaintiff who claims to have purchased & portion of the same from their elder brother, cannot be accepted as in possession of the suit schedule property. They contended that the plaintiff is never in possession of the property and that since they are in possession of the property as joint owners, their possession cannot be termed as trespassers. Therefore, they sought for dismissal of the suit.

Parties led their evidence in support of their contentions. The trial Court on assessment of oral and documentary evidence recorded a finding that even from the very averment made in the plaint, the plaintiff is shown to be not in possession of the suit schedule property as on the data of the suit and the documentary evidence placed on record indicated that the land bearing Sy.No.11/2 is the ancestral property of the defendants, as such the defendants are the joint owners of the suit, schedule property, therefore an order of injunction cannot be issued against co-owners, Consequently the trial Court dismissed the suit. The said judgment of the trial Court came to be affirmed by the lower appellate Court in appeal filed toy the appellant-plaintiff. It is against these concurrent judgment of the courts below the appellant is before this Court.

I have heard learned Counsel for the appellant and perused the judgments under appeal and also the records of the courts below.

As could be seen from the judgment of the trial Court, there is a specific finding recorded by it that even form the averment made in the plaint, the plaintiff is not in possession of the suit schedule property as on the date of the suit It is under these circumstances, the trial Court dismissed the suit of the plaintiff. In para-4 of the plaint, it is averred thus:-

That the defendants trespassed the suit schedule property on 17.03.2004 and removed the stone pillars and barbed wires and built a small katcha shed without any occupants living in the shed, with an intention to knock of the property fraudulently. The defendants exploited the situation when they came to know that the plaintiff has proposed to sell the suit achedule property.

Thus, from the aforesaid averments, it is clear that on 17.03.2004 itself even according to the plaintiff, the defendants trespassed into the property, removed the stone pillars, barbed wires and also built a small katcha shed. From this, it is clear that the act of the alleged dispossession of the plaintiff was complete and accomplished. Therefore, even as on the date of the suit, the plaintiff was shown to be not in possession of the suit schedule property. In the light of this, it cannot be said that the trial Court has committed any error in recording a finding of fact that the plaintiff was not to possession as on the date of the suit, as such, she is not entitled for relief of permanent injunotion as sought in the plaint.

In addition to this, the evidence on record also indicate that the land bearing Sy.No.11/2 was the ancestral property of the defendants and their brothers. Upon the death of their father, all of them become co-owners. In respect of this very same land, as per the averments made in the written statement, a suit for partition was filed by the defendants and the said suit is still pending and the plaintiff herein is also a party to the said suit. Therefore, the plaintiff will have to work out her rights, if any, in the said suit. When it is found that the defendants are the co-owners of the land bearing Sy.No.11/2 along with their brothers, the plaintiff who claims to be the alienee from two of the co-owners cannot seek an order of injunction against the other co-owners who are deemed to be in joint possession of the property.

In this view of the matter, I find no error in the judgment of the courts below dismissing the suit of the appellant-plaintiff and it does not suffer from any illegality or irregularity. No question of law much less substantial question of law is invoked in this appeal. It is made clear that any observations made herein shall not prejudice the rights of any of the parties in the pending suit filed by the defendants for partition. The said court shall decide the rights of the parties based on the evidence placed be the pasties in that suit without being influenced in any way by the observations made in this proceedings.

Appeal is dismissed accordingly.