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Judgment
Ajit J Gunjal
The appeal was admitted to consider the following substantial questions of law:
(i) Whether the judgments and decrees passed by the Courts ''below are vitiated for non-suiting the plaintiff notwithstanding the fact that a finding is recorded that the plaintiff has title to the property and he is in possession?
(ii) Whether the judgments and decrees passed by the Courts below can be sustained when the defendant denies the title and possession of the plaintiff and non--suiting the plaintiff by answering issue No/2 that there is no interference by the defendant?
2: Few facts are necessary to dispose of this appeal.
This appeal is by the plaintiff. He claims to be the absolute owner and in possession and enjoyment of the site situated in Sy.No. 1/2A of Sonnasettihalli Village, Chintamani Town measuring 76x60. He claims that he has purchased the suit schedule property pursuant to a registered sale deed dated 2.9.1963 from one M.Muniswamy. After the death of the plaintiffs father the plaintiff continued to be in possession of the suit schedule property. The defendant is a stranger who claims to have purchased the site towards north of the schedule land in same survey number from one Ashraf Khan in the year 1997 and the said site is occupied by someone else. Hence, defendant is interfering with his possession. It is also his case that the defendant is illegally trying to dig pits for foundation in the schedule property.
4, In response to the summons issued the defendant appeared through counsel and resisted the suit He would contend that he had purchased the suit schedule property pursuant to a registered sale deed dated 16.8.1997 and khatha has also been changed--The suit property purchased by him would measure 70 ft East - West and 40ft North - South. It is also his case that he has laid foundation by spending a sum of Rs. 50,000/--.
On the basis of the said pleadings the learned Trial Judge has framed the following issues:
(i) Whether the plaintiff proves that he is in lawful possession and enjoyment of the suit schedule property as on the date of the suit?
(ii) Whether plaintiff proves the illegal interference of the defendant over the suit schedule property?
(iii) What order or decree?
During the course of trial plaintiff examined himself as PW1 and Exs.P1 to P9 were marked. On behalf of the defendant, he examined himself as DW1 and Exs.D1 to D4 were marked.
On the basis of the said evidence both oral and documentary both the Courts below have come to the conclusion that indeed, the plaintiff has proved title to the suit schedule property. But however, declined to grant a decree for injunction on the ground that the plaintiff has not been able to show that there is interference.
I have heard Mr. G. Balakrishna Shastry, learned counsel appearing for the appellant and Mr. N. Jagadish Baliga, learned counsel appearing for the respondent.
Apparently, a perusal of the Written statement itself would disclose that defendant has laid a foundation in the suit site. Indeed, both the Courts below have not taken into consideration the material evidence as well as the pleadings of the parties. Since, the evidence and pleadings has not been considered in proper perspective, I am of the view that the matter is required to be remitted to the learned Trial Judge. The learned Trial Judge is required to consider the evidence of the parties with reference to the pleadings. Indeed, the remittance to the learned Trial Judge is only so far as the grant of injunction is concerned. The finding recorded by the learned Trial Judge as well as the Appellate Court regarding title stands confirmed. Hence the substantial questions of law are answered accordingly. Hence, the following order is passed:
(i) Appeal is allowed in part.
(ii) The judgment and decree passed by the learned Trial Judge as well as the learned Appellate Judge insofar as declining to grant a decree for injunction is set aside.
(iii) The finding recorded by the Courts below regarding title stands confirmed.
(iv) Since both the appellant as well as the respondent are before this Court they shall take this proceedings as notice to them and shall appear before the learned Trial Judge on 14.12.2011 without any further notice from the Trial Court.