Karnataka High Court
Rajegowda vs M K Kempegowda on 19 July, 2016
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19th DAY OF JULY, 2016
BEFORE
THE HON' BLE MR. JUSTICE B. VEERAPPA
REGULAR SECOND APPEAL No. 1345/2014 (INJ)
BETWEEN:
1. RAJEGOWDA,
S/O BETTE GOWDA,
AGED ABOUT 71 YEARS,
PROPRIETOR OF BINNY RICE MILL,
2. VENKATESH,
S/O RAJEGOWDA,
AGED ABOUT 29 YEARS,
BOTH ARE RESIDENTS OF
DODDAGURUDANAHALLI VILLAGE,
BASARALU HOBLI,
MANDYA TALUK & DISTRICT-571401.
3. SMT. G. R. VEENA,
W/O LATE S. T. DEVERAJU,
AGED ABOUT 33 YEARS,
4. NANDEESHA,
S/O LATE S .T. DEVERAJU,
AGED ABOUT 13 YEARS,
5. BHAVANI,
D/O LATE S. T. DEVERAJU,
AGED ABOUT 11 YEARS
6. ADHITYA,
D/O LATE S. T. DEVERAJU,
AGED ABOUT 9 YEARS,
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APPELLANTS 4 TO 6 ARE MINORS,
REP. BY THEIR MOTHER NEXT FRIEND,
NATURAL GUARDIAN,
SMT. G. R. VEENA-APPELLANT NO.3.
7. SMT. SAVITHRAMMA,
W/O THIRUMALLAIAH S.T.,
& MOTHER OF LATE S. T. DEVARAJU,
AGED ABOUT 66 YEARS,
APPELLANTS 3 TO 7 ARE RESIDING AT
SHIVAPURA VILLAGE, KASABA HOBLI,
MADDUR TALUK,
MANDYA DISTRICT-571428. ... APPELLANTS
(BY SRI BASAVAIAH C., ADVOCATE)
AND:
M. K. KEMPEGOWDA,
S/O LATE KEMPALINGEGOWDA,
AGED ABOUT 91 YEARS,
RESIDENT OF MUNUGENAHALLI VILLAGE,
DUDDA HOBLI, MANDYA TALUK,
MANDYA DISTRICT-571401. ... RESPONDENT
(BY SMT. RUKMINI DEVI M.G., ADVOCATE FOR
M/S M.S. GOPAL ASSOCIATES, ADVOCATE)
......
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED: 11.7.2014 PASSED IN R.A.NO.81/2013 ON THE FILE OF
PRL. SR. CIVIL JUDGE, MANDYA, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
11.6.2013 PASSED IN O.S.NO.102/2008 ON THE FILE OF THE
ADDL. CIVIL JUDGE & JMFC., MANDYA.
THIS REGULAR SECOND APPEAL BEING HEARD AND
RESERVED FOR JUDGMENT IS COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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JUDGMENT
The defendants have filed this regular second appeal against the judgment and decree dated 11th July 2014 made in R.A. No. 81/2013 on the file of the Principal Senior Civil Judge & CJM., Mandya reversing the judgment and decree dated 11th June, 2013 made in O.S.No.102/2008 on the file of the Additional Civil Judge & JMFC., Mandya dismissing the suit for permanent injunction.
2. The respondent, who is the plaintiff before the trial Court filed O.S.No.102/2008 against the present appellants-defendants for permanent injunction in respect of suit bearing Sy.No.10/P-7 measuring 25 guntas situated in Hodaghatta village, Basaralu Hobli, Mandya Taluk morefully described in the schedule contending that he is the owner and in possession of the suit schedule property having purchased under a registered sale deed dated 28.6.2004 and in pursuance 4 of the said registered sale deed, mutation was also effected in the name of the plaintiff under M.R.No.22/05-06 and there are ten coconut trees standing in the suit schedule property and the defendants have no manner of right, title or interest muchless possession over the suit schedule property. It is the case of the plaintiff that defendant No.2 is none other than the son of defendant No.1 and defendant No.3 is none other than the son-in-law of defendant No.1 and they have made an attempt to interfere with his possession and hence, he was constrained to file the suit.
3. The appellants-defendants filed the written statement denying the entire plaint averments contending that defendant No.3 is the absolute owner and lawful possession of 1 acre of land in Sy.No.153 measuring 2 acres 1 ½ guntas of land in Sy.No.155 and another bit of land measuring 2.27 guntas situated on 5 the western side of Sy.No.153. They purchased the said 2 acres 1 ½ guntas of property bearing old Sy.No. 10 of Hodaghatta village and 1 acre of land bearing Sy.No.153/P1 from its previous owners by name Honnegowda, H. Jayaraju and H. Thimmaraju of M. Honnenahalli village under the registered sale deed dated 12.12.2003 and the said property is now described in the plaint schedule, lies within the said items of properties purchased by the 3rd defendant and that Sy.No.10 of Hodaghatta village was a gomal land measuring more than 90 acres and after the purchase of the properties by the defendants under the registered sale deed, they have put up irrigation well in the aforesaid land and installed pumpset with electricity connection and farm house in Sy.No.155. They have also put up a fence around these bits of lands and they are running upto Halla portion on the east and they have raised coconut trees in Sy.No.155 and have spent huge amount to improve their lands and they are the 6 absolute owners and in lawful possession of the suit schedule property and the remaining portion and hence, the suit of the plaintiff is not maintainable for bare injunction without possession, etc., and prayed for dismissal of the suit.
4. The trial Court based on the aforesaid pleadings framed the following issues:
1. Whether the plaintiff proves that, he is in actual possession of the suit schedule property?
2. Whether the plaintiff proves the alleged interference and obstruction as against the defendants?
3. Whether the plaintiff is entitled for the reliefs as sought for in the plaint?
4. What order or decree?
5. In order to substantiate his claim the plaintiff examined himself as P.W.1 and witness as 7 P.W.2 and marked the documents - Exs.P.1 to 6. On the other hand, the 3rd defendant examined himself as D.W.1 in part and marked the documents Exs.D.1 to 5.
On his death, the 1st defendant examined himself as D.W.2 and marked the documents Exs.D.6 to 17.
6. After considering the entire material on record, the trial Court recorded the finding that the plaintiff has failed to prove that he is in actual possession of the suit schedule property and also the alleged interference and obstruction by the defendants and therefore, he is not entitled to the relief of permanent injunction. Accordingly, the suit came to be dismissed on 11.06.2013.
7. Against the said judgment and decree of the trial Court, the plaintiff filed an appeal in R.A.No.81/2013 before the Principal Senior Civil Judge (Sr.Dn.) and CJM, Mandya, who after hearing both the parties raised the points for consideration as 8 contemplated under the provisions of Order 41 Rule 31 of the Code of the Civil Procedure, 1908 and recorded a finding of fact that the plaintiff has proved his possession as on the date of the suit and the trial Court has not considered the material documents Exs.P.1 to 6 and thereby erroneously has dismissed the suit. It has also recorded a finding that the trial Court has committed an error in dismissing the suit of the plaintiff and hence the judgment and decree under appeal is perverse, capricious and opposed to law since it has been rendered without proper appreciation of oral and documentary evidence. Accordingly, the Lower Appellate Court allowed the appeal and set aside the judgment and decree of the trial Court. Hence, the present appeal.
8. I have heard the learned Counsel for the parties to the lis.
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9. Sri C. Basavaiah, learned Counsel for the appellants contended that the Lower Appellate Court has taken a divergent view in observing that the additional documents produced by the respondent- plaintiff under Order 41 Rule 27(b) of the Code of Civil Procedure, 1908 specifically traversed for admitting the additional evidence by the Appellate Court and that the respondent is in possession of the said property. He further contended that before the trial Court, the respondent-plaintiff has failed to produce the relevant RTCs., and has also committed a mistake in mentioning the boundaries in the plaint. He also contended that the Lower Appellate Court committed an error in reversing the judgment and decree of the trial Court when the plaintiff has filed the suit only for injunction in the absence of any material on record. Therefore, the judgment and decree of the Appellate Court cannot be sustained. He further contended that the judgment and decree of the Lower Appellate Court is a non-speaking, 10 non-judicious and non-application of mind without considering the decision of the Hon'ble Supreme Court and the same appears to be perverse, capricious and opposed to law. He further contended that the appellants have proved beyond doubt that they are in possession and enjoyment of the suit schedule property without any obstruction from the respondent-plaintiff and third parties till the date. Therefore, the impugned judgment and decree of the Appellate Court is liable to be set aside. It was also contended that the original suit is filed by the respondent-plaintiff after the period of limitation and hence, the relief sought for issuance of injunction against the appellants-defendants did not arise at all and the appellants after purchase of the suit schedule properties are in possession without any obstruction or interference by the respondent as the absolute owners with possessory right. Therefore, he sought to set aside the impugned judgment and decree the Lower Appellate Court.
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10. Per contra, Smt. M.G. Rukmini Devi, learned Counsel for the respondent sought to justify the impugned judgment and decree of the Lower Appellate Court, she strenuously contended that the trial Court without considering the material evidence on record proceeded to dismiss the suit and the same has been rightly reversed by the Lower Appellate Court after re- assessing the entire material on record holding that the plaintiff is in possession and enjoyment of the suit schedule property as on the date of the suit. Hence, she prayed for dismissal of the appeal.
11. I have given my anxious consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material including original records of the Courts below carefully.
12. The respondent-plaintiff filed the suit for permanent injunction based on Exs.P.1 to 6 to prove his possession as on the date of the suit. Ex.P.1 is the 12 registered sale deed dated 28.6.2004 in respect of the suit schedule property. Ex.P.2 to 6 are the revenue records entered in the name of the plaintiff in pursuance of the registered sale deed. The defendants have filed the written statement denying the entire plaint averments specifically contending at para 4 of their written statement that the property described in the plaint suit schedule lies within the properties purchased by defendant No.3 under a registered sale deed dated 12.12.2003 and they have put a fence around those bits of lands and they are running up to Halla portion on the east and coconut trees have been raised by them in Sy.No.155 and hence, they are the owners and in lawful possession of the suit schedule property and the remaining portion. Admittedly, the trial Court has framed only three issues as to:
(i) Whether the plaintiff proves that he is in actual possession of the suit schedule property?13
(ii) Whether the plaintiff proves alleged interference and obstructions by the defendants?
(iii) Whether the plaintiff is entitled for the relief sought for in the plaint?
but neither any issue is framed with regard to the ownership claimed by the defendants in the written statement nor the defendants have filed any counter claim under Order 8 Rule 6A of the Code of Civil Procedure, 1908, claiming their rights in respect of the properties mentioned in the written statement and that the plaint schedule property comes within items mentioned in the written statement. The defendants have not adduced any oral evidence or have produced any material documents in respect of the contentions raised in the written statement. The trial Court has proceeded to dismiss the suit mainly on three grounds holding that:
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(i) The plaintiff has not produced any RTC relating to the suit year;
(ii) The boundaries mentioned in the plaint do not tally with the boundaries mentioned in Ex.P.1 - the sale deed; and
(iii) The plaintiff has not produced any material documents to show his right and title over the suit schedule property and also has not produced any documents to show his vendor's right and title in the suit schedule property.
Hence, the Trial Court held that the plaintiff has failed to prove that he is in actual possession of the suit schedule property and also failed to prove the alleged interference and obstruction by the defendants and accordingly, dismissed the suit.
13. The Lower Appellate Court while considering the application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure, 1908 has held that the documents produced by the respondent- 15 plaintiff in the appeal before it, can be taken on record by allowing the application for the simple reason that the trial Court dismissed the suit of the respondent- plaintiff on several grounds out of which one of the ground is that the respondent-plaintiff has not produced the RTC relating to the suit year and there is no bar to take such additional documents at the appellate stage. The vigilance or negligence on the part of the party is not a ground to reject the production of additional documents at the belated stage. Relying upon the dictum of this Court in the case of Wadi -vs- Amilal and Others reported in ILR 2003 Kar 4637, the Appellate Court has held that while admitting the additional evidence in appeal under Clause (b), vigilance or negligence of party irrelevant - documents in question throwing light on germane issue - Appellate Court must have allowed such documents as additional evidence because judgment without admitting such document would be defective and not effective. 16 Accordingly, the application was allowed holding that in no way it would cause injustice to either of the parties and on the other hand, it would be helpful to the Court to decide the matter between the parties judiciously.
14. The Lower Appellate Court recorded a finding that the plaintiff in order to establish his case that he is in lawful possession and enjoyment of the suit schedule property has adduced evidence by examining himself as P.W.1 and produced the documents Exs.P.1 to 6. Ex.P.1 is the sale deed dated 28.6.2004 and Exs.P.3 to 6 are the revenue documents. Admittedly all the revenue documents are standing in the name of the plaintiff-respondent in pursuance of the sale deed - Ex.P.1 executed in favour of his vendor and particularly in column Nos.9 and 12(2) of the RTC extracts, the name of the plaintiff finds place. It has further recorded a finding that the additional documents produced by the plaintiff clearly indicates that the RTC for the year 17 2007-08 till the year 2013-14 clearly indicate both in column No.9 and 12(2) that, the plaintiff is in possession and enjoyment of the suit schedule property as on the date of filing of the suit and also that the boundaries mentioned in the original plaint and the boundaries mentioned in the sale deed - Ex.P.1 tally with each other and that the suit is filed for bare injunction which is a simplicitor suit and plaintiff has not at all sought any declaration of right or title over the suit schedule property and is a simple suit which is for injunction in respect of the suit schedule property on the ground that the defendants are causing obstruction. It has further held that it is well settled principle of law that even a tress passer if he is in settled possession, can maintain a suit for bare injunction and he cannot be evicted without adopting the due process of law. Therefore, merely in a simplicitor suit for bare injunction, the appellant need not produce any title deeds and need not establish his title. Accordingly, the 18 appeal was allowed holding that the trial Court has not considered all these aspects and hence, reversed the judgment and decree of the trial Court.
15. I have gone through the entire original records produced by the parties.
16. The trial Court proceeded to dismiss the suit mainly on three grounds which are stated supra and the same has been set aside by the Lower Appellate Court while re-appreciating the entire material on record in coming to the conclusion that the plaintiff has proved his possession as on the date of the suit.
17. Ex.P.1 is the sale deed dated 28.6.2004 which clearly indicates that the boundaries, towards East: land of the plaintiff - Sy No. 136; West: the land of the plaintiff - Sy.No.131; North and South: the lands of S.T. Devaraju - property bearing Sy.No.153 i.e., 3rd defendant. The plaint schedule reads as under: 19
"Property bearing Sy.No.10/P-7
measuring 0-25 gts., situated in
Hodaghatta Village, Basaralu Hobli,
Mandya Taluk and the same is
bounded on East: Land of plaintiff in
sy.no.136, West; Land of plaintiff in
sy.no.131, North and south: Lands of
S.T. Devaraju."
18. In Ex.P.1, dated 28.6.2004, the schedule reads as under:
"PÀA æ iÀÄ ªÀiÁrgÀvPÀ ÀÌ µÉqÀÆå¯ï ¸ÀéwÛ£À «ªÀg:À - ªÀÄAqÀå vÁ®ÆèPÀÄ §¸ÀgÁ¼ÀÄ ºÉÆç½ ºÉÆqÁWÀlÖ UÁæªÀÄzÀ ¸Àªð É £ÀA:10: ¥ÉÊQ- ¦ 7 (ºÀvÀÛ£ÃÉ £ÀA§gï - ¥ÉÊQ- ¦ K¼À£ÃÉ ªÉÆÃr£À¥ÀÆvÁð RÄ¶Ì «¹ÛÃtð :
0-40 UÀÄAmÉ DPÁgÀ 0-50 ¥ÉʸɪÀżÀî d«Ää£À ¥ÉÊQ ¤ªÀÄUÉ PÀA æ iÀÄPÉÌ PÉÆqÀÄwÛgÀĪÀ «¹ÛÃtð: 0.25.00.00 E¥ÀàvÉÛöÊzÀÄ UÀÄAmÉ d«ÄäUÉ ZÉPÀÄ̧A¢: ¥ÀƪÀðPÉÌ:- PÀA æ iÀÄzÁgÀ ¤ªÀÄä ¨Á§ÄÛ ¸Àªð É £ÀA:136gÀ d«ÄãÀÄ, ¥À²ÑªÀÄPÉÌ :- PÀæAiÀÄzÁgÀ ¤ªÀÄä ¨Á§ÄÛ ¸Àªð É £ÀA:131gÀ d«ÄãÀÄ, GvÀÛgPÀ ÉÌ:- J¸ï. n. zÉêÀgÁdÄgÀªg À À d«ÄãÀÄ:- zÀQêtPÉÌ :- J¸ï. n. zÉêÀgÁdÄgÀªg À À ¨Á§ÄÛ 153gÀ d«ÄãÀÄ:- F ªÀÄzsÉå EgÀĪÀ RÄ¶Ì d«ÄãÀ£ÀÄß ¤ªÀÄUÉ £Á£ÀÄ ±ÀÄzsÀÝ PÀA æ iÀÄPÉÌ PÉÆnÖgÀÄvÉÛãÉAzÀÄ M¦à 20 §gɹPÉÆlÖ ±ÀÄzsÀÝ PÀA æ iÀÄ¥ÀvÀæ .¸À». ¸ÀzÀj d«Ää£À°è ¥ÀA¥ï¸Émï ªÀÄvÀÄÛ ¨sÁ« ¸ÀºÁ EjªÀÅ¢®è. Dgïn¹AiÀÄ°è PÉÊ vÀ¦à¤AzÀ £ÀªÀÄÆzÀÄ DVgÀÄvÀÛz.É "
19. By perusal of both the schedules i.e., schedule in Ex.P.1 - registered sale deed and plaint schedule, the boundaries are tallying with each other and therefore, the finding recorded by the trial Court that the boundaries of Ex.P.1 and the plaint schedule do not tally with each other is an erroneous finding which is contrary to the material on record.
20. Ex.P.3 - RTC reflects for the year 2005-06 showing the names of the plaintiff and his vendor and the mutation effected on 3.11.2007. Ex.P.4 is for the year 2006-07 showing the name of the vendor and plaintiff both in column Nos.9 and 12(2). Ex.P.5 is the Patta Book dated 3.11.2007 disclosing the name of the plaintiff. Ex.P.6 is the Tax paid receipt dated 3.11.2007 in respect of the suit schedule property. The Lower Appellate Court while allowing the application 21 under the provisions of Order 41 Rule 27 of the Code of Civil Procedure, 1908 permitted the plaintiff to produce the documents which are RTCs., for the years 2007-08 to 2013-14 in respect of Sy.No.10/P-7 measuring 25 guntas i.e., the suit schedule property which clearly indicate both in column Nos.9 and 12(2), the name of the vendor and subsequently, the plaintiff's name is shown as the owner and in possession of the suit schedule property.
21. The trial Court has dismissed the suit mainly on the ground that the plaintiff has not produced any RTC for the relevant year i.e., for the year 2008 and the boundaries mentioned in the plaint are not tallying with the boundaries mentioned in the sale deed and that the plaintiff has not produced any material documents regarding his title over the suit schedule property or that of his vendor's title, but the Lower Appellate Court after reconsidering the entire 22 material on record as stated supra has held that the material on record documents produced by the plaintiff clearly indicate that he is the owner and in possession and enjoyment of the suit schedule property as on the date of the suit.
22. From the material on record, it is clear that admittedly when a simple suit is filed by the plaintiff for the relief of bare injunction, the Court is required to look into and consider as to whether as on the date of filing of the suit whether the plaintiff is in possession of the property or not?; Whether there is any interference or obstruction by the defendants?; and Whether there is any need to go into the right and title of the plaintiff when he has filed the suit for injunction. As already stated above, the application filed for additional evidence is allowed by the Lower Appellate Court, it is clear that the plaintiff has produced the 23 RTCs., for the years 2007-08 till 2013-14 which clearly indicates that the plaintiff is in possession and enjoyment of the suit schedule property by virtue of the registered sale deed -Ex.P.1.
23. After verifying the original records both Ex.P.1 and the plaint schedule, this Court finds that the boundaries mentioned in the plaint schedule and the boundaries mentioned in Ex.P.1 - sale deed do tally with each other, but the trial Court has dismissed the suit mainly on the ground that the boundaries mentioned in the plaint and the boundaries mentioned in the sale deed do not tally only by looking into the amended plaint schedule and not the original plaint. Admittedly, at the time of filing of the amended plaint, due to typographical error or by over sight, on the western side it is shown as 13 instead of 131 which is contrary to the original plaint and it is not the case of the defendants that the boundaries in the original plaint 24 and the boundaries mentioned in Ex.P.1 do not tally with each other. Under those circumstances, the judgment and decree of the trial Court is not sustainable which has been rightly set aside by the Lower Appellate Court.
24. As already stated supra, the plaintiff has filed the suit for mere bare injunction. Hence the scope of the suit is very limited. The plaintiff has not at all sought to declare his right and title over the suit schedule property and it is for lawful possession and enjoyment of the suit schedule property since the defendants are causing obstruction. When the things being thus, the trial Court proceeded to record an erroneous finding that the plaintiff has failed to produce any material documents to prove his case and also the title deeds of his vendor. The said finding is contrary to the pleadings, very material and the very relief sought for. The view expressed by this Court is fortified by the 25 dictum of the Hon'ble Supreme Court in the case of Corporation of the City of Bangalore -vs- M Papaiah and Another reported in AIR 1989 SC 1809 wherein it has been held that the suit for decree of perpetual injunction restraining defendant from interfering with possession - Relief of declaration of title not specifically mentioned in relief portion of plaint - Suit could not be dismissed on that ground in view of the provisions of Section 34 of the Specific Relief Act, 1963.
25. The said view is also reiterated by this Court in the case of Imamsab Maliksab Hallikeri & Others -vs- Rasulbi and Another reported in 1991(1) KLJ 146 holding that the only proposition of law canvassed by the Counsel for the appellants is that without seeking declaration of title to the properties in question, the plaintiffs could not have maintained a suit merely for injunction based on possession. That is not a proposition of law but mis-statement of law. Normally, 26 the rule is that even the trespasser in possession may maintain a suit for injunction against all but the true owner. If that is the basis for seeking a permanent injunction, then the plaintiffs had demonstrated more than that in the instant case. Therefore, the suit for permanent injunction without seeking declaration of title is maintainable in view of the provisions of Sections 34 and 38 of the Specific Relief Act, 1963.
26. In the instant case, admittedly the specific contention of the plaintiff is that he is in peaceful possession and enjoyment of the suit schedule property and in order to prove his possession over the suit schedule property, he has produced the acceptable documents and there is no need for him to seek other relief.
27. Defendant No. 1 is examined as D.W.2, through whom the documents -Exs.D.6 to 17 are got marked. The trial Court has observed that on the basis 27 of the stray admissions of D.W.2, the plaintiff cannot take advantage and on the sole ground, the suit of the plaintiff cannot be decreed. The reasoning of the trial Court is erroneous and opposed to well established principles of natural justice. The material on record clearly depicts that defendant No.3 who is examined as D.W.1 through whom 5 documents are got marked, shows that he was not subjected to cross-examination and in spite of the same, the trial Court has taken into consideration the evidence of the said witness and it is needless to observe that when a person examined before the Court has not tendered for cross-examination or does not appear before Court in view of his death or for any other reason for the purpose of cross-examination, whatever the evidence given by such witness is of no value in the eye of law and no importance be attached to the evidence given by the said witness.
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28. The trial Court has also observed that merely some third person that is to say D.W.2 has admitted certain things on the sole ground, it cannot be taken as granted that the plaintiff has made a case for grant of relief ignoring the fact that D.W.2 is none other than the father-in-law of deceased defendant No.3. When that would be the case, it cannot be said that he is a third party. If according to the defendants, the property purchased by the defendants under Exs.P.6 to 10 covers the suit schedule properties, it is for them to examine the legal representative of deceased defendant No.3, while examining D.W.1 before the trial Court, but the same has not been done by the defendants. Apart from that, as already stated supra, D.W.2 is not a third party and he is the close relative of defendant No.3. When such being the case, whatever the findings are given by the trial Court with regard to the said aspect cannot be accepted.
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29. D.W.2 in his cross-examination in unequivocal terms has admitted with regard to the factum that the plaintiff is in peaceful possession and enjoyment of the suit schedule property and has also specifically admitted that they have absolutely no right and interest in respect of the suit schedule property. In spite of the same, the trial Court has proceeded to dismiss the suit. Therefore, the material on record clearly indicates that the trial Court without proper appreciation of both oral and documentary evidence on record committed a grave error in dismissing the suit of the plaintiff.
30. The pleadings, both oral and documentary evidence clearly indicate that the suit filed is a simplicitor suit for bare injunction and in view of the dictum of this Court and the Hon'ble Supreme Court stated supra, the suit filed by the plaintiff for permanent injunction without seeking declaration is maintainable. 30 The same has been rightly considered by the Lower Appellate Court by recording a finding of fact based on the material documents holding that the impugned judgment and decree of the trial Court is perverse, capricious and opposed to law and accordingly, decreed the suit holding that the plaintiff has proved his possession based on the oral evidence of P.Ws.1 and 2 and material documents Exs.P.1 to 6 and additional documents before the Appellate Court. The same is based on the sound and legal evidence on record and the appellants have not made out any ground to interfere with the well crafted impugned judgment and decree passed by the Lower Appellate Court, no substantial question of law is involved in the present appeal.
Accordingly, the appeal is dismissed.
However, it is open for the defendants to agitate their rights before appropriate Court to protect their 31 possession in respect of their properties mentioned in the written statement in accordance with law.
Sd/-
JUDGE Nsu/-