judgment

Dr. Arijit Pasayat, J. —

1.Challenge in these appeals is to the order passed by a learned Single Judge of the Karnataka High Court allowing the First Appeal filed under Section 96 of the Code of Civil Procedure, 1908 (in short the ‘CPC’). The respondent No.1 was the plaintiff and was appellant before the High Court. The case set out in the plaint is as follows :

2.The plaintiff is the absolute owner of the suit schedule property, having purchased it from M.N. Rudrappa under registered sale deed dated 9-2-1981 and is in possession of it since that date. The schedule property is the joint family of the plaintiff’s vendor and the suit property fell to the share of the plaintiff’s vendor’s family who are not alive, plaintiff’s vendor became a co-parcener and in that capacity he sold the suit property to plaintiff on 9-2-1981, and the khata is not changed to his name. Now, the plaintiff, with an intention to erect compound around the suit property has stocked stone slabs, but defendants 2 and 3 at the instance of the first defendant are trying to prevent the plaintiff from entering in to the schedule property and erecting stone slabs and on 20-11-1982, defendants 2 and 3 with gundas tried to trespass into the suit schedule property and interfered in the peaceful possession and enjoyment of the property by plaintiff, trying to remove the stone slabs stocked therein and this was resisted by the plaintiff and well wishers. It is the contention of plaintiff that, he being the absolute owner and in possession of the suit property has got prima facie case.

3.The respondent No. 2 was the defendant No. 2 and his stand was as follows :

Plaintiff is not the owner of the scheduled property and that, neither plaintiff nor his vendor Rudrappa had any manner of right, title and interest over the schedule property. It is denied that the plaintiff’s vendor had the property under the partition deed dated 26-01-1946 as alleged. Defendant has pleaded ignorance with regard to the application of plaintiff dated 24-04-1980 to change khata. It is denied that the plaintiff has stocked stone slabs to erect compound with the schedule property, with the help of goondas. It is contended that, the plaint schedule is mis-leading and the sale deed produced does not disclose any number of the property and there is no existence of such property as described in the plaint. It, is the specific case of second defendant that the vast vacant land belongs to the Corporation and he had applied to the Corporation for lease of the land and after obtaining sanction of the Government, Corporation granted lease of Plot No. 15 measuring 226.6 Sq Yards in Siddaiah Road bounded on the East by Corporation land granted to third defendant, West by land granted to M.A. Krishnamurthy, North by Corporation Road and South by Corporation Plot No. 14 and he has complied with all terms and conditions of the lease. It is contended that, when he tried to enclose the property with stone slabs, husband of the plaintiff Kustaq Ahmed obstructed the work and threatened to remove the slabs under imaginary rights, that there is no cause of action for the suit and she prayed for dismissal of the suit with costs.

4.Similarly the third defendant and the 4th defendant also filed written statement contending that plaintiff was not the owner of the suit land and had no right, title and interest. The following issues were framed by the trial court.

1.Whether plaintiff proves that suit property belongs to M.N. Rudrappa and that she has deprived title to it by the sale deed executed by him?

2.Whether plaintiff is in lawful possession of suit property?

3.Whether the suit has been property valued?

4.Whether 4th defendant is not a necessary party to this suit?

5.Whether the plaintiff is entitled to relief of declaration and injunction prayed?

6.To what reliefs are parties entitled?

5.Ultimately the suit was dismissed by the trial Court and as noted above First Appeal was filed by the respondent No.1.

6.It appear