The main legal point established in the judgment is the interpretation of the Code of Civil Procedure, Section 96 and Order 41, Rule 1, and the distinction between the right of suit and right of appeal.

( 1 ) IN this Regular First Appeal, the judgment and decree dated 28-9-1991 passed in O. S. No. 10349 of 1988 by the XX Additional City Civil Judge, Mayo Hall Unit, Bangalore is impugned. Initially, the delay in filing and re-filing the appeal are condoned.

( 2 ) INITIALLY, this appeal was filed without indicating the provision of law under which the appeal is filed. Later, rectification is made by showing the provision of Order 41, Rule 1 of the Code of Civil Procedure.

( 3 ) HAVING regard to the prayer to expunge the observations made in the judgment and decree the notice was issued to the respondent who is representing in this Court by a panel of Advocates. Having considered the fact that a limited question of law is invoked on the assertions made by the learned Advocates the appeal is heard on merits. Admit.

( 4 ) THIS appeal raises the following questions for consideration:-1) A party in whose favour a judgment and decree is passed can question a finding adverse to his title under Order 41, Rule 1 of the Code of Civil Procedure?2) Whether in a suit for perpetual injunction based on lawful possession, the trial Court was right in holding the question of ownership adverse to the plaintiff?

( 5 ) BEFORE adverting to these questions, a brief advertence to the facts is to be stated. The appellant instituted a suit in O. S. No. 88 of 1976 for a perpetual injunction restraining the respondent-Corporation from conducting any sale as published in local newspapers of suit schedule propety and also restraining from interfering with the peaceful possession and enjoyment. The Corporation denied the title of the plaintiffs vendor and also contended that the suit for bare injunction without there being a prayer for declaration of title and possession is not maintainable.

( 6 ) THE trial Court on the assertions made by the parties has dismissed the suit holding that the plaintiff was not in lawful possession of the suit schedule properties. To arrive at this conclusion, the trial Court expressed that in the absence of a suit for declaration it cannot grant permanent injunction.

( 7 ) THIS finding of the trial Court was questioned in R. F. A. No. 57 of 1981 before this Court due to formation of the City Civil Courts providing the jurisdiction of the Munsiffs which is altogether a different system.

( 8 ) THIS Court by its order, dated 11-4-1988 has set aside the judgment and decree of the trial Court and the case was remitted for disposal in accordance with law in the light of the observations made in the judgment. Liberty was granted for the parties to lead further evidence, if necessary. Though a period of six months is granted for final disposal of the suit, the same came to be decided by the judgment dated 28-9-1991.

( 9 ) THE suit was renumbered due to change of jurisdiction of the Court: An application of the plaintiff filed under Order VI, Rule 17 for amendment of the plaint was also allowed and the parties are allowed to adduce further evidence and the further evidence of the parties also recorded.

( 10 ) THE learned Judge retained the issues framed in the earlier suit and decided the issues. The issue that was framed in the earlier suit and retained after remand is:- 1. Does plaintiff prove that he is in lawful possession of the suit property? 2. Is he entitled to injunction?findings given by the learned Judge is that the plaintiff is in possession of the properties but he is not its lawful owner. With regard to the second issue, after elaborate discussion, the learned Judge held that the plaintiff has proved his possession as evidenced by the documents but he is not its lawful owner. Having come to such a conclusion, the learned Judge restrained the defendant permanently from interfering with the plaintiff 's possession of the suit property otherwise than in due course of law.

( 11 ) RE. Q. 1 1. Sri S. Vijjayashankar, the learned Senior Advocate for the appellant, submits that the learned trial Judge while giving