In a suit for permanent injunction, the Plaintiff must prove lawful possession of the property, with possession being the primary requirement.

V. Gopala Gowda, J.—For the sake of convenience, the parties in this appeal are referred to as per their rank in the trial Court.

2. This appeal is filed by the Plaintiff in O.S. No. 121 of 1989. The suit was filed against the Defendants/Respondents for permanent injunction restraining them from interfering with the peaceful possession and enjoyment of the suit schedule property. The Plaintiff claimed that he was the mortgagee in possession of the same. The Defendants denied the claim of the Plaintiff and resisted the suit by filing written statement. On the basis of the pleadings the trail Court framed issues. The Plaintiff did not enter the witness box. However, he got examined his son as PW-1 and produced documents Exs.P-1 to P-7. On behalf of the Defendants, the first Defendant was got examined as DW-1 and another witness as DW-2 and Exs.D-1 and D-2 have been produced and marked as exhibits. The trial Court, appreciating both oral and documentary evidence on record, held that Plaintiff failed to prove that he was in lawful possession of the suit schedule property and that Defendants interfered with his possession on 15.2.1989. On the other hand, it was held that the Defendants were in physical possession of the suit property. Having held so, the trial Court dismissed the suit. Being aggrieved by the same, the Plaintiff filed appeal in R.A. No. 30 of 1993. However, the said appeal was dismissed by the first appellate Court. Challenging the judgments and decrees of the Courts below, the Plaintiff has filed this second appeal.

3. While admitting this appeal, the following substantial question of law was framed by this Court:

Whether on evidence as produced by the parties, could it have been held that the Defendants had a better title than the Plaintiff over the suit schedule property thereby disentitling the Plaintiff from seeking the relief of permanent injunction?

4. During pendency of this appeal the Plaintiff died and his legal representatives came on record.

5. Heard the learned Counsel for the parties and perused the judgments of the Courts below.

6. The suit was filed by the Plaintiff for injunction. The trial Court dismissed the suit. The first appellate Court concurred with the dismissal of the suit. This Court has to examine the correctness of the challenge made to the concurrent findings of the Courts below.

7. In a suit for permanent injunction the Plaintiff has to prove lawful possession of the suit property. The burden of proving the same lies on the Plaintiff. Plaintiff relied upon Ex.P-1, the mortgage deed to prove his case through his son. The trial Court considered this document and found that Plaintiff was not in lawful possession of entire suit schedule property and held that his claim for the same is illegal.

8. The trial Court also noticed that Plaintiff has not entered the witness box to substantiate his case. Eventhough his son stated that he was the General Power of Attorney Holder of his father, the G.P.A. executed by the Plaintiff in his favour was not produced before the Court. The Defendants objected for the evidence of PW-1 and the trial Court has rightly discarded his evidence. However, Mr. R.U. Goulay, learned Counsel for the Plaintiff contended that the Courts below were not justified in discarding the evidence of PW-1 and reliance has been placed on the decision reported in Bhagwati Prasad Vs. Shri Chandramaul, AIR 1966 SC 735 . According to him, what was required to be considered was the substance of the matter, namely, whether the Plaintiff was in lawful possession of the suit schedule property as on the date of filing the suit. This contention cannot be accepted as reasons were not assigned by the Plaintiff as to why he was not got examined himself to prove his case. As already noticed, his son did not produce the so-called G.P.A. executed by the Plaintiff. In such a situation, the Courts below were justified in discarding the evidence of PW-1. So far as the submission that substance of th