In a suit for permanent injunction, the plaintiff must prove lawful possession and interference by the defendant. The pendency of previous suits may be relevant to the current case.

JUDGMENT :

K.S. Mudagal, J.

This second appeal of the plaintiff arises out of the judgment and decree dated 18.09.2017 in Regular Appeal No.01/2016 passed by the Senior Civil Judge and J.M.F.C., at Gowribidanur.

2. By the impugned judgment and decree, the First Appellate Court allowed the appeal of the defendant, reversed the judgment and decree dated 26.10.2015 in O.S.No.291/2011 passed by the Principal Civil Judge & J.M.F.C., Gauribidanur. By the said judgment and decree, the Trial Court had decreed the suit of the plaintiff for permanent injunction.

3. The appellant was the plaintiff and respondent was the defendant before the trial court. For the purpose of convenience, parties will be referred to henceforth as per their rankings before the trial Court.

4. Subject matter of the suit was house property bearing Town Municipal Assessment No.124/109 measuring 311/4 feet x 24 feet situated at Gowribidanur town.

5. The case of the plaintiff in brief is as follows:

She is the younger sister of the defendant. Her mother was the absolute owner of the suit property. Her mother executed Ex.P1 gift deed dated 14.06.2011 and put her in possession of the property. Thereby she has become the absolute owner of the property. The defendant was obstructing her possession. Therefore, she seeks decree for permanent injunction.

6. Defendant contested the suit denying the title of the mother, the gift deed set up by the plaintiff and her possession. He further contended that the plaintiff has suppressed pendency of O.S.No.234/2009 between the parties for partition and separate possession of the suit property and sought for dismissal of the suit.

7. On the basis of such pleadings, the trial court framed the following issues:

"1. Whether the plaintiff proves that the plaintiff is in possession and enjoyment of the suit schedule property?

2. Whether the plaintiff proves the alleged interference by the defendant?

3. Whether the defendant proves that, the property involved in O.S.234/09 are one and the same and therefore this suit is hit by the principles of resjudicata?

4. Whether the plaintiff is entitled for the relief of permanent injunction?

5. What order or decree?"

8. The parties adduced evidence. On behalf of the plaintiff, PWs-1 to 4 were examined and Exs.P1 to P18 were marked. On behalf of the defendant, DWs- 1 to 3 were examined and Exs.D1 to D7 were marked.

9. The trial court after hearing the parties decreed the suit holding that the title and possession of the plaintiff is proved by Ex.P1 registered gift deed and Assessment Register Extract, Tax paid receipts, Encumbrance Certificate and Election ID, which were marked at Exs.P2 to P14 and P18.

10. The trial court further held that the pendency of O.S.No.234/2009 does not operate as res judicata for the subsequent suit filed by the plaintiff.

11. Aggrieved defendant challenged the said judgment and decree before the first appellate court in R.A.No.01/2016. The first appellate court by the impugned judgment and decree allowed the appeal and dismissed the suit on the following grounds:

(i) The admissions of PWs-1 and 2 show that the plaintiff's father was the absolute owner of the property and he died intestate;

(ii) The evidence on record and the admissions of PWs-1 and 2 prove that on death of plaintiff's father, the property devolved on all the heirs and therefore, the plaintiff's father had no right to execute the gift deed;

(iii) The admissions of PWs-1 and 2 show that the defendant was in possession of the property since last 20 years and plaintiff was not in possession as on the date of the suit;

(iv) Ex.D7 Order sheet of O.S.No.234/2009 show that the defendant has filed the suit against his brothers and sister for partition and said suit is still pending.

12. Smt. S. Taj, learned Counsel for the appellant plaintiff seeks to assail the judgment and decrees of the courts below on the following grounds:

(i) In a suit for bare injunction, the first appellate court should not have gone into the question of tit