The burden of proving ownership and lawful possession lies with the plaintiff, and failure to discharge this burden can result in the dismissal of the suit.

JUDGMENT :

K.S. Mudagal, J.

This appeal of the plaintiffs arises out of the judgment and decree dated 22.09.2014 in Regular Appeal No.57/2013 passed by the Principal Senior Civil Judge & CJM., Mandya.

2. By the impugned judgment and decree, the First Appellate Court has dismissed the appeal of the plaintiffs and confirmed the judgment and decree dated 05.03.2013 in O.S.No.149/2008 passed by the Prl. Civil Judge, Mandya. By the said judgment and decree, the Trial Court dismissed the suit of the plaintiffs for permanent injunction.

3. Appellants were the plaintiffs 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. The subject matter of the suit was the property bearing khata No.541/123/627 measuring 18 feet x 45 feet situated at Belur village, Kothathi Hobli, Mandya Taluk. Out of that, dispute is with regard to an open space measuring 3 ft x 45 ft, which according to the plaintiffs, formed part of eastern part of their property and lying on the western side of the defendant's property.

5. Plaintiff purchased khata No.541/123/627 of Belur village measuring 18 feet x 45 feet under Ex.P2 the sale deed from one Chennaiah. Plaintiffs contended that earlier there was a building and demolishing that for constructing new building, they laid foundation into 131/2 x 42 feet in the center and left passage of 3 feet x 45 feet on the eastern side. They further contended that defendant started to interfere with the possession and enjoyment of the said passage of 3 feet x 45 feet.

6. Defendant contended that when plaintiffs started to put up a new construction, they have put up the construction covering the entire site and they have not left any passage on the eastern side of the property. He claimed that the said passage is part of his property and now plaintiffs are claiming that to be their property.

7. On the basis of such pleadings, the Trial Court framed the following issues:

"1. Whether the plaintiffs prove that they are in peaceful possession and enjoyment of the suit schedule property as on the date of the suit?

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

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

4. What order or decree?

8. The parties adduced evidence. On behalf of the plaintiffs, their Power of Attorney Holder was examined as PW-1 and another villager was examined as PW-2 and Exs.P1 to P5 were marked. Defendant was examined as DW-1 and on his behalf, Exs.D1 to D6 were marked.

9. The trial court after hearing the parties dismissed the suit holding that plaintiffs have failed to prove their lawful possession over the disputed passage and that forms part of their property. The trial court further held that in view of the challenge to the title of the plaintiffs to disputed area, the plaintiffs should have sought declaration of title and the suit for bare injunction was not maintainable and thus dismissed the suit.

10. Plaintiffs challenged the said judgment and decree of the trial court before the first appellate court in R.A.No.57/2013.

11. The first appellate court though differed with the finding of the trial court regarding maintainability of the suit held that plaintiffs have failed to prove that they had left 3 feet x 45 feet passage in their site as alleged by them. The first appellate court held that the plaintiffs failed to prove that they had put up construction leaving 3 x 45 feet passage between their property and property of the defendant by examining any person from the Grama Panchayat. The first appellate court further held that Ex.P5 the endorsement issued by the Grama Panchayat in favour of the plaintiffs was subsequent to Ex.D7 the endorsement issued by the same Panchayat in favour of the defendant stating that defendant has not encroached the property and though they were mutually inconsistent, no evidence was adduced to prove Ex.P5.

12. In