The importance of establishing lawful possession at the time of filing a suit for perpetual injunction and the legal validity of actions taken under the Code of Civil Procedure, 1908, such as the execution of a delivery warrant.

JUDGMENT :

1. It is the plaintiff’s appeal. The present appellant as plaintiff has instituted suit against the original respondent Smt.Zeenathunisa herein for the relief of perpetual injunction in O.S.No.6275/2007, in the Court of learned VII Addl. City Civil Sessions Judge, Bengaluru, (CCH19), (hereinafter for brevity referred to as `trial Court’).

2. The summary of the case of the plaintiff in the trial Court was that she had purchased the suit schedule property, which is residential house bearing No.53 and formed in Survey No.52, Assessment No.52, measuring 50’ 30’, and situated at Laggere Village of Yeshwanthpur Hobli, Bengaluru North Taluk, now called as Chowdeshwarinagar, Bengaluru 560053, on 6.10.2003, from one Sri Gangaiah, represented by his General Power of Attorney Holder Smt. Jayaramachandra. Thereafter, on 1.12.2003, she constructed residential building and obtained electrical connection and other amenities to the property. The defendant had filed O.S.No.5819/2003, against one Sri Ramesh E.S. and Smt. K.M.Saraswathi, for the relief of bare injunction with respect to site Nos.53 and 54, measuring 46’ 52’ and obtained an ex parte decree on 2.7.2004.

It is the further contention of the plaintiff in the trial Court that the defendant Smt.Zeenathunisa had also filed one more suit in O.S.No.16818/2005, against the very same Sri Ramesh E.S. and Smt.K.M.Saraswathi, for the relief of declaration, possession and mandatory injunction in respect of both site Nos.53 and 54 and obtained an ex parte judgment and decree on 16.1.2007. According to the plaintiff, in the trial Court both those persons i.e., Sri Ramesh E.S. and Smt.K.M.Saraswathi were fictitious persons and it was collusive suit filed without impleading the plaintiff who has been in possession of the property. Finally an Execution Petition No.25074/2007 was filed before the competent Court and the defendant herein obtained delivery warrant against the judgment debtors i.e., Ramesh E.S. and Smt.K.M.Saraswathi. However, on 28.7.2007, the defendant in collusion with the Court Ameen and taking the police help, approached the plaintiff in the suit schedule property and threatened them of dispossession from the suit schedule property. But, by the timely intervention of the people of that locality, the illegal act of the defendant was stopped. However, the plaintiff was taken by the Court Ameen and police to the jurisdictional police station i.e., Rajagopalanagar Police Station and there they forcibly and fraudulently took the signature of the plaintiff and her family member in blank papers without disclosing anything. Thereafter, on 1.8.2007, the plaintiff lodged police complaint, but, the police have not taken any action against the defendant. With this the plaintiff has prayed for the relief of permanent injunction against the defendant restraining the defendant, her agents, servants or anybody acting on her behalf from interfering with the peaceful possession and enjoyment of the suit schedule property.

3. In response to the summons, the defendant appeared through her counsel and filed her written statement, wherein she denied all the plaint averments. She contended that plaintiff cannot be the owner of the suit schedule property since the alleged General Power of Attorney Holder Smt.Jayaramachandra had no right to sell the suit schedule property in favour of the plaintiff. She also denied that the plaintiff is in possession of the suit schedule property and has put up house structure thereupon. Though the defendant admitted of she instituting two suits i.e., O.S.No.5819/2003 and O.S.No.16818/2005, against Sri Ramesh E.S. and Smt.K.M.Saraswathi, but, denied that they were fictitious persons. She contended that the plaintiff has acted as the men of the said Sri Ramesh and Smt.Saraswathi and was in possession in part of the suit schedule property which was acquired by this defendant and execution part of the judgment and decree has been taken in accordance with law and as