The main legal point established is that the plaintiff must prove the validity of the Will in accordance with the Evidence Act and that no injunction can be granted against co-owners.

JUDGMENT :

Challenging judgment and decree dated 22.09.2022 passed by Court of XXXVII Additional City Civil & Sessions Judge, Bangalore City (CCH-38) in O.S.no.8685/2018, this appeal is filed.

2. Appellant was plaintiff, while respondents herein were defendants respectively in original suit. O.S.No.8685/2018 was filed seeking for permanent injunction restraining defendants from interfering with plaintiff's possession in respect of suit property bearing Katha no.155/1, formed in Sy.no.1 of Basavanapura village, K.R. Puram Hobli, Bengaluru East Taluk, measuring of 13068 sq.ft. i.e. 12 guntas with built up area of 2400 sq.ft. and having borewell, plantain, mango and other fruit bearing trees (hereinafter referred to as suit property).

3. Suit was filed on premise that plaintiff was owner in possession of suit property by virtue of Will dated 11.03.1987, executed by his father and which he succeeded to upon death of his father on 07.12.1991. It was also stated that plaintiff was paying taxes from 1992-1993, bore well was dug in suit property by obtaining no objection from Tahsildar, Bengaluru, South taluk and developed property by spending money. It was stated that defendants were his brothers, attempted to interfere with his possession, giving rise to cause of action for filing suit.

4. Upon service of suit summons, defendants entered appearance and filed written statement contending that suit was not maintainable as plaintiff was neither owner nor person in possession of suit property and suit for bare injunction was not maintainable. It was stated that defendants were co-owners and were in joint possession of suit property and therefore, suit for injunction against co-owner was not maintainable. It was stated that suit property was inherited by their father Sri. Nagappa Reddy under registered partition deed dated 07.08.1961 as it was ancestral joint family property. Defendants disputed Will dated 11.03.1987 as Will was alleged to have been created and signature of testator was disputed. It was further contended that during lifetime of Sri. Nagappa Reddy, partition was effected on 24.12.1987 between his children, wherein, suit property was not included, as it was left as burial ground for family members. Defendants also claimed to be in possession and cultivation of suit property.

5. Based on contentions, trial Court framed following issues :

1. "Whether the plaintiff proves that he is in exclusive possession and enjoyment of the suit schedule property as on the date of the suit?

2. Whether the plaintiff proves alleged interference of the defendants?

3. Whether the defendants proves that the suit is not maintainable under law as contended in para No.4 of the written statement?

4. Whether the plaintiff is entitled for the relief sought?

5. What order or decree?"

6. In order to substantiate his case, plaintiff examined himself and another witness as PWs-1 and 2 and got marked Exs-P1 to P12. On other side, defendant no.1 was examined as DW-1 and endorsement issued by BBMP was marked as Ex-D1. On consideration, trial Court answered issues no.1 to 4 in negative and issue no.5 by dismissing suit. Assailing same, plaintiff is in appeal.

7. Sri. M.S. Nagaraja, learned counsel for appellant contended that impugned judgment and decree was contrary to law. It was submitted that plaintiff had acquired title to suit property on basis of Will dated 11.03.1987, executed by his father. After death of his father, he became absolute owner and he was in possession. Defendants neither disputed his possession in terms of Will nor his title. It was further submitted that defendant no.1 had failed to tender himself for cross-examination and therefore, his deposition could not be considered. Therefore, in absence of contra evidence by defendants, dismissal of suit was unsustainable.

8. Heard learned counsel, perused impugned judgment and decree and record.

9. From above submission, it is not in dispute that suit property fell to share of Sri. Nagappa Reddy under reg