A plaintiff must establish lawful possession of property at the time of filing a suit for injunction; failure to do so results in dismissal of the claim.

JUDGMENT

H.P. Sandesh, J.

This matter is listed for admission and I have heard the learned counsel for the appellant.

2. The factual matrix of the case of the plaintiff before the Trial Court is that plaintiff is the owner of the site No.12 situated in Sy.No.111 of Shivanapura Village by virtue of an agreement of sale dated 29.01.1994. The defendant by an agreement of sale, agreed to sell the suit schedule property for a sum of Rs.7,500/- and the plaintiff has paid the entire sale consideration amount to the defendant No.1 and she put him in possession of the suit schedule property. The defendant No.1 has agreed to sell the same contending that by virtue of a partition entered into among the members of her family dated 08.06.1969, the defendant No.1 was allotted 1 acre, 1 gunta of land in Sy.No.111. As per the partition, the property mutated in M.R.No.2/92-93 and number of sites, out of which the site No.12 was agreed to be sold in favour of the plaintiff. The defendant No.1 was in need of money for their family necessity and daughter marriage and in view of the ban imposed by the Government of Karnataka, the document is not registered. The plaintiff constantly requesting to execute the sale deed in his favour, but the defendant is postponing the same for one or the other reasons. The defendant No.1 has formed a layout showing the location of the sites agreed to be sold in favour of the plaintiff. After ascertaining the boundaries of the layout plan and the agreement of sale, the plaintiff took possession and continued to be in possession of the sites. Without any right, title or interest over the suit schedule property, the defendant No.2 came to plaintiff's site in 2nd week of January, 2007 tried to disturb his possession. The defendants are the powerful persons in the area and disturbed the possession of the plaintiff. Hence, sought for the relief of permanent injunction.

3. In pursuance of the suit summons, the defendant No.2 appeared through counsel and not chosen to file any written statement. The defendant No.1 appeared through counsel and denied the plaint averments and contend that plaintiff is totally stranger and he has no manner of right, title, interest or possession over the suit schedule property. The agreement of sale is got up, concocted, created and fraudulent documents and the same has no value in the eye of law. The defendant No.1 along with the family members sold the entire land bearing Sy.No.111, measuring 3.11 guntas to the defendant No.2 through registered sale deed dated 27.12.2006 for valuable consideration. The defendant No.2 is in peaceful possession and enjoyment of the suit property including the suit schedule property.

4. The plaintiff, in order to prove his case, examined himself as P.W.1 and got marked the documents as Exs.P1 and P2. On the other hand, the defendant No.1 has examined as D.W.1 but, not tendered for crossexamination.

5. The Trial Court, having considered both oral and documentary evidence placed on record, dismissed the suit. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.38/2016. The First Appellate Court also, considering the grounds urged in the appeal memo, formulated the points whether the Trial Court has erred in holding that the plaintiff is not in possession of the suit schedule property and whether the judgment and decree passed by the Trial Court is liable to be set aside. The First Appellate Court also, on re-appreciation of both oral and documentary evidence placed on record, dismissed the appeal and confirmed the judgment of the Trial Court. Hence, the present second appeal is filed before this Court.

6. Learned counsel appearing for the appellant would vehemently contend that both the Courts have committed an error in not considering the documents of Exs.P1 and P2 i.e., General Power of Attorney and even the defendant No.2 has not filed any written statement and only the defendant No.1, who sold