A party claiming property possession must substantiate their claims with credible evidence; failing to do so results in dismissal of claims.

JUDGMENT :

ASHOK S.KINAGI, J.

This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 26.09.2014, passed in R.A.No.33/2013 by the learned Senior Civil Judge, Harihar.

2. For convenience, parties are referred to based on their ranking before the trial Court. The appellant was the defendant, and the respondents were the plaintiffs.

3. Brief facts leading rise to the filing of this appeal are as follows:

Plaintiffs filed a suit against the defendant for perpetual injunction restraining the defendant from interfering with the peaceful possession of the suit properties. It is the case of the plaintiffs that the suit schedule properties belonged to the plaintiffs’ father i.e., Halappa S/o Ningappa. The plaintiffs’ father was expired, and after his death, the plaintiffs have succeeded to the suit schedule properties as the legal heirs of the deceased Halappa. The defendant has no right, title or interest in the suit schedule properties. It is contended that the plaintiffs are in possession and enjoyment of the suit schedule properties. The defendant threatened the plaintiffs to dispossess them from the suit schedule properties. Hence, a cause of action arose for the plaintiffs to file a suit for perpetual injunction.Accordingly, prays to decree the suit.

3.1. The defendant filed a written statement denying the averments made in the plaint. It is denied that the plaintiffs are in possession of the suit schedule properties. It is contended that the suit properties are the joint family properties of the plaintiffs and the defendant and in 1969, there was a partition in the joint family properties between the plaintiffs’ father and the defendants. The defendant had purchased suit schedule item No.1(A) under the agreement of sale. In part-performance of the contract, possession of suit item No.1(A) was delivered in favour of the defendant. He has constructed the house shown in ‘B’ schedule annexed to the plaint, after converting the land to non-agricultural purpose. The plaintiffs are not in possession of the said suit schedule properties. The plaintiffs have filed a false suit against the defendant. There is no cause of action to file a suit. Hence, prays to dismiss the suit.

3.2. The Trial Court, based on the pleadings of the parties, framed the following issues:

1) Whether the plaintiffs prove that they are in peaceful possession and enjoyment of the suit schedule property?

2) Whether the plaintiffs prove the alleged interference of the defendant over the suit schedule property?

3) What order or decree?

3.3. The plaintiffs, to substantiate their case, plaintiff No.1 was examined as PW-1, examined one witness as PW.2 and marked 35 documents as Exs.P1 and P35. In rebuttal, the defendant examined himself as DW.1 and marked 9 documents as Exs.D1 to D9. The trial Court, after recording the evidence, hearing both sides, and on assessing the verbal and documentary evidence of the parties, answered issues Nos.1 and 2 in the negative and issue No.3 as per the final order. The suit was dismissed vide judgment dated 21.03.2013. The plaintiffs, aggrieved by the judgment and decree passed in O.S.No.205/2008, by the learned Civil Judge, Honnali, preferred an appeal in R.A.No.33/2013 on the file of the learned Senior Civil Judge, Harihar.

3.4. The First Appellate Court, after hearing the parties, has framed the following points for consideration:

1) Whether the judgment and decree passed by the learned trial Court in O.S.No.205/2008 dated 21.03.2013 is contrary to the evidence placed on record by the parties to the suit and it need interference?

2) What order?

3.5. The First Appellate Court, on re-asses