A suit for permanent injunction is not maintainable without seeking a declaration of title, emphasizing the necessity of establishing lawful possession and the binding nature of prior Commissioner's reports.

JUDGMENT :

ASHOK S.KINAGI, J.

This Regular Second Appeal is filed by the appellants, challenging the judgment and decree dated 24.01.2013 passed in R.A.No.102/2010 by the learned Second Additional Senior Civil Judge, Shimoga.

2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were the defendants and the respondent was the plaintiff.

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

The plaintiff filed a suit against the defendants for perpetual injunction. It is the case of the plaintiff that the plaintiff had purchased 35 guntas of land in Sy.No.125/2 of Navile village through a registered sale deed in 1974- 1975. The land measuring 13 guntas of the said land was used for Thunga Channel. The remaining property is only 22 guntas. Subsequently, 5 guntas was taken over for Sevalal village and the remaining property available is only 17 guntas. It is contended that on the eastern side of the suit schedule property, the defendants constructed a school building. The plaintiff had filed a suit for mandatory injunction against the defendants for the removal of a school building in O.S.No.32/2000. The defendants appeared and contested the suit. In the said suit, Court commissioner was appointed to ascertain the encroachment by the defendants. The report filed by the Court Commissioner reveals that there is no encroachment on the plaintiff's property by the defendants. The joint memo was filed, wherein the parties admitted that they should not disturb the possession of each other.

4. Plaintiff got dismissed the suit with the liberty to file a fresh suit. Again, the defendants tried to trespass into the suit schedule property and to disturb and dispossess the plaintiff from the suit property. Hence, a cause of action arose for the plaintiffs to file a suit for perpetual injunction. Accordingly, he prays to decree the suit.

5. The defendants filed a written statement denying the averments made in the plaint. It is contended that the plaintiff, by misusing the process of law, filing the suit after suit. It is contended that the defendant is a charitable institution and occupied an extent of one acre of the land belonged to the government in Sy.No.112; the said survey number has been phoded as survey No.178.

Some portion of land was allotted to the houseless and siteless Scheduled Caste people. The defendants constructed the school building in 1985, and they are enjoying the property and also one acre of land, which has been situated in front of the school building since 1985. They also used the said land as a play ground for the school children. The plaintiff is fully aware of the same and also allowed the defendants to enjoy the suit schedule property. By providing an incorrect description, the plaintiff had filed false and frivolous suit. Thereafter, the members of Dr. Ambedkar Mission Trust had filed a suit in O.S.No.316/1989. After the contest, the said suit was dismissed on 28.11.2000. Thereafter, the members instigated the plaintiff to file a fresh suit in O.S.No.32/2000. The said suit was withdrawn. Hence, the plaintiff filing the suit after the suit with a malafide intention to harass the defendants. Hence, prays to dismiss the suit.

6. The trial Court, based on the pleadings of the parties, framed the following issues.

1. Whether plaintiff proves that he is the owner in lawful possession of suit property as contended in the plaint?

2. Whether plaintiff further proves the alleged interference by the defendants as contended in the plaint?

3. Whether plaintiff is entitled for the relief