A plaintiff in an injunction suit must prove lawful possession as of the date of the suit; failure to meet this burden results in dismissal of the claim.

JUDGMENT :

K.S. HEMALEKHA, J.

The present regular first appeal is preferred by the plaintiff assailing the legality and correctness of the judgment and decree dated 14.12.2022 passed in O.S. No.17372/2006 on the file of the XIII Additional City Civil and Sessions Judge, Mayohall Unit, Bengaluru (CCH-22) (hereinafter referred to as ‘the Trial Court’ for short). By the judgment and decree, the Trial Court dismissed the suit seeking permanent injunction.

2. The plaintiff instituted suit seeking a decree of permanent injunction restraining defendant Nos.1 to 4 from interfering with his peaceful possession and enjoyment of the suit property. The suit property comprises site No.80 formed out of land bearing Sy. No.119 of Laggere Village, Yeshwanthapura Hobli, Bengaluru North Taluk, now situated at Rajagopalanagar Extension measuring East-West 24 feet and North-South 33 feet (hereinafter referred to as the ‘suit property’ for short) as bounded as follows:

East : Property No.77 belonging to defendant No.1

West : Property No.82 belonging to P.M. Kempaiah, father of the plaintiff;

North : Road and

South: Property No.79.

3. The case of the plaintiff is that he is the absolute owner and is in lawful possession of the suit property, having acquired it under a registered sale deed dated 10.10.2006 executed by his father, who inturn had purchased the same from the original allottee – Shivaramaiah, through a General Power of Attorney and affidavit dated 25.02.1991. The original allottee was issued with a Hakkupatra dated 05.01.1973 by the Government in respect of Site No.80. It is further averred that although the Hakkupatra (original allotment) reflected the dimensions as East-West 40 feet and North-South 30 feet, the actual measurement of site No.80 and the adjacent sites was East-West 30 feet and North-South 40 feet. Due to the road formation and subsequent road widening, the North-South measurement was reduced to 33 feet. Additionally, defendant No.1 who is the owner of the adjacent site No.77 on the eastern side, encroached upon 6 feet of the suit property, thereby reducing the East-West dimension to 24 feet and North-South 33 feet. Accordingly, the plaintiff’s sale deed reflects a reduced extent of east-west 24 feet and North-South 33 feet. It is averred that when the plaintiff commenced construction over the suit property, defendant Nos.1 to 4 interfered with the plaintiff’s possession, Hence, the suit for injunction.

4. Defendants contested the suit by asserting that the suit property is not in existence, owing to the encroachment made by the adjacent site owner, the plaintiff’s father, who is the owner of property No.82. The defendants specifically denied any interference with the plaintiff’s possession and contend that they are in lawful possession of the site allotted to defendant No.1 under the Hakkupatra which measures 40 feet East-West and 30 feet North-South. On these grounds, the defendants sought for dismissal of the suit.

5. The Trial Court on the issue as to whether the measurement of the sites involved, namely the suit property and site No.77 belonging to the defendants, and the adjacent sites is as contended by the plaintiff East-West 30 feet and North-South 40 feet or as per the dimension shown in the respective Hakkupatra relied upon by the defendants, the Trial Court held that the suit being one for permanent injunction, the burden lies on the plaintiff to establish his lawful possession over the suit property measuring 24 feet East-West and 33 feet North-South as on the date of the suit.

6. The Trial Court considered the hand sketch marked through PW.3, particularly Ex.P.19 which was produced by the plaintiff himself and observed that accordin