In a suit for permanent injunction, the plaintiff must establish lawful possession and title, as incidental findings on title are permissible.

JUDGMENT :

RAVI V. HOSMANI, J.

Challenging judgment and decree dated 08.01.2015 passed by I Additional Senior Civil Judge, Chitradurga, in R.A. no.31/2014 and judgment and decree dated 25.01.2024 passed by II Additional Civil Judge, Chitradurga in O.S. no.343/2009, this appeal is filed.

2. Brief facts as stated are that, appellant herein was plaintiff no.1 in a suit filed for permanent injunction restraining defendants from interfering with suit property. It was stated that agricultural land bearing Sy.no.17/P2, measuring 04 acres situated at N.Bellekatte village, Hireguntanur Hobli, Chitradurga Taluk, was suit property. Suit claim was based on assertion by plaintiff that suit property was originally acquired by his father Hanumappa, who had earlier married Kariyamma and later married Lakshmamma-mother of plaintiff no.1. It was stated that during 1974 when defendant no.1 expressed his intention to separate from family, Hanumappa allotted properties situated in Konanur village. But, thereafter, defendant no.1 sold said properties and began residing at Kengunte village.

3. It was stated, since plaintiff no.1 was taking care of Hanumappa, out of love and affection, Hanumappa executed registered Will on 13.11.1986 bequeathing suit properties. In said Will attestor had specifically mentioned separation of defendant no.1 from family. It was stated attestor died in year 1988. Thus, plaintiff no.1 and mother-Lakshmamma, succeeded to suit property. On 18.04.2000, plaintiff no.1, his mother Lakshmamma and plaintiff no.2 entered into registered partition deed, whereunder plaintiff no.1 and his mother - Lakshmamma were jointly allotted share measuring 2 acres 20 guntas in suit property and allotting remaining 1 acre 20 guntas to plaintiff no.2. It was stated, revenue records were mutated in pursuance of above.

4. It was further stated, on 04.06.2006 Lakshmamma died. Thus, plaintiff no.1 became absolute owner of 02 Acres 20 guntas. It was stated though defendant no.1 had separated from family began interfering with suit property. On said cause of action, suit for injunction was filed.

5. Upon service of suit summons, defendants entered appearance and filed written statement admitting averment in plaint no.2, but alleging averments in para no.3 to 6 as false. They generally denied plaintiffs claim and specifically stated that suit property was ancestral property of Hanumappa and they are not aware of existence of any joint family property of plaintiff and defendant no.1 and in case, any such property existed, even defendant no.1 would have share in it. It was stated that about 50 years earlier government had granted land in Sy.no.17/P2 totally measuring 4 Acres to Hanumappa on ground that he was belonging to backward class. Hence, above property was standing in name of Hanumappa. But, they were cultivating 2 Acres each. Subsequently, on discovery of minerals, extent of 2 Acres was granted on lease and due to same, it was no more fit for cultivation. It was stated that in order to deprive share of defendants, suit was filed. It was alleged Assistant Commissioner had granted order of stay against mutation affected in pursuance of partition deed dated03.06.2009. On said ground, sought for dismissal of suit.

6. Based on pleadings, trial Court framed following:

1) Whether the plaintiffs prove that they are in possession and enjoyment of the suit schedule property on the basis of the registered Will executed by Hanumappa in favour of plaintiff No.1 vide Will Deed dated 13-11-1986?

2) Whether the plaintiffs prove the interference caused by the defendant to their peaceful possession and enjoyment of the suit schedule property?

3) Whether the plaintiffs are entitled for grant of permanent injunction as prayed for?

4) What decree or order?

7. Thereafter, plaintiff examined himself and two others as PWs 1 to 3 and got marked Exhibits P.1 to P.10. Defendant no.1 examined himself and two others as DWs. 1 to3 and got marked Exhibits D1 to 4.

8. On consideration, tria