A plaintiff must prove ownership and possession to succeed in claims for permanent and mandatory injunctions, which was not established in this case.

JUDGMENT :

V. SRISHANANDA, J.

1. Heard Sri A. Anil Kumar Shetty, learned counsel for the appellant, Sri Sunil S Rao, learned counsel for respondent Nos.2 (a) to (h), 3 and 4, and Sri Nishanth A.V., learned for respondent No.5.

2. Unsuccessful plaintiff is the appellant challenging the judgment of dismissal of the suit in O.S.No.7028/1996.

3. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under.

4. Plaintiff filed a suit for permanent injunction in respect of the following property (hereinafter referred to as suit property) at the first instance and during the pendency, amended the plaint for mandatory injunction seeking a direction to demolish the structures in the following property (hereinafter referred to as ‘suit property’):

“All the piece and parcel of a site measuring East-West L 190’+180’/2, North-South :120’+45’/2 in SY.No.86/1 of Hosakere Halli Village, Uttarahalli Hobli, Bangalore South Taluk and bounded on:

East by : Road

West by : Road

North by : 150’ Ring Road

South by : Road”

5. Plaintiff contended that the suit property was acquired by him by virtue of a decree in O.S.No.7493/1995 and he is the absolute owner.

6. It is contented that defendant No.5 - Smt. Sharada was the original owner of the suit property and she had executed a power of attorney in favour of Sri Gopalakrishna for sale of the said property. But, she failed to adhere to the terms of the decree passed in the said suit. Therefore, an execution case came to be filed.

7. It is further contented that defendant Nos.1 to 4 being the total strangers to the suit property, at the instance of defendant No.5, they started interfering with the suit property and they were about to construct the building in the suit property.

8. It is further contented that in and around the suit property, land is developed by constructing the houses, shopping complexes and therefore, the land value has increased and with that intention, there was an interference.

9. Plaintiff also contended that on 04.10.1990 the brother of the plaintiff was in prison in respect of a criminal case and at that juncture, defendants have interfered with the suit possession and they occupied the possession of the suit property.

10. Pursuant to the suit summons, defendant No.2 Ramakrishna and another defendant filed written statement and denied the plaint averments in toto.

11. They further contended that Smt. Sharadamma was the owner of 4 acres 18 guntas of land. But in the year 1981, Special Deputy Commissioner, Urban Land Ceiling had taken possession of 17,009 square meters of the land which was exceeding the ceiling limit and decree obtained by the plaintiff against defendant No.5 is thus a fraudulent decree wherein the Government was not made as a party. Therefore, Smt.Sharadamma had no right to pass it on to the plaintiff and sought for dismissal of the suit.

12. However, defendant No.5 filed written statement admitting the contents of the plaint.

13. Learned Trial Judge raised the following necessary issues and additional issues:

14. After recording of the evidence of the parties, learned Trial Judge heard the arguments of the parties and dismissed the suit of the plaintiff inter alia holding that there is a dispute as to the signature by the plaintiff and Sharadamma and nobody has applied for handwriting expert with regard to the disputed signature especially on the power of attorney.

15. Trial Court also held that plaintiff failed to prove that plaintiff was in possession of the suit property as on the date of suit. On the contrary, there is enough and overwhelming material