The plaintiff's request for permanent injunction was denied as he failed to prove adverse possession and the defendant was adjudged the lawful owner of the disputed land.

JUDGMENT :

RAJESH RAI K., J.

1. This is defendant's second appeal.

2. The plaintiff filed a suit for permanent injunction against the defendant in respect of suit schedule property.

3. It is the case of the plaintiff that he is the lawful owner in possession and enjoyment of land measuring 13 acres 6 guntas including kharab in Sy.No.20/1 situated at K.T. Halli Village, Nidgal Hobli, Pavagada Taluk, (for brevity "the suit schedule property") and the same was acquired by him by virtue of compromise decree passed in O.S.No.29/1992. After the said compromise, he dug a borewell in the suit schedule property and also obtained electrical supply for lifting water from the said borewell. By using water from the said borewell, he developed his property.

4. It is the further case of the plaintiff that the defendant, who is an adjacent landowner towards eastern side of the suit schedule property, without having any right, interest or possession over the suit schedule property, unnecessarily denied the plaintiff's title by making unlawful attempts to interfere with the plaintiff's possession. Further, the defendant had made unlawful claim over the suit schedule borewell and installed pump set. It is also alleged by the defendant that the plaintiff had encroached upon the property of the defendant and got the borewell dug. Even if the borewell was dug in the property of the defendant by encroaching the same, the defendant had lost the right over the said portion and the plaintiff had perfected his title over the suit schedule property by virtue of adverse possession. Thus, the plaintiff filed the suit seeking permanent injunction restraining the defendant from interfering and obstructing with the plaintiff's peaceful possession and enjoyment of the suit schedule property.

5. The defendant contested the suit by filing the written statement denying plaint averments by contending that the defendant is the owner in possession of land bearing Sy.No.21/1A3 and the borewell was dug in his land including tube well and installed pump set and that there is no borewell in plaintiff's land i.e., Sy.No.20/1 and that the land in Sy.No.21/1A3 is situated in the eastern side of the suit schedule land.

6. It was the further case of the defendant that the plea of plaintiff for adverse possession cannot be sustainable under law, since the plaintiff has failed to plead hostile to the interest of owner and failed to mention specific date of commencing of adverse possession. Further, since the plaintiff averred in the plaint that defendant had denied plaintiff's title, the plaintiff ought to have filed a declaratory suit against the defendant instead of permanent injunction as the possession itself was doubtful. As such, the defendant prayed to dismiss the suit.

7. The Trial Court, after considering the rival pleadings, framed relevant issues and after examining the evidence in detail, dismissed the suit on the ground that the plaintiff has failed to establish the existence of bore`well in the suit schedule property and also failed to establish that defendant had interfered with the possession of the same.

8. On appeal by the plaintiff, the First Appellate Court, upon re-appreciation of evidence, has observed that the documents produced by the plaintiff were sufficient to hold that the plaintiff was in possession of the suit schedule property as on the date of the suit and that the statement of defendant denying the title of plaintiff itself was sufficient to hold that he was interfering with the possession of the plaintiff in the suit schedule property. Further, Ex.D4 - the survey sketch clearly reveals that the