In a suit for injunction, failure to specifically deny property description constitutes an admission, supporting the plaintiff's established possession based on a valid Will.

JUDGMENT :

ASHOK S.KINAGI, J.

This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 20.02.2013 passed in R.A.No.31/2009 by the learned Senior Civil Judge at Madikeri.

2. For convenience, the parties are referred to, based on their rankings before the trial Court. The deceased appellant was the plaintiff, and the respondent was the defendant.

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

The plaintiff filed a suit against the defendant, seeking for a permanent injunction restraining the defendant from interfering with the plaintiff's lawful and peaceful possession and enjoyment of the suit schedule properties. It is the case of the plaintiff that the plaintiff is the owner and in possession of the suit schedule properties. The plaintiff acquired the suit schedule properties under a registered Will dated 21.03.1985, wherein the plaintiff's father bequeathed the suit schedule properties in favour of the plaintiff and other properties in favour of the defendant. The father passed away on 23.11.1987. Based on the registered Will, the plaintiff became the absolute owner and in possession of the suit schedule properties and the defendant is the owner and in possession of other properties acquired under the said registered Will. It is contended that the defendant is also the brother of the plaintiff and is not in good terms with the plaintiff. It is contended that the defendant has no right, title or interest over the suit schedule properties. On 01.07.2007, the defendant tried to trespass into the suit schedule properties. The plaintiff resisted his illegal act. Hence, a cause of action arose for the plaintiff to file a suit for permanent injunction. Accordingly, prays to decree the suit.

3.1. The defendant filed a written statement denying the averments made in the plaint. It is admitted that the plaintiff's father bequeathed the properties under a registered Will dated 21.03.1985. It is contented that the plaintiff has filed a suit on the false and baseless grounds and the plaintiff has challenged the Will to gain unfair advantage over the defendant and there has never been any dispute about the apportionment of their share as per the Will. The plaintiff filed a caveat with a view to provoke the defendant. The plaintiff issued a legal notice on 16.03.2006 making false and vexatious allegation for which the defendant replied to the legal notice. Thereafter, kept quiet for some time. Now, again he started his old habits of mischief. It is contented that the defendant is the owner of the agricultural properties bearing Sy.No.56/62 measuring 1-37.50 acres in K.Badaga village of Madikeri Taluk, Kodagu. He converted 0.10 acres out of the said land for non-agricultural purpose by the order of the Assistant Commissioner and obtained permission to construct a single storied house. The plaintiff has no cause of action to file a suit. Accordingly, prays to dismiss the suit.

3.2. The Trial Court, based on the above said pleadings, framed the following recasted issues:

1) Whether the plaintiff proves that he is in peaceful possession and enjoyment of the suit schedule property as on the date of filing the suit?

2) Whether the plaintiff further proves that there was interference caused by the defendant in respect of the suit schedule property?

3) Whether the plaintiff is entitled for the relief of permanent perpetual prohibitory injunction as prayed for?

4) What order or decree?

3.3. The plaintiff, to substantiate his case, examined himself as PW.1, examined two witnesses as PW.2 and PW.3, and marked 28 documents as Exs.P1 to P28. In rebuttal, the defendant examined himself as