IMPORTANT POINT
Where the facts required for a plaint of law have not been pleaded, a litigant cannot be allowed to raise that question as substantial question of law in a second appeal.
IMPORTANT POINT
Where the facts required for a plaint of law have not been pleaded, a litigant cannot be allowed to raise that question as substantial question of law in a second appeal.

A.N. Venugopala Gowda, J.—Appellant was the plaintiff in OS No. 45 of 2004 on the file of Civil Judge (Junior Division) and Judicial Magistrate First Class at Sira. Suit was filed against the respondents-defendants for declaration of title and for perpetual injunction in respect of a site bearing Katha No. 68/78 (Old No. 105/73) measuring 4 x 20 yards (12 x 60 feet) situated at Seebi, Kallambella Hobli, Sira Taluk. For convenience, the parities would be referred to hereinafter with reference to their rank in Trial Court.

2. In brief, the case of the plaintiff is as follows:

The suit property, which was an ancestral and joint family property, fell to his share in a family partition and the katha of the same stands in his name and that he has paid the tax to the Village Panchayath and that, though defendants have no right, title and/or interest over the suit property, they tried to interfere with the possession and enjoyment of the same by him, by alleging that the plaintiff has executed a sale deed in favour of their mother Lingamma. It was stated that he had obtained loan from Lingamma of Umapathihalli and he repaid the same with interest and that he has not conveyed any right or interest over the suit property to Lingamma and the deed if any in her favour is not valid. It was stated that the defendants, about 15 days prior to the filing of the suit, entered into the suit property and canvassed that it belongs to them and thereby interfered with his possession and enjoyment, on account of which the suit was instituted seeking declaration of title and perpetual injunction.

3. The defendants 1 and 2 resisted the suit by filing written statement and also counter-claim under Order 8, Rules 6A and 6B of Civil Procedure Code, 1908 and prayed for declaration of title of the suit property in favour of them and other legal representatives of Lingamma W/o. Eranayaka and for consequential perpetual injunction restraining the plaintiff from interfering with their peaceful possession and enjoyment over the written statement schedule property. It was contended that their mother had purchased the written statement schedule property for valid consideration of Rs. 100 under a registered sale deed dated 25.2.1977 executed by the plaintiff and that she was put in possession of the property and from the date of purchase, Lingamma was in possession of it. After her death, they and their two brothers, Shivanna and Gurusiddappa, continue to be in possession and enjoyment of the suit property. It was stated that due to illiteracy and lack of worldly knowledge, Lingamma had not made efforts to obtain change of katha of the schedule property to her name and that they approached the authority to change the katha of the schedule property to their name, which was opposed by the plaintiff by filing statement of objections and that the matter is pending adjudication. It was contended that, after filing of the suit, plaintiff tried to interfere with their peaceful possession and enjoyment of the suit property and hence, they sought for allowing the counter-claim and to dismiss the suit with costs.

4. Plaintiff filed written statement to the counter-claim, wherein, he denied the averments made in the written statement-cum-counter-claim and stated there is no cause of action to file the counter-claim. It was stated that, Lingamma W/o Earanayaka, is a close relative of the plaintiff and she had not obtained suit schedule property from him and that the defendants have taken advantage of an illegal deed and attempted to knock off the suit schedule property. He prayed for dismissal of the counter-claim with costs.

5. After filing of the written statement and written statement to the counter-claim, the two brothers of defendants 1 and 2 i.e., Shivanna and Gurusiddappa were impleaded as defendants 3 and 4. Defendant 4 filed written statement, wherein, it was stated that the allegations made in para 2 of the plaint are true and correct i.e., about the ances