The

present

regular

second

appeal

by

the

unsuccessful plaintiff assailing the concurrent findings of

the Courts below dated 14.09.2018 in R.A.No.20/2015 on

the file of the Senior Civil Judge and JMFC, Sindhanur

sitting at Manvi confirming the judgment and decree dated

07.08.2014 in O.S.No.168/2011 on the file of the Civil

Judge and JMFC, Manvi, whereby, the suit of the plaintiff

for declaration and injunction came to be dismissed by the

Courts below.

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2.

Heard learned counsel, Sri Veershetty Bakkappa

for the appellant and learned counsel, Sri Manjunath Ginni

appearing for the respondent.

3.

The facts reveal that:

The plaintiff's contention is that he is the owner and

in physical possession of house bearing No.2-88. Further,

the plaint avers that since the defendant being relative

requested the plaintiff to reside in the suit house for a

temporary period. Accordingly, the plaintiff agreed and the

defendant was permitted to stay in the said suit property.

However, when the plaintiff requested for vacating of the

suit house and pay the balance rent, the defendant

refused to do so and hence, the present suit for

declaration and consequential injunction.

4.

The defendant resisted the claim of the plaintiff

by filing written statement inter alia contending that the

suit of the plaintiff without seeking the relief of recovery of

possession is not maintainable.

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5.

The Trial Court on the basis of the pleadings,

framed the issues and the plaintiff in order to substantiate

his claim, examined himself as P.W.1 and one witness as

P.W.2 and got marked documents at Exs.P.1 and P.2.

Defendant examined himself as D.W.1 and one witness as

D.W.2 and got marked documents at Exs.D.1 to D.3.

6.

The Trial Court based on the pleadings, oral and

documentary evidence, held that:

i.

The plaintiff has failed to prove title over

the suit schedule property.

ii.

The plaintiff has failed to prove that the

defendant is in permissive possession of

the suit schedule property.

iii.

The Trial Court by the impugned judgment

and decree, held that the suit of the

plaintiff

is

not

maintainable

without

seeking

the

relief

of

recovery

of

possession

when

the

plaintiff

has

admitted that the plaintiff permitted the

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defendant to put up construction in the

suit property.

7.

Aggrieved by the judgment and decree of the

Trial Court, the plaintiff has preferred an appeal before the

first Appellate Court. The first Appellate Court after re-

appreciating

the

oral

and

documentary

evidence,

concurred with the judgment and decree of the Trial Court.

8.

The fact that the plaintiff himself in his

pleadings has stated that the defendant is in possession of

the suit schedule property. The law is well settled that

when the plaintiff is not in possession of the suit schedule

property, declaration without seeking possession is not

maintainable. Section 34 of the Specific Relief Act proviso

mentions that no Court shall make any declaration where

the plaintiff, being able to seek further relief than a mere

declaration of title, omits, to do so. The Apex Court in the

case of Anathula Sudhakar vs P. Buchi Reddy (Dead)

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By L.Rs. & Ors¹

has stated at paragraph No.17

summarizing the position in regard to the suits of

prohibitory injunction relating to immovable property,

which reads as under:

"(a) Where a cloud is raised over plaintiff's title

and he does not have possession, a suit for

declaration and possession, with or without a

consequential injunction, is the remedy. Where

the plaintiff's title is not in dispute or under a

cloud, but he is out of possession, he has to

sue

for

possession

with

a

consequential

injunction.

Where

there

is

merely

an

interference with plaintiff's lawful possession or

threat of dispossession, it is sufficient to sue for

an injunction simpliciter.

(b) As a suit for injunction simpliciter is

concerned only with possession, normally the

issue

of

title

will

not

be

directly

and

substantially in issue. The prayer for injunction