A suit for permanent injunction is not maintainable when the defendant disputes the plaintiff's title, necessitating a suit for declaration and injunction.

CAV JUDGMENT

This appeal is filed under Section 96 of the Code of Civil Procedure challenging the judgment and decree passed in O.S.No.6518/2006 dated 08.10.2010 by the XXIV Additional City Civil & Sessions Judge, Bengaluru City (CCH No.6), wherein the appellant's suit for permanent injunction was dismissed with costs.

2. For the purpose of convenience, the parties are referred to as per their ranking before the trial Court. The appellant was the plaintiff and respondents were the defendants before the trial Court.

3.(a) The case of the plaintiff is that land bearing Sy.No.52, measuring 2 acre of Malagalu Village, Yeshwanthapura Hobli, Bengaluru North Taluk, came to be purchased by one G. Kempaiah and his brothers under the registered sale deed dated 14.01.1959 and pursuant to the sale deed, the name of G. Kempaiah came to be entered in the revenue records. It is averred that the sons of Sri. G. Kempaiah i.e. Krishnamurthy and D. Narayana have formed the private layout and sold the sites in favour of the different persons. It is further averred that the children of G. Kempaiah sold site No.67 in favour of Smt. Gangamma by executing General Power of Attorney and also an affidavit by putting her in possession of the property and the said Gangamma offered to sell half site and the plaintiff agreed to purchase the same for valuable consideration and accordingly purchased. It is also averred that the plaintiff has applied for katha in the Bruhat Bengaluru Mahanagara Palike (for short 'BBMP') and thereafter, the plaintiff has demolished a shed which existed in the suit schedule property as he intend to put up the construction. 3.(b) It is also averred that on 09.07.2006, the defendants came near the property and attempted to trespass into the same along with their henchmen and they have threatened the plaintiff saying that they are the local leaders and they will not allow the plaintiff to put up the construction. The plaintiff has also sought the police help, however, the police did not offer any protection, advised to approach civil Court as the matter pertains to civil dispute.

3.(c) It is pleaded that on verification it is found that defendant No.1 is having large henchmen of anti social element at his back and also support of local corporator of BBMP. Defendant No.2 is an Assistant Executive Engineer in BBMP, who is also hand in glove with the first defendant interfering with the possession of the plaintiff and stopped the construction. The act of the defendants is highly illegal, arbitrary and high handed. Hence, prayed for judgment and decree against the defendants restraining them, their agents, servants, anybody under them from interfering with the peaceful possession and enjoyment of the suit schedule property of the plaintiff.

4.(a) Defendant No.1 entered appearance before the trial Court, he did not file written statement. Defendant No.2 filed the written statement. It is averred that the defendant No.2 has no personal interest in the suit schedule property or any portion of it and he being an official, working as an Assistant Executive Engineer has discharged his duties as per law, no suit lies against him in individual capacity and before initiating the proceedings the plaintiff ought to have issued statutory notice as provided under Section 482 of the Karnataka Municipal Corporations Act , 1976 (for short 'the Act').

4.(b) The defendant No.2 denied the allegation of the plaintiff that one G. Kempaiah has purchased 2 acres of land in Sy.No.52 of Malagalu Village and alleged that the RTC and other documents are created and concocted by the plaintiff. It is averred that land in Sy.No.52 is totally measuring 34 acres 33 guntas of Malagalu Village which is gomala land. As per the revenue records and the RTC discloses that Janatha sites are formed and allotted to the public and about 600 sites are formed in the said survey number. Further, the BBMP has constructed school building and Government is running Higher Primary School