This appeal is filed by the plaintiff challenging the

concurrent finding of fact recorded by the Court of II Civil

Judge and JMFC, Mangaluru (henceforth referred to as

8trial Court9 for short) in O.S.No.751/2012 which was

confirmed by the Principal Senior Civil Judge and CJM,

Mangaluru (henceforth referred to as 8First Appellate

Court9) in R.A.No.43/2017. Both the Courts held that the

plaintiff is not entitled to the relief of mandatory injunction

directing the defendant to vacate the portion occupied by

her.

2.

The parties shall henceforth be referred as

they were arrayed before the Trial Court.

3.

The plaintiff claimed to be the absolute owner

of the suit property, having purchased it from Sri Kiran

Kumar S/o Umanath Suvarna in terms of a sale deed dated

16.07.2011. The plaintiff claimed that he was placed in

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possession of the suit property by her vendor. The plaintiff

claimed that a part of the building situate in the suit

property, was occupied by the defendant with the consent

of the erstwhile owner. The plaintiff alleged that the

defendant had no right, title or interest over the suit

property or the building situate thereon. He alleged that

the defendant was allowed to occupy a portion of the

building as a licensee. He alleged that the defendant acted

unbecoming of a tenant and therefore, the plaintiff

terminated the permission granted to the defendant and

called upon her to vacate. The defendant replied to the

notice of termination and set up an adverse claim. This

compelled the plaintiff to sue for mandatory injunction to

direct the defendant to vacate the building occupied by the

defendant.

4.

The suit was contested by the defendant who

denied the ownership of the suit property by the plaintiff.

She further contended that the suit property was earlier

occupied by Mr.Venkappa and after his death, it devolved

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upon his legal representatives and the defendant was one

of them. She contended that her sister (Smt. Kalyani

Poojarthi) had filed an application before the Land

Tribunal, Mangaluru for grant of occupancy right in respect

of 11 cents of land in Sy.No.296/1GP2. She alleged that

the application in Form No.7 was filed on behalf of the

family comprised of Mr. Venkatappa and Smt. Kalyani

Poojarthi. The defendant alleged that taking advantage of

the advanced age of her sister, the vendor of the plaintiff

had concocted the documents relating to the suit property.

The defendant alleged that her sister Smt. Kalyani

Poojarthi had not conveyed the suit property to Kiran

Kumar and therefore, the sale executed by Kiran Kumar in

favour of the plaintiff was null and void and did not bind

her right, title and interest. The defendant claimed that

she was in possession of the premises for over 35 years

and that plaintiff in collusion with Kiran Kumar had created

documents to oust the defendant from the suit premises.

The defendant claimed that she is in possession of entire

building and the appurtenant land as one of the members

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of the family. Therefore, she contended that the plaintiff

was not entitled to terminate the tenancy.

5.

Based on these rival contentions, the trial

Court framed the following issues:

1.

Whether

the

plaintiff

proves

that

plaintiff

permitted the defendant to occupy the suit

schedule premises as a licenses?

2.

Whether

the

plaintiff

proves

that,

plaintiff

terminated

the

permission

granted

to

the

defendant?

3. Whether the defendant proves that defendant

perfected the title over the suit schedule property

by way of adverse possession?

4. Whether the suit of the plaintiff is maintainable

without the prayer of declaration?

5. Whether the plaintiff is entitled for mandatory

injunction as prayed in the plaint?

6. What order or decree?

6.

The power of attorney of the plaintiff was

examined as PW.1 and he marked documents as Exs.P1 to

P14. The power of attorney of the defendant was examined

as DW.1 and he marked documents as Exs.D1 to D54. The

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trial Court held that though the plaintiff filed the suit