Mandatory injunction requires precise evidence of dispossession; vague claims are insufficient.

(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

1. This appeal is by the plaintiffs aggrieved by the judgment and decree dated 09.12.2022 passed in OS No.1/2021 on the file of Principal Civil Judge and JMFC, Jamkhandi (for short, ‘Trial Court’) in terms of which the suit of the plaintiffs seeking relief of mandatory injunction is dismissed which is confirmed by judgment and decree dated 29.09.2023 passed in RA No.7/2023 on the file of Principal Senior Civil Judge and JMFC, Jamkhandi (for short, ‘First Appellate Court’).

2. Case of the plaintiffs is that; (a) one Bhimappa and Shivappa Talawar were the sons of Ramappa Talawar and also the owners of property bearing CTS No.1150, measuring 25.92 square metres situated at Mudhole Galli, Jamkhandi having purchased in terms of registered deed of sale date 05.11.1960. That Bhimappa passed away on 15.05.1992 leaving behind him his wife Gouravva and son Ramappa. Names of his wife and son were mutated in the revenue records as his legal heirs.

(b) That Shivappa Talawar who had ½ share in the aforesaid property had executed Will in favour of plaintiffs as his wife Chandrawwa was not looking after him.

(c) That the defendants and their mother –

Chandrawwa had filed a suit for partition and separate possession, claiming property in CTS No.1151A/2 and CTS No.1150 as ancestral joint family properties in OS No.16/2004 and the plaint in the said suit was returned to be presented before the Court having jurisdiction. When the said plaint was presented before the Senior Civil Judge by order dated 06.06.2009 the same was again returned on the ground of the said Court not having pecuniary jurisdiction. As such, a suit came to be filed before the Trial Court in OS No.125/2009.

(d) That during the pendency of said suit, father of the plaintiffs passed away and the suit was dismissed on

19.11.2013 holding that the suit properties are the self acquired properties of Bhimappa and Shivappa.

(f) That being aggrieved by the same, the defendants preferred an appeal in RA No.25/2014, which also came to be dismissed on 21.10.2020.

(e) That the defendants with an intention of causing hardship to the plaintiffs have put a door lock on the property bearing CTS No.1150. That after the death of Shivappa, plaintiffs have become the absolute owners in terms of a registered Will executed by him in favour of plaintiffs. Plaintiffs cause issue of notice dated 09.07.2020 seeking removal of the lock which was denied by the defendants. Hence, a suit for relief of mandatory injunction.

3. The defendants remained ex-parte. Plaintiffs examined himself as PW1 and exhibited 8 documents marked at Ex.P1 to P8. The Trial Court framed the following points for its consideration:

1. Whether plaintiffs are entitled for the reliefs as sought for?

2. What order or decree?

4. On appreciation of evidence, the Trial Court answered the same in the negative resulting in dismissal of this suit. Being aggrieved by the same, the plaintiffs preferred regular appeal in RA No.7/2023. The First Appellate Court framed the following points for its consideration:

1. Whether the appellants have made out ground to condone the delay in preferring the appeal?

2. Whether the findings of the trial court on various points are in accordance with law and facts?

3. Whether judgment and decree under appeal is opposed to the law, facts capricious and thereby warranting interference by this court?

4. What order or Decree?

5. On re-appreciation of the matter, the First Appellate Court answered point Nos.1 and 2 in the affirmative and point No.3 in the negative and consequently, dismissed the appeal. Being aggrieved, the plaintiffs are before this Court.

6. Sri. Vitth