Vs. Shabira and Ors  Insc 146 (6 February 2008)
Arijit Pasayat & P. Sathasivam
APPEAL NO. 831 OF 2002 Dr. ARIJIT PASAYAT, J.
Heard learned counsel for the parties.
Challenge in this appeal is to the judgment of a learned Single Judge of the
Karnataka High court allowing the First Appeal filed by the respondents under
Section 96 of the Code of Civil Procedure, 1908 (in short the 'CPC').
factual background needs to be noted in brief:
appeal before the High Court was by the plaintiffs who are respondents in the
plaintiffs 1 and 2 are the wife and husband.
to the plaintiffs, the Ist plaintiff purchased site no.43 in survey No.37 of Avalahalli
Village, Bangalore South Taluk, measuring East to West 45' and North to South
30' and bounded on East by 5th Main Road, on the West by Site No.46, on the
North by Site No.42 and on the South by Site No.44.
to them, the 2nd defendant (respondent No.3 herein) sold the property as power
of attorney holder of one Narayana Rao in favour of the Ist plaintiff under a
registered sale deed dated 7.6.1984. At the time of purchase, a temporary
structure was there on the property and with an intention to construct a new building,
they pulled down the temporary structure. When the plaintiffs started
demolishing the said structure, the Ist defendant (appellant herein) made an
attempt to interfere with the peaceful possession and enjoyment of the property
and that under the guise of purchasing of a site No.42, the Ist defendant also
made an attempt to encroach on the plaintiffs property. Therefore, the
plaintiffs filed a suit for judgment and decree for permanent injunction to
restrain the defendants from interfering with the peaceful possession and
enjoyment of the property.
defendant filed the written statement contending that he has purchased the
property from one Nagaraja who is the 3rd defendant and that the Ist defendant
is in possession of site No.42 which is measuring 45' x 60'. Therefore, he
requested to dismiss the suit of the plaintiffs.
2nd defendant has supported the case of the plaintiffs. The 3rd defendant has
not filed any written statement. According to the Ist defendant the 3rd
defendant is the owner of the property. Based on the above pleadings the trial
Court framed the following issues:- (i) Whether the plaintiff is in lawful
possession of the plaint schedule property on the date of filing the suit? (ii)
Whether the illegal interference is proved? (iii) Whether the plaintiff is
entitled to permanent injunction as prayed?"
2nd plaintiff has been examined as PW-1. The 2nd defendant-vendor of the Ist
plaintiff has been examined as PW- 2 and got marked Ex.P-1 to P-14. On behalf
of the defendants, the Ist defendant has been examined as DW-1. After
appreciating the oral and documentary evidence the trial Court dismissed the
suit of the plaintiffs. Against the said judgment and decree, the First Appeal
is filed by the plaintiffs.
to be noted that the High Court formulated the following point for
determination in appeal:
the Ist plaintiff proved that the 2nd defendant had the power to alienate site
No.43 in her favour, and if so, is she entitled for a decree in her favour?"
High Court allowed the appeal holding that plaintiff No.1 had proved her case
in respect of Site No.43 in view of Exs. P-1 and P-2. Adverse inference was
drawn because the defendant No.1 failed to produce the power of Attorney
executed by Narayana Rao in favour of 3rd defendant.
support of the appeal, though many points were urged, the primary stand was
that in a suit for permanent injunction, the foundational fact which had to be
established was possession. In the instant case, the trial Court while
answering Issue Nos.1 and 3 categorically held that the plaintiffs had failed
to prove their possession. There is no finding recorded by the High Court
regarding possession and even while formulating the point for determination the
question of possession was not considered.
contra, learned counsel for the respondents submitted that the parties
proceeded on the basis of title and since the trial Court recorded findings
regarding possession which are contrary to the materials on record, the High
Court has rightly allowed the appeal.
Undisputedly, the suit was one for permanent injunction and in such a suit the
plaintiff has to establish that he is in possession in order to be entitled to
a decree for permanent injunction. The general proposition is well settled that
a plaintiff not in possession is not entitled to the relief without claiming
recovery of possession. Before an injunction can be granted it has to be shown
that the plaintiff was in possession.
the instant case, Issues Nos. 1 and 3 which were framed on 1.10.1988 clearly
refer to this vital aspect. The trial Court while answering the aforesaid
issues held in the negative. Unfortunately, the High Court did not consider the
effect of these findings and even did not record any finding regarding
possession. Therefore, as rightly contended by learned counsel for the
appellant, the High Court could not have allowed the appeal. As noted above,
even while formulating the point for determination, the High Court did not
formulate the question relating to possession.
the aforesaid circumstances, we set aside the impugned judgment of the High
Court and remit the matter to the High Court to formulate a definite point
relating to possession and then analyse the evidence on record with reference
to that question and decide the appeal.
Since the matter is pending since long, the High Court is requested to dispose
of the appeal as early as practicable preferably by the end of August, 2008.
appeal is allowed to the aforesaid extent without any order as to costs.
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