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CASE NO.: Appeal (civil)  831 of 2002

PETITIONER: Sri Thimmaiah

RESPONDENT: Shabira and Ors

DATE OF JUDGMENT: 06/02/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 831 OF 2002

Dr. ARIJIT PASAYAT, J.

1.      Heard learned counsel for the parties.

2.      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’).

3.      The factual background needs to be noted in brief:

The appeal before the High Court was by the plaintiffs  who are respondents in the present appeal.

The plaintiffs 1 and 2 are the wife and husband.  According 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.  According 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.

The Ist 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.

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The 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?"

The 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.  

It is to be noted that the High Court formulated the  following point for determination in appeal:

"Whether 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?"

The 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.

4.      In 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.

5.      Per 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.  

5.      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.   

6.      In 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

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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.

7.      In 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.

8.      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.

9.      The appeal is allowed to the aforesaid extent without any  order as to costs.