Sri G. Abdul Khayum vs Sri Abdul Hadi and Moin

N. Kumar, J.—The appellant has challenged in this appeal the Judgment and Decree of the Lower Appellate Court, which has reversed the Decree of the trial Court and dismissed the suit of the plaintiff for bare injunction.

For the purpose of convenience, the parties are referred to as they are referred in the Original Suit.

The case of the plaintiff is that he is in possession and enjoyment of the Bait schedule property belonging to the Government. Since more than a statutory period, he has erected a but and he is residing there with his family, members. Therefore, he has perfected his title by way of adverse possession and he has been paying tax regularly. He has approached the Tahsildar, Bellary for grant of the suit property. The defendants, who have no manner of right, title or interest over the suit property, interfered with his possession. Then, the plaintiff approached the Police. They did not give any protection. They directed him to approach the Civil Court. Therefore, he filed a suit for a Decree of Permanent Injunction, restraining the defendants from interfering with his peaceful possession and enjoyment of the suit property.

The defendants after service of summons contended property bearing T.S. No. 1006 is adjacent to the suit property belongs to them. The plaintiff is not in possession or enjoyment of the suit property. He is residing in Jawari Street, Cowl Bazaar, Bellary. It is to grab the defendants property, he has tried to create documents. The suit property is a Government Property and the defendants are using the said property for their ingress and egress. Therefore, he has contended the plaintiff is not entitled to the relief of injunction.

The trial Court framed three issues. The plaintiff was examined as PW-1 and he has produced 12 documents, which are marked as Ex Pi to P12. Defendant No. 2 was also examined as DW-1 and he has produced two documents, which are marked as Ex D1 and D2.

The trial Court on appreciation of oral and documentary evidence on record, came to the conclusion that the plaintiff has proved his possession over the suit property. The defendants have not proved they are using the suit property as ingress and egress to the property and therefore it held the defence sot up is not proved and the case set up by the plaintiff is proved. Therefore, the trial Court decreed the suit of the plaintiff. Aggrieved to the said Judgment and Decree, the defendant No. 2 preferred R.A. No. 85/2008. In the appeal, the defendant also filed an application under Order 41 Rule 27 of CPC for production of additional evidence. The plaintiff also filed an application under Order 26 Rule 9 of CPC for appointment of Commissioner to make a spot inspection. The Lower Appellate Court on consideration of the appeal on merits and on re-appreciating the entire evidence on record, dismissed the application for additional evidence as well as appointment of the Commissioner. It further held that the finding of the trial Court that the plaintiff is in possession of the property is not supported by the documents on which the plaintiff relied on. The defendant has disputed the said documents. The entries in the said documents are full of discrepancies. Therefore, it held the material on record is not sufficient to hold the plaintiff''s possession over the suit schedule property. Therefore, it allowed the appeal, Bet aside the Judgment and Decree of the trial Court and dismissed the suit. Aggrieved by the said Judgment and Decree of the Lower Appellate Court, the plaintiff is in second appeal.

Learned Counsel for the appellant asstling the impugned Judgment and Decree contends that the Lower Appellate Court was in error in rejecting the application filed for appointment of a Commissioner for local investigation. The documents produced though there is some discrepancies, on a proper construction of the same would go to show the plaintiff possession over the suit property. There is nothing on record to show the defendant was using the suit property for the purpose of ingress and egress to his property. The suit is one for bare injunction. Though the plaintiff is not the owner and Government is the owner, it is settled law that a person in possession of the property can protect his possession against the whole world except the owner. Even if the person is in unauthorised possession, he is entitled to the relief of injunction.

The material on record establishes that the property in dispute is a Government Property. As rightly pointed out by the Lower Appellate Court, the documents produced by the plaintiff do not show the possession of the plaintiff over the suit schedule property. Merely because an application is filed before the Tahsildar for grant of land for regularisation of unauthorised occupation, that is not a proof of the plaintiff being in possession of the property. Infact, the Lower Appellate Court has carefully scrutinised the oral evidence on record. The plaintiff at one stage admits that he owns a house in Cowl Bazaar and the documents, which are produced appears to be related to that property. At any rate, the material on record is not sufficient to hold possession of the plaintiff over the suit schedule property. Unless possession is established granting injunction would not arise in a suit for bare injunction.

Under the circumstances, I do not find any merit in this appeal. Accordingly, no substantial question of law is involved. The appeal is dismissed in limine.

As the appeal itself is dismissed, the question of considering Misc. Civil. 8104/2009 does not arise and the same is rejected.