JAYAMMA, W/O P.N. GOVINDA GOWDA Vs. SRI. MAILAIAH S/O SRI. H. HANUMAIAH, SMT. GURUSHANTHAMMA W/O LATE SRI GANGAPPA, SMT. V. TULASI W/O R. VENUGOPALACHARI AND SRI. R.VENUGOPALACHARI

JUDGEMENT

(1.) THIS appeal by the plaintiff is directed against the judgment and decree dated 30.10.2010 passed in O.S.9824/07 by the XXXIX Addl. City civil Judge, Bangalore city dismissing the suit filed seeking the relief of permanent injunction.

(2.) FOR the sake of convenience the parties in this appeal would be referred to as they are referred to in the original suit.

(3.) WHAT order or decree? The plaintiff in support of her case got examined her son P.G.Raghunath who is her General POA holder as PW1. She produced 23 documents which came to be marked as Ex.P1 to P23. On behalf of the defendants 5th defendant came to he examined as DW1. They produced 11 documents which came to be marked as Exs.. D1 to D11. The trial Court on the basis of evidence and the documents placed on record, held that the plaintiff has failed to prove that she is in possession and enjoyment of the suit schedule property as on the date of the suit, the defendants are interfering with her possession and enjoyment of the suit property and therefore, she is not entitled to the relief of permanent injunction as sought for and accordingly, dismissed her suit. Aggrieved by the said order of dismissal of the suit plaintiff is in appeal before this Court. 4. The learned counsel appearing for the appellant/plaintiff contended that the trial judge erred in dismissing the suit of the plaintiff on the ground that the POA executed in favour of Kishore Babu has not been produced despite the material on record and the suggestions put in the course of cross examination indicate that there is no serious dispute regarding the registered POA dated 6.5.90 executed by Sri.Gangappa in favour of Kishore Babu. It was further contended the trial Court also erred in going to the question of title to the suit property when the suit filed was for a bare injunction in which what is to be considered is only whether the plaintiff has made out her case that she was in possession and enjoyment of suit schedule property on the date of the suit. In this connection, he submitted that, defendants 1 to 3 earlier had filed O.S. No. 967/2003 for the relief of declaration and injunction in respect of the entire land and in the said suit an application filed for temporary injunction was dismissed and MFA 4177/03 filed by them against the rejection of temporary injunction was also dismissed by this court and subsequently as the suit was dismissed as withdrawn on 19.12.04, filed by defendants 1 to 3, they cannot claim that they art the owners in possession of the land and as such they could not have conveyed any title to defendant No. 4. In the light of this the trial court holding that the plaintiff is not in possession of the property which she has purchased legally from her vendors cannot be sustained and hence, the impugned order of dismissing her suit be set aside by allowing the appeal.