PUTTANANJAMMA Vs. H N PUTTATHAYAMMA

JUDGEMENT

(1.) this is defendant's second appeal having suffered an adverse judgment in the lower appellate court. Plaintiff puttathayamma brought the suit for bare injunction in original suit No. 48 of 1984 on the file of the munsuf, at nagamangala. 2, the plaint allegations were that she purchased the suit schedule property under exhibit p-1 a sale deed executed by one thimmegowda and that she had purchased survey No. 140/8 of p. Neralekere village of nagamangala hobli, nagamangala taluk in the year 1974; that defendant-1 and defendants-2 to 5 were interfering with the peaceful possession and enjoyment of the property she had purchased and therefore, they may be restrained by a permanent injunction. She described the first defendant as the daughter of one hanumaiah @ karigowda, defendant-1, who filed the written statement and contested the suit inter alia averred that she was the second wife of thimmegowda the vendor of the plaintiff; that thimmegowda never intended to sell survey No. 40/8; what was sold was really survey No. 140/10 as was clear by the boundaries in the sale deed. The plaintiff had deliberately suppressed the boundaries in the sale deed and given a different set of boundaries in the plaint schedule in order to wrongfully claim property she had not purchased under exhibit p-l the sale deed. She also alleged that defendants-2 to 5 were not necessary parties. On such pleadings as many as three issues came to be framed by the trial court: 1) whether the plaintiff proves that she has been in lawful possession of the suit schedule property? 2) is there any interference by the defendant? 3) is the plaintiff entitled to an order of permanent injunction? On all the issues, the trial court found against the plaintiff and dismissed the suit.

(2.) the munsiff accepted the argument advanced for the first defendant that the boundaries should prevail in the sale deed having regard to the ruling of this court in the case of Smt. Kamalamma v kenche gowda, AIR 1972 mys. P. 184. He came to the conclusion that the plaintiff was not in lawful possession of the suit schedule property as exhibit p-l, on which he relied upon, did not identify the property described in the suit schedules. It is only in that circumstance, he came to dismiss the suit.

(3.) on appeal, the trial court reversed the finding on reappreciating the evidence on record.