JAINABI Vs. HALAPPA

JUDGEMENT

(1.) APPEAL is by the defendants challenging the judgment and decree passed by the I Addl. Civil. Judge (Sr. Dn.), Davangere in RA 39/1977 on 11.3.2004. Suit OS 1193/1993 was filed by the plaintiff Halappa for injunction claiming that site No. 49 - corresponding Door No. 1005 was allotted to him by the Davangere Town Municipality in the year 1972 -73 for a sum of Rs.133.35 and since then, he has been in possession and has put up a but on the land and the 2nd defendant had also issued an endorsement and collected tax. It is alleged, the 1st defendant in collusion with the 2nd defendant, with the assistance of his henchmen, without right and title is causing interference to plaintiffs possession and enjoyment. The matter was contested denying the averments of the plaint and also regarding allotment, payment, etc. It is contended, rather the original defendant has concocted the document by impersonation and the suit is not maintainable for bare injunction without seeking for a declaration. Based on the pleadings, having raised as many as five issues for consideration, trial court dismissed the suit of the plaintiff. In the appeal against the said order before the Civil Judge (Sr. Dvn.) in RA 39/1997, the suit of the plaintiff has been decreed granting permanent injunction. As against this order, the second appeal is filed.

(2.) AT the time of admission, on 24.11.2004, the following substantial questions of law have been raised for consideration: Whether the lower appellate court is justified in reversing the judgment and decree passed by the trial court by misconstruing the documents on record and without giving proper finding as to the identity of the plaintiff in securing allotment to the Municipality;

(3.) WHETHER the lower appellate court is justified in relying upon the sale certificate to come to the conclusion that the plaintiff is the owner of the property, when the contention of the Municipality is that the same has been obtained by playing fraud and misrepresentation.