MOODALAPPA Vs. G.P. JAGADISH AND ORS.

JUDGEMENT

(1.) THE appellant has challenged the judgment and decree in RA No. 54/2008 setting aside the dismissal of suit filed by the respondents and granting a decree of injunction in their favour restraining him from causing obstruction to the peaceful possession and enjoyment of the suit property. The facts relevant for the purpose of this appeal are as under: Parties will be referred as per their rank before the Trial Court for the sake of convenience. The appellant herein is the defendant whereas the respondents are plaintiffs who instituted the suit for injunction to restrain the defendant from causing obstruction to the peaceful possession and enjoyment of the suit property bearing Sy. No. 117 measuring 2 acres 8 guntas of Agasavali village in Shimoga Taluk described in the schedule to the plaint. It is averred in the plaint that there was an oral partition between the parties in the year 1985 -86 and the father of plaintiffs died on 22.02.2003. So far as the house property is concerned, there was registered partition deed dated 27.02.1986 and in the oral partition, the suit property fell to the share of plaintiff's father whereas the land bearing Sy. No. 122 fell to the share of defendant. So since from the year 1985 -86 onwards, the plaintiffs are said to be in absolute possession and enjoyment of the suit property. As there was obstruction to the peaceful possession, present suit came to be instituted seeking injunction. The defendant appeared before the Trial Court and filed his written statement admitting the relationship but denied the oral partition. So far as registered partition deed dated 27.02.1986 in respect of house property, there was no dispute. The defendant contended that the suit property and Sy. No. 122 measuring 2 acres 3 guntas were owned by one Mallamma who is his grand mother and he was taking care of her during her life time and he had spent huge amount for her medical expenses and as such, she voluntarily gave the suit property and also Sy. No. 122 to him and the plaintiff's father being educated person said to have obtained several signatures on blank documents and misused them in getting his name entered in the suit property. It was his contention that unless the relief of declaration is sought, the present suit for injunction is not maintainable. On the basis of these pleadings, the Trial Court framed the following issues:

(2.) AT the time of admission, the following substantial question of law has been raised for consideration: Whether the First Appellate Court was justified in reversing the finding of the Trial Court, when there was a dispute as regards title in a suit for bare injunction ignoring the principle, as laid down in Anathula Sudhakar v. P. Buchi Reddy AIR 2008 SC 2033 and in such a circumstance, the parties should be relegated to a suit for declaration of title and consequential reliefs? During the pendency of this appeal, this Court had issued a notice to the Tahsildar concerned directing him to produce the certified extract of record of rights of Sy. No. 122 and before the service of summons, counsel for the respondent has made available the record of rights of Sy. No. 122.

(3.) I have heard learned Counsel for both the parties.