G VENKATARAMAIAH Vs. C KEMPAIAH

JUDGEMENT

(1.) THIS is the defendants appeal. Respondents were the plaintiffs in o. S. 718/1987. Plaintiffs filed a suit for permanent injunction to restrain the defendants from putting up any construction on the plaint schedule property or from interfering in any manner either by themselves or through their agents with the peaceful possession and enjoyment of the plaint schedule property. Suit property is a vacant site bearing K. No. 30 of Hebbal-Kempapura village measuring east-west 15 ft, and north-south 80 ft. bounded east by the house of the plaintiff bearing K. No. 11, west by the house of the defendants and vacant land, north by defendants 1 /3rd share and south by road. According to the plaintiffs, they are the full and absolute owners of the suit property. Plaintiffs grand-father one Avalappa and Munivenkatappa were brothers and they have divided their joint family properties under an oral partition. The vacant land which was to the west of K. No. 11 measuring 15' x 120' was divided into three equal portions, northern 1/3rd portion was allotted to Chikka Venkatappa, grand-father of defendants, middle portion was allotted to the share of Munivenkatappa and southern portion was allotted to the plaintiffs' grandfather Avalappa. Each of them were enjoying their properties separately. Muni venkatappa's son by name Appanna sold the middle portion in favour of the plaintiffs under registered sale deed dated 23-8-1967 and that the plaintiffs have been paying the kandayam and enjoying the property. Three days prior to the institution of the suit, defendants made an attempt to commit trespass on the plaint schedule property and made an attempt to lay the foundation. Therefore, plaintiffs filed the suit for bare injunction.

(2.) DEFENDANTS contested the suit. Defendants admitted the relationship between the parties. They also admitted that the joint family properties were divided under oral partition and each of them were enjoying separately. Defendants denied the execution of the sale deed by Appanna in favour of the plaintiff under registered sale deed dated 23-8-1967. They also denied the possession of the plaintiffs. According to defendants, after the death of their father Gopalappa, they are in lawful possession of the suit property. According to them, up to the death of their father, their father Gopalappa was in peaceful possession and enjoyment of the suit schedule property. According to them, gopalappa had purchased the suit property from Muni Venkatappa and his son Madaiah on 18-9-1931 for a valuable sale consideration of Rs. 50/- only and that defendants and their predecessors are in enjoyment of the suit schedule property even on the date of suit. According to them, Munivenkatappa had two sons by name Appanna and maddalah. Share of Munivenkatappa and maddaiah were sold to the father of the defendants Gopalappa, remaining share of appanna was sold to Sanjeevappa son of munlswamappa under registered sale deed dated 24-6-1940. Therefore, they contend that plaintiffs could not get any title to the suit schedule property since Appanna did not had any title on 23-8-1967 to convey the same. Therefore, they requested the court to dismiss the suit.

(3.) BASED on the above pleadings, following issues were framed by the trial Court: 1]. Whether the plaintiff proves that he was in lawful possession of the suit property on the date of the suit? 2]. Whether the plaintiff proves the obstruction by the defendant as alleged? 3]. Whether the plaintiff is entitled to the permanent injunction sought for? 4]. What decree or order?