M KRISHNAPPA Vs. LAKSHMAMMA

JUDGEMENT

(1.) THIS appeal under Section 96 of the Code of Civil Procedure by the second defendant is against an observation/finding in the judgment dated 29-10-1995 in o. s. No. 4819 of 1986 on the file of the ii additional city civil judge, bangalore city. Respondents 1 to 5 in the appeal are the plaintiffs 1 and 2 and defendants 1, 3 and 4 respectively.

(2.) HEARD the learned counsel for the appellant and respondents 1 and 2. This appeal arises this way. Plaintiffs at the first instance sought for permanent injunction against respondents 1 to 4 in respect of a portion of the land in sy. No. 2/5 of bommasandra village, yelahanka hobli, bangalore north taluk measuring 175 feet east to west and 60 feet north to south including certain foundation, ashwathakatte, banyan tree in the said land. However during the pendency of the suit, they sought for declaration of their title to the property by way of an amendment. The second defendant resisted the suit contending inter alia that the said property did not form part of the land in sy. No. 2/5 nor the said land was in possession of the plaintiffs at any time. However he claimed that the said site/land was granted to him by the authorities under grant certificate, ex. D-6.

(3.) ON the strength of those pleadings, the following two issues and another additional issue were framed. the burden of establishing all the three issues were on the plaintiffs. The parties led evidence. The learned judge after hearing the parties and considering the evidence both oral and documentary, by the judgment impugned recorded findings on all the three issues against the plaintiffs and accordingly, dismissed the suit. However, while dismissing the suit, made an observation in para 12 of the judgment that the second defendant has not proved his title to the suit property. The observation reads thus. "i hold the second defendant also not proved any title to the suit property". Aggrieved by the said observation/finding of the trial court in para 12 of the judgment, the second defendant on 29-1-1996 preferred this first appeal under Section 96 of the Code of Civil Procedure. The only prayer sought for by the second defendant-appellant is to set aside the observation in para 12 of the judgment.