At, High Court of Karnataka
By, THE HONOURABLE MR. JUSTICE N.K. SUDHINDRARAO
For the Appellant: A.C. Chetan, M.R. Suresh, Advocates. For the Respondent: P.H. Virupakshaiah, Advocate.
1. This regular second appeal is directed against the judgment and decree passed in R.A. No.34/2007 dated 2.1.2012 on the file of the Senior Civil Judge, Holalkere, wherein, judgment and decree dated 7.7.2007 passed by the Civil Judge (Jr. Dn.), Holalkere, in O.S. No.29/2006, was confirmed.
2. The suit in the first instance was filed in O.S No.29/2006 on the file of learned Civil Judge (Jr. Dn.), Holalkere, wherein the plaintiff claimed permanent injunction in respect of the property measuring 16 x 12 feet which is on the southern side of the house of the plaintiff. The defendant is one Prakash. The suit came to be dismissed holding that the plaintiff has not produced title or documents of inheritance. The regular appeal by the plaintiff in R.A. No.34/2007 almost on the similar grounds was rejected by the first appellate Court, against which this appeal is preferred.
3. The schedule property as described in the plaint is the property bearing katha No.19 measuring 16 x 12 ft. situated at Gunjiganur village, Holalkere Taluk, abutting the southern side of the house of the plaintiff.
4. Learned counsel for the appellant Sri A.C. Chethan appearing for Sri. M.R. Suresh would submit that it was the suit of simiplicitor for permanent injunction and no complexities were involved. But both the Courts unnecessarily went into adjudicating the title. Even the defendant has not disputed the possession by the plaintiff.
5. The plaintiff had examined three witnesses in support of his case. It is to be noted that in order to get injunctive relief, the possession must be invariable and lawful one. The lawful possession, importantly at the time of entering into the possession is to be established. If the plaintiff has derived from his father, the source of induction of his father invariably has to be established. The possession of vacant land goes after owner ship. In this connection, documents or reliable material or circumstances shall be placed before the Court.
6. The title or the possession must have a valid source. The validity of source does not lie in mere assertion in any number of words. Corroboration from document or circumstances having probative force in law has be to explained. The term "lawful possession" or "absolute and exclusive owner" are meaningless without a valid source. The first suspicious circumstance is that, it is so vague and bald that in certain case before the Court or in document of conveyance, seller refers his source of ownership as he has been in peaceful, absolute and exclusive possession as a lawful owner. The mischief is not in words but intention of the person who presents the document, when no corroborative document or the circumstance of legal efficacy is mentioned in support of such claim of ownership. The document is as good as no document which is destitute of legal effects. The process of appreciation of evidence shall not fall as prey to such documents.
7. The orders of the Courts cannot be made use for claiming the title without the enabling factors stated above. On the other hand, the title is to be proved before the Court. Thus, without establishing the valid possession by producing documents or the records issued by the comp
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etent authority, title or protection for possession cannot be assumed. The title may not be an integral part in a suit for permanent injunction. But it does not mean that the person can claim possession and permanent injunction only on the basis of his assertion and to use the decree in future as a source of title. Accordingly, the appeal is rejected.