1. Heard the learned counsel for the appellant and learned counsels for respondent Nos.1 and 2.

2. The parties are referred to as per their original rankings before the Trial Court, in order to avoid confusion and for the convenience of the Court.

3. The factual matrix of the case of the plaintiff before the Trial Court is that the suit schedule properties which are morefully described in the schedule i.e., Janjar Nos.341 and 342 each of them measuring 40 x 30 feet bounded as mentioned in the schedule which have been purchased through two sale deeds dated 14.01.2008 and from the date of purchase, the plaintiff is in peaceful possession and enjoyment of the suit schedule properties and khatha is also changed in his name and he is also paying tax. The defendants are not having any right and title over the suit schedule property, but one week back, they interfered with the possession of the plaintiff and the said act of interference was resisted and still proclaiming that they are going to interfere with the suit schedule properties. Hence, filed the suit for the relief of permanent injunction restraining the defendants or their men or agents from interfering into the suit schedule properties.

4. In pursuance of the suit summons, the defendant No.1 appeared and filed the written statement denying the averments made in the plaint, including the purchase of the suit schedule properties and also denied the interference. But, he contend that he has constructed a tobacco barn in the land bearing Sy.No.284/7 standing in his mother name and adjacent to Government school and Anganawadi Center at Kirnelly Village.

It is also contended that from time immemorial, he and his family are passing through the pathway nearby the said Government School and Anganawadi Center to reach their land and tobacco barn without interference. When fact being so, the plaintiff abruptly interfering into the pathway about 6 months back and covered and same putting barbed fence without any authority. The first defendant and some other public persons have complained about the illegal interference of the plaintiff in the said pathway before the Grama Panchayath office. After verification, the Grama Panchayath officials have directed to stop the illegal fencing put around the public pathway by the plaintiff. It is also contended that the plaintiff has no site properties within four corners mentioned in the plaint schedule and that the properties purchased by the plaintiff is without any verification and has been attempting to trace it within the pathway belong to the public at large. Neither the plaintiff nor his vendor were in possession of the site properties mentioned in the plaint schedule at any point of time and that the correct boundary is not furnished and the plaintiff is trying to make out a case without knowing the location of the properties purchased. Hence, prayed the Court to dismiss the suit.

5. The Trial Court, having considered the pleadings of the respective parties, framed the following issues:

“1. Whether the plaintiff proves that, as on the date of filing the suit he is in lawful possession and enjoyment of the suit schedule property

2. Whether the plaintiff further proves that, the alleged interference of defendants over the suit schedule property

3. Whether the plaintiff is entitled for permanent injunction as prayed

4. What order or decree”

6. The plaintiff, in order to prove his case, examined himself as P.W.1 and also examined a witness as P.W.2 and got marked the documents as Exs.P1 to P11. On the other hand, the defendant No.1 examined himself as D.W.1 and got marked the document as Ex.D1 by confronting the document to witness P.W.1.

7. The Trial Court, having considered both oral and documentary evidence placed on record, answered all the issues as ‘affirmative’, extracting the evidence of P.W.1, D.W.1 and also considering the documents which have been produced before the Court and comes to the conclusion that the plaintiff has established his possession, though identity of the property is disputed and property is identifiable and there is an interference by the defendant No.1. Hence, granted the relief of permanent injunction restraining the defendant No.1 from interfering with his possession.

8. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed by the defendant No.1 before the First Appellate Court in R.A.No.4/2018 and the First Appellate Court having considered the grounds urged in the appeal memo, formulated the following points for consideration:

“1. Whether the appellant had made out reasonable grounds for condonation of the delay in filing the appeal

2. Whether the 1st defendant proves that suit property is an unidentifiable property and the boundaries described are not correct

3. Whether the plaintiff proves that he is in exclusive possession and enjoyment of the suit properties as described in the plaint schedule”

4. Whether the plaintiff is entitled for the equitable relief of permanent injunction

5. Whether the impugned judgment and decree passed by the trial court is perverse, capricious, arbitrary, illegal and liable to be interfered in appeal

6. What order”

9. The First Appellate Court having re-assessed both oral and documentary evidence placed on record, comes to the conclusion that appellant had made out a ground that suit schedule properties are unidentifiable properties and the boundaries described are not correct and answered the said point as ‘affirmative’ and comes to the conclusion that plaintiff failed to prove that he is in exclusive possession and enjoyment of the suit schedule properties as described in the plaint schedule. Hence, he is not entitled for equitable relief of injunction and reversed the findings of the Trial Court by setting aside the judgment and decree of the Trial Court. Being aggrieved by the divergent finding of the First Appellate Court, the present second appeal is filed before this Court.

10. This Court having considered the grounds which have been urged in the second appeal, framed the following substantial question of law vide order dated 06.09.2021:

"a) Whether the First Appellate Court is justified in arriving at a conclusion that the plaintiff has failed to prove the lawful possession and enjoyment of the suit schedule property"

11. Learned counsel appearing for the appellant in his argument would vehemently contend that the Trial Court having considered both oral and documentary evidence placed on record, particularly Exs.P1 to P11 and also the evidence available on record, including the oral evidence of P.W.1 and D.W.1 rightly come to the conclusion that the plaintiff has proved that he is in lawful possession and enjoyment of the suit schedule property and property is also identifiable and rightly decreed the suit. Learned counsel would vehemently contend that sale deeds at Exs.P1 and P2 are the basis for claiming lawful possession and other documents at Exs.P3 to P11 also clearly disclose that the plaintiff is in lawful possession of the property, since the property is also assessed for tax and license is also obtained from the Grama Panchayath and photographs also clearly disclose the possession of the plaintiff.

12. Learned counsel for the appellant would further contend that in Paragraph No.20 of the judgment of the First Appellate Court, the First Appellate Court committed an error in coming to the conclusion that the plaintiff has not established the identity of the property. Learned counsel also would vehemently contend that in the appeal, the First Appellate Court has not considered the documents relied upon by the plaintiff. The Trial Court in Paragraph No.10 of the judgment, considered both oral as well as documentary evidence and rightly comes to the conclusion that the plaintiff has established his possession and reasoned order has been passed and the First Appellate Court committed an error in reversing the finding of the Trial Court.

13. Learned counsel for the appellant, in support of his argument, he relied upon the judgment in RAJEGOWDA AND OTHERS VS. M.K. KEMPEGOWDA delivered in R.S.A.NO.1345 OF 2014 dated 19.07.2016, wherein an observation is made that the pleadings, both oral and documentary evidence clearly indicate that suit filed is a simplicitor suit for bare injunction and suit filed by the plaintiff for permanent injunction without seeking declaration is maintainable. The counsel relying upon this judgment would contend that when the plaintiff has established his possession by producing the documents, particularly the documents at Exs.P1 to P6 which are material to the case on hand, the Trial Court committed an error in granting the relief of permanent injunction and the First Appellate Court rightly reassessed the material available on record and allowed the appeal and set aside the judgment of the Trial Court granting the relief of permanent injunction.

14. Learned counsels for the respondent Nos.1 and 2 in their arguments would vehemently contend that when the suit is filed for the relief of permanent injunction, the plaintiff has to establish his possession. Apart from that the description of the property is also important while granting the relief of permanent injunction. When the property has not been properly described, the same has been noticed by the First Appellate Court and rightly comes to the conclusion that the case of the plaintiff has not been established with regard to the boundary is concerned. Learned counsel would vehemently contend that P.W.1 admits existence of Anganawadi on the west of the suit schedule property, but it is not in existence on the site of Jayamma as described in the schedule of the sale deeds at Exs.P1 and P2 and this Court cannot find fault with the finding of the First Appellate Court.

15. In reply to the arguments of the learned counsels for the respondent Nos.1 and 2, learned counsel for the appellant would vehemently contend that when the plaintiff disputes the suit schedule, but he categorically admitted in his evidence that he is not aware of as to for how many properties the he has shown the schedule while filing the suit and also he does not know the extent and boundaries to which he has filed the suit and inspite of this admission, the First Appellate Court committed an error in coming to an other conclusion. Hence, it requires interference.

16. Having heard the learned counsel for the appellant, learned counsels for respondent Nos.1 and 2 and also the judgment of this Court and keeping in view the grounds urged in the appeal and oral submissions of learned counsel for the appellant and learned counsels for respondent Nos.1 and 2, this Court has to consider the substantial question of law framed by this Court whether the First Appellate Court is justified in arriving at a conclusion that the plaintiff has failed to prove the lawful possession and enjoyment of the suit schedule property.

17. Having perused the material available on record and the divergent finding and reasoning assigned by the First Appellate Court, particularly in Paragraph Nos.19 and 20 of the judgment, this Court has to analyze whether the finding of the First Appellate Court is erroneous in reversing the finding of the Trial Court. The reasoning given by the First Appellate Court is that the plaintiff has to prove by way of cogent and satisfactory evidence the exact location where suit properties situated. It is also not in dispute that suit is filed in respect of two vacant sites having Janjar Nos.341 and 342 situated adjacent to each other. No doubt, in respect of property bearing Janjar No.341, the measurement of the property is 40 x 30 feet, on the west, it is mentioned as item No.1 of the property and in respect of property bearing Janjar No.342, on the west, it is shown as site of Jayamma. Hence, it is clear that only on the west, in respect of property bearing Janjar No.342, it is shown as site of Jayamma and the same is not in respect of both the sites. There is no dispute with regard to the fact that the boundaries described in the sale deeds at Exs.P1 and P2 are one and the same that has been narrated in the plaint schedule and an observation is made by the First Appellate Court that no document is produced by the plaintiff to substantiate the boundaries described to the suit item No.1 property as mentioned in the sale deed. When the very sale deed describes the boundaries, no other document can be produced to substantiate the claim of the plaintiff. When the plaintiff relies upon Ex.P5 i.e., license issued by the Grama Panchayath, the First Appellate Court comes to the conclusion that the license cannot act as a document evidencing the exact location of the suit property with relevant boundaries and an observation is made that authenticated documents which would speak to the exact location and boundaries of the property are the layout plan, hakku patra issued by the concerned Panchayath.

18. It is important to note that the suit item properties are granted in favour of the vendors of the plaintiff by the Grama Panchayath and vendors were given hakku patra and those documents are not produced and suit is not filed for the relief of declaration and the same is filed for the relief of permanent injunction and non-production of those documents will not defeat the right of the plaintiff. No doubt, P.W.1 in his cross-examination deposes that towards west of item No.2 of the property, there is suit item No.1 of the property and also deposes that there is an Anganawadi and school having compound on all the four sides and in between, there is a road and no dispute in respect of other boundaries, since in both the items of the properties southern boundary is shown as B.M. Road and towards north it is mentioned as Panchayath site and dispute is only with regard to the west is concerned, that too, particularly, in respect of vacant site bearing Janjar No.342.

19. It is also important to note that the very contention of the defendant No.1 in the written statement is that he has constructed a tobacco barn in the land bearing Sy.No.284/7 standing in his mother name and adjacent to Government school and Anganawadi Center at Kirnelly Village. It is also important to note that the plaintiff has not filed the suit in respect of Sy.No.284/7 and that is not the defence of the defendant No.1 also. But, the only contention is that his property is adjacent to the Government School and Anganawari Center at Kirnelly Village and the existence of Anganawadi is also not in dispute. No doubt, P.W.1 in the cross-examination admits that on the west of his property i.e., in respect of vacant site bearing Janjar No.342, Anganawadi is in existence, however it is shown as site of Jayamma in the sale deed as well as in the plaint. But, the fact that Anganawadi Center is in existence on the west of the vacant site bearing Janjar No.342 is not in dispute and the same is also admitted by the D.W.1 in his cross-examination, wherein he categorically admits that on the west of the vacant site bearing Janjar No.342, there is Anganawadi Center. However, his claim is that, his property is located adjacent to the Anganawadi Center. Further, he also admits that on the west of the Anganawadi Center, there is a road and defence in the written statement is that plaintiff is blocking the said road and question of blocking the said road does not arise, when there is Anganawadi Centre on the west of the vacant site bearing Janjar No.342 and thereafter, the said road is in existence.

20. D.W.1 also further admits that on the west of the said road, there is a school. Hence, it is clear that in between the school and said Anganawadi Centre, there is a road and this aspect has not been considered by the First Appellate Court, while considering the material on record and the First Appellate Court only comes to the conclusion that boundary has not been proved and description of the property has not been proved and no dispute with regard to the identity of the property is concerned and mere wrong description of the property bearing Janjar No.342 i.e., on the west there is a site of Jayamma, instead of showing the same as Anganawadi Center will not take away the case of the plaintiff. It is also admitted by the D.W.1 that on the west of the suit schedule vacant site bearing Janjar No.342, there is Anganawadi Center and though, he contend that suit schedule property is not in existence, but his evidence is clear that on the west of the suit schedule vacant site bearing Janjar No.342, there exists Anganawai Center which evidences the fact that suit schedule property is in existence and he admits the existence of suit schedule property though contend that there exists no suit land.

21. It is also important to note that when the question was put to him whether he knows the Anganawadi Assessment Register Number and Demand Register Number, he clearly says that he does not know anything about the same. It is relevant to note that in the first sentence of his cross-examination, he categorically admits that he cannot tell for how many items of property, the plaintiff has filed the suit. He also categorically admits that he does not know the Janjar number, its extent and even the boundaries. When he does not know for how many items of the property the suit is filed and also the boundaries as well as its extent and Janjar Number, he cannot dispute the very identity of the property and this admission has not been taken note by the First Appellate Court.

22. Having perused the judgment of the First Appellate Court, the First Appellate Court failed to take note of the defence of the defendant No.1 in the written statement. Even while discussing in Paragraph No.19 of the judgment, except mentioning that boundary is not supported by any documents, even failed to consider the admission on the part of D.W.1 and the First Appellate Court even not discussed the evidence of D.W.1 in the cross-examination, except magnifying the evidence of P.W.1 and arrived at a conclusion that P.W.1 categorically admits the fact that towards the west of his property, there is Anganawadi Kendra and the same is also disputed by the defendant No.1 in his evidence. He also categorically admits that on the west of the suit schedule property bearing Janjar No.342, there is Anganawadi Kendra and instead of mentioning the west as Anganawadi Kendra, mentioned the same as site of Jayamma and the same will not take away the case of the plaintiff and the very description of the property is clear in view of the admission on the part of P.W.1 as well as D.W.1 in the evidence that on the west, there is Anganawadi Kendra. Hence, the First Appellate Court committed an error in coming to the conclusion that the plaintiff failed to prove the fact that he is in exclusive possession and enjoyment of the suit schedule property as described in the plaint schedule and also erroneously proceeded that plaintiff is not entitled for equitable relief of permanent injunction by answering issue Nos.3 and 4. The First Appellate Court also arrived at a conclusion that the first defendant proved that the suit property is unidentifiable property and boundaries described are not correct is also an erroneous approach when D.W.1 has given categorical admission that on the west of the property bearing Janjar No.342, Anganawadi Kendra is in existence. It is also his case that, his property is adjacent to Anganawadi Kendra and not adjacent to the property bearing Janjar No.342 and his contention is very clear in the written statement also that there is a pathway near Government School which is being enjoyed since time immemorial by him and his family members to reach their tobacco barn. It is also his specific case that his property bearing Sy.No.284/7 is situated adjacent to Government School and Anganawadi at Kirnelly Village and also there is a clear admission by him that road is in existence in between the school and Anganawadi. Hence, it is clear that road is in existence in between the school and Anganawadi Kendra and the very contention that plaintiff tried to block the said pathway which leads to the property of the defendant No.1 cannot be accepted and this aspect has also not been considered by the First Appellate Court while appreciating the material on record.

23. Having considered the admission of D.W.1 that road is in existence on the west of Anganawadi Center and school is in existence on the west of the said road, it is clear that the defendant No.1 is interfering with the peaceful possession of the plaintiff which is morefully described in the schedule as well as the sale deed and mere wrong description of schedule of the property bearing Janjar No.342 that on the west Jayamma’s property is in existence, there cannot be denial to the true fact that towards the west of the property bearing Janjar No.342 there exists Anganawadi Center which is not in dispute and also as admitted by the D.W.1 and nothing is discussed with regard to the admission on the part of D.W.1 in the reasoning of the First Appellate Court and even the First Appellate Court failed to discuss the evidence of D.W.1. While appreciating and reassessing the evidence on record, the First Appellate Court has to consider the evidence of witnesses of both sides i.e., D.W.1 and P.W.1 and only one sided discussion was made considering the evidence of P.W.1 and failed to consider the material on record. The First Appellate Court has to assess both oral and documentary evidence placed on record, since the First Appellate Court is the final fact finding Court and both the question of fact and question of law has to be considered while re-appreciating the material on record and proceeded in an erroneous way only discussing the evidence of P.Ws.1 and 2. As rightly pointed by the learned counsel appearing for the appellant, documents have been produced by the plaintiff i.e., Exs.P1 to P7, particularly the sale deeds, Demand Register Extract, Assessment Register Extract. Apart from that, license is also given for the construction of the building in terms of Ex.P5 and tax paid receipts are also produced as Exs.P6 to P8 and these documents evidence the possession of the plaintiff and the First Appellate Court erroneously proceeded to answer point Nos.2 to 4 against the material on record and erroneously comes to the conclusion that property is not identifiable and the dispute is only with regard to the west of the property bearing Janjar No.342 and the same also not belongs to him and it is also his admission in the cross-examination that towards west of the property bearing Janjar No.342, Anganawadi Center is located and the First Appellate Court failed to take note of the fact that the plaintiff is in exclusive possession and enjoyment of the suit schedule property as described in the schedule and the Court has to take note of the evidence in toto.

24. The First Appellate Court while appreciating the evidence has to look into both oral and documentary evidence placed on record and the Trial Court while considering the case of the plaintiff in Paragraph No.10 discussed with regard to the pleadings as well as the documents which have been produced and also taken note of the evidence of P.W.1 and in Paragraph No.11, taken note of further evidence of plaintiff and also the defendant and extracted the admission on the part of D.W.1 inthe cross-examination that he does not know on which property did the plaintiff has filed the suit. He also admitted that, he does not know the Janjar number or its extent and even he is not aware of the schedule of the plaint. In paragraph No.11 of the judgment, it is also observed that, so taking into consideration of evidence of D.W.1, it clearly goes to show that, though he having no right over the schedule property, he is asserting a right, but admittedly no documents have been placed by the defendant No.1 to claim his right over the schedule property and also comes to the conclusion that the documents at Exs.P1 to P8 clearly goes to establish that the plaintiff is the absolute owner of the schedule property. Even with regard to the description of the property, discussed the same in Paragraph No.12 of the judgment extracting the evidence of P.W.1 and definite finding is given in Paragraph No.13 of the judgment and well reasoned order has been passed. But, the First Appellate Court, without considering both oral and documentary evidence placed on record, reversed the findings of the Trial Court without discussing the evidence of D.W.1, particularly the admission on his part. Hence, it requires interference at the hands of thisCourt and the First Appellate Court committed an error in reversing the findings of the Trial Court. Therefore, I answer the substantial question of law framed by the Court in ‘affirmative’.

25. In view of the discussion made above, I pass the following:

ORDER

(i) The regular second appeal is allowed.

(ii) The judgment and decree of the First Appellate Court passed in R.A.No.4/2018 dated 04.07.2018 on the file of Senior Civil Judge and JMFC, Periyapatna, is hereby set aside and the judgment and decree passed in O.S.No.10/2013 dated 04.10.2017 on the file of the Civil Judge and JMFC at Periyapatna is restored.