JUDGMENT : 1. RSA Nos.3041/2006 and 3042/2006 are filed by the appellant/plaintiff aggrieved by the judgment and decree dated 19.08.2006 passed in R.A.Nos.39 and 35 of 2006 on the file of the Civil Judge (Sr.Dn.), Gangavathi (hereinafter referred to as ‘the first appellate Court’). 2. The said R.A.Nos.39 and 35 of 2006 were filed by the respondents herein against the judgment and decree dated 20.04.2006 passed by the Additional Civil Judge (Jr.Dn.) and JMFC, Gangavathi, (hereinafter referred to as ‘the trial Court’) by which the suit in O.S.No.117/2004 filed by the appellant/plaintiff was decreed and suit in O.S.No.130/2004 filed by the respondents herein was dismissed. By the impugned judgment and decree, the first appellate Court has dismissed the suit of the appellant/plaintiff in O.S.No.117/2004 and decreed the suit in O.S.No.130/2004 filed by the respondents herein. 3. Brief facts of the case are that; the suit in O.S.No.117/2004 filed by the appellant/plaintiff herein against the respondents for relief of permanent injunction restraining the respondents herein or their agents, their servants from interfering with the peaceful possession and enjoyment of the appellant/plaintiff over the suit schedule property including Northern compound wall, which is described as under: SCHEDULE: N.A. land consisting Rice and Oil Mill with open space out of Sy.No.152 measuring 4 acres 5 guntas being municipal No.3-2-186, situated at Gangavathi, bounded by: East : Rice mill of Bantia Industries and Swastik Industries, and land of plaintiff Sy.No.151/K West : Road North : Compound wall of plaintiff and then the land of defendant No.1. South : Kampli Road. 4. The suit in O.S.No.130/2004 is filed by the respondents herein against the appellant/plaintiff for relief of permanent injunction restraining the appellant/plaintiff from interfering in the peaceful possession and enjoyment of the plaint schedule property described in the said suit as under: SCHEDULE: M/s.Swastik Industries Rice Mill, Raichur Road, Gangavathi being municipal No.3-2-175/1 : : 3-2-114/1 being bounded by: East : Bhantia Rice Mill West : Raichur Gangavathi Main road North : Mahalakshmi Rice Mill and South : Bhantia Industries and Vijayalakshmi Rice Mill 5. Since the parties are same, subject matter of the suits and the issues involved therein are common, the trial Court clubbed both the suits and recorded common evidence and disposed of the suits by its common judgment and decree. Since the parties are same, subject matter of the suits and the issues involved therein are common, the trial Court clubbed both the suits and recorded common evidence and disposed of the suits by its common judgment and decree. Therefore, for the purpose of convenience, the appellants who are the plaintiffs in O.S.No.117/2004 and who are the defendants in O.S.No.130/2004 are referred to as the plaintiffs and the respondents who are the defendants in O.S.No.117/2004 and the plaintiffs in O.S.No.130/2004 are referred to as the defendants in the present appeals. 6. The case of the plaintiffs is that; originally the land bearing Sy.No.152/A was owned and possessed by one Smt.Renukavva wife of Urukundappa who in terms of deed of sale dated 08.01.1962 sold the same in favour of K.Veeranna and D.Krishnamraj. The said two persons equally divided the said property in which Southern half portion was allotted to K.Veeranna. K.Veeranna started rice mill business on his portion of land on a partnership consisting of himself and four other persons including the plaintiff under the name and style of M/s.Vijaya Laxmi Rice Mill on 12.12.1966. That the said partnership firm was reconstituted on 31.03.1977, in which one of the partners by name N.Ayyappa retired from the firm and the remaining partners continued. On 07.07.1978, the partnership firm was dissolved in terms of which, except the plaintiff herein, all other partners retired from the firm and the plaintiff remained and continued to conduct the business of the firm as proprietor thereof. Thus, the plaintiff has been in possession and has been carrying on the business of Vijaya Laxmi Rice Mill on the suit schedule property. All the revenue records have been changed in the name of the plaintiff and the plaintiff has been paying the tax thereof. That the defendant No.1, who is the father of defendant Nos.2 and 3 is carrying on the business of rice mill under the name of style of M/s.Swastik Industries Rice Mill, in the land situated towards Northern side of the suit schedule property. That the suit schedule property has been enclosed by a compound wall which had been constructed by the plaintiff’s Firm in the year 1966. That the suit schedule property has been enclosed by a compound wall which had been constructed by the plaintiff’s Firm in the year 1966. The defendants who are carrying on the Rice Mill business on the land situated towards Northern side of the suit schedule property, without having any right over the compound wall situated on the suit schedule property, with an intention to knock of the property of the plaintiff, attempted to demolish the said compound wall, constraining the plaintiff to file the suit. 7. The defendants in their written statement admitted the averments in the plaint with regard to the land in Sy.No.152/A originally belonging to Smt.Renukavva purchased by K.Veeranna and D.Krishnamraj but however denied the constitution of the Partnership Firm, dissolution of the same and the plaintiff becoming the absolute owner thereof. The defendants denied that the compound wall belong to the plaintiff. It is specifically contended that the compound wall was never constructed in the year 1966. That they have been running the business of rice mill under the name and style of M/s.Swastik Industries for the last 20 years on their land measuring 5 acres bearing Sy.No.151/A and the land in Sy.No.151/A/1 to the extent of 3 acres and these two strips combined together are renumbered as Sy.No.151/2. That they have constructed the rice mill along with the compound wall on the said property. The compound wall in dispute belongs to the defendants. That the said compound wall was in dilapidated condition which the defendants intended to renovate by obtaining permission from the Municipal Authority, Gangavathi on 25.09.2004 and were in the process of renovating the compound wall. Thus, they deny the allegation of demolition of the compound wall and also deny the claim and right of the plaintiff over the compound wall. Hence, sought for dismissal of the suit. 8. The averments of the plaintiff in O.S.No.130/2004 and the written statement are identical and similar to the one extracted herein above. Based on the pleadings, the trial Court framed the following issues: ISSUE IN O.S.NO.117/2004 1) Whether the plaintiff proves that he has been in possession and enjoyment of the suit schedule property including the Northern compound wall as on the date of the suit? 2) Further whether the plaintiff proves that the defendants has interfered with his peaceful possession and enjoyment of the suit schedule property? 2) Further whether the plaintiff proves that the defendants has interfered with his peaceful possession and enjoyment of the suit schedule property? 3) Whether the plaintiff proves that the defendant has demolished the Northern compound wall of the suit schedule property? 4) Whether the plaintiff is entitled to the reliefs claimed in the suit? 5) What order or decree? ISSUE IN O.S.NO.130/2004 1) Whether the plaintiffs prove that they are in lawful possession of the suit schedule property including the compound wall on the date of the suit? 2) Further, whether the plaintiffs prove that the defendants tried to interfere with their peaceful possession and enjoyment over the suit schedule property? 3) Whether the plaintiffs are entitled to the relief of permanent injunction against the defendants as claimed inn the suit? 4) Whether the suit is not maintainable in view of the provision of Partnership Act? 5) What order or decree? 9. The plaintiff examined himself as PW1 and one Giridhar Singh as PW2 and exhibited 17 documents as Exs.P1 to P17. The defendants examined himself as DW1 and also examined K.Veeranna and Yamanoorappa as DWs.2 and 3 and exhibited 16 documents as Exs.D1 to D16. The trial Court on appreciation of evidence decreed the suit of the plaintiff in O.S.No.117/2004 and dismissed the suit of the defendants in O.S.No.130/2004 by the judgment and decree dated 20.04.2006. Aggrieved by the same, the defendants filed regular appeal in R.A.Nos.39/2006 and 35/2006 respectively. The first appellate Court based on the grounds urged in the aforesaid regular appeal framed the following points for its consideration: POINTS IN R.A.NO.39/2006 1) Whether findings of the trial Court in O.S.No.117/2004 is correct? 2) Whether the findings of the learned single Judge in O.S.No.117/2004 calls for interference? 3) What order? POINTS IN R.A.NO.35/2006 1) Whether findings of the trial Court in O.S.No.130/2004 is correct? 2) Whether the findings of the learned single Judge in O.S.No.130/2004 calls for interference? 3) What order? 10. By the impugned judgment and decree dated 19.08.2006, the first appellate Court allowed the said appeals setting aside the judgment and decree of the trial Court and dismissed the suit in O.S.No.117/2004 of the plaintiff and decreed the suit in O.S.No.130/2004 of the defendants. Being aggrieved by the same, the plaintiffs are before this Court. 11. 3) What order? 10. By the impugned judgment and decree dated 19.08.2006, the first appellate Court allowed the said appeals setting aside the judgment and decree of the trial Court and dismissed the suit in O.S.No.117/2004 of the plaintiff and decreed the suit in O.S.No.130/2004 of the defendants. Being aggrieved by the same, the plaintiffs are before this Court. 11. This Court by order dated 28.10.2009 admitted the aforesaid appeals for considering the following substantial questions of law: a) Whether the Lower Appellate Court on the admitted evidence on record was justified in concluding that the plaintiff had not proved his title to the suit property and possession of the same? b) Whether the Lower Appellate Court is justified in concluding that the admissions made by a witness (DW.2) on behalf of the opposite party cannot be taken as an admission of the said property? c) Whether the Lower Appellate Court is justified in holding that the plaintiffs case regarding dissolution of the partnership firm of which he was a partner cannot be believed since the plaintiff has failed to produce the settlement of accounts between the parties? d) Whether the Lower Appellate Court is justified in reversing the decree for mandatory injunction granted by the Trial Court in favour of the plaintiff on a erroneous notion that the plaintiff had failed to given the measurements? 12. Sri.B.Sharanabasawa, learned counsel for the appellants reiterating the grounds urged in the memorandum of appeal submitted that the first appellate Court grossly erred in reversing the judgment and decree of the trial Court which had been passed taking note of the oral and documentary evidence more particularly Ex.P5- deed of dissolution of partnership, which has been admitted by DW2 and also admitted by defendant No.1 who is the signatory to the said document as a witness thereof. That the approach of the first appellate Court is erroneous as the suit is one for bare injunction in respect of compound wall, therefore, question of title would not arise. The first appellate Court erred in law in not taking into consideration the admission made by DW2 with regard to the Partnership Firm which was subsequently dissolved and the plaintiff carrying on the business as the exclusive owner of the firm and its entire property, on an erroneous premise that admission by defendant No.2, was not binding on them. Hence, sought for allowing of the appeals. Hence, sought for allowing of the appeals. 13. Learned counsel for the respondents on the other hand justifying the judgment and order passed by the first appellate Court submitted that the plaintiff has failed to establish independently the extent of compound wall and his ownership thereof. He submits that in between the property of the plaintiff and the defendants, there is property belonging to the one Bhantia and without making him party to the suit, the plaintiff could not have filed the suit only against the defendants. That if at all the plaintiff is aggrieved, the relief was only against Bhantia being the adjoining owner and not against the defendants whose property is situated thereafter. He submits that though the suit is one for injunction, the plaintiff had to prima facie establish its title and possession over the property without which he is not entitled for the relief, hence substantial questions of law needs to be answered in favour of the defendants by dismissing the appeals of the plaintiffs. 14. Heard the learned counsel for the parties. Perused the records. 15. From the pleadings and the schedules mentioned in both the plaints in O.S.Nos.117/2004 and 130/2004 and also on perusal of the reasoning of the trial Court and the first appellate Court and from the arguments advanced by the learned counsel for the parties, it is clear that the dispute is only in respect of the compound wall which is situated on the Northern side of the property being claimed by the plaintiff in O.S.No.117/2004 and on the Southern side of the property claimed by the defendants in O.S.No.130/2004. It is also clear that the issue is with regard to the demolition and reconstruction of the said compound wall. Therefore, there is no claim by either of the parties over any portion of the suit schedule property, other than the compound wall in the present lis. With this clarity in mind, the present appeal needs to be adjudication. 16. It is an admitted fact that after the purchase of the property from Smt.Renuakka under the deed of sale dated 08.01.1961, K.Veeranna and D.Krishnamraj had divided the same into two equal halves. The Southern half portion was allotted to the share of K.Veeranna in which, K.Veeranna started business of rice mill by constituting a partnership firm on and from 12.12.1966 in the name and style of M/s.Vijaya Laxmi Rice Mills. The Southern half portion was allotted to the share of K.Veeranna in which, K.Veeranna started business of rice mill by constituting a partnership firm on and from 12.12.1966 in the name and style of M/s.Vijaya Laxmi Rice Mills. The said factum of commencement of rice mill has not been disputed by the defendants. 17. Infact defendant No.1 who examined as DW1 in his deposition recorded on 16.02.2006 has admitted that the firm M/s.Vijaya Laxmi Rice Mills was established prior to the establishment of his partnership firm M/s.Swastik Industries. That the said M/s.Vijaya Laxmi Rice Mills is situated on the Southern side of the his property. That there is a compound wall on the Southern side of his property which goes towards South-West direction. He has admitted that land in Sy.No.152 is on the Southern side of the compound wall and his property is in Sy.No.151/A. He has also admitted that for any rice mill business a compound wall is a must. That the said M/s.Vijaya Laxmi Rice Mills was established 15 years prior to establishment of his firm. He admits that in the suit, the dispute is only with regard to compound wall as the parties are claiming their rights over the same. 18. From the aforesaid deposition, it is clear that DW1 is completely aware of the fact that M/s. Vijaya Laxmi Rice Mills was established 15 years prior to the establishing of M/s.Swastik Industries and that this probabalises existence of the compound wall without which admittedly, the business of rice mill could not have been carried on. 19. As rightly taken note of by the trial Court, Ex.P5 is the dissolution of firm by which all the partners of M/s.Vijaya Laxmi Rice Mills retired from the firm and the plaintiff continued the business. Defendant No.1-DW1 is one of the witnesses to the said document at Ex.P5. He has identified his signatures as witness to the said documents and the same are marked through him as Ex.P5(a) to P5(c). He has also deposed with regard to the nature of the document being the division of the property amongst the partners. Defendant No.1-DW1 is one of the witnesses to the said document at Ex.P5. He has identified his signatures as witness to the said documents and the same are marked through him as Ex.P5(a) to P5(c). He has also deposed with regard to the nature of the document being the division of the property amongst the partners. He has admitted that the plaintiff continued the business as per the said document and that in terms of the division made therein, the property and the business was allotted to the share of the plaintiff and that the plaintiff has been carrying on the business ever since the partition till date. He has further stated that M/s.Vijaya Laxmi Rice Mills has been in existence prior to 1980 and at least 15-20 years prior to his business. The aforesaid deposition of defendant No.1-DW1 further establishes the case of the plaintiff that defendant No.1 was completely aware of the business transaction, the division of property of partnership firm, the plaintiff continuing the business of rice mill. 20. Though K.Veeranna, the original owner of the plaint schedule property and erstwhile partners of the partnership firm has been examined as DW2 on behalf of defendants, in the cross examination, the said witness has admitted that the compound wall is existing since 20 years. Towards the Northern side of the said compound wall is the property of defendants. The business of M/s.Vijaya Laxmi Rice Mills was started in the year 1966 and that the business of defendants was started subsequently. He has also admitted that as per Ex.P5, all the partners except the plaintiff retired from the partnership firm. He has admitted that a suit had been filed in O.S.No.79/80 by the plaintiff against him and other partners of the erstwhile firm not to interfere with the suit schedule property in which the said witness K.Veeranna and others had undertaken not to interfere with the suit schedule property. He has also admitted against the judgment and order passed in the said suit a regular appeal in R.A.No.22/05 was filed and the same has been dismissed. The witness has identified the certified copy of the said order at Ex.P17. The said witness has stated that there is a dispute with regard to the property rights between him and the plaintiff and that he has not filed any suit. The witness has identified the certified copy of the said order at Ex.P17. The said witness has stated that there is a dispute with regard to the property rights between him and the plaintiff and that he has not filed any suit. From the tenor of the aforesaid deposition of DW2, it is clear that though he admits that the plaintiff being in possession and enjoyment of the suit schedule property in terms of Ex.P5 and there has been a prohibitory order against him and in favour of the plaintiff as per Ex.P17, the said witness has deliberately deposed that the compound wall was constructed by DW1. The evidence of DW2 would therefore come to the aid of the plaintiff than that of the defendants. 21. That the plaintiff has produced certified copy of the decree passed in O.S.No.79/80 as per Ex.P16 in terms of which the aforesaid K.Veeranna, K.Basanna, K.Ayyappa, N.Ayyappa, K.Gundappa have been restrained from interfering with the possession and enjoyment of the plaintiff over the suit schedule property and as noted above, the said judgment has been confirmed by the judgment passed in R.A.No.22/05 at Ex.P17. 22. Another aspect of the matter as per Ex.D12, the plan sanctioned by the Town Planning Authority, Gangavathi, it is seen that there is a drainage ‘NALA’ situated on the Southern side of the defendants’ property. As rightly appreciated by the trial Court, the property of the defendants ends at the drainage on its Southern side and the disputed compound wall, which is beyond the said drainage is situated at the Northern end of the property of the plaintiff. It cannot therefore be contended by the defendants that his property extends up to the compound wall including the drainage. 23. From the aforesaid facts and circumstances of the case and on the deposition of the parties, it is clear that the compound wall was in existence much prior to the incorporation and commencement of the business by the defendants which probabalises the case of the plaintiff regarding the compound wall having been constructed at the time of commencement of business of firm M/s. Vijaya Laxmi Rice Mill in the year 1966 which after its dissolution came to the share of plaintiff who is in possession and enjoyment of the same. 24. 24. The trial Court has taken note of these factual aspects of the matter and material evidence and deposition of parties, has rightly decreed the suit of the plaintiff. The first appellate Court however dismissed the suit of the plaintiff by holding that the plaintiff herein has not produced any document to show that there was construction of compound wall. Similar is the situation with the defendants who have also not produced the documents with regard to their claim over compound wall. In the absence of these documents, the trial Court had taken into consideration Ex.P5 and the deposition of DWs.1 and 2 with regard to the existence of compound wall and held preponderance of probability in favour of the plaintiff. The first appellate Court ought not to have reversed the said finding in the absence of any better evidence. The first appellate Court referring to the admission made by DW2 with regard to the existence of compound wall since 20 years, has observed that the admission of DW2 was not binding on the defendant. It is to be noticed that DW2 has been produced and examined by defendants. Any answer or evidence given by the said witness will have to be taken into consideration in determining the lis between the parties. That DW2 has stated that the disputed wall was in existence since 20 years which admission first appellate Court declines to accept. DW1 himself in his deposition as noted above has admitted regarding commencement of M/s.Vijaya Laxmi Rice Mills 10-15 years prior to the commencement of his business M/s.Swastik industries. Deposition of DW1 read in the light of the deposition of DW2 and in the context of execution of Ex.P5 to which DW1 is admittedly the signatory or a witness to the established factum of existence of compound wall, the first appellate Court has thus erred in not taking these aspects of the matter into consideration. 25. The only document produced by the defendants is purported permission obtained by the defendants for the purpose of renovation of the dilapidated compound wall on 25.09.2004, except this no other document is produced by the defendants to substantiate their claim over the compound wall. 26. 25. The only document produced by the defendants is purported permission obtained by the defendants for the purpose of renovation of the dilapidated compound wall on 25.09.2004, except this no other document is produced by the defendants to substantiate their claim over the compound wall. 26. The first appellate Court in paragraph 14 of the impugned judgment referring to judgment reported in AIR 1974 Rajasthan 144 wherein it is observed that when constructions were not proved, demolition of such impugned constructions should not be granted. Relying upon the same, the first appellate Court has held that since the plaintiff has not produced any document regarding construction of compound wall and also PW2 not knowing the area on which the oil mill and rice mill were constructed and also the length of the compound wall, has come to the conclusion that the trial Court should not have given relief of mandatory injunction. The said decision is dealt with in respect a dispute with regard to construction of a structure requiring demolition thereof. In the instant case, there is no dispute between the parties with regard to existence of compound wall. The only dispute as already noted above is whom does it belong to. Defendants have admitted that they were attempting to renovate the wall by obtaining permission from the municipal authorities as per Ex.D16. Since it has been brought on record that the said compound wall was in existence much prior to the commencement of business by the defendants, the issuance of mandatory injunction by the trial Court for restoration of the demolished Northern compound wall, cannot be found fault with. 27. For the aforesaid reasons and analysis, this Court is of the considered view that the first appellate Court was not justified in concluding that the plaintiff has not proved his title and possession to the suit schedule property and was not justified in concluding the admission made by DW2 could not be taken as admission of the party. The finding of the first appellate Court regarding not considering the case of the plaintiff for want of records regarding dissolution of partnership firm was unwarranted. 28. In the circumstance, the judgment and decree passed by the trial Court is justified and requires to be confirmed. The substantial questions of law are thus answered accordingly in favour of the plaintiff. 29. 28. In the circumstance, the judgment and decree passed by the trial Court is justified and requires to be confirmed. The substantial questions of law are thus answered accordingly in favour of the plaintiff. 29. In the result, appeals are allowed and the judgment & order dated 19.08.2006 passed in R.A.Nos.39 and 35 of 2006 by the Civil Judge (Sr.Dn.), Gangavathi is set aside. The judgment and decree dated 20.04.2006 passed in O.S.Nos.117 and 130 of 2004 on the file of the Additional Civil Judge (Jr.Dn.) and JMFC, Gangavathi is confirmed.