JUDGMENT : V. SRISHANANDA, J. 1. Heard Sri A. Anil Kumar Shetty, learned counsel for the appellant, Sri Sunil S Rao, learned counsel for respondent Nos.2 (a) to (h), 3 and 4, and Sri Nishanth A.V., learned for respondent No.5. 2. Unsuccessful plaintiff is the appellant challenging the judgment of dismissal of the suit in O.S.No.7028/1996. 3. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under. 4. Plaintiff filed a suit for permanent injunction in respect of the following property (hereinafter referred to as suit property) at the first instance and during the pendency, amended the plaint for mandatory injunction seeking a direction to demolish the structures in the following property (hereinafter referred to as ‘suit property’): “All the piece and parcel of a site measuring East-West L 190’+180’/2, North-South :120’+45’/2 in SY.No.86/1 of Hosakere Halli Village, Uttarahalli Hobli, Bangalore South Taluk and bounded on: East by : Road West by : Road North by : 150’ Ring Road South by : Road” 5. Plaintiff contended that the suit property was acquired by him by virtue of a decree in O.S.No.7493/1995 and he is the absolute owner. 6. It is contented that defendant No.5 - Smt. Sharada was the original owner of the suit property and she had executed a power of attorney in favour of Sri Gopalakrishna for sale of the said property. But, she failed to adhere to the terms of the decree passed in the said suit. Therefore, an execution case came to be filed. 7. It is further contented that defendant Nos.1 to 4 being the total strangers to the suit property, at the instance of defendant No.5, they started interfering with the suit property and they were about to construct the building in the suit property. 8. It is further contented that in and around the suit property, land is developed by constructing the houses, shopping complexes and therefore, the land value has increased and with that intention, there was an interference. 9. Plaintiff also contended that on 04.10.1990 the brother of the plaintiff was in prison in respect of a criminal case and at that juncture, defendants have interfered with the suit possession and they occupied the possession of the suit property. 10. Pursuant to the suit summons, defendant No.2 Ramakrishna and another defendant filed written statement and denied the plaint averments in toto. 11. 10. Pursuant to the suit summons, defendant No.2 Ramakrishna and another defendant filed written statement and denied the plaint averments in toto. 11. They further contended that Smt. Sharadamma was the owner of 4 acres 18 guntas of land. But in the year 1981, Special Deputy Commissioner, Urban Land Ceiling had taken possession of 17,009 square meters of the land which was exceeding the ceiling limit and decree obtained by the plaintiff against defendant No.5 is thus a fraudulent decree wherein the Government was not made as a party. Therefore, Smt.Sharadamma had no right to pass it on to the plaintiff and sought for dismissal of the suit. 12. However, defendant No.5 filed written statement admitting the contents of the plaint. 13. Learned Trial Judge raised the following necessary issues and additional issues: 14. After recording of the evidence of the parties, learned Trial Judge heard the arguments of the parties and dismissed the suit of the plaintiff inter alia holding that there is a dispute as to the signature by the plaintiff and Sharadamma and nobody has applied for handwriting expert with regard to the disputed signature especially on the power of attorney. 15. Trial Court also held that plaintiff failed to prove that plaintiff was in possession of the suit property as on the date of suit. On the contrary, there is enough and overwhelming material evidence placed on record to the effect that defendant No.4 and others have purchased the property and have constructed the building therein. 16. Being aggrieved by the same, the plaintiff has filed the present appeal on the following grounds: ? The Court below has committed a grave error in rejecting the suit without appreciating the material facts on record, which was available and the evidence adduced to substantiate the contention of the appellant. Thus, the order of the trial court is erroneous and contrary to the materials available on record. ? The findings of the court below with respect to issue No.1, that the witness of the plaintiff viz., A.C. Hanumanthappa- PW-2 has deposed to the effect that the ownership and possession of the plaintiff, and the plaintiff dispossessed by the defendant Nos. 1 to 4. This aspect has been totally lost sight by the Court below inspite of the production of the documents. Thus, the order passed by the court below is liable to be set aside by this Hon'ble Court. 1 to 4. This aspect has been totally lost sight by the Court below inspite of the production of the documents. Thus, the order passed by the court below is liable to be set aside by this Hon'ble Court. ? It is submitted that the specific case of the appellant, the suit filed for the relief of permanent injunction and subsequently sought for amendment of the plaint for the relief of mandatory injunction against the defendant/respondent Nos. 1 to 4. The appellant has produced the documents, before the Court below and marked as Ex.P.1 to P19. The Court below has failed to appreciate the documents produced before it and without considering the registered documents. Thus, the impugned judgment and decree came to be passed tantamount to miscarriage of justice. ? The appellant further submits that PW-1 has categorically deposed with regard to the ownership and possession over the suit schedule property and the Court below ought to have considered the deposition of PW-1 in respect of ownership and possession of the suit schedule property. ? It is the specific case of the appellant that Smt.Sharadamma has categorically stated that she has not executed General Power of Attorney in favour of Shankarappa and she has not sold the suit schedule property in favour of any person other than the appellant. She has further stated that the General Power of Attorney and all documents of respondents are fabricated documents in order to snatch a favourable orders from the Court below. ? The appellant further submits that the respondents' witness DW-2 has deposed in favour of the respondents 1 to 4 and he has also interested witness. The Court below has relied on the evidence/deposition of DW-2 with regard to possession of the property in question by the respondents No.1 to 4. The appreciation of evidence of DW-2 caused great injustice to the interest of the appellant. It is also contrary to the settled principles of law and the Court below has erred in come to the conclusion that the respondents 1 to 4 are in possession and enjoyment of the property. PW-1 voluntarily stated in the deposition that the respondents 1 to 4 have forcibly dispossessed the appellant and taken the possession of the suit schedule property during the pendency of the Civil Suit before the Trial Court. PW-1 voluntarily stated in the deposition that the respondents 1 to 4 have forcibly dispossessed the appellant and taken the possession of the suit schedule property during the pendency of the Civil Suit before the Trial Court. The Court below has lost the sight on the above said fact at the time of coming to the conclusion on Issue Nos. 1 and 2. ? The appellant further submits that the appellant has clearly stated about his title over the suit schedule property which has got the sale deed through Court judgment and decree passed in O.S.No.7493/1995. The Court below ought to have considered the judgment and decree passed by the City Civil Court in O.S.No.7493/1995. The Court below has lost sight in considering the said judgment and decree and wrongly arrived to the conclusion that the appellant has not proved his title over the suit schedule property. Thus, the Court below has committed grave error in decreeing the suit. ? The appellant submitted that the Court below ought not relied on the documents of the respondent Nos.1 to 4 which are exhibited Ex.D5 and D6, these documents have clearly stated fabricated documents as per the deposition of DW- 3. The respondent No.4 also has not examined before the Court below. In this regard the in court below has considered the materials produced by the respondent Nos. 1 to 4 and dismissed the suit of the appellant which is contrary to law and the same is liable to be set aside. ? It is respectfully submitted that when the DW-3 has categorically stated that she has not executed any documents in respect of respondent Nos.1 to 4, the Court below ought to have taken note of the evidence of DW-3. The Court below has failed to appreciate these material facts in its true perspective. Thus, the order of the Court below is unsustainable in the eye of law. ? The Court below has not considered the documents available on record produced by the appellant in its true perspective and passed the order against the appellant. Thus, the order of the court below tantamount to mis-carriage of justice and the impugned judgment and decree is liable to be set aside by the hands of this Hon'ble Court. ? View from any angle, the impugned order passed in O.S.No.7028/1996 on the file of the 17th Addl. Thus, the order of the court below tantamount to mis-carriage of justice and the impugned judgment and decree is liable to be set aside by the hands of this Hon'ble Court. ? View from any angle, the impugned order passed in O.S.No.7028/1996 on the file of the 17th Addl. City Civil & Sessions Judge, Bangalore dated 26th August 2009 is arbitrary, capricious, laconic, contrary to law and vitiated and liable to be interfere by ends of this Hon'ble Court” 17. Sri Anil Kumar Shetty, learned counsel for the plaintiff/appellant reiterating the grounds urged in the appeal memorandum vehemently contented that the Court decree cannot be assailed by the defendants and pursuant to the Court decree, when the plaintiff is owner of the suit property, there was no cloud on the title of the plaintiff. 18. Therefore, plaintiff was well within his powers to maintain the suit for permanent injunction at the first instance and when the possession has been taken by the defendants illegally, plaintiff is entitled for the relief of mandatory injunction. 19. He also argued that learned trial Judge failed to appreciate the said aspect of the matter and wrongly dismissed the suit of the plaintiff resulting in miscarriage of justice and thus sought for allowing the appeal. 20. Alternatively, Sri Anil Kumar Shetty, learned counsel for the appellant would contend that in the event this Court not accepting the contentions of the appellant, appellant be reserved the right to file a comprehensive suit in accordance with law. 21. Per contra, Sri Sunil S. Rao, learned counsel for respondent Nos.2 (a) to (h), 3 and 4 and Sri Nishant A.V., learned counsel for respondent No.5 would support the impugned judgment. 22. Sri Sunil S. Rao would contend that the fact of 17,009 square meters of the land taken away by the Government was suppressed in the suit in O.S.No.7493/1995. Therefore, the question of plaintiff having possession over the suit property of which Smt. Shardamma was the owner cannot be countenanced in law and thus sought for dismissal of the appeal. 23. Having heard the arguments of both sides this Court perused the material on record meticulously. 24. On such perusal of the material on record following points would arise for consideration: 1. 23. Having heard the arguments of both sides this Court perused the material on record meticulously. 24. On such perusal of the material on record following points would arise for consideration: 1. Whether the plaintiff establishes that he is the owner of the suit property by virtue of the judgment and decree passed in O.S.No.7493/1995 and the defendants interfered with the suit property and thus he is entitled for permanent injunction? 2. Whether the plaintiff further proves that during the pendency of suit, defendants have high handedly taken possession of the suit property and thus he is entitled for mandatory injunction? 3. Whether the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference? 4. What order? 25. In order to prove the case of the plaintiff, in the case on hand, plaintiff got examined himself as PW1 and one witness by name A.C. Hanumantappa is examined as P.W.2. 26. On behalf of the defendants, Sri Venkatesha, power of attorney holder of defendant No.4 is examined as D.W.1. 27. On behalf of plaintiffs, as many as 19 documents were placed on record, comprising of certified copy of the agreement, mutation register extract, paper publication, certified copy of Order in O.S.No.6520/1996, plaint copy in the said suit, certified copy of the order passed in O.S.No.7561/1995, interim order passed in the said suit, notice issued by the Registrar of Undervaluation, copy of First Information Report, complaint, certified copy of remand order, copy of the notice, registered post acknowledgement due postal covers and postal acknowledgment. 28. On behalf of the defendants, certified copy of general power of attorney executed by defendant No.5 in favour of D.W.1, certified copy of the agreement, certified copy of General Power of Attorney, copy of application, objection letter, license, certified copy of receipt, certified copy of orders in O.S.No.3259/1996, certified copy of plaint, certified copy of written statement, certified copy of order in O.S.No.7493/1995, certified copy of compromise petition, certified copy of order with sketch passed by Land Acquisition Officer are marked as Exs.D1 to D22. 29. On re-appreciation of the material evidence wherein plaintiff has reiterated the contents of the plaint and placed reliance on the aforesaid document, it would reveal that plaintiff is claiming the right in respect of the suit property based on the judgment and decree passed in O.S.No.7493/1995. 30. 29. On re-appreciation of the material evidence wherein plaintiff has reiterated the contents of the plaint and placed reliance on the aforesaid document, it would reveal that plaintiff is claiming the right in respect of the suit property based on the judgment and decree passed in O.S.No.7493/1995. 30. Admittedly as on the date of power of attorney of defendant No.5, conveying the property in favour of the plaintiff, power of attorney of it defendant No.5 is a signatory, there was no land possessed by defendant No.5 to the extent of 4 acres 18 guntas as in the Urban Land Ceiling Act proceedings Smt.Shardamma had lost 17,009 square meters of the land. Therefore, was there any remaining land and if so in the remaining land how many sites were formed and the suit site was in the remaining land or not is a matter that was not established by the plaintiff. 31. Defendants also claim right in respect of the suit property and material on record would indicate clearly that already houses have been constructed in the suit property. 32. Having regard to nature of suit, since the entire burden was on the plaintiff to establish that plaintiff was in possession of suit property there was an interference which ultimately resulted in construction of the houses, the only remedy that was available to the plaintiff was to seek for declaration that he is the owner of the suit site and possession thereof. 33. Written statement content itself makes it clear that the defendant claim that he is the owner of the property of which the plaintiff has laid the claim. 34. Sri Anil Kumar Shetty, learned counsel for the appellant however tried to impress upon the Court as a feeble attempt that there was a dispute as to the identity of the land. If it is so, then all the more it is necessary that the suit should have been for relief of declaration and possession or consequential reliefs. 35. Instead, when the plaint was amended, the plaintiff has sought for relief of mandatory injunction alone. 36. When there is a serious dispute as to the identity of the property as per the plaintiff himself and there was a cloud on the title of the plaintiff, plaintiff ought not to have amended the plaint for the relief of mandatory injunction, instead, should have prayed for declaration and consequential relief. 37. 36. When there is a serious dispute as to the identity of the property as per the plaintiff himself and there was a cloud on the title of the plaintiff, plaintiff ought not to have amended the plaint for the relief of mandatory injunction, instead, should have prayed for declaration and consequential relief. 37. At any rate, having regard to the scope of the suit, learned trial Judge noted that who is in possession of the property by analyzing the material evidence on record and recorded a categorical finding in paragraphs 45 and 46 of the impugned judgment (which is in vernacular language) and has specifically held that plaintiff is not in possession of the suit property. 38. Further, there is a dispute as to the title as the plaintiff claimed that he became the owner of the suit property by virtue of the judgment and decree passed in O.S.No.7493/1995. Admittedly, defendants are not party to the same. 39. Under such circumstances, stand of the defendant No.5 would assume greater importance in appreciating the title of the plaintiff. 40. For the reasons best known, the plaintiff did not summon defendant No.5 to depose in his favour, instead he has examined P.W.2 who is alleged Power of Attorney holder of Smt.Sharadamma. Signature of Smt.Sharadamma is disputed by the said power of attorney. 41. Thus, it was incumbent on the part of the plaintiff to at least refer the disputed signature for handwriting expert. Instead, the plaintiff banked upon the alleged deficiency in the title of the defendant. 42. Pertinently it is the plaintiff who has approached the Court for the relief of permanent injunction and mandatory injunction, was required to stand on his own legs instead of banking upon the alleged witness in the case of the defendants. 43. Therefore, the learned trial Judge holding that the plaintiff failed to prove possession over the suit property nor lost his possession during the pendency of the suit and therefore entitled for mandatory injunction is rightly dismissed. 44. Having said so, a feeble attempt made by Sri Anil Kumar Shetty, learned counsel for the appellant before this Court stating that liberty be reserved for filing a comprehensive suit. 45. Sri Sunil Rao and Sri Nishant, learned counsels for contesting respondents would oppose the same. 46. 44. Having said so, a feeble attempt made by Sri Anil Kumar Shetty, learned counsel for the appellant before this Court stating that liberty be reserved for filing a comprehensive suit. 45. Sri Sunil Rao and Sri Nishant, learned counsels for contesting respondents would oppose the same. 46. It is always the right of a party to seek necessary relief by approaching the Court of law and no liberty can be granted by any Court unless the Court is satisfied that the suit already filed by a party would fail on account of some technical reasons or suffering from formal defects. 47. In the case on hand, no such reasons are made out by the plaintiff. Nevertheless, if the plaintiff is willing to file a comprehensive suit, he is at liberty to do so. 48. Needless to emphasize that in such a suit, all the defenses available for the defendants including the ground of limitation would be urged in accordance with law and the Court which would be adjudicating the said suit will definitely take into consideration all the defenses in accordance with law. 49. With that observation, this Court is of the considered opinion that the plaintiff has failed to make out a case for grant of either permanent injunction or mandatory injunction. 50. Learned trial Judge has analyzed the material evidence properly and has passed the interim judgment by supplying cogent and convincing reasons. Accordingly, point Nos.1 to 3 are answered in the negative. 51. Regarding point No.5 : In view of finding of this Court on the aforesaid points, following order is passed: ORDER (i) Appeal is meritless and is hereby dismissed. (ii) No order as to costs.