JUDGMENT : V SRISHANANDA, J. The legal representatives of unsuccessful plaintiff are the appellants challenging the judgment and decree dated 12.10.2009 passed in O.S.No.4810/1989 by the Additional City Civil Judge, Bengaluru City. 2. Facts in the nutshell, which are utmost necessary for disposal of the present appeal are as under: i) In respect of immovable property bearing No.8, more fully described as hereunder (hereinafter referred to as the 'suit property'), a suit came to be filed for relief of permanent injunction at first instance. SCHEDULE Vacant site space measuring East to West 70 feet, North to South 48 feet forming part of property No.8 of Mathikere, Yeswanthapura Hobli, Bengaluru - 54, bounded on the: Direction Description East Road West Shamanna's property North Plaintiff's residential house South Road (A) Portion forming part of plaint Schedule Property on which the second defendant was raised construction to the property bearing a portion of Khatha No.8, situated at 3 rd Cross, Mathikere, Bengaluru, with asbestos sheet measuring East to West 20 feet, North to South 22-1/2 feet and bounded on the: Direction Description East Road West Plaintiff's property in which the 1st Defendant has raised the construction North Remaining portion of khatha No.8 in possession of the plaintiffs. South Remaining portion of khatha No.8 in possession of the plaintiffs. (B) Portion forming part of plaint Schedule Property on which the First defendant was raised construction to the property bearing a portion of Khatha No.8, situated at 3 rd Cross, Mathikere, Bengaluru, with R.C.C. roofed house measuring East to West 30-3/4 feet, North to South 23-1/4 feet and bounded on the: Direction Description East Plaintiff's property in which the 1st Defendant has raised the construction West Remaining portion of khatha No.8 in possession of the plaintiffs North Remaining portion of khatha No.8 in possession of the plaintiffs South Remaining portion of khatha No.8 in possession of the plaintiffs ii) It is claimed that the suit property belonged to the appellants' maternal grandfather namely Gunda Jetty alias Appajappa. After the death of Gunda Jetty, mother of the appellants' namely, Seethamma alias Savithramma got the property by way of succession. Suit property got included in the corporation limits and thereafter, corporation authorities holding necessary enquiry, mutated the name of Savithramma in their records and khatha certificate was issued. Savithramma started paying taxes after the property was assessed by the corporation authorities. Suit property got included in the corporation limits and thereafter, corporation authorities holding necessary enquiry, mutated the name of Savithramma in their records and khatha certificate was issued. Savithramma started paying taxes after the property was assessed by the corporation authorities. Savithramma said to have died on 21.07.1989 and prior to that she had executed a Will on 21.05.1989 in respect of properties possessed by her including the suit property. iii) Based on the bequeath, the appellant and his brother Muniya Jetty succeeded to the property and thereafter, they were in continuous possession of the suit property, which also forms a front-yard. iv) It is further contended in the plaint, defendants without there being any right, title or interest, attempted to trespass on the suit property on 28.08.1989 and tried to damage the suit property. As such, initially suit was filed with a prayer for permanent injunction. According to the plaintiffs, during the pendency of the suit, the defendants encroached upon the suit property and raised construction. Therefore, plaintiffs sought for relief of demolition of the construction made by defendant Nos.1 and 2 on the suit property by amending the plaint for prayer for mandatory injunction. v) Pursuant to the suit summons, defendant No.1 appeared before the Court and filed written statement by denying the plaint allegations in toto. According to the defendants, Gunda Jetty alias Dodda Appajappa is the father of one B.Venkatappa, popularly known as Contractor Venkatappa. Property No.8, in which the plaintiff is said to have been stated plaintiffs are claiming to be the owners of the property has no nexus whatsoever with the vacant site appurtenant to the property bearing No.8. vi) It is also contended that two portions, in which, the plaintiffs stated to be living do not belong to the plaintiffs but it was only the property of Contractor Venkatappa who had allowed the plaintiffs to stay on permissive possession as they were his brothers-in-law. vii) It is further contended that suit properties and the adjoining properties was earlier portion of khayam guttha in the village of Mathikere. Those properties originally belong to Gunda Jetty alias Dodda Appajappa and when Dodda Appajappa was acting as Kartha of the entire family, the records stood in his name and consequent upon the Mathikere village coming within the limits of Corporation of the City of Bengaluru, the properties were given number as 7 of Mathikere village. Those properties originally belong to Gunda Jetty alias Dodda Appajappa and when Dodda Appajappa was acting as Kartha of the entire family, the records stood in his name and consequent upon the Mathikere village coming within the limits of Corporation of the City of Bengaluru, the properties were given number as 7 of Mathikere village. viii) It is also contended that by way of registered partition dated 30.11.1953, the members of the joint family brought about the partition of the joint family properties by metes and bounds and first defendant being the son of Muniyappa who was one of the parties to the partition, got the item No.3 in the Partition Deed, which is allotted to the father of the first defendant and suit property is the portion of the property that has fallen to the share of the said Muniyappa and therefore, suit of the plaintiffs is per-se not maintainable. ix) Defendant Nos.2 and 3 filed separate written statement denying the material allegations in the plaint. x) They further contended that the suit is not maintainable as suit properties were purchased by B.Venkatappa, who permitted the plaintiffs to stay in the portions of the house bearing No.8. Plaintiffs are also staying the suit property with limited rights. Therefore, they cannot claim absolute ownership over the suit property. xi) It is also contended that one Krishna Jetty, Son of B.Venkatappa has filed a suit in O.S.No.5111/1988 and the present suit as claimed by the plaintiffs for permanent injunction and mandatory injunction is not maintainable. xii) Based on the rival contentions of the parties, the learned Trial Judge raised the following issues and additional issues: "1. Whether the Plaintiff proves that Savitramma had title to the property to execute the Will? 2. Whether the Plaintiff proves that they are in lawful possession of the property? 3. Whether Defendant No.2 proves that she has acquired title under a gift? 4. Whether the Defendant No.2 and 3 prove that Plaintiffs are in permissive possession with permission of B. Venkatappa? 5. Whether the Plaintiff prove that the Defendants tried to dispossess them? 6. Whether the Defendants 2 and 3 prove that they have acquired title by adverse possession? 7. What order or Decree? Issue No.1, 3, 4, 6 ordered to be deleted as per order dated 20.08.1996 and following additional issues were framed: Additional issues: 1. 5. Whether the Plaintiff prove that the Defendants tried to dispossess them? 6. Whether the Defendants 2 and 3 prove that they have acquired title by adverse possession? 7. What order or Decree? Issue No.1, 3, 4, 6 ordered to be deleted as per order dated 20.08.1996 and following additional issues were framed: Additional issues: 1. Do Plaintiffs prove that the Defendants 1 and 2 have put up new construction recently on a portion of 'A' and 'B' schedule property? 2. Do Plaintiffs prove that they are entitled to mandatory injunction directing the Defendants to demolish the building put up on 'A' and 'B' schedule property? 3. To what relief? xiii) In order to prove the case of the plaintiffs, Muniya Jetty, one of the legal representatives of Nanjunda Jetty got examined as PW-1 and Sri.Sampathkumar, Son of Ranganath Murthy was examined as PW-2 and Sri.M.Anjanappa, Son of late Mayanna was examined as PW-3. On behalf of plaintiffs, as many as 48 documents were placed on record, which were executed and marked as Exs.P1 to P18 comprising of tax-paid receipts, show- cause notices, khatha certificate, endorsement from Corporation, notice issued by the Corporation, death ceremony invitation card, Encumbrance Certificate, Assessment Register Extract, certified copy of the Partition Deed, certified copies of Judgments in the earlier suits, tax-paid receipts, show-cause notice, assessment extract, copy of the complaint, acknowledgements, photographs. xiv) As against the evidence placed on record by the plaintiffs, on behalf of defendants, Smt.Venkatamma, Wife of Narasimharaju, Sri.M.Ramakrishnappa, Son of Thayappa @ Munivenkatappa, Sri.M.H.Shamanna, Son of Late Dodda Hanumanthappa and Sri.Balaram, Son of Hanuma Jetty were examined as DW Nos.1 to 4. xv) On behalf of defendants, Eight documentary evidence were placed on record, comprising of Power of Attorney, certified copy of the Partition Deed, typed copy of Ex.D2, Partition Deed dated 05.12.1977, Translated version of Ex.D3, Khatha Certificate, Tax-paid receipt, Ex.D6-sanction plan, Genealogy and certified copy of the Sale Deed. xvi) On conclusion of recording of the evidence, the learned Trial Judge heard the arguments of the parties and by impugned judgment, dismissed the suit of the plaintiffs. 3. Being aggrieved, the legal representatives of the plaintiffs have filed the present appeal on the following grounds: The Judgment and Decree of the Court below suffers from infirmity, illegality and the same requires modifications from the hands of this Hon'ble Court in all probabilities and circumstances of the case. 3. Being aggrieved, the legal representatives of the plaintiffs have filed the present appeal on the following grounds: The Judgment and Decree of the Court below suffers from infirmity, illegality and the same requires modifications from the hands of this Hon'ble Court in all probabilities and circumstances of the case. The Court below erred in not appreciating the evidence of the appellant which clearly establishes that the appellant's lawful possession and enjoyment of the suit property. The documents placed by the appellant has been completely ignored by the Trial Court while passing the impugned Judgment and Decree. The Court below has completely overlooked all the exhibits by holding that the same are of no help to the appellant The said finding of the Court below is perverse. When the very suit is filed for permanent injunction the Court below ought to have appreciated the exhibits marked by the appellant which clearly establishes with regard to the possession of the suit property. The Court below further erred in discarding the evidence of witnesses who have come before the Court and categorically stated that the suit property is in possession of the appellant. The Trial Court further erred in discarding the Will marked as Ex.P32 solely or the ground that identification and thumb impression of Seethamma has been marked. The Court below failed to notice that the witness has come before the Court in order to depose with regard to possession of the suit property. The said aspect ought to have been appreciated by the Court below and ought not to have discarded the evidence of witnesses while balancing the case of the appellant. The Court below further erred in misinterpreting Ex.33. The Trial Court further failed to appreciate the evidence of the defendants /respondents who themselves have admitted the case of the appellant. When the respondents have admitted the case of the appellant nothing remains for the appellant to prove. The respondents have categorically admitted the possession of the suit property, the Trial Court erred in not granting decree for permanent injunction. The Court below further erred in holding that there is no pleading with regard to the existence of neem tree in the property. In fact, the suit was filed in the year 1989. During the pendency of the suit, neem tree was planted. The Court below further erred in holding that there is no pleading with regard to the existence of neem tree in the property. In fact, the suit was filed in the year 1989. During the pendency of the suit, neem tree was planted. The documents and evidence have been appreciated by the Trial Court after a gap of 20 years from the date of filing of the suit. When such being the case, the question of pleading with regard to the existence of neem tree does not arise. The said fact has not been appreciated by the Court below while passing the impugned judgment. The Court below further failed to appreciate the evidence of the appellant that the suit property forms part of front yard of appellant's house. The respondents have not placed any materials to establish their alleged right in respect of the suit property. In the absence of material evidence the Court below ought not to have dismissed the suit. The Court below further erred in not granting decree for mandatory injunction when the appellant had established his lawful possession in respect of the suit property. The Court below failed to notice that the documents placed by the respondents are not in respect of the suit property. The alleged partition deed of 30.11.1953 is properly interpreted and boundaries have not been taken into consideration while answering the Issues. The Court below further erred in holding that the building constructed by the 1 st respondent is in accordance with the plan, without even noticing that whether the 1st respondent has got right over the suit property has not been verified. The Court below ought to have examined the alleged claim of the respondents in respect of the suit property while considering the issue relating to mandatory injunction. In the absence of any finding with regard to the title, the judgment and decree of the Court below suffers from infirmity and illegality. The Court below further erred in holding that the appellant has failed to prove possession of the suit property when ample materials have been placed in order to establish his possession of the suit property. 4. Shri.T.N.Vishwanath, learned counsel appearing for the appellants by reiterating the ground urged in the appeal memorandum contended that the learned Trial Judge wrongly dismissed the suit of the plaintiffs. 5. 4. Shri.T.N.Vishwanath, learned counsel appearing for the appellants by reiterating the ground urged in the appeal memorandum contended that the learned Trial Judge wrongly dismissed the suit of the plaintiffs. 5. He would further contend that the learned Trial Judge while recording the finding on Issue No.1 did not appreciate the title that has been traced by the plaintiffs to remain in the suit property and after the suit property has come within the limits of the Bengaluru City Corporation, new numbers were given based on the enquiry made by the authorities as to the possession of the persons who are in the respective portions of the property and therefore, the learned Trial Judge holding that the plaintiffs failed to prove possession of the suit property cannot be countenanced in law. 6. Shri.T.N.Vishwanath, would also invite the attention to the contents of written statement filed by defendant Nos.2 and 3 wherein they have specifically stated that the plaintiffs were allowed to remain in the permissive possession of the suit property and therefore, the learned Trial Judge holding that the plaintiffs are not in possession of the suit property cannot be countenanced in law and sought for allowing the appeal. 7. Lastly, Shri.T.N.Vishwanath, would contend that at any rate, since the plaintiffs are in possession of the property having Khatha No.8 and defendants are not having any right in respect of the property in Khatha No.8, the observations made by the learned Trial Judge in the judgment with regard to Khatha No.8 would act prejudicial to the interest of the legal representatives of plaintiffs. Therefore, the impugned judgment needs to be set aside and suit is to be decreed in so far as the property, which is having Khatha No.8 and sought for allowing the appeal. 8. Per contra, Shri.K.Raghavendra Rao, learned counsel representing Respondent No.1 would support the impugned judgment by contending that even as per the plaint averments, plaintiffs are not owners of the suit property. Based on the Will, the plaintiffs are claiming the suit property whereas the first defendant has claimed his right by way of the partition deed in respect of property bearing Khatha No.7. 9. Based on the Will, the plaintiffs are claiming the suit property whereas the first defendant has claimed his right by way of the partition deed in respect of property bearing Khatha No.7. 9. He would further contend that since the partition deed is not in dispute, the property that has been allotted to the first respondent under the partition deed cannot be the subject matter of the suit and there cannot be any claim for permanent injunction or mandatory injunction as is sought for by the plaintiffs and the same has been rightly appreciated by the learned Trial Judge in the impugned judgment while dismissing the suit of the plaintiffs and thus, sought for dismissal of the appeal. 10. Shri.Abhinay.Y.T., learned counsel representing Respondent No.2 would adopt the arguments put forward on behalf of Respondent No.1 and further submits that the claim of the plaintiffs in respect of the property possessed by Respondent No.2 has no nexus whatsoever with the suit property. 11. He would further contend that based on the partition, there was a sale deed in favour of the father of Respondent No.2 and which was gifted subsequently by virtue of Ex.D9 in respect of property bearing Khatha No.6 and thus, sought for dismissal of the appeal. 12. In view of the rival contentions of the parties, the following points arise for consideration: i) Whether the plaintiffs have made out a case that they are the absolute owners of the suit property in possession and thus, they are entitled for an order of mandatory injunction as is claimed in the amended plaint? ii) Whether the impugned judgment is suffering from legal infirmity or perversity? iii) What Order? 13. Regarding Point Nos.1 and 2 In the case on hand, as could be seen from the plaint averments itself, the suit property earlier belonged to Sri.Gunda Jetty. There is no dispute that there was a family partition. The family partition is also marked before the Court by the parties vide Ex.D3; translated version of Ex.D3 is marked as Ex.D3(a). 14. Admittedly, the suit property, earlier was a revenue land in Mathikere village. 15. When the suit property came within the limits of Bengaluru City Corporation, khatha was effected in respect of the portions of the property. 16. The family partition is also marked before the Court by the parties vide Ex.D3; translated version of Ex.D3 is marked as Ex.D3(a). 14. Admittedly, the suit property, earlier was a revenue land in Mathikere village. 15. When the suit property came within the limits of Bengaluru City Corporation, khatha was effected in respect of the portions of the property. 16. As per the partition deed dated 05.12.1977, the parties were in enjoyment of the properties and relevant declarations were also made before the revenue authorities and khatha came to be effected. As per the averments made in the plaint, the plaintiffs are claiming that they are in possession of the property, which is having Khatha No.8. Defendants are claiming in respect of Khatha Nos.6 and 7 of Mathikere. 17. Therefore, as is rightly contended on behalf of the respondents, there is no nexus established by the plaintiffs with regard to the properties of the defendants and they have constructed in respective portions. 18. The allegations made in the plaint with regard to the construction that has been carried out by the defendants when the suit was pending and whereby, the suit got amended is not established by the plaintiffs by placing cogent and convincing evidence on record. 19. The parties have filed photographs before the Trial Court as well as before this Court. 20. As there is a clear division of the properties in Ex.D3 and there is no dispute as to the partition deed by the parties, the respective portions of the property, which are in occupation of the defendants having separate Khatha numbers as 6' and 7', the legal representatives of the original plaintiff are unable to establish with cogent evidence that the defendant Nos.1 to 3 have encroached upon the property of the plaintiff and raised construction during the pendency of the suit. 21. As such, when the legal representatives of the plaintiff are unable to establish that it is the defendants who have interfered with the suit property, in the absence of prayer for declaration, the Trial Court dismissing the suit of the plaintiff, which was filed for permanent injunction at the first instance and later on, mandatory injunction, noting the fact that there was no construction in Khatha No.8 carried out by defendant Nos.1 to 3 is just and proper. 22. 22. However, while so recording a finding, few observations are made by the learned Trial Judge in respect of the property having Khatha No.8, which according to counsel for appellants would act prejudicial to the interest of the appellants. 23. Since the said observations were made by the learned Trial Judge while holding that the defendants have not constructed in Khatha No.8 of the suit property, observations per-se are not called for. 24. Nevertheless, since the issue was with regard to the encroachment, i.e., alleged to have been made in Khatha No.8 and defendants have taken a specific plea that their properties are in Khatha Nos.6 and 7 of Mathikere village, those observations may affect the right of the appellants in any future litigation. Therefore, it is made clear that whatever the observations made by the learned Trial Judge while deciding the issue involved in the present suit with regard to the suit property and the learned Trial Judge having recorded a finding that there was no encroachment on Khatha No.8 as the properties of defendants are having khatha Nos.6 and 7, such observation shall not affect the rights of the legal representatives of the plaintiffs in any manner in any future litigation. 25. With that observation, this Court is of the considered opinion that the plaintiffs have failed to establish that there was an interference by the defendants in the suit properties and there was no construction carried out in the suit properties, Point Nos.1 and 2 are answered in the 'Negative'. 26. Regarding Point No.3 In view of the findings of this Court on Point Nos.1 and 2 as above, the following: ORDER i) The appeal is meritless and is hereby dismissed. ii) No order as to costs. iii) In view of the disposal of the appeal on merits, pending interlocutory applications are consigned to records.