ANAND BYRAREDDY, J. - (1.)HEARD the learned Counsel for the appellant and the learned counsel for the respondent. The appellant was a civil contractor, who was engaged by the owner of the property to construct a house. It is the allegation that when the owner of the property was away, the defendants had set fire to the works, which were on. The wood work had caught fire, causing a loss to the extent of Rs. 25,000/ -. It is in apprehension of further damage and interference, that a suit was filed for injunction against the defendants.
(2.)THE defendants had resisted the suit and claimed that firstly, there was do right available to the plaintiff, in that, the plaintiff was not the owner of the property and he claimed to be a contractor. Secondly, even the owner could not have claimed title to the property as there was no authority granted to the power of attorney holder, through whom she had purchased the suit property. It was also stated that there was a suit for partition filed, which was decreed and that the power of attorney holder, Narasappa, who had executed the sale deed in favour of the owner of the property, which is the subject matter of the suit, had been arraigned as defendant no. 8 in the partition suit and the claim of Narasappa that he was the authorised agent for the defendants herein was negatived by the trial court and the proceedings are pending in Final Decree Proceedings at present and therefore, claimed that the ownership was also vehemently challenged. The court below however, proceeding on the footing that the suit was filed by the contractor and not the owner of the property and evidence was tendered by the husband of the owner of the property, who was again not competent to tender evidence on behalf of his wife, has proceeded to dismiss the suit for injunction.
It is contended by the learned Counsel for the respondents that the plaintiff had failed to establish his case in the face of the circumstance that the agent, through whom the owner had claimed to have purchased the property, was not competent to execute the sale deed and it is joint family property, which is the subject matter of the partition suit and since the suit is still pending in Final Decree Proceedings, no right could have accrued in favour of the owner and therefore, the title deeds being in serious dispute, the plaintiff ought to have been relegated to a comprehensive suit and in any event, the dismissal is justified and would submit that there is no warrant for interference by this court.

(3.)HOWEVER , a cardinal error appears to have been committed by the trial court in holding that the husband of the owner of the property was not competent to tender evidence in a civil suit. Section 120 of the Indian Evidence Act, 1872 reads as under: - 120. Parties to civil suit, and their wives or husbands, Husband or wife of person under criminal trial. In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness. Therefore, there was an error committed by the trial court in negating the evidence of the husband of the alleged owner of the property on whose behalf the suit was brought. It was the plaintiffs categorical statement that it was PW. 1, the husband of the owner of the property, who was supervising the day -to -day construction work that was on, and since he was away as on the date of the incident, which gave rise to the cause of action, that the suit had been filed by the contractor. Hence, the premise on which the trial court has acted to negate the evidence tendered in support of the suit, cannot be sustained. Therefore, the matter requires to be remitted to the trial court for a fresh consideration with reference to the evidence that is available of PW. 1. The same could not have been negated. Accordingly, the judgment of the trial court is set aside and the matter is remitted to the trial court for a fresh consideration from the stage of the final arguments. The parties shall address the court with reference to the material on record and the court shall decide in accordance with law. The contentions of both the parties are left open.