Judgment :-

R.V. Raveendran, J.

Appellants 1 to 6 and respondent No. 2 were plaintiffs (that is plaintiff Nos. 1, 3 to 7 and Plaintiff No.2 in O.S. No. 1831/1989 on the file of the Additional City Civil Court, Bangalore. Respondents 1 and 3 were defendants 1 and 2 in the said suit for declaration of title and possession in regard to an extent of 2 acres and 12 guntas of land in Survey No. 101/2 of Kodigehalli village, Bangalore North Taluk. For convenience the appellants and respondent No. 2 will together be referred to as plaintiffs, first respondent as ‘BEL and third respondent as ‘LAO.

2. The case of plaintiffs as per the plaint averments and evidence of plaintiffs is as follows:

2.1) Sy.No.101 of Kodigehalli measures 10 acres 29 guntas (of which 24 guntas was phut Karab). An extent of 5 acres 17 guntas in Sy.No.101, alongwith other lands were acquired for BEL on 25.2.1954. One Anjaneya Gowda who was the owner of the remaining extent of Sy.No.101, sold to V. Varadaraju, (father of the plaintiffs) an extent of 5 acres and 12 guntas of land in Survey No. 101 (bounded on the East by Railway line and Survey No.100, West by Survey No. 102, North by Survey No. 121 Hanumantha garden lane, and South by portion of Survey No. 101 acquired for and belonging to BEL) under a registered sale deed dated 1.12.1961. At the time of such purchase, the land sold was under requisition and therefore only symbolic possession was given to their father and not actual possession. After such purchase, the competent authority passed an order under section 6(2) of the Requisitioning and Acquisition of Immovable Property Act, 1952 (for short ‘Requisition Act) specifying Anjaneya Gowda as the person to whom possession of Sy.No.101 (5 A 12 G) should be delivered in pursuance of Central Governments decision to release the land from requisition with effect from 1.8.1962. Varadaraju accordingly accepted possession of the said land and his name was entered as the owner thereof in the revenue records -- index of land and record of rights. On 24.7.1965, Survey No. 101 was phodded and sub-divided into Sy.101/1 measuring 5 A 17 G belonging to BEL and 101/2 measuring 5 acres 12 guntas belonging to V.Vardaraju. On taking actual physical possession Vardaraju got the land measured and got boundary stones fixed by the Revenue Department and he was thus in peaceful possession and enjoyment of the entire 5 A and 12 G by putting up a fencing all around the land. When matter stood thus, on 4.12.1965, BEL which acquired a huge track of land including Survey No. 101/1 measuring 5 A 17 G, through its officials removed the fencing put up by V.Varadaraju and started enclosing a part of his land (on the southern side) by putting up a compound wall.

2) Varadaraju filed a suit for injunction in O.S. No. 700 of 1965. The said suit was dismissed by judgment dated 27.9.1977 holding that the said Varadaraju had failed to prove that he was in lawful possession of the suit property. In the course of the said judgment the learned Munsiff observed that Varadaraju having failed to prove his possession of the suit schedule property, he was not entitled to the relief of permanent injunction against the defendant BEL and that he may, if so advised, bring a separate action for re-establishing his title to 5 A 12 G and seek consequential relief of obtaining possession, to the suit land or any portion thereof, which is not in his possession. Thereafter the said Varadaraju died, and the plaintiffs as his legal heirs filed an appeal (R.A. No. 129 of 1977) against the dismissal of the injunction suit and the appeal was dismissed as being barred by limitation on 7.6.1983.

2.3) Though what was acquired by BEL was only 5 A 17 G in Survey No. 101 (subsequently assigned the sub number 101/1), it had in addition encroached upon 2 A 12 G out of 5 A 12 G in Sy.No.101/2 belonging to the plaintiffs, in 1965 by including it in their compound. They were therefore entitled to a declaration of title in regard t