( 1 ) THIS second appeal is preferred against the Judgment and decree dated 14-2-1978 passed in R. A, No. 166/1973 by the learned Additional Civil Judge, Hubli, partly modifying the Judgment and decree dated 27-10-1973 passed by the III Additional munsiff, Hubli, in O. S. No. 412/1970.

( 2 ) THIS second appeal is referred to a Division Bench on the ground that there is aconflict between the two decisions of this Court in Hanumanthappa Kallappa v veerappa Budrappa, 1976 (2) Kar. L. J. 281 and Patel Doddakempegowda v chikkeregowda, ILR 1986 Karnataka 2404.

( 3 ) THE appellant is the defendant. Respondent is the plaintiff. The suit is filed fora declaration that the plaintiff is the owner of the suit site described as B C E in the rough sketch annexed to the plaint and for possession of the same and also for a mandatory injunction directing the defendant to demolish the temporary structure put up on the suit with future mesne profits from the date of suit till the date of delivery of possession.

( 4 ) IT is the case of the respondent-plaintiff that he is the owner of Plot No. 12 and the defendant is the owner of Plot No. 13 comprised in CTS 3789 of Vidhyanagar, hubli; that the defendant has encroached upon Plot No. 12 belonging to the plaintiff; that the encroached portion is the suit property and it forms part of Plot No. 12 and as such he has sought for a declaration of his title to and for possession of the suit site described as B C E in the rough sketch annexed to the plaint. 4. The defendant in his written statement does not deny that the plaintiff is the owner of Plot No. 12. It may be mentioned that Plot Nos. 12 and 13 adjoin each other. However, it is contended by the defendant that the plaintiff is not the owner of the suit site. It is also the case of the defendant that he has become the owner of the suit site by adverse possession. 4. 1. On the basis of the pleadings of the parties, the trial Court framed the following issues: 1) Whether the plaintiff proves that the defendant encroached upon the portion marked EEC in the sketch enclosed to the plaint? 2) Whether the suit in the present form is maintainable? 3) Whether the suit is barred by time? 4) Whether the plaintiff is entitled to the declaration as prayed for? 5) Whether the plaintiff is entitled to a mandatory injunction as prayed for? 6) Whether the defendant is entitled to compensatory costs? 7) To what decree or order? the trial Court answered issue Nos. 1, 2, 4 and 5 in the affirmative and issues 3 and 6 in the negative. Accordingly, the trial Court decreed the suit of the plaintiff in the following terms :-"in the result, the suit is decreed with costs, declaring that plaintiff is the owner of the suit site described as BCE in the rough sketch annexed to the plaint with a slight modification in the extent i. e. 13 feet instead of 15 feet and the defendant is hereby directed to demolish the temporary structure on the encroached area of 13 feet forthwith. The defendant is further directed to hand over vacant possession of the encroached portion to the plaintiff after demolishing the structure thereon. I further direct that an inquiry be held as to the mesne profits from the date of the suit till the date of delivery of possession under order 20, Rule 12 (c) of C. P. C. "

( 5 ) AGGRIEVED by the Judgment and decree of the trial Court, the defendant wentup in appeal in R. A. No. 166/1973. The appeal was heard and decided by the learned additional Civil Judge. Before the appellate Court, additional evidence was also produced. The lower appellate Court raised the following points for determination:1) Whether it is necessary to allow the appellant to adduce additional evidence as sought in I. A. II? 2) Whether respondent has established the alleged encroachment on his Plot no. 12 C. T. S. No. 3789? 3) Whether the suit as brought is not maintainable? 4) What order?points 1 and 2 were answered in the affirmative. On Point No. 3, it was held that the s