Subhash B. Adi, J : This appeal is by the legal representatives of defendant No.1 and defendant No.2 against the Judgment in O.S. No. 1401/1980 date 9.9.2005 on the file of the XXIV Additional City Civil Judge, Bangalore city.

2. Parties are referred as per their ranking in the Trial Court.

3. The suit is one for declaration of title over the suit schedule 'c' property and for mandatory injunction directing the defendants to remove unauthorised construction on suit schedule 'c' property and for possession of the same with mesne profits and costs.

4. The case of the plaintiff is that, property bearing No. 109 (Old No.145) shown as ABCDEF in rough sketch produced alongwith the plaint and described as 'A' schedule property measuring 35 feet East-West and 44 feet North-South consisting of 6 Ankanas mud roof structure and vacant land, belonged to the plaintiffs great grand father Lakshmaiah. The said Lakshmaiah had two daughters viz., Yellamma and Muniramakka. After the death of Lakshmaiah, his daughters got divided the said property. 'A' schedule property fell to the share of Muniramakka and the house lying to its south fell to Yellamma's share. Muniramakka had a son by name Gali Hanumappa and a daughter by name Hanumakka. Yellamma had two sons viz., Sadappa and Krishnappa. After death of Muniramakka, her children Gali Hanumappa and Hanumakka inherited her properties and have been in possession of 'A' schedule property. Gali Hanumappa and borrowed money from Yellamma's sons viz., Sadappa and Krishnappa under simple mortgage deed dated 16.2.1920. The said Sadappa and Krishnappa filed O.S. No. 41/1940-41 on the file of II Munsiff, Bangalore for recovery of mortgage money and the said suit came to be decreed on 15.11.1941. The decretal amount was paid by Gali Hanumappa to defendants' father Sadappa and his brother Krishnappa. Muniramakka wanted to gift the 'A' schedule property to her daughter Hanumakka, but Muniramakka died before making the gift. However Gali Hanumappa executed registered gift deed dated 16.8.1954 in respect of 'A' schedule property. Hanumakka who was enjoying the said property as absolute owner by virtue of the said gift deed, sold the property in favour of one Gurumurthy Reddy under a registered sale deed with condition of repurchase. Subsequently, she re-purchased the said property from Gurumurthy Reddy under registered sale deed dated 26.5.1960. Defendant's father Sadappa filed O.S. No. 604/68 against plaintiffs mother Hanumakka for declaration of title, possession and damages in respect of the above property. After contest, the said suit came to be dismissed. Against which, an appeal was filed in R.A. No. 73/1971 and the same was also dismissed on 8.8.1973. On 2.12.1975 plaintiffs mother Hanumakka sold a portion of her property bearing No. 109 (old No. 145) of Koramangala measuring 35 feet East to West and 22 feet North to South demarcated as XBCDEY in the rough sketch produced alongwith the plaint in favour of the plaintiff and plaintiff was put in possession of the same. Hanumakka is residing in remaining portion of the property. Plaintiff obtained licence from Koramangala Village Panchayath to put up construction on the portion purchased by him, when the plaintiff had gone to Kasavanahalli in Bangalore taluk to bring back his mother, wife and children, the defendants had made an attempt to put up unauthorised construction on the southwestern corner of suit property in an area measuring 9½ feet East to West and 16½ feet North to South. On return, plaintiff protested against the same and also filed a complaint against the defendants before the Police. The defendants executed 'Muchhalika' i.e. undertaking that they will not put the construction. But the defendants high handedly completed the unauthorised construction during the plaintiffs absence. Hence the present suit came to be filed.

5. Defendants on service of summons, contested the suit by filing written statement, inter alia contending that under th