The central legal point established in the judgment is that acquiescence to encroachment and illegal construction by the defendants can lead to the loss of the right to claim possession over the disputed property.

1. The appellant has challenged the judgment and decree in RA 68/2008 allowing the appeal of the respondents by setting aside the judgment and decree of the trial Court and dismissing the suit filed by the appellant.

2. The facts relevant for the purpose of this appeal are as under:

The parties will be referred as per their rank before the trial Court for the sake of convenience. The appellant is the plaintiff and the respondents are the defendants in the suit. The suit property is 2 guntas of land out of Sy.No.90/3A totally measuring 0.28 guntas bounded as mentioned in the schedule to the plaint.

3. The plaintiff sold 2 guntas of land out of the suit survey number 90/3A under a registered sale deed. The remaining portion of the land except two guntas which was sold to the defendants is said to be in possession of the plaintiff. It is the contention of the plaintiff that the defendants encroached upon the suit property under the guise of the sale deed in respect of two guntas of land to put up construction and in the circumstances after resisting the action of the defendants the present suit came to be instituted seeking the relief of declaration, he is the owner of the property, delivery of vacant possession and also sought for injunction.

4. The defendants filed their written statement alleging that they are the owners of the suit property and had purchased the suit property under a sale deed on which they had constructed a house long back and hence they contended that the plaintiff is not entitled to the relief sought for.

5. The trial Court framed the issues casting burden on the plaintiff to establish his right to the suit property and other reliefs' sought for. In the trial Court the plaintiff examined himself as PW1, 2 witnesses PWs.2 and 3 and got marked the documents Exs.P1 to P8. The defendants examined DWs.1 to 5 and got marked Exs.D1 to D22. A Court Commissioner was appointed during the pendency of the suit and Exs.C1 to C6 are marked at the instance of the Commissioner on the basis of the report submitted by him. The trial Court after hearing the counsel for the parties and on appreciation of the evidence on record, decreed the suit. Aggrieved by the judgment and decree, the defendants preferred the appeal in RA 68/2008 and the first appellate Court vide judgment and decree dated 5.7.2008 has allowed the appeal and dismissed the suit of the plaintiff. Aggrieved by the judgment and decree of the first appellate Court, the present appeal is filed.

6. I have heard the learned counsel for the appellant.

7. It is the contention of the learned counsel for the appellant that the trial Court on appreciation of the material on record and on the basis of the Commissioner's report had come to the conclusion that the defendants had encroached the property of the plaintiff and rightly granted a relief of declaration and also the possession. He submits that the first appellate Court without assigning proper reasons has wrongly allowed the appeal and dismissed the suit.

8. Learned counsel for the respondents has supported the judgment and decree of the first appellate Court.

9. Perusal of the judgment of the Courts below and the report of the Commissioner, the sketch etc., would indicate that the defendants had put up construction of the building not on the site which was purchased by them from the plaintiff, but at some other place in the suit survey number and this is clearly revealed from the Commissioner's report and also the evidence of the parties. It would indicate that though the defendants purchased the site of two guntas in the suit survey number, did not construct the building on the said site and had encroached the property of the plaintiff. It is also not in dispute that the father of the defendants has purchased the site measuring two guntas in the suit survey number under the registered sale deed dated 16.12.1961. It is about 40 years prior to institution of the suit. After the purchase of the site he h