1. Heard the learned counsel for the appellant and also the respondent.

2. On 09.12.2013, this court has framed the following substantial question of law for consideration:-

"Whether the judgment and decree of the Courts below sustains in view of the suit for the relief of declaration without seeking the relief of possession?”

3. After hearing the learned counsel, the Court is of the opinion that, the above substantial question of law is not happily framed because of the simple reason that, the plaintiff by way of an amendment to the plaint has sought for declaration as well as for recovery of possession.

4. The argument of the learned counsel so far as the substantial question of law is concerned, that though there is an amendment to the plaint, amending the prayer for declaration and for recovery of possession, but the corresponding pleadings in the body of the plaint have not been amended. Secondly, the learned counsel contended that, under Order 14, Rule 3 of CPC, the trial Court has not framed necessary issue, specifically with regard to possession, as to whether the plaintiff is entitled to recover the possession of the suit schedule property or not.

5. In view of the above submission made and also after thoroughly going through the pleadings of the parties and as well as the evidence placed before the Court, and on perusal of the judgment of the trial Court and the First Appellate Court, in my opinion, the substantial questions of law have to be framed in the following manner :-

(i) Whether the trial Court and the First Appellate Court have committed any serious legal error in decreeing the suit without there being a corresponding pleading with reference to recovery of possession of the property by the plaintiff, though there is an amendment to the prayer i.e., for declaration and for recovery of possession ?

(ii) Whether the trial Court has committed any serious legal error in omitting to frame a specific issue regarding entitlement of recovery of possession of the suit schedule property by the plaintiff?

6. Before answering the above substantial questions of law, it is just and necessary for this court to have a brief factual aspects of this matter as contended by the parties before the trial Court in their pleadings and the evidence led by them in support of their pleadings and the issues framed by the trial Court and the findings recorded thereon, and also whether the First Appellate Court has re-appreciated the materials on record, in proper perspective.

7. As could be seen from the plaint averments, the plaintiff originally prayed for the relief of permanent injunction restraining the 1st defendant from interfering with his peaceful possession and enjoyment of the suit schedule property. The suit schedule property is a vacant site in Junjar No.62 situated at Tadagawadi Village, Arkere Hobli, Srirangapatna Taluk, measuring 40 ft. x 40 ft. having boundaries

East: Chaitanyaradhya's Site;

West: Ballarigowda's House;

North: Road; and

South: Javaregowda's land

8. It is the plaintiff's case that, the said property originally belonged to the Government. The Government has formed sites carved in Sy. Nos.78, 236 and 238 of Tadagawadi Village and granted site No. 13 in favour of the plaintiff vide Grant Order dated 13.02.1976 and issued Possession Certificate. From the date of the grant, the plaintiff had been in possession and enjoyment of the said property. The plaintiff has been exercising the ownership by paying kandayam to the said property. The defendants, particularly the 1st defendant, though has absolutely no right, title and interest over the property, has started interfering with the plaintiff's peaceful possession and enjoyment of the suit property. Therefore, the plaintiff filed a suit. In the plaint itself it is further stated that the 1st defendant, on the ground that the Western portion of the said property was granted to his father, started encroaching upon the property of the plaintiff and in fact dug foundatio