This first appeal arises out of the judgment and decree dated 14.07.2006 passed by the Principal Civil Judge (Sr.Dn.), Hubballi in O.S.No.99/1998, whereby the suit filed by the predecessor of the appellants has been dismissed with costs.

2. The facts leading to the appeal are that the suit schedule property comprised in R.S.No.46/1 of Krishnapur, Hubballi measuring 2 acres 2 guntas was owned by the original plaintiff Sri. Hussainkhan, S/o. Hashimsab Diddi. He agreed to sell the same to the original defendant No.1- Jayanagar Co-operative Housing Society Limited, Diddi Oni, Hubballi, for a total consideration of Rs.44,001/- on 22.11.1983 and later the said agreement was registered on 23.02.1984. The subsequent developments have given rise to a long drawn litigation between the parties, which needs a detailed narration in order to comprehend the controversy in this appeal.

3. The case pleaded by the plaintiff is that, in terms of the aforesaid agreement of sale dated 23.02.1984, entered into between him and the defendant No.1 (hereinafter referred to as the ‘Society’) the plaintiff received a consideration of Rs.42,601/-. The balance consideration of Rs.1,400/- was agreed to be paid at the time of execution of the sale deed. As per the terms of the said agreement, defendant No.1 Society was required to obtain necessary exemptions, conversions and permission etc., from the competent authorities for transfer of the suit schedule property. The plaintiff undertook to sign necessary applications and petitions for the said purpose. In this regard, he executed a power of attorney authorizing defendant No.1 to attend to the said formalities. In the plaint, it was averred that the balance sale consideration was agreed to be paid within one year from the date of the agreement (such term in fact does not find place in the agreement), but defendant No.1 failed to obtain necessary exemptions from the competent authorities and also failed to pay the balance consideration amount as agreed. Hence, the plaintiff was constrained to repudiate the transaction and took steps for revocation of power of attorney by way of paper publication in ‘Samyuktha Karnataka’ daily newspaper dated 25.12.1993.

4. The further case of the plaintiff is that, in the month of December 1993, defendant No.1 and its office bearers colluding with their henchmen indulged in high handed activities by putting huts and structures in the suit schedule property and hence the plaintiff was constrained to file a suit for injunction in O.S.No.2/1994. In the said suit, the Hon’ble Court held that the possession of the suit schedule property was with defendant No.1 and consequently the interim applications filed by the plaintiff for injunction came to be rejected. The appeal preferred by the plaintiff in M.A.No.8/1994 on the file of the Addl. Civil Judge (Sr.Dn.), Hubballi, also came to be dismissed confirming the orders of the lower Court. Hence, the plaintiff sought leave of the Court to file a fresh suit on the same cause of action. The leave was granted by the III Addl. Civil Judge (Jr.Dn.), Hubballi, by order dated 23.01.1998. Accordingly, the plaintiff presented the above suit (O.S.No.99/1998) for relief of declaration that the alleged possession of the suit property by defendant No.1 or any other persons claiming through defendant No.1 is illegal and contrary to the provisions of law. Further, the plaintiff sought for declaration that he is entitled to get vacant and actual possession of the suit schedule property by removing the illegal structures.

5. On service of notice, defendant Nos.1 to 3 and 5 entered appearance through their counsel. Defendant No.4 though duly served, remained absent. On behalf of defendant Nos.1 and 5, written statement was filed and the same was adopted by third defendant. Second defendant also filed a detailed written statement on his behalf.

6. The sum and substance of the written statement submitted by defendant No.2 is that the description of