JUDGMENT :

H.B. Prabhakara Sastry, J.

The present appellants in their capacity as plaintiffs in the Court of the XXIV Additional City Civil and Sessions Judge, Bangalore City, (C.C.H.No.6) (hereinafter for brevity referred to as "Trial Court") arraigning the present respondent as defendant, had instituted an Original Suit in O.S.No.7298/1995, for the relief of declaration to declare that Survey No.32/3 of Gangenahalli Village, Bangalore North Taluk, extends even beyond existing drainage put up in Sy.No.32/3 to an extent of 3,950 sq.ft. equivalent to 03 guntas; to direct the defendant to deliver possession of the suit schedule property to the plaintiffs; to direct the defendant to remove the un-authorised construction put up in the suit schedule property and for the relief of permanent injunction. Challenging the said judgment, the plaintiffs in the Court below have preferred this appeal.

2. The summary of the case of the plaintiffs in the Trial Court was that, the original plaintiff-Smt. Muniyamma, W/o. late Vasanthappa had acquired several landed properties including land bearing Survey No.32/3 of Gangenahalli Village, Kasaba Hobli, Bangalore North Taluk, through a registered Sale Deed dated 22-06-1962. The land was to an extent of one acre. The plaintiffs had been in the continued lawful possession and enjoyment of the said property till the original plaintiff Smt. Muniyamma dispossessed a portion of it to the extent of 37 guntas by forming sites. The remaining 03 guntas were retained by the plaintiffs which is the suit schedule property.

The defendant had purchased 08 guntas of land in Sy.No.37 under a registered Sale Deed dated 11-09-1974. However, he tried to cause interference with the suit schedule property. Therefore, a suit for injunction was filed against him. Initially, the suit was filed for permanent injunction, however, during the pendency of the suit alleging that the defendant had encroached into the suit property and started putting up construction, the plaint was amended to include the prayer for declaration and mandatory injunction also.

3. The defendant who appeared through his counsel had filed his Written Statement wherein, he contended that he is the absolute owner and in possession of the piece of land measuring to an extent of 140 ft. x 90 ft. which was a portion of land in Sy.No.37 of Gangenahalli Village, Kasaba Hobli, Bangalore North Taluk, having acquired the same under a Sale Deed dated 11-09-1974. He contended that the plaintiffs unlawfully encroached upon the said land of the defendant approximately to an extent of 24 ft. x 28 ft. and put up two sheds of asbestos roofing and contended that the said portion of the land falls under Sy.No.32 of Gangenahalli Village, as such, it is their land. The plaintiffs refused to vacate the said portion despite the request made by the defendant. This made the defendant to file a suit in O.S.No.8681/1980 on the file of the Additional City Civil Judge, Mayohall, Bangalore, for declaration, possession and injunction in respect of the said encroached portion of his land. The said suit came to be decreed in favour of the plaintiff therein (defendant herein) and the same was confirmed in R.F.A.No.163/1987 by this Court.

It is the further contention of the defendant that he has executed the decree since the case has reached its finality in R.F.A.No.163/1987 and the plaintiffs were ejected from the encroached portion of his property, as such, there exists no property as described in the schedule to the plaint.

He further contended that the entire Sy.No.33 of Gangenahalli Village to an extent of one acre was acquired by the Bangalore Development Authority (BDA) in full and this fact has been admitted by the original plaintiff in her deposition in the suit filed by him in O.S.No.8681/1980. In the light of the said admission by the original plaintiff, the plaintiff is to be non suited.

He also contended that after taking possession of the encroached portion of the land from t