JUDGMENT :

The plaintiffs being aggrieved by the judgment and decree dated 24.10.2002 passed in O.S.No. 88/1995 by the Principal Civil Judge (Sr.Dn), Bidar, confirmed by the judgment dated 03.02.2007 passed in R.A.No. 22/2002 have filed this second appeal.

2. The parties are referred with their ranks before the Trial Court.

3. The plaintiffs filed suit O.S.No. 88/1995 seeking the relief of declaration and injunction in respect of suit land bearing Sy.No. 62/B measuring 09 acres 25 guntas of village Mungnal, Tq.AuradB, Dist. Bidar. The plaintiffs averred that their father Govind Rao was the exclusive owner in possession and enjoyment of the said land. He died during the year 1993. After the death of their father the plaintiffs are in joint possession and ownership of the suit land. The name of the father of plaintiffs was appearing in record of rights in respect of suit land. Though the plaintiffs have filed application for mutation, the same was pending. The defendant is owner of land bearing Sy.No. 61/B situated towards eastern side of the suit land and being adjacent owner was intending and encroaching upon the suit land with the help of anti social elements and intended to dispossess the plaintiffs from the possession of suit land. Therefore, in pursuance of the such illegal acts and malafide intention the defendant filed application before Assistant Director of Land Records, Bidar for survey and demarcation of his land bearing Sy.No. 61/B measuring 07 acres 04 guntas and in collusion with the taluka surveyor got wrong report showing that the plaintiff No.3 is in possession of an area of 01 acre 28 guntas in Sy.No. 61/B belonging to the defendant. The survey was conducted without measuring the surrounding lands. Plaintiff No.3 objected for the survey and demarcation made by the surveyor. Plaintiff No.3 approached Assistant Director of Land Records, Bidar and requested for resurvey of the land of the defendant and the plaintiffs. The defendant filed an application before the Tahsildar on 16.08.1994 asserting that the plaintiff No.3 has committed criminal trespass in his land and sought for possession of said encroached area of 01 acre 28 guntas. On the basis of said application, the Tahasildar passed an order on 03.10.1994 for dispossessing the plaintiffs from the portion of the suit land to the extent of 01 acre 29 guntas. In spite of direction by the Assistant Director of Land Records Bidar, the Tahasildar passed an order on 10.05.1995 to dispossess the plaintiff No.3 from the land to the extent of 01 acre 28 guntas and also to pay penalty of Rs.50/levied under section 145 of Karnataka Land Revenue Act. Therefore, the plaintiffs were constrained to file the said suit.

4. The defendant appeared in the suit through his counsel and filed written statement wherein he denied that the plaintiffs are the members of Hindu joint family. He also denied that the plaintiffs are exclusive owners and possessors of suit land Sy.No. 62/B measuring 09 acres 25 guntas. Defendant admitted that he is owner in possession of land Sy.No. 61/B to the extent of 07 acres 04 guntas. He denied that he is intending and encroaching the suit land. He has further contended that he filed application for survey of his land and on such survey was conducted by the taluka surveyor it is found that plaintiff No.3 has encroached portion of defendant’s land to the extent of 01 acre 28 guntas. Plaintiff No.3 had filed an application before Tahasildar for resurvey of the land. Subsequently the Tahasildar Aurad passed an order for dispossessing the plaintiff No.3 in respect of 01 acre 28 guntas in Sy.No. 61/B belonging to defendant and hand over the possession of the said land to the defendant. The plaintiffs have encroached upon his land to the extent of 01 acre 28 guntas and there is no question of encroachment by the defendant. The plaintiffs have no cause of action and suit is liable to be dismissed. Further the defendant made a counter claim for recovery of posses