JUDGMENT :

This regular second appeal is filed by the defendant No.1 in O S No.276/1995 on the file of Civil Judge (Jr.Dn.) at Basavana Bagewadi being aggrieved of the judgment and decree dated 30.3.2005 in R A No.213/2003 on the file of the Civil Judge (Sr.Dn.) at Basavana Bagewadi, reversing the judgment and decree dated 17.11.2000 in O S No.276/1995 passed by the learned Civil Judge (Jr.Dn.) Basavana Bagewadi. The trial court had dismissed the suit filed by the plaintiffs for the relief of declaration & permanent injunction.

2. The appellant herein and respondents 6 to 12 were defendants before the trial court. The respondents 1 to 5 herein were plaintiffs. The parties herein are referred to as per their ranking in trial court.

3. Brief facts of the case are as follows:

The plaintiffs had filed a suit for declaration and permanent injunction in respect of suit property. The case of the plaintiffs was that, the lands bearing Sy. No. 4/1, 4/2 and 4/3 and Sy.No. 5/1 and 5/2 of Halyal Village are the suit lands and father of the plaintiffs and father of the defendants partitioned the family properties in the year, 1939. The plaintiffs’ father was allotted Sy. No. 4 (old No.1/4(a)), present Sy.No.4/1, 4/2 & 4/3 measuring 5Acres 30 guntas and father of the defendants was allotted Sy.No.5/1 & 5/2 (old No.1/4(b)) measuring 5 acres 31 guntas and revenue records were changed accordingly. The defendants’ father behind the back of the plaintiffs’ father got entered an area measuring 4 acres 18 guntas in Sy.No.1/4 (a) of plaintiffs and got entered an area measuring 7 acres 7 guntas of Sy.No.1/4(b). The plaintiffs have been in possession and enjoyment of 5 acres 30 guntas since from 1939. The plaintiffs and defendants lands are not in same level and two years back the defendants got measured the land and got P.T.Sheet showing an encroachment of 25 guntas by the plaintiffs. The defendants sought for possession of 25 guntas. Hence, the plaintiffs filed suit.

4. The defendants appeared and filed written statement denying the plaint averments and contended that the land measuring 4 Acres 18 guntas was allotted to plaintiffs’ father in Sy.No.4/1(a) and 7 acres 7 guntas was allotted to defendants’ father in Sy.No.4/1(b). That, in the year, 1956 the survey was conducted and pothissa measurement and prepared Form – 12 as per the actual possession of the owners over their respective lands. After preparation of consolidation Takta M.E. 526 came to be effected and R.T.C. have been effected and they have been in possession of their respective lands. The plaintiffs were never in possession of more than 4 acres and 18 guntas of land. The plaintiffs started encroaching the land of the defendants recently in the year, 1990 and P.T.Sheet was prepared and showing the encroachment of 25 guntas by the plaintiffs in the land of the defendants. The defendants filed application before the Tahsildar for seeking possession of encroached land. The plaintiffs filed an appeal against the order of Tahsildar before the Assistant Commissioner and the same came to be rejected. The plaintiffs filed an application for resurvey and when the survey officials came to the land for measurement, they were sent back by the plaintiffs. As on the date of filling of the suit, the plaintiffs were not in lawful possession of an area of 25 guntas. The land bearing Sy.No.4/1 , 4/2 , 4/3 totally measuring 4 acres 18 guntas not 5 acres 30 guntas. The suit is barred by law of limitation and the court has no jurisdiction to decide as to the legality or otherwise of the consolidation proceedings as well as the phothissa measurement.

5. The plaintiffs got amended their plaint praying an alternative relief of declaration to declare them as owners by adverse possession of an area of 1 acre 15 guntas. The defendants contended that, the said relief is barred by law of limitation and the plaintiffs were never in possession of the same since,1956. Hence, they sought for dismissal of the suit.

6. The tri