JUDGMENT

M G Uma, J. - The defendants have preferred this appeal being aggrieved by the impugned judgment and decree dated 13.11.2015 passed in O.S.No.103/2008 on the file of the learned Principal Civil Judge and JMFC, Somwarpet (hereinafter referred to as 'the trial Court' for brevity), decreeing the suit of the plaintiff declaring that the plaintiff is the absolute owner of the suit schedule property and directing the defendants to handover vacant possession of the encroached portion of suit schedule property to the plaintiff within three months from the date of order, which was confirmed vide judgment and decree dated 03.07.2017 in R.A.No.43/2015 on the file of the learned Senior Civil Judge, Somawarapete (hereinafter referred to as 'First Appellate Court' for brevity).

2. For the sake of convenience, parties are referred to as per their status and rank before the Trial Court.

3. Brief facts of the case are that the plaintiff filed suit O.S.No.103/2008 against defendant Nos.1 and 2, seeking declaration that he is the absolute owner of the schedule property i.e., land bearing Sy.No.33/23 measuring 2.93 acres situated at Kanaralli Village, Kodlipet Revenue Hobli, Somwarpet Taluk, Kodagu, with the boundaries mentioned in the schedule appended to the plaint and to direct the defendants to vacate and handover 2.20 acres out of the schedule property in favour of the plaintiff, which they had encroached and for mesne profits.

4. It is contended by the plaintiff that he is the absolute owner of the schedule property, which was referred to as Sy.No.33/1A in the saguvali chit and referred in the earlier RTCs as Sy.No.33/1AP1. After akarabandh, new Sy.No.33/23 has been assigned to the schedule property. It is stated that the plaintiff was granted with the saguvali chit by the Tahsildar, Somwarpet in respect of the schedule property and he had improved the said land by obtaining loan. The said saguvali chit is with the PLD Bank, Somwarpet.

5. It is further contended that defendant Nos.1 and 2 are the land holders having their lands near the schedule property. They attempted to take possession of the suit schedule property forcibly, during October-2005. Hence, the plaintiff immediately filed O.S.No.69/2005 before the trial Court. However, the said suit was came to be withdrawn on 26.09.2007 on technical grounds, since defendant No.2 was minor when the suit was instituted. Taking advantage of the withdrawal of the suit, defendant Nos.1 and 2 trespassed over the schedule property taking forcible possession of a portion of suit land, during 1st week of October-2007 i.e., within a week after withdrawal of the suit O.S.No.69/2005. The plaintiff approached the revenue and survey Authorities for 'hadbhasth survey' and got served notice of the same to the defendants. Defendant No.1 refused to receive the notice. However, survey was conducted in the presence of adjoining land owners. The report and the survey sketch was prepared on 28.12.2007. On the basis of the report and sketch, plaintiff came to know that the defendants have encroached an extent of 2.20 acres in Sy.No.33/23 and the owner of Sy.No.33/1 by name Nageshgowda alias Chinnappa of Hanase Village has encroached 40 cents of land. Thereafter, the plaintiff requested the defendants to vacate and handover the possession of encroached portion. But they were not willing to do so. Even a police complaint was lodged in that regard. Therefore, the plaintiff filed the present suit for declaration of his title over the schedule property and direct the defendants to handover the vacant possession of the encroached portion of the land.

6. Defendant No.1 appeared before the Court and filed his written statement denying the contentions taken by the plaintiff. It is contended that defendant No.1 is the mother and defendant No.2 is her son. Husband of defendant No.1 died on 10.06.2000. Even during the life time of her husband, they were cultivating the land bearing Sy.Nos.18, 19, 20, 21, 22 and 23 of Kanar