JUDGMENT :

H.P. SANDESH, J.

1. Heard the learned counsel for the appellants. The learned counsel for the respondent.

2. This Regular Second appeal is filed challenging the judgment and decree dated 26.08.2006 passed in R.A. No. 39/2005 by the Prl. Civil Judge (Senior Division) and CJM, Shimoga.

3. The parties are referred to as per their original rankings before the Trial Court to avoid confusion and for the convenience of the Court.

4. The factual matrix of the case of the plaintiff before the Trial Court that the suit schedule property which is morefully described in schedule ‘A’ belongs to the plaintiff. The land bearing Sy. No. 37 of Yogimalali village, Thirthahalli taluk totally measuring 10 acres 36 guntas including the kharab land. The said land was ancestral joint family property of the appellant and his father Puttaiah Gowda. In the year 1984 there was a partition under Palupatti dated 14.10.1984 among the plaintiff, his father and the appellant’s brothers. In the said partition, an extent of 1 acre 10 guntas of wet land in Sy. No. 37 of Yogimalali village, Thirthahalli taluk was allotted to the share of the plaintiff. This 1 acre 10 guntas of wet land is lying on the southern side of Sy. No. 38 abutting the respondents’ land. On the basis of aforesaid palupatiti the name of the appellant was entered in the mutation register extract. Hence, shown the extent of 1 acre 10 guntas of land as schedule ‘A’ property.

5. It is the contention of the plaintiff that during the year 1989 the plaintiff had left to Bangalore and was employed in a hotel and entrusted the cultivation of the suit schedule property to his father. During the month of April-1990, the respondents’ father illegally trespassed on the suit schedule property to an extent of 23 guntas of wet land and enclosed the said encroached area of 23 guntas by putting up a fence. The encroached area of 23 guntas which is situated on the southern side of the Sy. No. 37 and eastern side of Sy. No. 38 belongs to the defendants which is morefully described as ‘B’ schedule property which is in triangular shape. The plaintiff also approached the ADLR, Shimoga and got measure the extent of the encroached area by ADLR, Shimoga. The same was measured and prepared the sketch and encroached portion of 23 guntas in Sy. No. 37 was marked in red colour in the survey sketch and identified the encroached area. It is also a case that he has issued the notice calling upon him to vacate encroached area and he has received untenable reply setting up of an adverse possession. It is also stated that the respondents’ father with an ulterior motive to claim adverse possession dug a well in the encroached portion, without any other alternative, filed the suit for declaration and for possession of ‘B’ schedule property. The respondents are legal heirs of original defendant Channappa Gowda. The father of the respondents appeared before the Trial Court and filed written statement inter-alia contending that he is the owner of the land bearing Sy. No. 38. On the western side of Sy. No. 37 there is a road. He had put up the fence by the side of the said road from North-South and there is Well close to the said road. He is in possession continuously undisturbed and peaceful possession of the property more than 30 years. He has perfected the title by adverse possession.

6. The Trial Court having considered the pleadings of the plaintiff and also the defendants, framed the following:

ISSUES

(1) Whether the plaintiff proves that, he is the lawful owner of the plaint ‘A’ schedule property?

(2) Does he further proves that the defendant has encroached the ‘B’ schedule land?

(3) Whether the defendant proves that, he has perfected title over the property of the plaintiff if encroached, by adverse possession?

(4) Whether plaintiff is entitled for possession of ‘B’ schedule land?

(5) Whether the plaintiff is entitled for mesne profits?

(6) Whether the plaintiff is entitled for permanent injunction as prayed?

(7) What Decree or