Concurrent findings confirmed the plaintiff's ownership and possession rights over Site No.294, rejecting claims of boundary interference by defendants.

JUDGMENT :

H.P.SANDESH, J.

This matter is listed for admission. I have heard learned counsel for the appellants and learned counsel for respondent.

2. This second appeal is filed against concurrent finding of the Trial Court and the First Appellate Court.

3. The factual matrix of case of the plaintiff before the Trial Court is that plaintiff is the absolute owner in possession and enjoyment of the suit schedule property and defendants are interfering with possession of the plaintiff’s property. It is also the specific case of the plaintiff that Site No.294 belongs to the plaintiff and also contend that other children of Smt. Lucy D'Souza have released their undivided 4/5^th right, title and interest in the suit schedule property to their brother Mark D’lima, who is the plaintiff. It is the further case that house Site bearing No.295 which is situated on the west of the schedule property was allotted to one Smt. Ajjanu Hengsu, who appears to be none other than the mother of the defendants herein as per the proceedings of Additional Special Land Acquisition Officer, Mangaluru. It is also contended that after acquiring House Property No.295 by Smt. Ajjanu Hengsu, she constructed the residential house in it and she and her family members, including the defendants have been residing in the said house. The said Smt. Ajjanu Hengsu died intestate leaving behind the defendants. The western boundary of the schedule property itself is the eastern boundary of the property in the possession of the defendants of Site No.295 and as such, same is the common boundary to both the property. Apart from that, there is a laterite stone compound wall in the aforesaid common boundary, so as to divide both the property and defendants have no right in respect of the suit schedule property is concerned.

4. The defendants appeared and filed written statement denying the averments of plaint and contend that house site which is situated on the west of the schedule property was allotted to one Smt. Ajjanu Hengsu, who is the mother of the defendants and after acquiring the site, she also constructed the residential house and she and her family members, including the defendants have been residing therein and defendants are in possession and enjoyment of Site No.295. It is further contended that plaintiff was never in possession and enjoyment of any of the site, much less the alleged Site No.294. Admittedly, the plaintiff is residing near Thokkottu, Mangaluru which is very far from the plaint schedule property. As there was nobody to question the possession, some third party had acquired Site No.294 and was in possession and enjoyment of the same from many years. But, the plaintiff has deliberately suppressed regarding the existence of drain in between the two properties which can be borne out from the surveyors sketch. It is further contended that to the eastern side of the plaint schedule property i.e., Site No.294, there exists Site No.293 and to the western side of Site No.294, there exists drain channel. The plaintiff has either deliberately does not know about actual location of Site No.294 and its boundaries. Hence, prayed the Court to dismiss the suit.

5. The Trial Court having considered pleadings of the parties, framed issues and allowed the parties to lead evidence. The Trial Court, having considered both oral and documentary evidence, answered issue Nos.1 to 3 as ‘Affirmative’ and while answering the issues, discussed in paragraph No.13 with regard to very contention of defendants in the written statement and so also, even evidence of P.W.1 was taken note of and also taken note of evidence of D.W.1, wherein he has deposed that he did not know, who are in possession of schedule property an