The plaintiff must prove ownership and encroachment claims effectively; mere possession does not suffice without credible evidence.

JUDGMENT :

K. MANMADHA RAO, J.

1. The present Regular Second Appeal is filed by the plaintiff/appellant to set aside the judgment and decree dated 18.06.2018 in R.A.No.278/2016 on the file of the IV Additional District Judge, Mysuru (herein after referred to as ‘the first appellate Court’ for short) and set aside the judgment and decree dated 07.10.2013 in O.S.No.1810/2009 on the file of the I Additional First Civil Judge and JMFC. at Mysuru (herein after referred to as ‘the trial Court’ for short).

2. The appellant herein is the plaintiff/appellant before the Courts below and the respondent herein is the defendant/respondent before the Courts below.

3. For convenience of reference, the parties herein are referred to as per their rankings before the trial Court.

4. The plaintiff filed the suit to declare that plaintiff is the absolute owner of the ‘C’ schedule property and to direct the defendant to hand-over vacant possession of ‘C’ schedule property.

5. The brief facts of the case are that:-

It is the case of the plaintiff that he purchased plaint ‘A’ schedule property under a registered Sale Deed dated 16.12.2006 from Smt. Nagarathnamma, and subsequently purchased plaint ‘B’ schedule property under a registered Sale Deed dated 26.11.2007 from B.N.Shivashankar. Both properties, described as adjacent, were stated to be in plaintiff’s possession and enjoyment as absolute owner. At the time of purchase, the said lands were covered with debris, wild plants and waste, making it impossible to measure them accurately. The plaintiff is stated to have spent more than Rs.1,00,000/- to clear the area and make it habitable.

6. Upon taking technical assistance in measurement for constructing a house, the plaintiff allegedly discovered that the defendant had encroached upon portions of ‘A’ and ‘B’ schedule properties, which he described as Plaint ‘C’ schedule property. When plaintiff came to know about the same, he demanded the defendant to vacate and deliver possession. However, the defendant failed to comply with the same. Consequently, the plaintiff issued a legal notice on 29.09.2009, which elicited only an untenable reply, and therefore the suit was filed seeking necessary reliefs.

7. Per contra, upon service of summons, the defendant appeared before the trial Court and filed a written statement denying all averments of the plaint, including the plaintiff’s ownership and possession over suit ‘C’ schedule property. The defendant asserted that she had purchased a portion of vacant site bearing No.58 under registered Sale Deeds dated 23.03.1984 and 20.06.1984 from one B.R. Yellappa and since then she has been in possession and enjoyment as absolute owner.

8. She further pleaded that after purchase, khatha was mutated in her name, an approved plan and licence were obtained and a residential house was constructed in the year 1986, in which she has been residing with her family. The allegation of encroachment was categorically denied and it was contended that the suit was barred by law, improperly valued, and that the sketch relied upon by the plaintiff was incorrect.

9. Based on the pleadings, the trial Court has framed following issues for consideration:-

1. Whether the plaintiff proves that he is the absolute owner of 'C' schedule property under the registered sale deed dated 16.12.2006 and 26.11.2007?

2. Whether the plaintiff further proves that defendant has no manner of right, title or interest over the 'C' schedule property ?

3. Whether the plaintiff further proves that defendant is in unauthorised, illegal possession of 'C' schedule pro