The plaintiff must establish proof of absolute ownership and encroachment to succeed in property disputes, with evidence discrepancies adversely affecting claims.

JUDGMENT :

ASHOK S. KINAGI, J.

1. This appeal is filed by the appellant challenging the judgment and decree dated 22.04.2013 passed in RA No.63/2011 by the learned Fast Track Court, Chikmagalur (‘First Appellate Court’ for short) and the judgment and decree dated 22.02.2011 passed in OS No.5/2006 by the learned Principal Senior Civil Judge, Chikmagalur (‘Trial Court’ for short).

2. For convenience, the parties are referred based on their rankings before the Trial Court. The appellant was the plaintiff and the respondents were the defendants.

3. Brief facts leading rise to the filing of this appeal are as follows:

3.1. The plaintiff filed a suit against the defendants for the relief of declaration and possession of the suit schedule property. It is the case of the plaintiff that, the land bearing Sy.No.43 measures 5 acres 4 guntas situated at Hukkunda Village, Chikmagalur Taluk belonged to one Chennamma. Chennamma sold the entire property in favour of the plaintiff’s father Sri. Muniswamy under a registered sale deed dated 07.02.1952 and handed over the possession of the property. After purchase, Khata was transferred in the name of the plaintiff’s father. After his death, the property was transferred in the name of plaintiff’s mother Smt. Devanamma. The plaintiff and Devanamma continued to be in possession of the suit schedule property. It is contended that, the mother of the plaintiff sold the portion of land measuring 3 acres 16 guntas in favour of defendant No.1 under a registered sale deed dated 13.01.1994 and retained 1 acre 28 guntas of land for their cultivation. It is contended that, the defendants have no right, title or interest over the suit schedule property to the extent of 1 acre 28 guntas. It is contended that, Devanamma executed a registered gift deed in favour of the plaintiff under a registered gift deed dated 13.04.2000, wherein she gifted the suit schedule property in favour of the plaintiff. The plaintiff became the absolute owner of the suit schedule property under a registered gift deed dated 13.04.2000 and khata was transferred in the name of the plaintiff. It is contented that, the defendants have encroached upon the property of the plaintiff. The plaintiff lodged a complaint before the concerned Police. Since they have not taken any steps, a cause of action arose for the plaintiff to file a suit. Accordingly, prays to decree the suit.

4. Defendant Nos.1, 3 and 4 filed their separate written statements denying the averments made in the plaint and it is contented by defendant No.1 that, the defendants have not made any encroachment in the suit property as alleged by the plaintiff in the plaint and it is contented that, the mother of the plaintiff sold a portion of land measuring 3 acres 16 guntas under a registered sale deed and the defendants are in possession of the land bearing Sy.No.43 to the extent of 3 acres 16 guntas. It is contended that, the plaintiff has not shown the correct boundaries in the plaint schedule. The suit is not maintainable for the non-joinder of necessary parties. Defendant No.3 contended that he is in possession of the property since more than 30 years and perfected his possession. Defendant No.4 contended that, the land encroached by defendant No.4 is a Government land and plaintiff has no manner of right over it. Hence, pray to dismiss the suit against defendant Nos.1, 3 and 4.

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