Plaintiffs retain ownership and possessory rights over property despite defendant's revenue-backed claims; amendments for possession were timely and did not violate statutes of limitation.

JUDGMENT :

(PER: THE HON'BLE MR. JUSTICE C M JOSHI)

Being aggrieved by the judgment in O.S.No.54/1998, which came to be confirmed in R.A.No.41/2011, defendant No.1 approached this Court in second appeal under Section 100 of C.P.C.

2. The factual matrix as is necessary for the purpose of this appeal may be summarized as below:

a) Plaintiff No.1 and defendant No.2 are the sons of plaintiff No.2. The suit property is the Gram Panchayath No.325, old No.280/2 situated at Rattihalli village and these aspects are not in dispute.

b) It is the case of the plaintiffs that earlier the suit property belonged to the husband of plaintiff No.2-Devedrappa. He was owner in possession of the property and he had inherited it from his father Manjoji. Devenrappa died long back and after his death, plaintiff No.1 and defendant No.2 succeeded to the property. Earlier the entire property, including the portion which was sold by plaintiff No.1 and defendant No.2 was bearing the Gram Panchayat No.280. For their family necessity plaintiff No.1 and defendant No.2 sold a portion of the property and retained the other portion, which is given the Gram Panchayat No.280/2 and later it was given a new No.325.

c) It is the case of the plaintiffs that after death of Devendrappa, his children along with their mother plaintiff No.2 started residing at Shivamogga doing coolie work. But however, plaintiff No.2 alone was residing at Rattihalli, but at some other place. Taking advantage of the absence of plaintiff No.1 and defendant No.2, defendant No.1 in collusion with the Panchayat Officials got entered his name in the assessment records of the Panchayat and started enjoying the property.

d) Defendant No.1 on the basis of the illegal entry in the Panchayat extracts & Panchayat Registers, started to deny the right, title and interest of the plaintiffs over the suit property, though he is no way concerned to the same. Therefore, the plaintiffs sought the relief of declaration that they are the owners in title of the Panchayat No.325, earlier No.280/2 and to restrain the defendants by permanent injunction from interfering with the enjoyment of the said property.

e) The suit was filed on 04.03.1998. Subsequently, by way of amendment on 13.07.2005, an alternative prayer that if the Court comes to the conclusion that the defendant No.1 is found to be in possession of the property, then the possession may be awarded to the plaintiffs was inserted in the plaint.

3. Defendant No.1 appeared before the Trial Court and filed written statement. He contended that he is the son of sister of Devendrappa and he admitted that the property was belonging to Manjoji. He took up the defence that Devendrappa died 5 years earlier to the death of Manjoji and after death of Devendrappa, the plaintiffs and defendant No.2 were residing outside Rattihalli and there were none else to look after Manjoji except defendant No.1. He contended that Manjoji was intending to give the suit property to defendant No.1 and such intention was expressed by Manjoji to the plaintiffs. Thus, Manjoji had given the suit property bearing the Panchayat No.280/2 to him and since last 25 years, he is in possession and enjoyment of the same. He has put up his temporary shed and he is in its enjoyment.

4. As per the intention of Manjoji on 11.04.1990, the plaintiffs gave a varadi to enter the name of defendant No.1 in respect of the suit property and accordingly, his name came to be entered in the records. Therefore, he sought for dismissal of the suit.

5. On the basis of the above contentions, the following issues were framed by the Trial Court.

“ISSUES

1. Whether plaintiffs prove that they are owners over and in lawfu