The party asserting ownership must provide clear evidence of title and possession. Failure to do so resulted in the restoration of the trial court's dismissal of the plaintiffs' claims.

JUDGMENT :

ASHOK S. KINAGI, J.

1. This appeal is filed by the appellant, aggrieved by the judgment and decree dated 06.04.2013 passed in R.A. No.66 of 2008 by the learned Additional Senior Civil Judge and JMFC, Hunsur, sitting at Periyapatna.

2. For convenience, the parties are referred to based on their ranking before the Trial Court. The appellant was the defendant and the respondents were the plaintiffs.

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

4. The plaintiffs filed a suit against the defendant for declaration to declare that they are the absolute owners of the suit schedule property and for a consequential relief of permanent injunction restraining the defendant from interfering with the plaintiffs' peaceful possession and enjoyment of the suit schedule property.

5. The case of the plaintiffs is that the suit schedule property bearing Survey No.43/3 (46/P3) measuring 04 acres was granted in favour of one Dasappa son of Karishetty. Dasappa is the husband of plaintiff No.1 and father of plaintiff Nos.2 to 4. The suit schedule property was granted on 11.01.1963. Dasappa died on 22.06.1997 leaving behind the plaintiffs as his legal heirs.

6. After his demise, the plaintiffs were in peaceful possession and enjoyment of the suit schedule property and they are paying the land revenue of the suit schedule property. During the lifetime of Dasappa, he had executed a Mortgage deed dated 22.05.1992 in respect of the suit schedule property in favour of one Madegowda son of Sannegowda. On 31.03.1998, said Mortgage deed was discharged. The defendant is an attesting witness to the said mortgage deed. There was a mistake in the description of Block number in respect of the suit schedule property viz., Survey No.43/12, which was rectified by the revenue authorities. The defendant has no right, title or interest over the suit schedule property. It is averred that the defendant, who is the land-holder of the eastern side of the suit property, is trying to force the plaintiffs to sell the suit schedule property. After their refusal, the defendant started causing interference with the plaintiffs' peaceful possession and enjoyment of the suit schedule property.

7. Plaintiff No.3 lodged a complaint against the defendant. The police issued an endorsement stating that the dispute between the plaintiffs and defendant is civil in nature and instructed them to approach the Civil Court. As such, a cause of action arose for the plaintiffs to file a suit for declaration of title and consequential relief of permanent injunction.Accordingly, prays to decree the suit.

8. The defendant filed a written statement denying the averments made in the plaint and it is denied that the suit schedule property was granted in favour of Dasappa through a Saguvali Chit dated 11.01.1963 and denied that Dasappa was cultivating the suit schedule property during his lifetime and after his death, the plaintiffs were cultivating the suit schedule property. It is contended that the defendant is in physical possession and enjoyment of the suit schedule property and also denied the description of the suit schedule property shown in the plaint. It is contended that the plaintiffs are claiming the land of the defendant by showing the boundaries of the defendant's land. It is contended that the plaintiffs were never in possession of the suit schedule property. The suit filed by the plaintiffs is not maintainable and hence, prays to dismiss the suit.

9. The Trial Court, based on the pleadings of the parties, framed the following issues :

1. Whether the plaintiffs prove that they are absolute owners of the suit s