Possession claims require adequate documentation; absence of evidence for acquisition invalidates the defendant's title, affirming the plaintiffs' rights based on a registered sale deed.

JUDGMENT :

UMESH M. ADIGA, J.

This Regular Second Appeal is filed under Section 100 of CPC by the plaintiffs in OS.No.149/1998 challenging the judgment and decree passed in RA No.4/2004 dated 01.09.2007 by the Civil Judge (Sr.Dn), T.Narasipura.

2. For the sake of convenience, the parties are referred to as per their ranking before the Tribunal.

3. It is the case of plaintiffs that the plaintiffs are owners and in possession of the property bearing Survey No.116 of Athahalli Village; their father purchased the said property measuring approximately 4 guntas i.e., 69 feet east to west and 60 feet north to south from its previous vendor, Mr. Rangegowda, S/o Karigowdana Rangegowda, under a registered sale deed dated 18.01.1957. The plaintiffs' father constructed a house in the portion of the said property measuring 21 feet east to west and 40 feet north to south. The plaintiffs kept open the remaining portion of the land and they also formed a road towards the eastern side as well as northern side of their house. They kept a vacant site measuring 50 feet north to south and 30 feet east to west. Out of the said open site, the defendant is trying to interfere and construct a building in the area shown by letters-A.B.C.D in the hand sketch measuring 18 feet east to west and 45 feet north to south. The defendant has no right or title over the said property. With these reasons, the plaintiffs prayed for permanent injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the said land.

4. The defendant denied the plaint averments and denied identity of the property. According to the contention of defendant, the panchayath formed layout in Survey No.116/1 during the year 1948 after acquisition of the said land. Thereafter, it was divided/phoded as Survey Nos.116/A, 116/B and 116/C. Therefore, as on the year 1957, there was no existence of land in Survey No.116/1. It is further contended that the father of the defendant was granted a site to an extent of 18 feet X 44 feet by the panchayath and its Khata number was given as Khata No.655. Thereafter, the defendant's father, defendant and his brothers have been paying taxes to the said property. In the year 1993, the defendant after obtaining the licence from the Panchayath, started to put a foundation. Due to some difficulties, he could not complete the construction. Therefore, during the year 1998, once again he applied for the license. At that time, the plaintiffs began obstructing to grant the license. However, when the license was issued in 1993, the Panchayat conducted a mahazar, during which the plaintiffs raised no objection and even signed as witnesses. Therefore, during the year 1998, they can not object for the same. The plaintiffs have no right over the said property bearing Khata No.655. With these reasons, prayed to dismiss the suit.

5. From the rival contentions of the parties, the Trial court framed following issues:

"1. Whether the plaintiffs prove that they are in possession and enjoyment of suit schedule property?

2. Whether the plaintiffs prove that the defendant has collected materials to put up construction encroaching upon the western side of the suit schedule property in the area "ABCD" as shown in the plaint?

3. Whether the defendant proves that this suit is not maintainable for want of relief of declaration?

4. Whether the plaintiff is entitled to the relief as prayed for?

5. What order and decree?"

6. The plaintiffs to prove their case examined one witness as PW-1 and marked 9 documents, as per Exs.P-1 to P-9. The defendant examined four witnesses as DW-1 to DW-4 and marked documents as Exs.D-1 to D-29.

7. The Trial Court after hearing b