IMPORTANT POINT
It is duty of Court to first identify schedule property and thereafter to pass decree and not vice-versa.

JUDGMENT (COMMON)

The plaintiff is before this Court being aggrieved by the judgment and decree dated 20.01.2020 passed in OS No.335 of 2012 on the file of the learned Principal Civil Judge and JMFC, Srirangapatna (hereinafter referred to as ‘the Trial Court’ for brevity), dismissing the suit filed by him for declaration and for permanent injunction, which was confirmed by the judgment and decree dated 29.09.2021 passed in RA No.9 of 2020 on the file of the learned Principal Senior Civil Judge and JMFC, Srirangapatna (hereinafter referred to as ‘the First Appellate Court for brevity).

2. Being aggrieved by the observations made while answering issue Nos.1 to 3 by the Trial Court, defendant No.1 filed cross-objection before the First Appellate Court, which came to be dismissed and therefore, he has preferred RSA No.229 of 2022 against the plaintiff.

3. For the sake of convenience, parties are referred to as per their status and rank before the Trial Court.

4. Brief facts of the case are that, the plaintiff filed OS No.335 of 2012 before the Trial Court against defendant Nos.1 and 2 seeking correction of the survey number, which was wrongly mentioned as 372/1 instead of mentioning as 376/1P2, in the registered sale deed dated 13.10.1952, executed by defendant No.2 in favour of the father of the plaintiff; to declare that the plaintiff is the absolute owner in possession of the suit property; to grant perpetual injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the property; for grant of mandatory injunction to remove the barbed wire fence put to the schedule property and to remove the unauthorized construction put up by defendant No.1 by encroaching the schedule property in the portion identified as ABCD in the sketch appended to the plaint. The schedule appended to the plaint describes 39 guntas of land bearing Sy.No.376/1P2 of Belavadi Village, Srirangapatna Taluk, with boundaries mentioned therein.

5. It is contended by the plaintiff that the schedule property had fallen to the share of defendant No.2 under the registered partition deed dated 01.09.1950 and the same was sold in favour of the father of the plaintiff under the registered sale deed dated 13.10.1952, to meet his family necessities. The possession of the property was handed over to the purchaser and since then he was in peaceful possession and enjoyment of the property. On 20.02.1968, there was a partition between the father of the plaintiff and his children and the schedule property had fallen to the share of the father of the plaintiff. He died on 01.10.1981 and the mother of the plaintiff also died on 10.03.2001.

6. It is contended that after the death of his father, the plaintiff filed suit OS No.76 of 2010 seeking partition and separate possession of the schedule property and other properties and at that time, plaintiff came to know that a mistake had crept in, while describing the schedule property and in mentioning the survey number. In fact, defendant No.2 was owning 39 guntas of land in Sy.No.376/1 towards eastern side, which had fallen to his share in the partition dated 01.09.1950, but by mistake the same was described as Sy.No.372/1. It is contended that since the father of the plaintiff was an illiterate, he had not noticed the mistake during his lifetime. When the plaintiff came to know about this mistake after filing OS No.76 of 2010, he applied to the Tahsildar to set right the mistake.

7. It is stated that, a proceedings in case No.58 of 2005-06 was initiated by defendant No.1 after he purchasing the property from defendant No.2 and the brother of the plaintiff had contested the same. However, in the said proceedings, the order came to be passed on 21.12.2005, rejecting the claim of defendant No.1 to mutate his name to the schedule property. It is contended that in spite of the order passed by the Tahsildar, the revenue record was mutated in the name of defendant No.1 as per MR No.20/2006-07. At tha