This

regular

second

appeal

is

filed

by

the

plaintiffs under Section 100 of CPC challenging the judgment

and decree passed in RA.No.102/1990 on the file of Civil

Judge (Sr. DVN) & JMFC, Madhugiri, dated 17.12.2007.

2.

For the sake of convenience, the parties herein

are referred with the original ranks occupied by them before

the trial Court.

3.

The brief factual Matrix leading to the case are

that the grandfather of plaintiff No.1 and father of plaintiff

No.2 were brothers and they got divided the scheduled

property with other properties. That plaintiff No.1 is having

1/2 share, while plaintiff No.2 is having 1/4 and plaintiff

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Nos. 3 and 4 together having 1/4 share in the schedule

properties. There are 10 tamarind trees, 34 Honge trees in

schedule property and the said trees are planted by the

father of plaintiff Nos.1, 3 & 4 and grandfather of the

plaintiffs. The 4 trees shown by letters ABCD in the hand

sketch situated within the southern border of their land and

trees shown by letters at ABC are aged about 70 years and

another tree is aged about 15 years old. The plaintiffs are the

owners in possession of these tamarind trees and there is a

ridge in between the lands of plaintiffs and defendants. The

defendants are the owners of Sy.No.2 situated towards

South of suit survey number and they have no right, title or

interest over ABCD tamarind trees. As they have interfered

in peaceful possession and enjoyment of plaintiffs, the

plaintiffs have

filed

a

suit

in

O.S.No.31/1984

and

subsequently, it was withdrawn on 12.11.1986 with liberty to

file a fresh suit. Hence, they filed this suit seeking declaration

of title and possession over 4 tamarind trees situated in

Sy.No.5/2, which is shown in the hand sketch map.

4.

The defendants appeared and contested the suit

and denied the existence of the Tamarind trees in the land of

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plaintiffs. It is the specific contention of the defendants that

there are only 7 tamarind trees in Sy No.5/2 belonging to

plaintiffs and

age

of

these

trees

is

only

35 to

40 years. They have disputed the location and possession of

schedule properties. It is contended that defendants are

enjoying the trees which are situated in their land and shown

by letters ABC and the tree shown by letter D is not at all

existing. It is asserted that these trees are planted and

raised by the father of defendant No.1 and survey sketch

was prepared by Taluk Surveyor showing location of these

tamarind trees. They admit the existence of ridge between

the two lands, but dispute the other contents and asserts

that ABC trees are situated towards South of the ridge in

Sy.No.2 and hence, they have sought for dismissal of the

suit.

5.

On the basis of these pleadings, the trial Court has

framed following five issues:

“1. Whether the plaintiffs prove that they are the

owners in possession of 4 tamarind A.B.C.D

trees and enjoying the same?

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2. Whether

the

plaintiffs

prove

that

the

defendants are interfering with their peaceful

possession and enjoyment of the said trees?

3. Whether suit is properly valued and court fee

paid is correct?

4. Whether the plaintiff is entitled for the reliefs

sought for?

5. What order or decree?”

6.

The plaintiff Nos.1 & 4 were got examined as PW1

and PW2 and plaintiffs have placed reliance on seven

documents marked at Ex.P1 to Ex.P7. Thereafter, three

witnesses were examined on behalf of defendants as DW1 to

DW3. The defendants have placed reliance on Ex.D1 to

Ex.D10. The Surveyor was examined as CW1 and Ex.C1 to

Ex.C6 were marked.

7.

Issue Nos.1, 2 & 4 were answered in the

affirmative in favour of the plaintiffs, while issue No.3 is

answered as does not survive for consideration and as

such, the trial Court decreed the suit of the plaintiffs.

8.

Against this judgment and decree, the defendants

have approached the learned Senior Civil Judge, Madhugiri

in RA.No.102/1990. The learned Senior Civil Judge after re-

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appreciating the oral and documentary evidence vide

judgment dated 17.12.2007, set asid