J U D G M E N T

1. Heard the learned counsel appearing for the appellants and learned counsel appearing for the respondent.

2. The parties are referred to as per their original rankings before the Trial Court to avoid confusion and for the convenience of the Court.

3. This appeal is filed by the plaintiff challenging the judgment and decree dated 06.12.2005 in R.A.No.505/2004 on the file of Principal District Judge, Tumkur.

4. The appellant is the plaintiff who filed the suit before the Trial Court seeking the relief of declaration to declare that plaintiff is the absolute owner of the suit schedule property by virtue of sale deed dated 26.10.1962 and also sought for the relief of mandatory injunction directing the defendant to pull down the superstructure on the suit schedule property and delivery of the vacant possession of the suit schedule property to the plaintiff and for mesne profits and cost the relief deem fit to circumstances of the case. While seeking such relieves it is contended in the plaint that the plaintiff had purchased the property from its lawful owner Sri.Riyazathulla Shah Khalifa Rafal under the sale deed dated 26.10.1962 and he was put in possession of the same and also in possession of the same till a year ago. The plaintiff is a permanent resident of Nagavalli villaege, Hebbur Hobli, Tumkur Taluk. Taking advantage of the absence of the plaintiff at the spot, the defendant has illegally constructed a house in the suit schedule property about a year ago though the defendant has no manner of right, title or interest or possession over the suit schedule property. The plaintiff has got issued a legal notice dated 07.15.1987 calling upon the defendant to pull down the structure and give him vacant possession of the schedule property. For this the defendant gave an evasive reply. The defendant in pursuance of the suit summons appeared before the Court and filed written statement denying the allegations made in the plaint. It is his contention that he built a house in the site which he had purchased. The vendor had originally purchased the property by one Noorjahan under registered sale deed dated 29.09.1962. Since that date, she was in possession of the property. The said Noorjahan was sold the property to Mustafa @ Ameer and Rahamathunnisa under registered sale deed dated 11.07.1963 and delivered possession of it to the purchaser. They were in possession of the property. In turn they sold it to one B.Samperraiah under registered sale deed dated 04.03.1970 and delivered possession to purchaser. He was in possession of this property. He sold it to Chinna Kotaiah under registered sale deed dated 17.08.1970 and delivered possession to purchaser. He was in possession of the property and also mortgaged it to one Chinna Mallappa under a registered Bhogya deed dated 25.11.1971. That Chinna Kotaiah got this property alienated for building purpose under an order of Deputy Commissioner dated 12.06.1971. Thereafter, he got the khata of the property made in his name in the Municipality, Tumkur. The Municipality has given khata number to the property and Chinna Kotaiah discharged the mortgage under discharge bhogya deed dated 17.04.1978. He had built a hut on it and he was living in it. He has paid the municipal taxes to it from 1971 every year. He has sold this property to the defendant under registered sale deed dated 17.04.1978 and delivered possession of the same to the defendant. This defendant has been in possession of the property as absolute owner. He had constructed the residential house on after obtaining the license. He has been residing in the said house as absolute owner. It is his claim that he was never in possession of the suit schedule property. The suit is barred by time.

5. The Trial Court taking into note of the pleadings of the plaintiff and defendant, framed the following issues and additional issues:

ISSUES

1) Whether the plaintiff proves he is the absolute owner of the suit schedule property?

2) Is the