In property disputes, a suit for declaration must accompany a request for possession; failure to comply may affect its maintainability.

ORAL JUDGMENT

This appeal is preferred by defendants no.1 and 3, challenging the judgment and decree dated 02.02.2015 in R.A.No.59/2013 on the file of II Additional Senior Civil Judge & JMFC, Hassan, dismissing the appeal and confirming the judgment and decree dated 14.02.2013 in O.S.No.146/2009 on the file of III Additional Civil Judge, Hassan, decreeing the suit of the plaintiff.

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

3. It is the case of the plaintiff that, plaintiff and father of the defendants-Thimmegowda are brothers. It is further stated that, suit property bearing Sy.No.8/p, measuring 01 acre 18 guntas, out of which 15 gunta except the road which was going through north-south about 4 & 1/2 guntas, bounded by the boundaries as per the plaint schedule; land bearing Sy.No.8/p measuring 01 acre 03 guntas except 4 & 1/2 gunta road bounded by the boundaries as per the plaint schedule and Sy.No.33/8/p measuring 13 & 1/2 guntas bounded by the boundaries as per the plaint schedule, are derived from the registered settlement deed said to have been executed during 1950 by the parents (Dasegowda and Manjamma) of the plaintiff and the father of the defendants-Thimmegowda. It is also stated in the plaint that, as per the panchayath palu parikath, settlement was arrived at between the parties and the same was effected in M.R.No.20/82-83. It is stated that, the plaintiff and the brother of the plaintiff-Thimmegowda are in possession and enjoyment of their shares in respect of the schedule properties, as per the terms of the palu parikath as reflected in M.R.No.20/82-83. It is stated in the plaint that, the defendants have made an application to the Jurisdictional Tahsildar seeking katha in respect of the properties and, the Tahsildar by order dated 16.09.2005 in RRT No.05/2005-06 rejected the application made by the defendants. Thereafter, again, defendants filed an application to the Tahsildar in RRT No.166/2006-07 and names of the defendants were entered in the revenue records on 28.06.2006 by the jurisdictional Tahsildar. Being aggrieved by the same, the plaintiff has preferred an appeal before the Assistant Commissioner, Hassan, and the said appeal came to be dismissed on

12.02.2009.

4. It is the case of the plaintiff that, there is no registered document with regard to the division of the properties between the plaintiff and the defendants, however, the revenue authorities have changed the katha in the name of the defendants and being aggrieved by the same, the plaintiff has filed a suit in O.S.No.146/2009 before the Trial Court seeking permanent injunction in respect of the suit properties.

5. After service of suit summons, defendant no.2 was placed exparte. However, defendants no.1 and 3 filed common written statement denying the averments made in the plaint. 6. It is the specific case of defendants no.1 and 3 that, defendants are in possession of the land bearing Sy.No.8/p measuring 01 acre 28 guntas however, katha has been changed to their names only in respect of the land to an extent of 01 acre 18 guntas and further, it is stated that, the plaintiff and defendants have entered into settlement with regard to the devolution of the properties and the same was reflected in the revenue records and therefore, the defendants sought for dismissal of the suit.

7. The Trial Court based on the pleadings of the parties, framed six issues.

8. In order to establish their case, the plaintiff examined one witness as PW.1 and got marked 13 documents as Exhibits P.1 to P.13. In rebuttal, DW.1 and DW.2 were examined on behalf of defendants side and 5 do