In a second appeal under Section 100 of the CPC, the court's jurisdiction is limited to substantial questions of law. Interference with concurrent findings of fact by trial and appellate courts is impermissible absent clear perversity or legal infirmity in the appreciation of evidence.

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 05.03.2016 PASSED IN R.A.NO.48/2014 BY THE SENIOR CIVIL JUDGE AND JMFC, CHANNAGIRI, CONFIRMING THE JUDGMENT AND DECREE DATED 29.01.2014 PASSED IN O.S.NO.94/2008 BY THE PRINCIPAL CIVIL JUDGE AND JMFC, CHANNAGIRI.

THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE PRADEEP SINGH YERUR

ORAL JUDGMENT

This appeal is filed by the appellant/defendant challenging the judgment and decree dated 05.03.2016 passed in R.A.No.48/2014 by the Senior Civil Judge & JMFC, Channagiri, which confirmed the judgment and decree dated 29.01.2014 passed in O.S.No.94/2008 by the Principal Civil Judge and JMFC, Channagiri.

2. Parties are referred to as per their status before the trial Court.

3. Brief facts of the case are as under:

3.1 The plaintiff filed a suit against the defendant for the relief of declaration of ownership and delivery of possession and mesne profits. It is the case of the plaintiff that the land bearing Sy.No.67/P of N.Ganadakattu Village measuring 2 acres 36 guntas was purchased by the plaintiff under a registered sale deed dated 01.02.2007 for a valuable consideration and thereafter, the mutation was effected in the name of the plaintiff. The khatha and pahani stand in the name of the plaintiff and the land has been assigned with hissa phodi No.67/1 measuring 2 acres 36 guntas excluding 6 guntas of kharab land. It is also stated that the plaintiff got conducted hudbast/survey on 14.08.2007 through the Survey Department by issuing notices to the adjacent land owners including the defendant. He has also signed the statement recorded by the Surveyor and it was found that during the survey, the defendant being the owner of Sy.No.60, had encroached Sy.No.67 to an extent of 1 acre which is shown in the survey sketch. This aspect of the fact came to the knowledge of the plaintiff only on 14.08.2007, when the survey was conducted. After the survey, the defendant with the help of his supporters in the village forced the plaintiff and her sons to give up their rights in favour of the defendant. Even though plaintiff and her sons did not agree for their demands, they took the signature of the plaintiff and her sons and as such the plaintiff left with no other alternative filed suit for declaration and possession of the suit schedule property.

3.2 Upon issuance of summons, the defendant appeared before the Court, filed a written statement denying the averments in the plaint and sought for dismissal of the suit. A plea was taken by the defendant that the sale deed of the plaintiff dated 01.02.2007 is concocted and the plaintiff has colluded with the vendor Shivakumaraswamy to defraud the defendant of the property in which the defendant has been in possession since 35 years. Several other contentions were taken by the defendant including the plea that the plaintiff was aware of the defendant's lawful possession in the suit schedule property for a long period of time.

3.3 Based on the pleadings of both the parties, the learned trial judge framed the following issues for consideration.

i. Whether the plaintiff proves that he is the owner of the suit properties?

ii. Whether the defendant proves that he is in possession of suit land since 30 years?

iii. Whether the defendant proves that the plaintiff has executed a sale agreement on 30.08.2006 and received a sum of Rs.50,000-00 ?

iv. Whether the defendant proves that he has also paid a sum of Rs.50,000-00 to plaintiff towards total sale consideration?

v. Whether the suit is barred by time?

vi. What is the correct Court fee