&

DECREE

DATED

17.07.2009

PASSED

IN

R.A.NO.27/2002 ON THE FILE OF THE ADDL. CIVIL JUDGE, (SR.

DN.) AND JMFC, HUNSUR, DISMISSING THE APPEAL AND

2

CONFIRMING THE JUDGEMENT AND DECREE DATED: 15.03.02

PASSED IN OS.NO.19/1997 ON THE FILE OF THE CIVIL JUDGE, (JR.

DN.) AND JMFC HUNSUR.

THIS APPEAL COMING ON FOR HEARING THIS DAY, THE

COURT DELIVERED THE FOLLOWING:

JUDGMENT

The captioned second appeal is filed by unsuccessful

plaintiff feeling aggrieved by the concurrent judgments and

decrees of the Courts below in dismissing the suit filed by the

plaintiff seeking relief of declaration of title over schedule ‘A’

property and also for possession of ‘B’ schedule property.

2.

For the sake of convenience, the parties are

referred to as per their rank before the Trial Court.

3.

The facts of the case are as under:

The plaintiff is seeking relief of declaration to declare

that he is the absolute owner of Schedule ‘A’ and ‘B’

properties. The plaintiff further contends that defendants

have

high

handedly

encroached

schedule

‘B’

property

measuring 6¾ guntas. The plaintiff is asserting title over

3

schedule ‘A’ and ‘B’ properties on the basis of the registered

sale deed dated 13.6.1986. The plaintiff claims that he has

purchased this property from its original owner namely

Kashiyappa. On the basis of the registered sale deed, the

plaintiff claims that he has acquired valid right and title and is

in exclusive possession and enjoyment insofar as schedule ‘A’

property is concerned. The plaintiff has alleged in the plaint

that defendant has high handedly removed the bund which

was in existence between the land of the plaintiff and

defendant and thereafter started encroaching over the

plaintiff’s land. On account of high handedness of the

defendant, the plaintiff applied for survey of schedule ‘A’

property. On survey by the competent authority, it was found

that the defendant has encroached an extent of 6¾ guntas

which is referred as schedule ‘B’ property. Hence, the present

suit for declaration to declare that plaintiff is the absolute

owner of schedule ‘A’ property and consequently direction is

sought for possession of Schedule ‘B’ property.

4

3(a) The defendant on receipt of summons, contested

the proceedings by filing the written statement. The

defendant stoutly denied the entire averments made in the

plaint.

3(b) The defendant at para 8 of the written statement

claims that she is the absolute owner in possession of 26

guntas in Survey No.77 and 8 guntas in Survey No.78. The

defendant claims that she has purchased the suit schedule

property from its previous owner namely Meer Mustafa under

registered sale deed dated 5.3.1978. Therefore, the

defendant claims that she is in exclusive possession of survey

No.77 measuring 26 guntas which is situated towards western

side of Survey No.78. On this set of defence, the defendant

sought for dismissal of the suit.

3(c) The plaintiff in order to substantiate his claim let in

oral evidence by examining himself as PW1 and three

independent

witnesses

as

PWs.2

to

4

and

adduced

documentary evidence vide Exs.P1 to 11. The defendants to

5

counter the case of the plaintiff examined two witnesses as

DWs.1 and 2 and adduced documentary evidence vide Exs.D1

to D8.

3(d) The Trial Court having examined the pleadings and

the oral and documentary evidence of the rival parties has

answered issue Nos.1 to 3 in the negative while issue No.5

was answered in the affirmative. Additional Issue No.1

relating to the plea of adverse possession is also answered in

the negative. The Trial Court has recorded a finding that the

plaintiff has failed to prove that he is the absolute owner of

suit schedule ‘A’ property and further held that plaintiff has

failed to prove that defendant has encroached schedule ‘B’

property. The Trial Court further held that plaintiff is not

entitled for the relief of declaration and possession of schedule

‘B’ property.

3(e) Feeling aggrieved by the judgment and decree of

the Trial Co