Heard the learned counsel appearing for the

appellants and the respondents.

2. This

appeal is by the defendants in

O.S.385/1988 on the file of the Civil Judge (Jr.Dvn.),

Channarayapatna. The suit is filed for the relief of

5

rectification of the sale deed dated 01.07.1976 and

declaration of title and in the alternative, for possession

of the suit schedule property.

3. The suit property is the property bearing

Sy.No.116/2 in Madalagari Village, Channarayapatana

Taluk. The Plaintiff claims that the property measuring 1

acre and 10 guntas is purchased by the plaintiff on

01.07.1976. It is urged that, though in the sale deed

dated 01.07.1976, the property number is mentioned as

Sy. No.116/3, the property purchased in fact is Sy.

No.116/2, not Sy. No.116/3. It is claimed that the

plaintiff has purchased the property from Gangappa s/o

Muddegowda. Plaintiff would contend that the property

was allotted to Muddegowda in the partition of 1937.

Thus Gangappa who acquired the title from Muddegouda

could have sold only Sy. No.116/2 and not 116/3. The

property sold is Sy.no.116/2 and the same is wrongly

mentioned as Sy. No.116/3 in the sale deed is the

submission on behalf of the plaintiff.

6

4. The 1^st defendant contested the claim of the

plaintiff. The 1^st defendant contends that he is the

owner of the property based on registered sale deeds

dated 25.06.1965 and 24.08.1968. 1^st defendant claims

to have purchased certain properties including the suit

property under the aforementioned sale deeds from his

vendor

Chikka

Boregowda.

According

to

the

1^stdefendant, the suit property is allotted to the share of

Chikka Boregowda in the partition of 1937. It is urged

by the 1^st defendant that since he is the exclusive owner

of the suit property, in terms of registered sale deeds

dated 25.06.1965 and 24.08.1968, the plaintiff who is

claiming

title

under

registered

sale

deed

dated

01.07.1976 has no title over the suit property. It is

urged that the title deeds of the 1^st defendant are

anterior to the sale deed in favour of the plaintiff. Thus

it is contended that the plaintiff could not have

purchased the suit property in 1976 from the 2^nd

defendant

i.e.Gangapa

s/o

Muddegowda,

as

the

property is already purchased by the 1^stdefendant in

1965.

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5.

The trial Court has held that the vendor of

the 1^stdefendant did not have title over 3 acres and 9

guntas which the 1^stdefendant claimed under two

registered sale deeds referred to above. The trial Court

has concluded that the 1^stdefendant has not established

his title over the suit property and it has concluded that

the 1^stdefendant has encroached upon 16 guntas of the

suit land. The basis for finding on encroachment is the

report of the Court Commissioner. It is forthcoming

from the records that the report is not formally marked.

However, reliance is placed by the Trial Court on the

report of the court commissioner as there was no

objection to the said report by either of the parties

before it.

6. According to the trial Court, the report would

reveal that 16 guntas in the suit land are encroached on

by the defendant. The trial Court has granted the decree

for declaration of title and decree for possession of 16

guntas of land. The trial Court has also concluded that

the property sold by the vendor of the plaintiff is Sy.

8

No.116/2 and not Sy. No.116/3 as reflected in the sale

deed.

7. The defendant being aggrieved by the said

judgment and decree preferred an appeal before the

First Appellate Court. An application is also filed by the

appellant before the First Appellate Court to appoint a

Survey Commissioner. That application was heard along

with the appeal. The First Appellate Court has concluded

that there is no need to appoint the Court Commissioner

as none objected to the Commissioner's report placed

before the trial Court. The First Appellate Court has

concluded that the 1^st defendant's vendor had no title

over 3 acres and 9 guntas of land said to have been

conveyed under the registered s