THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 10.06.2009 PASSED IN R.A.NO.69/2001 ON THE FILE OF THE CIVIL JUDGE (SR. DVN.) & JMFC., MADHUGIRI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 07.03.2001 PASSED IN O.S.NO.187 OF 1996 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DVN.) MADHUGIRI.

THIS RSA COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-

JUDGMENT

This appeal was admitted for considering the following substantial questions of law, namely,

Whether the First Appellate Court could ignore the sale deed in favour of the appellant to an extent of 2 acres 20 guntas, when it was not in dispute that the respondent could claim only 33 guntas of the suit property and whether the First Appellate Court was therefore justified in decreeing the suit for possession to the entire extent?

2. The respondent herein as plaintiff instituted a suit in O.S.No.187/1996 for the relief of permanent injunction in respect of the suit schedule property. The suit schedule property was described as the "land situated at Chinakavajra village, Kasaba hobli, Madhugiri taluk, bearing Sy.No.230, measuring 5 acres 3 guntas assessed at Rs.4.18 paise. Out of this 3 acres of the land within the following boundaries, East – land of Sannechikkanna and Dodderanna, West – land of Chikkanna, North – land of Yarranna and South – land of Parvathamma."

3. The case of the plaintiff is that, the suit schedule property was allotted to the share of the plaintiff's father Bikkeranna in a partition between himself and his brothers. Since then, his father has been in possession and enjoyment of the suit property. His father is aged about 90 years and is unable to move about and hence, plaintiff has been looking after the family affairs as the Manager of the family. The khata and pahani of the schedule property stands in the name of the plaintiff. The defendant has no manner of right, title or interest over the suit schedule property, but with an ulterior motive to knock off the property, he is trying to encroach the suit land on the northern side and hence, the plaintiff sought for an order of permanent injunction restraining the defendant (appellant herein) from interfering with the suit schedule property.

4. The defendant denied that the suit schedule property is the ancestral property of the plaintiff fallen to the share of the father of the plaintiff. He also denied the possession of the suit property by the plaintiff in his capacity as the Manager of the family. He denied the alleged attempts to encroach the suit property on its northern side and put forth a plea that one Chikkanna s/o. Erachikkappa was the owner of Sy.No.71/4 and the said Chikkanna had sold 2 acres 20 guntas, out of the total extent of 3 acres in Sy.No.71/4 to the defendant, under a registered sale deed dated 22.10.1952 and since then, the defendant has been in possession and enjoyment of the 2 acres 20 guntas. In M.R.No.96/93-94, the khata was transferred in the name of the defendant and his brother Jampaiah in respect of the above extent of 2 acres 20 guntas. Subsequently, the plaintiff in connivance with the ADLR, managed to get the land in Sy.No.71/4 phoded in his name and the land was assigned Sy.Nos.230/1 and 230/2. The defendant has taken steps to correct the entries before the concerned authorities. Further, the defendant contended that the boundaries given in the suit schedule property are wrong and the plaintiff and his father have been making a false claim over the land of the defendant and thus, contending that the plaintiff being not the owner in possession of the suit land, sought for dismissal of the suit.

5. Based on the above pleadings, the Trial Court framed the following issues:-

a) Whether the plaintiff is in lawful possession of the suit schedule property with correctness of extent and boundaries?

b) Whether the plaintiff proves the alleged cause of action?

c) Whether the suit is bad for non-joinder of ne