BISANNA, S/O. !ATE MUNIYAPPA, SINCE DEAD BY LEGAL REPRESENTATIVES MUNIYAPPA, S/O. LATE BISANNA Vs. AGADURAPPA, S/O. LATE RAMAIAH

JUDGEMENT

(1.) LEGAL representatives of the plaintiff are the appellants and the respondent was the defendant in 0.S.382/1992 on the file of the Additional Civil Judge (Jr. Dn.), Bangalore Rural District, at Bangalore. Suit was filed for passing a decree of declaration that plaintiff is the owner of plaint B schedule property and for delivery of possession of the same to him after removing the structure or the house put LI p on the E schedule property, which is a portion of A schedule property and for perpetual injunction restraining the defendant from interfering in any manner Mth the plaintiff's peaceful possession and enjoyment of the plaint A schedule property. The property described in plaint A schedule is, one bearing Village Panchayath Assessment No. 510, property No. 112, forming a portion of Sy. No. 112 of Gunjur Village, Gunjur Palya, Varthur Hobli, Bangalore South Taluk, measuring east to west 43 yards or 129 feet, north to south 28 yards or 84 feet, with a house constructed in a portion of it and bounded on the east; by a road, west by; land in Sy. No. 112/22 of one Smt. Marakka, North by; HogEtha's house and vacant space and defendant's house measuring east to west 1.0 feet and north to south 23 feet with open space towards Eastern side and south by; land in Sy. No. 112 of one Hotteppa. Plaint B schedule property is a building with Mangalore Tile roof forming a portion of A schedule property, measuring east to west 10 feet, north to south 12 feet and bounded on the east, West and North; by remaining portion of plaintiff's property i.e., A schedule property and south bi; defendant's house property. Respondent - defendant filed written statement denying the allegations made in the paint. However, he admitted that the plaintiff's property is having assessment No. 510 and property No. 112 by Village Panchayath and according to him, the tax paid receipts and assessment receipts produced are got up documents for the purpose of the case. Though he admitted that his house is situated in northern side of A schedule property, he denied the measurement and the alleged encroachment and stated that the construction has been put up by him only on his property. Based on the pleadings, the learned Trial Judge framed five issues. Plaintff's son, power of attorney holder of the plaintiff, deposed as PW -1 through whom Exs.P1 to P9 were marked. Defendant got himself examined as DW -1 and got marked Exs.D1 to D5.

(2.) THE identity of the suit property being in dispute, a Comm'ss!orier was appointed by the Court to conduct local survey and for submission of the report. Commissioner so appointed was examined as CW -1, through whom Exs.C1 to C4 were marked. Appreciating the rival contentions and the record, the Trial Court answered the issues in favour of the plaintiff and as a result, decreed the suit with costs.

(3.) THIS appeal was admitted on 01.08.2007 to consider the following substantial question of law: Whether the lower appellate Court is justified is allowing the appeal and dismissing the suit filed by the appellant mainly on the basis of the report of the Commissioner especially when the Commissioner has not executed the warrant in accordance with law?