B. SURESH Vs. R. SUNDARA MURTHY

JUDGEMENT

(1.) This review petition is filed praying this Court to pass an order to review the judgment and decree dtd. 15/9/2021 passed by this Court in R.F.A.No.2089/2010 and to post the appeal for re-hearing on merits of the case.

(2.) The factual matrix of the case of the plaintiff before the Trial Court while filing the suit for declaration and possession claimed that the property bearing site Nos.1, 2 and 3 formed in Sy.No.371/4-5 of Marenahalli Village, Kempapura Agrahara, Bengaluru, measuring East to West 40 feet and North to South 41 feet, acquired under sale deed dtd. 15/12/1980 executed by one Thimmappa and Pillappa. It is contended that his vendor formed site Nos.1 to 9 in their property in Sy.No.371/4-5 and that site Nos.1, 2 and 3 were sold to the plaintiff under sale deed dtd. 15/12/1980. It is contended that his vendor left 15 feet road on the northern side and 20 feet road on the eastern side of schedule 'A' property and in support of his claim produced the hand sketch which is marked as Ex.P.6. It is contended that the entire area was not developed and as such, he also did not develop his aforesaid site Nos.1, 2 and 3 and left it vacant. It is his case that on the southern side of his property, property bearing Sy.No.267/3 is situated which belonged to Masalappa and his son Subbanna and during their lifetime they formed sites and sold all the sites except site No.16 measuring East to West 67 feet and North to South 70 feet and that the said site No.16 fell to the share of Subbanna's son Seetharam in partition deed dtd. 15/3/1997. It is the claim of the plaintiff that the said Seetharam divided his aforesaid site No.16 to three portions and sold the same to defendant Nos.1 to 3 describing the same as north western portion, southern portion and north eastern portion. It is contended that sites formed in Sy.No.267/3 has nothing to do with the suit schedule property and they are different properties with different site numbers. It is contended that defendant No.1 started putting up construction in February 2000 and when the plaintiff noticed the same and on verification/inspection came to know that defendant No.1 has encroached plaint 'A' schedule property towards northern side by 35 feet, north to south and 24 feet east to west and the said encroached portion is morefully described in plaint 'B' schedule. The defendant Nos.2 and 3 started putting up construction and hence the plaintiff filed a suit not to put up the construction and the said encroached portion is described as 'C' schedule property. It is contended that taking advantage of the plaintiff's absence, they encroached 'B' and 'C' schedule properties and they are in illegal occupation and hence sought for declaration and possession.

(3.) The defendants entered their appearance and defendant No.1 pleaded that he had purchased the western portion of site No.16 measuring east to west 24 feet and north to south 35 feet and all the documents are transferred to his name. It is contended that the plaintiff claimed right in respect of site Nos.1 to 3 formed in site No.371/4-5 sold by Pillappa and Thimmaiah to three other different persons in the year 1970-1971, and as such, there is no property belonging to the plaintiff at the spot. The defendant No.1 also gave the particulars of three separate sale deeds executed by Thimmaiah and Pillappa in favour of the said three persons viz., Smt. Shylaja, Smt.Puttagangamma and Smt. Nagamma. Hence, took the contention that the suit is bad for non-joinder of necessary parties.