DASAPPA Vs. K S SEETHARAM

JUDGEMENT

(1.) this regular first appeal arises out of judgment and decree dated july 3rd, 1989, delivered in regular suit No. 5208 of 1986, whereby the vii additional city civil judge, bangalore, has decreed the plaintiffs claim, holding the plaintiff to be the absolute owner of the property in dispute, as well as the defendant to be in unauthorised occupation thereof without having perfected title by adverse possession and further granted the decree of possession in favour of the plaintiff-respondent and directed the defendant to vacate and hand over possession of the suit property to the plaintiff-respondent within three months from the date of decree. Further, the court directed that the enquiry, as regards mesne profits, claimed by plaintiff under Order 20, Rule 12 of the Civil Procedure Code, for short, 'code', be made. Thus, a preliminary decree has been passed by the trial court decreeing the plaintiffs claim.

(2.) brief facts of the case are that the plaintiff claimed himself to be the owner of the property bearing nos. 57 and 57(1) (formerly 57a), 7th main road (present 3rd main road), Sriramapuram, Bangalore-21, by virtue of the partition made under a registered partition deed dated 29-5-1969, amongst his father, his sister's daughter and himself. The plaintiff alleged that khata was also transferred in the corporation register in his name. The plaintiff, has given an exchequerred history of the litigation between the parties, in the plaint.

(3.) plaintiff has stated in the plaint giving the description and the location of that land bearing old No. 57a and has alleged that the properties bearing old No. 57a and 57 are adjacent to each other and are situated in the compound. The plaintiff cases is that in the year 1975, a small shed was constructed and same was leased out to defendant in 1975. Thereafter, he asked the defendant to vacate the suit property, but, the defendant filed a original suit No. 2024 of 1980, which was later on numbered as 0. S. 10011 of 1980. In that suit, the present defendant, who was the plaintiff claimed that he has been long standing adverse possession, thereby, perfected his title and denied the present plaintiffs title as well as the present defendant-appellant was in possession of the property in his own right and plaintiff had no right in the property. The defendant of that suit, (i.e., the present plaintiff) denied the present defendant's plea, i.e., the plea of plaintiff of the suit of r.s. No. 10011 of 1980 that the said suit's plaintiff was not the tenant. The present defendant further mentioned that an ex parte decree was originally passed in that suit, but miscellaneous case No. 8 of 1982, had been filed and the said ex parte decree was set aside vide Order dated 24-8-1985. After restoration of the suit, the plaintiff of that suit, that is, the present defendant-appellant sought the declaration of his title on the basis of adverse possession by amending the plaint of that suit.