SHIVAKUMAR Vs. THIMMAPPA AND ORS.

JUDGEMENT

(1.) The case of the plaintiff is that originally the land bearing Sy. No. 48/1B of Tumkur, Kasaba Village belonged to one Chowdamma wife of Kavalaiah. The said Chowdamma sold 5 guntas of land in favour of one Hanumaiah under the registered sale deed dated 02.12.1971 for a consideration of Rs. 2,500/ - and he was put in possession of the same. Subsequently, it is separately phoded as Sy. No. 48/1B3. Accordingly, the katha has been changed into his name. Further, the said Hanumaiah sold the entire property to the plaintiff on 04.06.1973 for a consideration of Rs. 3,000/ - which is described in letters as 'ABCD' in the rough sketch. Since, the date of purchase, he is in physical possession and enjoyment of the said property and in respect of the same, khatha and RTC has been changed to his name and he has also paid the land revenue to the Government.

(2.) It is the further case of the plaintiff that he has got measured the said land through a Surveyor to fix the hudbust and boundaries. At the time of survey, all the four corners of the property were earmarked by putting up stone slabs in all the four corners. Thereafter, it was noticed that out of ABCD' portion, the first defendant has encroached 1/4th areas of land towards the northern side by removing hudbust stone on the property, by pitching the stone slabs at point E to F as shown in the sketch which is also described as ABEF' in the rough sketch. The second defendant who was the owner of the neighboring house on the southern eastern corner of Sy. No. 48/1B3 has also encroached about 1/4th areas at point 'GHIC by removing the hudbust stone and constructed a compound wall and it is the 2nd item of the suit schedule property. Since, the defendants have no manner of right, tide and interest over the suit schedule property, the instant suit was filed seeking for the relief of declaration to declare that the plaintiff is the absolute owner of the suit schedule property and for the relief of mandatory injunction to direct the defendants to demolish the construction put up therein and to handover the vacant possession of the suit schedule property.

(3.) On service of summons, the defendants entered appearance and denied the plaint averments. The first defendant contended that he is not aware of the fact that originally the land belongs to Kavalaiah and was subsequently purchased by the plaintiff The second defendant contends that the suit is not maintainable and also denied the plaint averments. He also contended that he has purchased the site from its lawful owners and after obtaining a license has constructed a house long back and some persons being inimical against him have filed this false suit.