C THIMMAPPA Vs. MARIYAPPA

JUDGEMENT

(1.) THIS Second Appeal is by the plaintiff in OS No. 422 of 1992 who though succeeded in getting the decree for recovery of possession of the suit schedule property described as Schedule-B forming part of 'a'-Schedule property and had initially succeeded in sustaining that decree before the Court, in the second appeal by the defendant, this Court having set aside the matter and having remanded the matter to the lower appellate Court and the lower appellate Court now having allowed the appeal of the defendant, is now before this Court seeking for restoration of the Judgment and decree as passed by the trial court.

(2.) IN between, during the pendency of the appeal before the lower appellate Court, the matter had come to this court through a Civil Revision petition as the plaintiffs application seeking for amendment of the plaint to include the prayer for declaration though originally the prayer was only for recovery of possession of the property, had been rejected by the trial Court and this Court in revisional jurisdiction having set aside that order and having allowed the application for amendment, the plaint came to be amended during the pendency of the appeal before the lower appellate court and it is thereafter that the appeal of the defendant has been allowed under the impugned judgment and decree dated 9-11-2001 passed in R. A. No. 67/1986.

(3.) THE Plaintiffs case was that the plaintiffhad purchased 'a' Schedule property in terms of sale deed dated 1-2-1982 marked as Exhibit. Pl from one Shekharappa who had purchased the property from one narayanaswamy through another sale deed dated 11-6-1980 marked as exhibit. P2; that the suit schedule property measured 17' x 99'; that subsequent to the purchase of the property, the plaintiff-purchaser had noticed encroachment of the portion of the property measuring 17' x 15' described as 'b' Schedule property and it was for recovery of possession of this portion, suit had been laid and after removing the temporary structure that had betn put up by the defendant.