NELLAMAKKADA U AIYAPPA Vs. K M MUDDAPPA

JUDGEMENT

(1.) The Defendant in O.S. No.56/2008 on the file of the Senior Civil Judge, Virajpet, has come up in this second appeal, impugning the concurrent findings of both the Courts below in decreeing the suit of the plaintiffs for the relief of declaration and possession with reference to suit 'B' schedule property.

(2.) The brief facts leading to this second appeal are as under:

(3.) In the said suit, on the basis of evidence raised by the parties, the trial Court framed in all five issues. Out of that, the first issue which is with reference to title of the plaintiffs to suit schedule properties is answered in the affirmative. So far as second issue is concerned, it is with reference to whether the plaintiffs prove that in the year 2005, the defendant forcibly encroached into 'B' schedule property and he is in possession of 'B' schedule property illegally is answered partly in the affirmative for the reason that though the Courts below accepted the survey report which was initially conducted in the year 2005 for the first time and 2007 for the second time and subsequently, during the pendency of the proceedings where the report filed by the Court Commissioner is at Exhibit.C1. Though the court below disbelieved encroachment is of the year 2005, accepted the finding of the Commissioner who is examined as CW.1 with reference to the plaintiffs being in possession of 'B' schedule property. So far as issue No.3 is concerned, it is with reference to entitlement of the plaintiffs for the relief of declaration and possession in respect of 'A' & 'B' schedule properties and so far as plaintiffs' claim for damages is concerned, it is rejected by answering the said issue in the negative.