1. For the sake of convenience, the parties are referred to by their names.

2. The geneology as stated in the plaint is as follows:

3. Munishamaiah, Narasaiah and Maluraiah, sons of Muniyappa, along with the wife and children of their brothers Rabbaiah and Channaiah instituted a suit seeking for declaration that they were the owners of the property bearing Sy.No.3 of Kukkanahalli Village, Madure Hobli, Doddaballapura Taluk, measuring 2 acres 33 guntas, out of the total extent of 8 acres 17 guntas of land.

4. It was their case that Rabbaiah, the second son of Muniyappa had purchased 2 acres 33 guntas of land in Sy.No.3 under a registered Sale Deed dated 28.12.1974 from one Eranna. They stated that on the death of Rabbaiah and Channaiah, all of them had acquired right over the suit property and were in possession of the same.

5. It was stated that Rabbaiah was in possession on behalf of the family, till he died on 16.12.2002. On the death of Rabbaiah, they stated that they found out that the revenue entries were standing in the name of Seetharamaiah – the defendant, though Rabbaiah had not conveyed any rights to him. On enquiry, they found that the entire extent of 8 acres

17 guntas in Sy.No.3, originally belonged to one Hanumanthaiah, son of Byranna, who was the Manager of the joint family and after he died in the year 1944, he had left behind his wife Dyavamma and his son Eranna.

6. It was further stated that Arasamma, wife of Hanumanthaiah’s elder brother Bylappa and the two brothers of Bylappa i.e., Byranna @ Chinnapillaiah and Chikkabylaiah had sold the entire extent of 8 acres 17 guntas to one Chikkamma, wife of Beeraiah under a Sale Deed dated 06.01.1945.

7. It was stated that the share of Hanumanthaiah had also sought to be conveyed under the said Sale Deed and as a consequence, Eranna who was the minor son of Hanumanthaiah, represented by his mother Dyavamma, instituted a suit in O.S.No.41/1947-48 in the Court of the Sub- ordinate Judge, Bengaluru, against his uncles’ Byranna, Chikkabylaiah and also against the purchaser Chikkamma, apart from two other alienees seeking for partition of the entire extent of 8 acres 17 guntas.

8. This suit was decreed on 19.02.1948 and was declared that the sale in favour of Chikkamma would not bind Eranna’s share, which was an extent of 1/3rd in 8 acres 17 guntas and the said 1/3rd share was required to be carved out and given to him out of 8 acres 17 guntas in Sy.No.3.

9. It was stated that Eranna was in possession of this 1/3rd share till he sold it to Rabbaiah under a Sale Deed dated 28.12.1974. It was stated that despite this sale, Chikkamma had got the revenue entries in respect of entire extent of land changed in her name in the year 1990 and thereafter, sold the same to Papaiah, the father of Seetharamaiah – the defendant under the Sale Deed dated 17.02.1992.

10. It was stated that Seetharamaiah had also executed the Release Deed on 19.02.2002, relinquishing his rights in the other properties for the consideration of 8 acres 17 guntas being allotted to him and on that basis, he had got the revenue entries changed in his name.

11. It was stated that Chikkamma and Papaiah had taken advantage of the ignorance of Rabbaiah and his family members and had entered into the sale on 17.02.1992 and this would be of no consequence. It was stated that despite repeated requests to Seetharamaiah to restrict or confine his claim only in respect of the land excluding the land purchased by Rabbaiah, Seetharamaiah continued to insist that he had acquired title over the entire property measuring 8 acres 17 guntas. Consequently, left with no other alternative, plaintiffs were constrained to institute a suit for declaration and also for a decree of permanent injunction to restrain Seetharamaiah from selling the suit property or from interfering with their possession.

12. On being summoned, Seetharamaiah entered appearance and filed his written statement.

13. Seetharamaiah admitted that the entire extent of 8 acres 17 guntas originally belonged to Byranna who had four sons, by name Hanumanthaiah @ Hotteppa, Chinnapillaiah @ Byranna, Bylappa and Chikkabylaiah. He also admitted that Arasamma, the wife of first son of Byranna i.e., Bylappa, the second son Chinnapillaiah and the last son Chikkabylaiah sold 8 acres 17 guntas under registered Sale Deed dated 06.01.1945 to Chikkamma. It was stated that prior to 1945, the entire extent had been subjected to mortgage on 18.01.1934 and 17.08.1938, on the basis of which, the khatha had been made out in the name of Siddananjappa. It was stated that the said mortgage had been redeemed by Chikkamma. It was also stated that Chikkamma was put in possession of the entire extent of 8 acres 17 guntas and she was its absolute owner.

14. It was also admitted that on 01.09.1947, Eranna, the son of Hanumanthaiah @ Hotteppa, the son of Byranna, had through his mother (as she was a natural guardian) has instituted O.S.No.41/1947-48 seeking for partition and the same had been decreed on 19.02.1948 and Eranna was held to be entitled to 1/3rd share in the entire extent of 8 acres 17 guntas. It was stated that Eranna though had three uncles, had arrayed only two uncles as parties. It was also stated that his mother Dyavamma who represented him as a guardian had received a sum of Rs.200/- towards the expenses of the Court costs and the land revenue and executed a receipt dated 16.01.1949 in that regard and she had thereby relinquished the 1/3rd share that had been granted under the decree passed in O.S.No.41/1947-48. It was contended that ever since the date of purchase, the entire extent of 8 acres 17 guntas of land continued in the name of Chikkamma.

15. It was stated that Papaiah, the father of Seetharamaiah (defendant) was put in possession and enjoyment of the said extent of land and his possession had remained undisturbed. In order to evidence the said possession, the RTCs for the year 1979-80 had been produced. It was also stated that Papaiah had given a letter to the authorities not to effect change of khatha in favour of anybody. However, Chikkamma had applied for change of khatha in respect of entire extent and a mahazar was drawn up thereafter, which recorded that the property was standing in the name of his father – Papaiah. It was stated that Rabbaiah was one of the witnesses to the said mahazar.

16. It was also stated by Seetharamaiah that Chikkamma had initiated a proceeding before the Tahsildar against the entry in the name of his father Papaiah and the same had culminated in an appeal before the Assistant Commissioner and the Assistant Commissioner had also allowed the appeal. It was stated that he was in possession and he had raised Casurina trees which were more than six years old and when an attempt had been made to cut the Casurina trees, he had also given a police complaint. He had also stated that Chikkamma had also filed O.S.No.233/1991 against his father seeking for injunction and thereafter, on 17.02.1992 Chikkamma and her sons had executed a registered Sale Deed in respect of entire extent of 8 acres 17 guntas in favour of his father – Papaiah and on the basis of the said Sale Deed, the revenue entries were also changed in the name of his father, who, thereafter, continued to pay the tax in respect of the said land and agricultural passbook had also been issued in his favour.

17. It was stated that Papaiah had thereafter sunk a borewell and also secured electricity connection in respect of the said borwell. It was, therefore, contended that Munishamaiah and the other plaintiffs had no interest in the land and were not at all in possession of the said land.

18. The Trial Court, on consideration of the pleadings, framed five issues.

19. In support of the case of the plaintiffs, the 2nd plaintiff was examined as P.W.1 and six other witnesses were examined and 20 documents were marked as exhibits.

20. In support of the case of the defendant, Seetharamaiah was examined as DW-1 and two other witnesses were examined and 70 documents were marked as exhibits.

21. The Trial Court, on consideration of the evidence adduced before it, recorded a finding that Munishamaiah and others had proved that they had title over the suit property. However, it held that they did not prove that they were in possession and that there was interference from Seetharamaiah. The Trial Court further proceeded to come to the conclusion that Munishamaiah and others were entitled to get possession of the said land and accordingly, it decreed the suit.

22. Being aggrieved by this decree declaring Munishamaiah and others as owners of the property and also the finding that they were entitled to get possession, the present appeal has been filed by Seetharamaiah – the defendant.

23. Sri H.K.Kantharaj, learned Senior Counsel appearing for Seetharamaiah contended that the decree of the Trial Court was wholly erroneous. It was contended that the plaint did not even contain an averment that Chikkamma had sold the property in favour of Dyavamma in the year 1949 and had thereby relinquished possession of 2 acres 33 guntas and in the absence of this material plea, the entire judgment and decree of the Trial Court would stand vitiated.

24. Learned Senior Counsel also contended that the evidence on record has been correctly appreciated and a finding was recorded that Seetharamaiah was in possession. He also submitted that when there was no prayer seeking possession, the Trial Court could not have held that Munishamaiah and others were entitled to get possession. It was contended that unless a specific prayer had been made seeking for specific relief thereby giving an opportunity to Seetharamaiah to put forth his contentions regarding the aspect of possession, the Trial Court could not have proceeded to record a finding that plaintiffs were entitled to be in possession.

25. Learned Senior Counsel also submitted that Chikkamma had sold the entire extent of 8 acres 17 guntas in favour of Papaiah – the father of the defendant under registered Sale Deed dated 17.02.1992 and without there being any challenge to the Sale Deed, the Trial Court could not have concluded that Dyavamma had purchased 2 acres 33 guntas.

26. Learned Senior Counsel also put forth the contention that the suit for declaration and injunction would not be maintainable as it was found that the plaintiffs were not in possession and as a matter of fact, the defendant was in possession. In support of the case of Seetharamaiah, learned Senior Counsel has relied upon the following decisions of the Apex Court as well as this Court:

"(i) AIR 2009 SC 1103 [LQ/SC/2008/1958] – BACHHAJ NAHAR Vs. NILIMA MANDAL & ANOTHER;

(ii) AIR 1972 SC 2685 [LQ/SC/1972/233] – RAM SARAN & ANOTHER Vs. SMT.GANGA DEVI

(iii) (2017) 3 SCC 702 [LQ/SC/2017/216] – EXECUTIVE OFFICER, ARULMIGU CHOKKANATHA SWAMY KOIL TRUST, VIRUDHUNAGAR Vs. CHANDRAN & OTHERS;

(iv) ILR 2007 KAR 339 – SRI ARALAPPA Vs. SRI JAGANNATH & OTHERS."

27. Sri C.G.Gopalaswamy, learned Counsel for the respondents-plaintiffs and Sri S.V.Bhat, learned Counsel for appearing for the 12th respondent, on the other hand, contended that the Trial Court had rightly declared that the predecessor-in-interest of the plaintiffs had acquired valid title under the registered Sale Deed dated 28.12.1974. He contended that admittedly the father of the defendant i.e., Papaiah also claimed title under Chikkamma and therefore, it was common ground of all the parties that the title of the property did vest with Chikkamma over the entire extent of 8 acres 17 guntas. It was contended that since Chikkamma conveyed 2 acres 33 guntas to Dyavamma under the Sale Deed dated 16.02.1949, it was obvious that Chikkamma’s title over the entire extent of 8 acres 17 guntas stood reduced by an extent of 2 acres 33 guntas and she thus, was the owner of only 5 acres 24 guntas after 16.02.1949.

28. It was contended that Dyavamma, who had purchased this 2 acres 33 guntas, had, in fact instituted the suit for partition in O.S.No.41/1947-48 against her husband’s brother and also against Chikkamma, who had purchased the property on 06.01.1945, claiming 1/3rd share in favour of her son Eranna. In this suit, to which Chikkamma was a party, a decree had been passed holding that her son Eranna was entitled to 1/3rd share and Chikkamma, being bound by this decree, had proceeded to thereafter convey the property to Dyavamma. It was contended that the recital in the deed executed in favour of Dyavamma reflected this position and in the light of this recital, it will have to be held that Chikkamma was the owner only in respect of 5 acres 24 guntas and when this property was subsequently sold from Dyavamma to the predecessor-in-title of the plaintiffs i.e., Rabbaiah, the flow of title was complete and this title could not be disturbed at the instance of Papaiah, who claimed to have purchased the entire extent of 8 acres 17 guntas in the year 1992.

29. It was stated that assuming that the sale was valid in favour of Papaiah, since Chikkamma possessed title only in respect of 5 acres 24 guntas, Papaiah could have acquired title only to that extent and nothing more.

30. Learned Counsel also submitted that the finding that Seetharamaiah was in possession could not be sustained in the light of the evidence that had been produced stated that though they had not filed any cross-objection or preferred any appeal, they were entitled to challenge the findings recorded by the Trial Court, since the decree was in their favour insofar as it related to title.

31. Learned counsel also submitted that revenue records from the year 1973 till the year 1979 did indicate that 2 acres 33 guntas was standing in the name of Dyavamma and this by itself indicated her possession. It was also submitted that the agricultural pass book produced by Seetharamaiah also indicated that he was in possession of only 5 acres 24 guntas. It was submitted that the name of Seetharamaiah came to be entered only from the year 1992 and this entry had been made on the basis of the Sale Deed executed by Chikkamma on 17.02.1992. It was stated that since Chikkamma had no title over the entire extent of 8 acres 17 guntas, the resultant mutation in favour of Seetharamaiah was of no consequence at all, but, nevertheless, the Trial Court has drawn a presumption in favour of Seetharamaiah to the effect that he was in possession only on the basis of the revenue records. It was therefore, submitted that the finding regarding possession would have to be reversed and it should be held that the plaintiffs were in possession and were, therefore, entitled for a decree of injunction.

32. From the arguments advanced, the points that arise for consideration in this appeal are:

"(i) Whether the legal heirs of Rabbaiah i.e., the plaintiffs had established that they had valid title in respect of 2 acres 33 guntas in Sy.No.3

(ii) Whether the Trial Court was justified in holding that it was Seetharamaiah, the defendant, who was in possession of this extent of 2 acres 33 guntas"

33. It is not in dispute that both Rabbaiah and Papaiah are the predecessors-in-interest of the parties. Both claimed title under Chikkamma. Both of them admit that Chikkamma purchased the entire extent of 8 acres 17 guntas on 06.01.1945. Both of them also admit that the Sale Deed was executed by the wife of the son of the original owner Byranna i.e., Arasamma and two out of three sons. Thus, the fact that Chikkamma was the owner of 8 acres 17 guntas pursuant to the Sale Deed of the year 1945 is the admitted position of all the parties.

34. It is also admitted by all the parties, as could be seen from the pleadings, that Dyavamma had instituted a suit on behalf of her son Eranna seeking for partition of this 8 acres 17 guntas contending that her son had succeeded to the 1/3rd share in 8 acres 17 guntas. It is also not in dispute that the suit O.S.No.41/1947-48 ended in a decree and it was held that Eranna was entitled to 1/3rd share of 8 acres 17 guntas. However, the point of dispute is that whether the possession of 8 acres 17 guntas continued to be with Chikkamma.

35. Seetharamaiah, in his written statement, has set up a plea that pursuant to the decree in O.S.No.41/1947-48, Dyavamma, who had filed the said suit on behalf of her minor son Eranna, had received a sum of Rs.200/- and had thereby relinquished the 1/3rd share in Sy.No.3. It is, therefore, sought to be contended that since Dyavamma had relinquished 1/3rd share of her son out of 8 acres 17 guntas, Chikkamma’s acquisition of entire extent of 8 acres 17 guntas continued notwithstanding the decree.

36. This argument would have to fail for more than one reason. Firstly, Dyavamma did not have 1/3rd share so as to enable her to relinquish the same. Dyavamma had only represented her son who was a minor and sought for a share on his behalf in the suit, and therefore, the question of Dyavamma relinquishing her son’s share by receiving Rs.200/- would be of no consequence at all.

37. Secondly, it cannot be in dispute that Chikkamma sold 1/3rd of 8 acres 17 guntas i.e., 2 acres 33 guntas by executing a registered Sale Deed on 16.02.1949 – Ex.P16. The recital in Ex.P16 clearly indicate that Chikkamma was conveying 2 acres 33 guntas of land as a result of the decree to which she was a party to in O.S.No.41/1947-48.

38. It is to be stated here that by virtue of being a party to the decree in O.S.No.41/1947-48, wherein it had been held that Eranna had been entitled to 1/3rd share, Chikkamma had automatically lost title to the extent of 1/3rd of 8 acres 17 guntas. There is absolutely nothing to indicate that Chikkamma challenged the said decree, on the other hand, the fact that she proceeded to execute a Sale Deed in favour of Dyavamma which contained a recital about the decree indicates that Chikkamma had title only in respect of 5 acres 24 guntas in Sy.No.3.

39. It cannot be in dispute that in law once the owner of the property conveys a portion of that property, that person cannot, thereafter, seek to convey the portion that has already been sold on the presumption that he/she continued to be the owner of the entire extent. Even if a person seeks to convey the entire extent of the property that he originally owned, that sale could only be valid to the extent of title that, that person possessed as on the date of sale.

40. In this view of the matter, since Chikkamma had acquired title over the entire extent of 8 acres 17 guntas and had executed a Sale Deed in respect of 2 acres 33 guntas in favour of Dyavamma, she continued to be the owner of only 5 acres 24 guntas. The sale of 2 acres 33 guntas would bind any person who claimed through Chikkamma and the person who claimed through Chikkamma cannot be permitted to contend that the sale should be ignored because Chikkamma had sold the entire extent to him.

41. As stated above, since Chikkamma possessed only 5 acres 24 guntas, the sale in favour of Papaiah can be valid only in respect of that extent and the extent that Eranna had earlier sold in favour of Rabbaiah would remain undisturbed in the light of the fact that a registered Sale Deed dated 28.12.1974 – Ex.P-3 had been executed in favour of Rabbaiah, the predecessor-in-interest of the plaintiffs. Therefore, the decree of the Trial Court that plaintiffs would be entitled to be declared as the owners of the suit property cannot be found fault with.

42. The Trial Court has, however, proceeded to record a finding that the possession of the land in question i.e., 2 acres 33 guntas was with Seetharamaiah and the same was evidenced from the revenue records. In other words, the Trial Court has come to the conclusion that possession of Seetharamaiah had been proved by production of revenue records.

43. It is no doubt true that the plaintiffs have neither filed an appeal challenging the refusal of the decree of injunction, nor have they preferred cross-objections to the decree.

44. Learned Counsel appearing for the respondents/plaintiffs contended that a conjoint reading of Order XLI Rule 22 and Order XLI Rule 33 of CPC would make it clear that plaintiffs were also entitled in law to challenge the finding against them without having the need to file either an appeal or cross- objection.

45. Learned Senior Counsel appearing for Seetharamaiah/defendant, however, contended that it would be impermissible for the plaintiffs to challenge a finding without preferring an appeal or cross-objection.

46. This issue can no longer be contentious in view of the decisions rendered by the Apex Court and the latest being in the case of SAURAV JAIN & OTHERS Vs. A.B.P. DESIGN & OTHERS - AIR 2021 SC 3673, wherein the Apex Court hasstated that the principle stipulated in Order XLI Rule 22 CPC can be applied to further the cause of justice by providing the party other than the aggrieved party to raise a plea against any adverse findings against them. The Apex Court has also held that it was not necessary that a challenge to the adverse findings is required to be made in the form of a Memorandum of Appeal or Cross-objection. In the light of this decision of the Apex Court and also the decision of the Larger Bench in the case of NIRMALA BALA GHOSE & OTHERS Vs. BALAI CHAND GHOSE & OTHERS - AIR 1965 SC 1874 [LQ/SC/1965/111] , it is open for the plaintiffs to challenge the findings recorded against them in an appeal which has been preferred by the defendants.

47. As stated above, the Trial Court basically relied upon the revenue records to come to a conclusion that the possession of Seetharamaiah had been proved. Seetharamaiah himself produced Ex.D.24 – an order that had been passed in favour of his father in an appeal that is filed against Chikkamma. In the said order, the Assistant Commissioner has recorded as follows:

“Facts of the case

The appellant’s contention is that the land in Sy.No.3 measuring 8 acres and 17 guntas of Kukkanahalli village, belongs to him and is in his possession since 1945. He is cultivating the land in question. Now he has sown crop like Ragi in 3 acres and planted casurina trees in 5 acres of land. The R.T.C., stands in his name since 1969-70 up to 89-90. The impugned order was passed without giving notice without giving opportunity to the appellant and without conducting any enquiry. The property is the family property of appellant and his brothers. The impugned order was passed without making any observation. The appellant came to know about the impugned order only on 9-8-90 when he had been to Doddaballapura to bring manure and ascertained the same from the Village Accountant. He applied for a certified copy and obtained it on 10-8-90 and filed the appeal in question time from the date of knowledge. The appellant request for condonation of delay if any.

2nd respondent filed objection statement stating that the appellant has not made out any reasonable convincing grounds for delay. The reason given in the affidavit filed by the appellant are not satisfactory in any manner. In the appeal Memorandum the averments made by the appellant are all false and concocted. The appellant has no right, title or possession of the property and has failed to establish on which capacity he has the property. The appeal is to be dismissed.

As per orders of this court dated 3-6-91 the appeal is admitted and arguments were heard. Counsel for appellant reiterated the points stated in the appeal memorandum. He argued that the lower court has not produced any documents to show that it has been published by Village Accountant. Orders not communicated to the appellant.

Counsel for respondent-2, argued that Village Accountant is to be summoned with regard to the dated of knowledge of the orders. Cited AIR 1968 Bombay page 265.

ORDER

The documents available in the file were examined in detail. The appellant has challenged the impugned order MR 5/89-90 dated 25-1-90 and MR 6/89-90 dated 25-1-90 of the Revenue Inspector, Madure Hobli, Doddaballapura Taluk regarding 8 acres and 17 gts of land in Sy.No.3 of Kukkanahalli village, Madhure Hobli. M.R.5/89-90 read as:

"This content is in vernacular language. Kindly email us at info@legitquest.com for this content."

“Accepted”

The copies of the R.T.Cs of the disputed land furnished by the appellant indicates as follows:

From 1969 to 1974 Khatedars – Siddananjappa, Anubhavdars are Papaiah and Dyavamma, for 69-70, 1970 – 1973 blank, 1973-74 Papaiah 5 acres and 24 gts.

and Dyavamma 2 acres and 33 gts, for 1975 to 79 Khatedar is Siddananjappa, Anubhavadars are Papaiah and Dyavamma. For 79 to 91 Khatedar is Siddananjappa and Anubhavadar is Papaiah.

The respondent has denied that the appellant was cultivating the land but has not produced any contradictory evidence. The copy of the village mahazar indicates that the appellant has been cultivating the land and that he is related to Chikkamma.

The impugned order M.R.6 is based on a deed dated 6-1-1945 the mutation being accepted after more than 40 years. There is no evidence to indicate that the appellant was heard before the order was passed. Based on the above facts, the appeal is allowed. The impugned orders are set aside. The matter is remanded to the Tahsildar, Doddaballapura for fresh enquiry, to hear the parties, peruse all documents and to dispose the case as per law.”

48. A perusal of the said order would indicate that from the year 1973-74 till the year 1979, the name of Dyavamma had been entered in respect of 2 acres 33 guntas. It, therefore, indicates that the Sale Deed of Dyavamma had been given effect in the revenue records and she was also found to be in possession of 2 acres 33 guntas.

49. Seetharamaiah also produced Patta and receipt book which has been marked as Ex. D50, in which, the extent of land held by him had been recorded. In Ex.D50, as against Sy.No.3, it is stated that he was the owner of 5 acres 24 guntas. This would indicate that the sale in favour of Dyavamma to the extent of 2 acres 33 guntas was accepted by him and he exercised the ownership only in respect of 5 acres 24 guntas.

50. It would also had to be kept in mind that Papaiah did not have any direct claim over Sy.No.3. Papaiah is admittedly the brother of Chikkamma’s husband and the contention appears to be that the property was purchased in the name of Chikkamma, but the property was essentially that of the family. Since Papaiah does not have a direct claim over this property till the year 1992, the question of him placing reliance on the revenue records to contend that he has some right over the land cannot be accepted. Merely because the cultivator’s column reflected his name that would not mean that he had a right over the land in question.

51. As stated above, since the very documents produced by Seetharamaiah indicate that the revenue records stood in the name of Chikkamma’s vendor and his name was shown in respect of only 5 acres 24 guntas, the finding of the Trial Court that he was in possession of entire extent of 8 acres 17 guntas cannot be accepted.

52. It is to be noticed here that the entry in favour of Papaiah was only to the extent of 5 acres 24 gunats, but this entry was changed, which reflected that he was in possession of the entire extent of 8 acres 17 guntas. Obviously, this change was brought about only because of the Sale Deed that Chikkamma executed in the year 1992 and could not be, therefore, accepted. As stated above, by the Sale Deed of the year 1992, the title of Papaiah would be confined only to the extent of 5 acres 24 guntas since Chikkamma did not have title over the entire extent of 8 acres 17 guntas to convey the same to Papaiah. The entries made on the basis of the Sale Deed cannot result in a presumption that he was in possession. The entries prior in point of time reflect the name of the vendor of Rabbaiah, and therefore, it will have to be held that they were in possession of the said property. It is also to be kept in mind that Chikkamma after executing the Sale Deed which contained the recital that she was putting Dyavamma in possession acknowledged the fact that she had lost possession over 2 acres 33 guntas in Sy.No.3 in the year 1949 and thus, she could not have obviously handed over possession of entire extent of 8 acres 17 guntas in favour of Papaiah.

53. Reliance placed on the judgment of the Apex Court by the learned Senior Counsel appearing for Seetharamaiah in the case of BACHHAJ NAHAR Vs. NILIMA MANDAL & ANOTHER – AIR 2009 SC 1103 [LQ/SC/2008/1958] , to contend that a specific prayer should have been made for possession and since that had not been made, the Trial Court could not have granted decree of possession would not be applicable to the present case, since the plaintiffs did seek for a decree of injunction and the Trial Court had recorded erroneously that they were not in possession. The decision rendered by the Apex Court would apply to a case where the prayer has not even sought for and in respect of which, there was no foundation laid in the pleadings. In the instant case, as stated above, there was a foundation laid for grant of an injunction and the Trial Court merely committed an error in recording a finding on this particular prayer.

54. The other ruling cited by the learned Senior Counsel in the case of POOJARI PUTTAIAH (BY LRs.) & OTHERS Vs. KEMPAIAH – ILR 1980 KAR 104 to contend that a suit for declaration and injunction was not maintainable when it was found that the plaintiffs were not in possession as on the date of the suit is concerned, the same would also not be applicable in the present case, because, in the present case, the plaintiffs contended that they were entitled for a declaration and also for injunction on the basis that they were in possession as on the date of the suit. In the case relied upon by the learned Senior Counsel, the Court had found that the defendant therein had been put in possession of the property through the process of the Court and the subsequent suit filed seeking for an injunction and declaration could not be maintainable since it had been established that he was not in possession as on the date of the suit. Such a situation does not prevail in this case. Further more, since the finding regarding possession has now been reversed, it will have to be held that the plaintiffs’ claim for declaration and for injunction was maintainable and the possession of the plaintiffs had been clearly established. Thus, the said judgment would be of no avail.

55. Reliance placed on the judgment in the case of RAM SARAN & ANOTHER Vs. SMT.GANGA DEVI – AIR 1972 SC 2685 [LQ/SC/1972/233] would also be of no avail since in that case the plaintiffs had merely claimed a declaration that they were the owners of the suit property and they had not sought for any further relief and in that scenario, the Court held that the mere suit for declaration was not maintainable. In the present case, not only the prayer for declaration was sought, but also the relief of injunction had also been sought for. The said decision, therefore, has no application to the present case.

56. It is also a well settled principle that possession would always follow title, especially, in cases of vacant sites and agricultural lands. In this view of the matter, the finding of the Trial Court that Papaiah was in possession of the property i.e., 2 acres 33 guntas out of 8 acres 17 guntas cannot be sustained and the same is accordingly set aside.

57. As a result, it is held that the plaintiffs had clearly established that Rabbaiah had acquired 2 acres 33 guntas and they were in possession of this entire extent of 2 acres 33 guntas in Sy.No.3 ever since 1974. Consequently, the appeal by Seetharamaiah challenging the grant of declaration is dismissed and at the same time, the finding of the Trial Court that possession was with Seetharamaiah in respect of 2 acres 33 guntas is set aside and it is held that the plaintiffs had established that they were in possession and therefore, they were entitled to a decree of injunction apart from the decree of declaration in respect of 2 acres 33 guntas of land in Sy.No.3. Appeal is accordingly dismissed.