1. In this appeal, the defendant has challenged the judgment and decree dated 28.02.2020 passed in O.S.No.171/2015 on the file of the Senior Civil Judge, Nelamangala (for brevity 'the Trial Court') in decreeing the suit of the plaintiffs directing the defendant to hand-over vacant possession of the suit schedule properties to the plaintiffs.

2. For the sake of convenience, parties shall be referred as per their status before the Trial Court.

3. Brief facts of the plaintiffs' case are, the suit schedule properties originally belonged to one Heggunda Rudraiah, who is a grandfather of plaintiffs. Heggunda Rudraiah had two sons viz., N.R.Veeranna and N.R.Revaiah, father of plaintiff Nos.1 and 2 respectively. Both of them got their father's properties through a Partition Deed dated 25.05.1975. Plaintiff No.1 and his three brothers viz., N.V.Sadashivaiah, Late Veerabhadraiah and N.V.Virupakshaiah have divided the properties by Partition Deed dated 15.04.1994 and plaintiff No.1 got item Nos.1 and 3 of the suit schedule properties and he has been in possession and enjoyment of the same. Plaintiff No.2 and his two brothers viz., N.R.Shivashankaraiah and N.R.Rudreshaiah have divided the properties by Partition Deed dated 20.01.1995 wherein item Nos.2 and 4 of the suit schedule properties have fallen to the share of plaintiff No.2 and he has been in possession and enjoyment of the same.

3.1. The defendant has no right, title or possession over the property. Six months prior to filing of the suit, the defendant has tried to interfere with possession of the plaintiffs and tried to trespass over the property with an intention to lift the sand in the suit properties. The plaintiffs were busy in the marriage of younger son of plaintiff No.1 and they were not able to visit the property. Taking advantage of the said situation, the defendant has trespassed and put up fence over the property, thereby dispossessed the plaintiffs from the suit schedule properties. The efforts made by the plaintiffs by filing a complaint to Dabaspet Police went in vain and they were advised to approach Civil Court. Accordingly, they have filed the instant suit.

4. The defendant has resisted the suit by filing written statement contending interalia that the suit is not maintainable. It is his specific case that, in the year 1989, he has taken the suit schedule properties from the brothers of plaintiffs on yearly rental basis and he was cultivating the suit schedule properties as a lessee. Plaintiff No.1 has agreed to sell the item Nos.1 and 3 for a consideration of Rs.1,50,000/- on 19.04.2000 and executed an agreement of sale in his favour and received an advance consideration of Rs.1,31,800/- and he was put in possession of item Nos.1 and 3. Similarly, on 20.01.1995, plaintiff No.2 has executed an agreement to sell item No.2 and 4 for a consideration of Rs.1,60,000/- and received a sum of Rs.1,24,050/- as advance and put the defendant in possession of item Nos.2 and 4, thereby the defendant is in lawful possession and enjoyment of the suit schedule property since 1989.

4.1. It is further contended that the defendant has filed a suit in O.S.No.255/2008 against the plaintiffs seeking relief of specific performance of contract. On 28.01.2010, a panchayat was convened wherein plaintiffs have agreed to execute the registered sale deed in favour of the defendant. By virtue of such settlement the defendant, has withdrawn the said suit on 29.01.2010. Thereafter, the plaintiffs have not executed the registered sale deed in his favour. At no point of time, the defendant has trespassed into the suit schedule properties. The plaintiffs suppressing the material facts have filed the suit, which is liable to be dismissed.

5. On the basis of the above pleadings, the Trial Court has framed the following issues:

"1) Whether the plaintiffs prove that the defendant has encroached the suit schedule properties

2) Whether the plaintiffs prove that they are entitled for the possession of the suit schedule properties

3) Whether the plaintiffs prove that they are entitled for relief as prayed in the suit

4) What order or decree"

The Trial Court has re-casted issue No.1 as follows:

1) Whether the plaintiffs prove that the defendant has trespassed the suit schedule properties

6. On behalf of the plaintiffs, one witness was examined as PW-1 and 19 documents came to be marked as Exs.P1 to P19. No evidence was let in on behalf of the defendant.

7. The Trial Court after hearing the parties recorded its finding on issue Nos.1 to 3 in favour of plaintiffs and while answering issue No.4 directed the defendant to deliver the vacant possession of the suit properties. Aggrieved by the same, defendant has filed this appeal on various grounds.

8. Heard the arguments of Sri.Siddharth B.Muchandi, learned Counsel for the appellant/defendant and Sri.Vijaya Kumar, learned Counsel for respondents/plaintiffs

9. It is the contention of the learned counsel for defendant that, plaintiffs and their brothers have put the defendant in possession of the suit schedule properties in the year 1989. On 20.01.1995, plaintiff No.2 executed an agreement of sale to sell item Nos.2 and 4 and on 19.04.2000, plaintiff No.1 executed an agreement agreeing to sell suit item Nos.1 and 3 in favour of the defendant and put the defendant in possession of the property. They also suppressed the fact of filing the suit by the defendant in O.S.No.255/2008 for specific performance and it ended in settlement driving the defendant to withdraw the said suit. It is also argued that the defendant has filed a suit in O.S.No.329/2009 for injunction against the plaintiffs and it came to be decreed by the Principal Civil Judge (Jr.Dn.) and JMFC., Nelamangala on 22.02.2010. Instead of executing the sale deed, the plaintiffs have filed the suit. The defendant is in possession of the suit schedule properties as a lessee and also as a holder of the sale agreement. Hence, the finding recorded by the Trial Court that the defendant is a trespasser is not proper and sought for interference.

10. Per contra, learned counsel for the plaintiffs has contended that in O.S.No.255/2008, the plaintiffs have filed their written statement specifically denying the execution of sale agreements by plaintiff No.1 on 19.04.2000 and plaintiff No.2 on 20.01.1995 agreeing to sell the suit schedule properties nor have they received any part consideration. Without proving the same, the defendant has withdrawn the suit, thereby he is estopped from contending that he is the holder of agreements. When the defendant is claiming that he is in permissive possession of the property since 1989, he cannot claim that he was put in possession of the property on 20.01.1995 or 19.04.2000. The suit of the plaintiffs is based on title. They have proved their title. The defendant has failed to prove his right to be in possession of the property. The Trial Court after appreciating the materials placed before the Court decreed the suit and he supported the impugned judgment.

11. We have given our anxious consideration to the arguments addressed on behalf of both parties and perused the records.

12. In the light of the rival contentions urged by both parties, the points that arise for our consideration are:

(i) Whether the plaintiffs have proved their title over the suit schedule property

(ii) Whether the impugned judgment directing the defendant to deliver vacant possession of the property in favour of the plaintiffs is perverse and illegal and calls for our interference

Reg. Point No.1:

13. The undisputed fact is that, the land in Sy.No.104/4 consists of 1 acre 20 guntas and land in Sy.No.106/1 consists of 3 acres 2 guntas equally belonging to plaintiff Nos.1 and 2 and they have acquired the same by virtue of Partition Deeds dated 15.04.1994 and 20.01.1995. The fact that the plaintiffs have obtained share in the said properties has not been denied by the defendant. PW1/N.R.Shivarudraiah is plaintiff No.2, who has adduced evidence on behalf of both plaintiffs and he has produced the certified copy of the RTC extract as per Exs.P14 to P17 and mutation extract as per Exs.P18 and P19 which clearly demonstrates that both plaintiffs are owners of the suit schedule properties. In the written statement, the defendant has stated that plaintiffs have executed the sale agreement in his favour on 20.01.1995 and on 19.04.2000 agreeing to sell the said property. These materials are sufficient to hold that the plaintiffs are the owners of the suit schedule properties. Hence, we answer point No.1 in favour of plaintiffs.

Reg.Point No.2:

14. It is the contention of the plaintiffs that six months prior to filing of the suit on the guise of lifting sand in the suit properties, the defendant encroached and put the fence over the suit properties. The defendant claims possession since 1989 and thereafter under separate agreements on 20.01.1995 and 19.04.2000. Admittedly, the defendant had withdrawn the suit in O.S.No.255/2008 filed to enforce the contracts against the plaintiffs. What was the sale consideration, the amount paid as advance, is not brought in the evidence. Though agreements were executed in the year 1995 and 2000, why the suit was filed in the year 2008 is not explained by the defendant. In the cross-examination of PW-1 on behalf of the defendant, except asserting that plaintiff No.1 had executed agreement of sale dated 19.04.2000 and plaintiff No.2 had executed the agreement on 20.01.1995, there is no whisper that the defendant was put in possession of the property by the plaintiffs and their brothers in the year 1989. Hence, the contention of the defendant that he was a lessee in possession of the suit schedule property from 1989 has not been substantiated. No agreement is confronted to the plaintiffs nor tendered before the Trial Court. The defendant has not stepped into the witness box nor made any attempt to prove the sale agreement said to have been executed by plaintiff Nos.1 and 2. Even assuming for the sake of argument that there existed such agreements, the defendant has filed the suit in the year 2008 and withdrawn the same, thereby he has given up his right to enforce the agreements. Admittedly, the defendant is in possession of the property and there is no evidence to show that he is in possession of the property by virtue of lease or under the agreements. The defendant has, thus failed to substantiate that he is entitled to be in possession of the property forever.

15. We have carefully perused the impugned judgment. The Trial Court based on the pleadings and the evidence relied upon by the parties, has recorded its finding that the plaintiffs are the absolute owners of the suit schedule properties; the defendant has no right, title or interest over the suit schedule properties to continue in possession and is liable to deliver possession to the plaintiffs. We do not find any error in appreciation either of facts or evidence of the parties. Hence, the finding recorded by the Trial Court is based on legal pleadings and evidence on record, which calls for no interference. Therefore, the appeal is devoid of merits. In the result, the following:

ORDER

Appeal is dismissed with costs.

The impugned judgment and decree is hereby confirmed.

In view of disposal of the appeal, I.A.No.1/2023 does not survive for consideration, hence, it stands disposed of.