Judgment : 1. This is an appeal by the defendants. 2. The parties are referred to by their rank before the trial court for the sake of convenience. 3. The suit was one for a declaration that the final decree proceedings in FDP 62/2000 was not binding on the plaintiffs, in so far as the suit property is concerned and for permanent injunction restraining the defendants from interference with the suit property. It was the case of the plaintiffs that the defendants nos.1 to 3 had instituted a suit for partition and separate possession, against defendants no.4 and 5, in O.S.1799/1967, which was later renumbered as OS 1799/1981, on the file of the Court of the City Civil Judge, Bangalore. Item no.1 of the suit Schedule property, in that suit, was property bearing No. 131/1, Goripalya, Mysore Road. Bounded on the East by: Main Road, West by: Imam Sab's property, North by: Doddagiriyappa's House and South by: Conservancy lane. Significantly, the dimensions of the said property were not provided. The suit was decreed. The first defendant was the widow of one Venkataswamy. Defendants 2 and 3 were said to be her daughters. Defendant no.4 and 5 were the brothers-in-law of Defendant no.1 (brothers of Venkataswamy). They were the sons of Sangiriyappa. The said Sangiriyappa had a elder brother, Doddagiriyappa, who had died without any issues. During his life time, he had been allotted a site bearing no.130, Rayapuram Main Road, measuring 30 feet by 40 feet. Doddagiriyappa had executed a will in favour of Venkatalakshmamma, wife of Ramaiah, bequeathing the said site to her. The genealogical tree of the family is as under : FAMILY TREE Bangisiddaiah Doddagiriyappa Sannagiriyappa (Owner of property bearing No.130) (Owner of property bearing No.131) X D4 X D5 Dasappa - D-4 Venkataswamy - Ramaiah- X Thimmamma (wife) Gangamma - W- X - D1 Venkatalakshmamma - wife (a) Manickyamma - D2 (a) Girijamma P1 Dodda- D. Chikka- Tolasamma (b) Nagamma - D3 (b) Thimmamma giriyappa giriyappa - (c) Tolasamma Kenchamma - P2 – W Ananda - P3 Rani - P4 Venkatalakshmamma, in turn, on inheriting the same, is said to have divided the property in equal halves and had retained the northern half, measuring 20 feet by 30 feet, and had gifted the southern half to the sons of Defendant no.4, also named, Doddagiriyappa and Chikkagiriyappa. Upon the death of Venkataswamy, defendant no.1 had left the family and was believed to have started living with another man. In that background, Defendants 4 and 5 had entered into a partition deed, where by Defendant no.5 was said to have been allotted one half of the above said property bearing no.130. The other half was allotted to Defendant no.4, who in turn had conveyed the same in favour of his wife, Thimmamma, under a deed dated 20.9.1966, in lieu of maintenance, as he had taken another woman as his spouse. Plaintiff no.1 was the son of Thimmamma and plaintiff no.2 was the wife of Plaintiff no.1. On the death of Thimmamma, the said plaintiffs claim to have succeeded to the property. Plaintiff no.1 and his brother, Doddagiriyappa having also acquired the other half of the said property no.130, under a gift deed executed by Venkatlaksmamma, dated 6.7.1960, the plaintiffs claimed as absolute and exclusive owners of Property no.130. It was the further case of the plaintiffs, that in the proceedings in FDP 62/2000, the Schedule and the description therein of the properties involved was inconsistent and was not identical with the properties described in O.S.No.1799/1981. This is patent from the description of Item no.1 of the properties, in FDP 62/2000 which reads as under :- "All that part and parcel of the property bearing Municipal No.131/1 (New No.U15), situated at Goripalya (J.J. Nagar), Mysore Road, Bangalore - 560 018, measuring east to west 30 feet and north to south 66.6" feet, which is bounded on East by : Main Road West by : Imam Sab's house, North by: Doddagiriyappa's house South by: Conservancy Lane" The plaintiffs, who were not parties to the said proceedings, had no way of contesting the misleading claim. It was only in retrospect that the plaintiffs had become aware of the mischief. In that, the defendants had surreptitiously included the land of the plaintiffs in the Final Decree Proceedings and the same was indicated as 66 feet north to south and 30 feet east to west. Whereas item no.1 of the suit property in O.S.No.1799/1981 was only 30 feet by 40 feet - bounded on the east by: Main Road, West by: Imam Sab's property, North by: Doddagiriyappa's house and South by: Conservancy Lane. Whereas item no.1 of the suit property in O.S.No.1799/1981 was only 30 feet by 40 feet - bounded on the east by: Main Road, West by: Imam Sab's property, North by: Doddagiriyappa's house and South by: Conservancy Lane. It transpires that in the Final Decree Proceedings, a surveyor had been appointed to prepare a sketch and to report as regards the feasibility of division. The surveyor having furnished a report on the basis of the incorrect description of the property provided, and had opined that the purported share of the defendants to the extent of one-third could be conveniently provided towards the northern portion of property no.131/1, purportedly measuring 30 feet by 66 feet, thereby conveniently extending beyond the extent of 30 feet by 40 feet - by this process, the suit schedule property of the plaintiffs was sought to be usurped. The surveyor's report having been accepted by the court and the final decree having been drawn up, the defendants had produced the same before the Bangalore Mahanagara Palike to obtain transfer of Khatha. It is only at that stage, the plaintiffs claim to have become aware of the designs of the defendants -which according to the plaintiffs was pre-meditated and fraudulent, in misleading the court to literally confer title over the plaintiffs' property on the defendants. Hence the suit had been filed. 4. The defendants had entered appearance and had contested the suit. They had denied the plaint averments. However, it was admitted that the suit was decreed in the year 1973. But it was denied that the Final Decree Proceedings were initiated only after a period of almost three decades. It was claimed that the father of defendants 4 and 5 had filed a Miscellaneous Petition in the above suit filed by the defendants in O.S.1799/1981 and the same was ultimately dismissed only in 1989. As against the said order, yet another miscellaneous petition was filed, which in turn, was dismissed only in the year 1994. It is hence contended that there was no delay. It was asserted that the joint family of Doddagiriyappa and Sannagiriyappa consisted of three sons of Sannagiriyappa, namely, Dasappa, Venkataswamy and Ramaiah. As against the said order, yet another miscellaneous petition was filed, which in turn, was dismissed only in the year 1994. It is hence contended that there was no delay. It was asserted that the joint family of Doddagiriyappa and Sannagiriyappa consisted of three sons of Sannagiriyappa, namely, Dasappa, Venkataswamy and Ramaiah. The suit for partition instituted by the widow and children of Venkataswamy had been contested since the year 1967 and the suit was ultimately decreed granting one third share in favour of the defendants herein and that the Final Decree Proceedings had been instituted and had been dealt with in accordance with law and hence the plaintiffs had no claim and interest in the suit property. As there was resistance to the defendants taking possession of the property allotted to them, they were constrained to file an execution petition in Case no.783/2003 and had obtained possession of the suit property in accordance with law. It is thereafter that the suit was filed by the plaintiffs in collusion with defendants 4 and 5 and sought dismissal of the suit. 5. On the basis of the above pleadings, the trial court framed the following issues :- "1. Whether the plaintiffs prove that they have perfected their title to the suit property by adverse possession? 2. Whether the plaintiffs prove that proceedings in FDP No.62/2000 are null and void and they are not binding on the plaintiffs so far as the suit property is concerned? 3. Whether the plaintiffs prove that defendants are unlawfully claiming suit property? 4. Whether the suit is maintainable? 5. Are the plaintiffs entitled to the decree sought for?" The trial court has answered Issues no.1 in the negative and Issues nos. 2 and 3 partly in the affirmative and partly in the negative and has answered Issues no.4 and 5 in the affirmative. It is this which is challenged in appeal by the defendants. The plaintiffs in turn have filed cross objections in so far as the trial court had refused the relief of injunction in favour of the plaintiffs. 6. The learned counsel for the defendants contends that the suit of the defendants had culminated in the execution proceedings in case no.783/2003, wherein defendants 4 and 5 had been arrayed as judgment debtors. The plaintiffs are claiming under Dasappa, defendant no. 6. The learned counsel for the defendants contends that the suit of the defendants had culminated in the execution proceedings in case no.783/2003, wherein defendants 4 and 5 had been arrayed as judgment debtors. The plaintiffs are claiming under Dasappa, defendant no. 4, and hence could not have filed a suit in view of the express bar under Section 47 of the Code of civil Procedure, 1908(Hereinafter referred to as the 'CPC', for brevity). It is further pointed out that the earlier suit having been decreed after contest, and in the absence of any contention to the effect that there was a misdescription of the suit property, namely, that the property was described as no.131/1 to include no.130, it was not open for the plaintiffs to set up a new case altogether. It is contended that the basis of the claim of the plaintiffs to title was through Venkataklaksmamma who was alleged to be the foster daughter of Doddagiriyappa, who had bequeathed the entire property to her and she had in turn gifted the southern portion to the sons of Dasappa, while retaining the northern half. The alleged will was seriously disputed by the defendants and hence it was incumbent on the plaintiffs to have proved the will in accordance with Section 68 of the Indian Evidence Act, 1872 (Hereinafter referred to as the 'IE Act', for brevity). It is also sought to be pointed out that Venkatlakshmamma was claiming to be the adopted daughter of Doddagiriyappa, there was no attempt to prove any such alleged adoption. Therefore, the suit of the plaintiffs was without any foundation and hence, the suit having been decreed, has resulted in serious prejudice to the defendants. It is further pointed out that even assuming the existence of property bearing no. 130, the same would have devolved on Sannagiriyappa and his children as Class-II heirs, on the death of Doddagiriyappa, who died issueless. Consequently, the husband of the first defendant would have succeeded to an undivided one-third share in the properties in nos.131/1 and 144, apart from the alleged property in no.130. It is hence contended that the division of shares would still remain equitable and hence there was no warrant for interference. Consequently, the husband of the first defendant would have succeeded to an undivided one-third share in the properties in nos.131/1 and 144, apart from the alleged property in no.130. It is hence contended that the division of shares would still remain equitable and hence there was no warrant for interference. It is contended that the trial court committed a mistake in decreeing the suit on the basis of an innocuous admission in the written statement to the effect that property no.130 and 131/1 were jointly acquired by Doddagiriyappa and Sannagiriyappa. The learned counsel would contend that this has been sufficiently clarified in the evidence of the defendants, as being an inadvertent mistake. It is pointed out that in the garb of seeking a declaration of the validity of the decree in favour of the plaintiffs, they have sought a declaration of title, as it were, to property no.130, which is non-existent, as against the defendants. This is in the face of the admitted circumstance that the plaintiffs had not produced any title deed to the property in question. It is asserted that the plaintiffs had sought to rely on a will said to have been executed by Doddagiriyappa, (Ex.P-1), a Sale deed dated 20-9-1966 (Ex.P-2) apart from Exs.P-6, P-7, P-8 and P-10, however no attempt was made to prove the same. The learned counsel hence seeks dismissal of the appeal. 7. On the other hand, the learned counsel for the plaintiffs seeks to justify the findings of the trial court, except in so far as the trial court has held that the plaintiffs were not entitled to the relief of injunction. It is contended that the primary case of the plaintiffs was that the Final Decree Proceedings in FDP 62/2000 were a nullity. It was their further contention that it was apprehended that their possession of the suit properties would be disturbed by virtue of the same. The thrust of the plaintiffs' case was this. The same is evident from the following averment in the plaint : " ... It was their further contention that it was apprehended that their possession of the suit properties would be disturbed by virtue of the same. The thrust of the plaintiffs' case was this. The same is evident from the following averment in the plaint : " ... .......In terms of the Surveyor's report, property in possession of the plaintiff is in danger of being usurped by the defendants who have acted collusively, fraudulently and with deliberate mala fides." It is contended that in the circumstances the trial court ought to have exercised its power under Order VII Rule 7 CPC, to mould the relief in the light of the necessary pleadings in support of such a relief. It is pointed out that it was subsequent to the institution of the suit, that the appellants had sought to execute the final decree and had dispossessed the plaintiffs , albeit through the process of the court. However, the Court ultimately having held that the final decree proceedings in FDP 62/2000 were a nullity, it followed that the consequential relief ought to have been granted notwithstanding that the plaintiffs had been dispossessed by then, but only in view of the delivery warrant issued pursuant to the very final decree proceedings which are nullified. The court below ought to have taken the result of the suit to its logical conclusion. In that, their possession was lawful and ought to have been restored. In any event the trial court had not assigned any tenable reasons for refusing the relief of injunction, while having granted the main relief. Hence, the learned counsel seeks that the fuller relief to which the plaintiffs were entitled to be granted. 8. In the light of the above contentions and on a perusal of the record, it is to be seen whether the findings of the court below can be sustained. There is no dispute that Doddagiriyappa and Sannagiriyappa were brothers. Dodda giriyappa died issueless. Sannagiriyappa had three sons and a daughter - Dasappa (defendant no.4), Venkataswamy (dead) and Ramaiah (defendant no.5) were the sons. Plaintiff no.1 and 2 are the son and widowed daughter-in-law of Dasappa, defendant no.4, respectively,(plaintiff no. 2 was the widow of Dasappa's other son, Doddagiriyappa). Defendants 1 to 3 are the widow and daughters of Venkataswamy, respectively. Sannagiriyappa had three sons and a daughter - Dasappa (defendant no.4), Venkataswamy (dead) and Ramaiah (defendant no.5) were the sons. Plaintiff no.1 and 2 are the son and widowed daughter-in-law of Dasappa, defendant no.4, respectively,(plaintiff no. 2 was the widow of Dasappa's other son, Doddagiriyappa). Defendants 1 to 3 are the widow and daughters of Venkataswamy, respectively. The dispute, as asserted by the plaintiffs, is that the suit filed by the defendants in OS 1799/1981, for partition was in respect of two items of property, namely, property no.131/1 and No. 144. It is sought to be pointed out that the dimensions of the property were not indicated of property no.131/1 in the said suit. Property no. 130, which the plaintiffs claim, was not shown in that suit. It is the case of the plaintiffs that for the first time in the final decree proceedings the alleged measurements and boundaries shown of Property no.131/1, mischeviously enveloped property no. 130 as well. Therefore, the present suit is only in respect of property nos. 130 and 131/1 and does not involve no. 144. It is the case of the plaintiffs that Doddagiriyappa had been allotted a site measuring 30' by 40' bearing no.130, Rayapuram Main Road. Sannagiriyappa had also been allotted a site measuring 30' by 40', bearing no.131/1. In the Final Decree Proceedings arising out of the suit in O.S.No.1799/1981 - Schedule-I was described as property no.131/1 situated at Goripalya, Mysore Road, Bangalore, measuring east to west 30' and north to south 66'.6'. Bounded on the East by Main Road, West by: Imam Sab's house North by: Doddagiriyappa's house and South by: Conservancy lane. The decree was drawn up accordingly, whereby it was directed that the defendants 1 to 3 were entitled to one-third share in property no.131/1 as described therein. The said defendants took out execution and are said to have been put in possession of the same as per a surveyor's report. The trial court has found that on a plain comparison of the description of the property as described in the judgment and decree dated 11.10.1973 in O.S.No.1799/1967 (re-numbered as 1799/1981), Ex.D-3 and as described in the petition in final decree proceedings, Ex.P-4, the description does not tally. The trial court has found that on a plain comparison of the description of the property as described in the judgment and decree dated 11.10.1973 in O.S.No.1799/1967 (re-numbered as 1799/1981), Ex.D-3 and as described in the petition in final decree proceedings, Ex.P-4, the description does not tally. It was however, possible to accommodate the extent as sought to be claimed by the defendants only if it was accepted that there are properties bearing nos.130 and 131/1 each measuring 30' by 40 feet adjacent to each other, which were allotted to Doddagiriyappa and Sannagiriyappa, respectively. Though it was the case of the defendants that there was no property bearing no.130 in existence, it was categorically admitted by the defendants in their written statement that Doddagiriyappa and Sannagiriyappa had acquired the respective sites bearing nos.130 and 131. The trial court had thus concluded the admission by the defendants was not a conditional one, in that, there was no indication of any measurement of the properties. This admission is also found by the trial court to be in consonance with Ex.D-3 and D-4, the judgment and decree in O.S.No.1799/1981, where the northern boundary of property no.131/1 is shown as Doddagiriyappa's property. It is an admitted fact that Doddagiriyappa died issueless. The plaintiffs had claimed that Doddagiriyappa had executed a will dated 18.5.1960 in favour of Venkatlakshmamma, whom he had fostered and had bequeathed the said site no.130 in her favour. She was the wife of Ramaiah, the third son of Sannagiriyappa. She had divided the said property no.130, in to two halves. She had retained the northern half, with' B' Street as one of its boundaries, for herself and the other half measuring 20' by 30' was gifted to the sons of Dasappa (defendant no.4) namely, Doddagiriyappa and Chikkagiriyappa. It was hence the case of the plaintiffs that one half of no.130 was in the possession of Venkatlakshmamma and the other half in the possession of plaintiff no.1 and the husband of plaintiff no.2. After the death of Venkataswamy, Defendants 4 and 5 are said to have divided the property no.131 between themselves, excluding the widow and daughters of Venkataswamy. It was alleged by the plaintiffs that defendant no.1, the widow of Venkataswamy, had abandoned the family and was living with another man elsewhere. Defendant no. After the death of Venkataswamy, Defendants 4 and 5 are said to have divided the property no.131 between themselves, excluding the widow and daughters of Venkataswamy. It was alleged by the plaintiffs that defendant no.1, the widow of Venkataswamy, had abandoned the family and was living with another man elsewhere. Defendant no. 4 had thereafter conveyed that share in favour of Thimmamma, his wife in lieu of maintenance, as he had taken another woman as his spouse and had settled elsewhere. Thimmamma was the mother of the plaintiff no.1. It is in this manner that the plaintiffs claimed that they were in possession of half portion in property no.130 measuring 20' by 30' and in half portion of property no.131/1 measuring 20' by 30'. Ramaiah, the other son of Sannagiriyappa had sold his share to third parties. Hence the defendants had played fraud by indicating the measurement of property no. 131/1 as being 30' by 66'.6". The plainitiffs had sought to prove the existence of property no.130 by reference to Ex.P-1, the gift deed executed by Venkatlakshmamma in favour of sons of Dasappa, dated 6.7.1960. The said property is described therein as follows: No.130, II Cross, Gowripalya, East by: Second Cross road, West by: Dilkush Cycle Shop, North by: Property retained by donor and South by: Property belonging to her paternal uncle Sannagiriyappa. The sale deed executed by Dasappa in favour of his wife Thimmamma, dated 20.9.1966, describes the property conveyed thus: East by: Rayapuram Main Road, West by: Muslim's (Sahebra, in Kannada ) house, North by: Sannagiriyappa's house, South by: property belonging to Ramaiah. Ex.P-3 was the rough sketch of the entire properties belonging to Doddagiriyappa and Sannagiriyappa , to demonstrate that the boundaries as shown in the aforesaid documents executed at an undisputed point of time was consistent and clearly demonstrated the existence of property no.130. Ex.P-3 was the rough sketch of the entire properties belonging to Doddagiriyappa and Sannagiriyappa , to demonstrate that the boundaries as shown in the aforesaid documents executed at an undisputed point of time was consistent and clearly demonstrated the existence of property no.130. In so far as the reliance placed on the will said to have been executed in favour of Venkatlakshmamma, the foster daughter of Doddagiriyappa is concerned, in meeting the contention on behalf of the defendants that the same had not been proved in terms of Section 68 of the IE Act is concerned, the trial court has accepted the contention of the plaintiffs that the plaintiffs were not relying on the will to claim title, but was only produced for the collateral purpose of establishing the existence of the property no.130 on the northern side of Sannagiriyappa's property. The inconsistency in the description of the concerned properties and as claimed by the rival parties may be graphically depicted as follows : 1) Sketch of schedule property as per O.S.1799/1967 N Doddagiriyappa's House W E # 131/1 Measurement not Main Road S Imam Saheb furnished Conservancy Lane 2) Sketch of property as per FDP 62/2000 Doddagiriyappa N 30" W E S Imam Saheb 66.60" #131/1 66.60" Main Road 30" Conservancy E-W - 30 feet N-S - 66.6. feet 3) Sketch of property as per Decree registered N B. Street W E S 30" Rayapuram 66.6" 66.6" Imam Saheb Main Road 30" Remaining Portion Conservancy Notes: 1) Shaded portion is the southern boundary instead of conservancy. 2) Northern Boundary of Doddagiriyappa's property is missing and is substituted by 'B' Street. 5) Suit Sketch as per Exhibit - P3 N B. Street W E 30" A S --------- 130 -------- 40" 40" B 30" C 30" Imam Saheb's Rayapuram House Main Road ----------- 131 ----------- 40" 40" D 30" Conservancy Notes:- 1) Property bearing No.130 was owned by Doddagiriyappa son of Bangisiddappa measuring 30"x40". 2) He bequeathed the same to his nephew's (Ramaiah) wife Smt. Venkatalakshmamma. 3) She divided No.130 into 2 portions being northern and southern portion. She retained portion A and gifted portion B in favour of her nephew (plaintiffs) as per Exhibit - P1. 4) Entire property No.130 is not available for partition and cannot be included in final decree proceedings when such property was not existing . 3) She divided No.130 into 2 portions being northern and southern portion. She retained portion A and gifted portion B in favour of her nephew (plaintiffs) as per Exhibit - P1. 4) Entire property No.130 is not available for partition and cannot be included in final decree proceedings when such property was not existing . 5) In respect of property bearing No.131 the same was divided into 2 portions identified as "C" and "D". 6) Dasappa (D-4) and father of first plaintiff sells the portion "C" in favour of his wife Thimmamma towards maintenance as per Exhibit P-2. 7) Ramaiah (D-5) sells southern half being the portion "D" in favour of Mehaboobi. 8) Property amenable to partition is No.131 only measuring East to West 30 feet and North to South 40 feet. 9) Final Decree Proceedings could have been filed only in respect of the property measuring 30" x 40" and the share if any to be allotted is one-third of 30"x40" i.e., 13.33" x 30". Therefore, from the above, it is evident that the plaintiffs had established their case as found by the trial court's well reasoned order. The denial of the relief of injunction though, was the only failing in the judgment of the court below. In view of the final decree proceedings having been found to be vitiated, it was but consequential to reverse any action taken pursuant thereto and it was open for the court to have exercised power under Order VII Rule 7 CPC to have directed that the plaintiffs be restored their possession which was taken away by virtue of the final decree that stood nullified. Accordingly the appeal is dismissed and the cross objections are allowed, the suit is decreed in its entirety, with costs.