JUDGMENT : 1. Regular Second Appeal No.100426/2014 is preferred by defendants/appellants and R.S.A.Crob.No.100012/2014 is filed by the plaintiffs/Cross Objectors being aggrieved by the judgment and decree passed by I Addl. Senior Civil Judge, Ballari, in R.A.No.41/2012 dated 01.04.2014 whereunder the judgment and decree passed by the learned Civil Judge and JMFC, Siruguppa in O.S.No.28/2008 dated 13.04.2012 is confirmed. It is prayed by the cross objectors that the Court below though decreed the suit, has not granted the possession of the suit schedule properties. 2. I have heard Sri V.M.Sheelvant, learned counsel appearing for the appellants/defendants and the Sri B.Chidananda, learned counsel appearing for the respondent/plaintiffs. 3. Though these two cases are posted for admission, with the consent of learned counsel appearing for the parties, the same is taken up for final disposal. 4. The gist of the case of the plaintiffs is that plaintiffs are the legal representatives of one R.Honnur Sab who instituted O.S.No.28/2008 stating that predecessor R.Honnur Sab was the absolute owner of the suit property bearing Sy.No.430-C/6-B measuring 5 acres situated in Muddatnur village. It is further alleged that the said property has been purchased through registered sale deed dated 21.03.1968 from one Sri G.Vishweshwara Rao and he also delivered the possession in favour of R.Honnur Sab. It is further stated that defendant No.1 by effecting mutation got entered his name on 03.12.2008 and the same came to the knowledge of the plaintiffs and they also came to know that earlier there was a dispute in respect of the property bearing Sy.No.430-C/6-D and the said suit was between the plaintiffs predecessor and one Smt. Boppa Annapoornamma and her daughters. The said suit has been filed during 1968. Earlier those two suits were filed before the Prl. Munsiff, Ballari, and thereafter they were transferred to Munsiff and JMFC, Siruguppa and there they were tried under new number O.S.No.1/1981 and 2/1981. It is further stated that the said suits were decreed in favour of Smt. Boppa Annapoornamma and an Execution Case No.19/2004 was also filed and in the said Execution case, Commissioner was appointed to execute the sale deed but the said Commissioner returned the Commission warrant along with report stating that no such property is available in respect of Sy.No.430-C/6-D measuring 5 acres and consequently, the said Execution Petition came to be dismissed holding that parties have mistakenly shown wrong survey number. It is the further case of the plaintiffs that the defendants have unnecessarily dragged the plaintiffs and the sale deed subsequently executed by defendant No.1 in favour of defendant No.2 dated 17.12.2007 is not binding and it is without consideration. It is further stated that the sale deed earlier executed is subsisting and the agreement of sale in favour of Smt. Boppa Annapoornamma by Sri G. Vishweshwara Rao are illegal transactions as the plaintiffs are not parties to the sale transactions. It is further alleged that defendant No.2 alienated the suit property to defendant No.3 through registered sale deed dated 19.03.2010 and on the basis of the said sale deed, defendant No.3 got his name mutated and has raised a loan from State Bank of India, Sirigeri Branch. 5. On these grounds, plaintiffs prayed for declaration and possession of schedule properties. In pursuance of summons, defendants No.2 to 4 appeared and filed their written statement. Defendant No.1 did not appear and she had been placed exparte. 6. It is the contention of the defendants that the plaintiffs are not having any right and deceased defendant was the owner of the suit property prior to registration of the sale deed in his favour and he sold the suit property in favour of Smt. Boppa Annapoornamma and a suit was filed against the husband of 1st plaintiff i.e., deceased Honnur Sab. But, the suit property was wrongly shown and the husband of the 1st plaintiff was not all the owner of the land bearing Sy.No.430-C/6-D, but he was the owner of Sy.No.430-C/6-B. It is further contended that Smt. Boppa Annapoornamma is the mother-in-law of defendant No.2 and she has sold the property to defendant No.2 through registered sale deed dated 17.12.2007 and the said suit is barred by limitation. Defendant No.3 filed the written statement admitting the transaction between defendant Nos.2 and 3. Thereafter, the Court below on the above pleadings framed the issues. 7. In order to prove the case of the plaintiffs, plaintiff No.1(d) got examined himself as PW-1 and got marked documents Ex.P.1 to 14. Defendants got examined DWs-1 to 4 and got marked Ex.D.1 to 18. After hearing the learned counsels for the parties, the Court below decreed the suit. Assailing the same, defendant Nos.2 and 3 filed appeal before the I Addl. Senior Civil Judge, Ballari. The said Court also after hearing the parties, dismissed the appeal. Defendants got examined DWs-1 to 4 and got marked Ex.D.1 to 18. After hearing the learned counsels for the parties, the Court below decreed the suit. Assailing the same, defendant Nos.2 and 3 filed appeal before the I Addl. Senior Civil Judge, Ballari. The said Court also after hearing the parties, dismissed the appeal. Challenging the legality and correctness of the judgment and decree, the defendants are before this Court. 8. The main grounds urged by the learned counsel appearing for the appellants are that the Courts below have failed to notice that the suit is hopelessly barred by time and the said suit is liable to be dismissed in view of the earlier proceedings in O.S.No.1/1981 and O.S.No.2/1981 against Sri Vishweshwar Rao and Honnur Sab. He further submitted that the said sale deed is not a bonafide one and in the said suit, it has been held that the plaintiffs are not bonafide purchasers and an injunction was also granted against the present plaintiffs’ predecessor. This aspect has not been legally and properly considered by the Court below. It is further submitted that plaintiff No.1 has admitted that they are not in possession of the suit property and were also aware of the earlier proceedings. The Court below has wrongly held that the plaintiffs are in possession of the suit schedule property. It is further submitted that both Courts below have failed to notice the fact that the husband of defendant No.1 G.Vishweswar Rao had filed Insolvency Petition No.5/1968 and the suit property was also the subject matter of the said petition. The said property was also handed over to official receiver. This aspect has not been considered and appreciated by the Courts below. It is further submitted that the Courts below have passed the judgment and decree contrary to the earlier judgment. He further submitted that though the suit schedule property mentioned in earlier suit is Sy.No.430-C/6-D but the boundaries mentioned in respect of the said property match with the boundaries mentioned in the schedule attached to the plaint and that there was mistake in mentioning the correct survey number in the earlier suit. He further submitted that the Courts below ought to have appointed Commissioner to inspect the property and to identify the property to show that the said property is one and the same which was involved in O.S.No.1/1981 and O.S.No.2/1981. He further submitted that the Courts below ought to have appointed Commissioner to inspect the property and to identify the property to show that the said property is one and the same which was involved in O.S.No.1/1981 and O.S.No.2/1981. He further submitted that in that regard the matter may be remitted to the Court below with a direction to appoint a Court Commissioner and to identify the property. He further submitted that when once in the earlier suit issue was answered against deceased Honnur Sab, then the suit of the plaintiffs ought to have been dismissed holding that the said suit is not maintainable and the plaintiffs have no right over the suit property. He further submitted that once the competent civil court has decided the rights of the parties, the second suit ought not to have been entertained. The learned counsel for the appellants further submitted that the plaintiffs/appellants have no right to file cross objection since against the decree, no appeal has been preferred before the first Appellate Court challenging the finding. The judgment and decree passed by the Courts below are erroneous and not sustainable in law. On these grounds, he prayed to allow the appeal and to set aside the impugned judgments. 9. Per contra, the learned counsel appearing on behalf of the respondents/plaintiffs vehemently argued and submitted that in the earlier suit, item No.1 is property bearing Sy.No.430-C/6-D but in the instant case it is Sy.No.430-C/6-B. By taking me through paragraph No.5 of the written statement he further submitted that these two properties are different properties and defendants are trying to take advantage of the decree mistakenly obtained on earlier occasion. He further submitted that the execution filed by Smt. Boppa Annapoornamma was dismissed by holding that no such property is identifiable and that she has not challenged the said order. Under the said facts and circumstances, appellants were not having any right over the suit property. He further submitted that he has preferred the cross objection seeking possession. By relying upon the decision in the case of Tippanna Vs. Jalal Sab and Others reported in ILR 2005 KAR 6011 submitted that the respondents may object to decree as they had preferred separate appeal and in that light, he prays to allow the cross objection. He further submitted that he has preferred the cross objection seeking possession. By relying upon the decision in the case of Tippanna Vs. Jalal Sab and Others reported in ILR 2005 KAR 6011 submitted that the respondents may object to decree as they had preferred separate appeal and in that light, he prays to allow the cross objection. He further submitted that the Court below has rightly decreed the suit and the first Appellate Court has dismissed the appeal and the appellants have not made out any good grounds and prays to dismiss the appeal filed by defendants/appellants and to allow his cross objection. 10. The substantial questions of law that arise for consideration in the appeal and cross objection are: “(i) Whether the Courts below are justified in decreeing the suit? (ii) Whether the Courts below are justified in decreeing the suit when civil court in earlier proceedings i.e., O.S.No.202/1968 (1/1981) and O.S.No.203/1968 (2/1981) has categorically held that deceased Honnur Sab is not a bonafide purchaser for value? (iii) Whether the Courts below are justified in granting declaratory relief when plaintiffs are not in possession of the suit property? 11. I have carefully and cautiously gone through the submissions made by learned counsel appearing for the parties and I have also verified the judgment and decree passed by the trial Court as well as the first appellate court and I have also gone through the lower court records. 12. It is the specific contention of learned counsel for the appellants that the property bearing Sy.No.No.430-C/6-B and Sy.No.430-C/6-D are two different properties and they are the owners of property bearing Sy.No.430-C/6-D and he filed a suit O.S.No.202/1968 and O.S.No.203/1968 which were renumbered as O.S.No.1/1981 and O.S.No.2/1981 wherein the Court below has held that Honnur Sab is not a bonafide purchaser of the said suit schedule property. It is his further contention that the Court below ought not to have decreed the suit or non-suited for not identifying the property. It is his further contention that the Court below ought not to have decreed the suit or non-suited for not identifying the property. As could be seen from the records, the earlier suits which have been filed were in respect of Sy.No.430-C/6-D measuring 5 acres and it is also an admitted fact that both the suits have been decreed in favour of Smt. Boppa Annapoornamma and on the basis of the said decree, Execution Petition No.19/2004 was filed and a Commissioner was also appointed to execute the registered sale deed in favour of the plaintiffs in those suits. But, the said Commissioner has reported that no such property is available in respect of Sy.No.430-C/6-D and it is also an admitted fact that the said Execution Petition also came to be dismissed. This fact clearly goes to show that though the suits have been decreed, but no such properties were in existence and as such, the decree was not executed. Under such circumstances, the contention of the appellants that the Courts below ought not to have decreed the suit or non-suited for not identifying the property, does not hold any water. On the contrary, it is the suit filed by the defendants against the plaintiffs and there property has not been identified and as such, sale deed was not executed. In the absence of properties, the said decree is not considered to be an effective and executable decree and it will not be having any binding effect on the present respondents/ plaintiffs. Though in the said suit, it has been held that the deceased Honnur Sab is not a bonafide purchaser, but the said suit has been filed in respect of Sy.No.430-C/6-B and the present suit is in respect of Sy.No.430-C/6-D. If identity of the properties is in dispute, then under such circumstances the present appellants ought to have got appointed the Commissioner to clarify the said aspects. Even after dismissal of the Execution Petition No.19/2004, they have not made any efforts either to get the property identified or to rectify the suit by either filing a review petition or any such other applications. In the light of the discussion held by me above, the contention of the appellants that the said suit is binding upon the parties and the same is hit by principles of res judicata cannot be acceptable. 13. In the light of the discussion held by me above, the contention of the appellants that the said suit is binding upon the parties and the same is hit by principles of res judicata cannot be acceptable. 13. Be that as it may, though a decree has been drawn in favour of Smt. Boppa Annapoornamma and a sale deed has not been executed in her favour as per the terms and conditions of the decree, then under such circumstances, she will not derive any title or interest in the said property and even the sale deed executed in favour of defendant No.2 on 17.12.2007 by defendant No.1 is without any right, title or interest over the said property and consequently, defendant No.3 will also not get any right over the suit schedule properties. 14. It is well established principle of law that a person who possesses a better title, alone can transfer and give a better title. The present appellants have utterly failed to prove that defendant No.1 was having right and title over the suit schedule property and by virtue of a registered sale deed, he transferred it to defendant No.2 and subsequently defendant No.2 gave it to defendant No.3. When he has purchased the said property from defendant No.1, heavy burden lies upon him to establish his case. If he fails, then under such circumstance, the contention taken up by the appellants is not acceptable in law. 15. Even as could be seen from the records, earlier suit was filed in respect of Sy.No.430-C/6-D and the present suit is in respect of Sy.No.430-C/6-B. Even the defendants have got examined DW-4/the Village Accountant. Though in his evidence he has deposed that the suit property is standing in the name of 3rd defendant, but he has further deposed that Sy.No.430 was sub-divided as 430-A and 430-B and there is no information about 430-C and 430-D. From the said evidence, it indicates that there is no property in existence in respect of Sy.No.430-C/6-D. These two properties appear to be totally different. Without existence of property bearing Sy.No.430-C/6-D, the earlier suit has been filed and subsequently, the present plaintiffs’ predecessor has purchased the property bearing Sy.No.430-C/6-B on 21.03.1968 as per Ex.P.1 and the same has been sold by defendant No.1/Vishweshwara Rao for a sum of Rs.4,000/-. Without existence of property bearing Sy.No.430-C/6-D, the earlier suit has been filed and subsequently, the present plaintiffs’ predecessor has purchased the property bearing Sy.No.430-C/6-B on 21.03.1968 as per Ex.P.1 and the same has been sold by defendant No.1/Vishweshwara Rao for a sum of Rs.4,000/-. No doubt in the records, the name of Honnur Sab has not been mentioned but he is not at fault. It will be failure on the part of registering authority to make necessary entries in the records as per Section 128 of the Karnataka Land Revenue Act. Even, Ex.P.1 is the first sale deed. When once a sale deed has been executed in favour of Honnur Sab who is the propositus of plaintiffs, then under such circumstances, the 1st defendant does not get any right over the suit schedule property on subsequent sale. As already the said suit property has been sold, he cannot give a better title in respect of the suit property to the second defendant and consequently, the second defendant also cannot give a better title to defendant No.3 who purchased the property during the pendency of the case. Looking from any angle, the contentions which have been raised by the learned counsel for the appellants does not support his case. There is no force in the argument advanced by the learned counsel for the appellants in this behalf. 16. Though during the course of arguments, he submitted that the plaintiffs are not in possession of the suit schedule property, the Courts below ought not to have declared the plaintiffs as the owners of the suit schedule property. The said contention is also not having any force for the simple reason that the Court after considering the facts and circumstances and relevant records has come to the conclusion that the plaintiffs are the owners of the suit schedule properties, and in that light they have been declared as the owners, when once title of the property is established by plaintiffs-respondents then Court can declare them as owner of the said property. Under such circumstances, the said contention is also not acceptable. 17. Under such circumstances, the said contention is also not acceptable. 17. It is the contention of the learned counsel appearing for the cross objectors that the plaintiffs are in possession of the suit schedule property but the Courts below without considering the said aspect has not given the possession but as could be seen from the records, the plaintiffs have not produced any documents to substantiate the fact that they are in possession of the suit schedule property. Even during the course of the evidence of PW-1 in the cross-examination, he has admitted that they are not in possession of the suit schedule property and they have not taken possession of the suit property under the said deed. When admittedly they were not in possession of the suit schedule property and after considering the said facts and circumstances, the Courts below have rightly come to the conclusion that the plaintiffs are not in possession of the suit schedule properties. Under the said circumstances, the contention of the cross objectors that the possession of the property ought to have been ordered, is not sustainable in law. 18. I have carefully and cautiously gone through the judgment and decree of the trial Court as well as the first Appellate Court. Both the Courts after considering the material facts and records, have rightly come to the right conclusion. There is no perversity or any illegality so as to interfere with the order of the trial Court. Appeal is devoid of merits and the same is liable to be dismissed and accordingly it is dismissed.