JUDGMENT : 1. This appeal is filed challenging the judgment and decree dated 01.09.2012 passed in O.S.No.2294/2008 on the file of XXXVII Additional City Civil and Sessions Judge (CCH No.38), Bengaluru city, in dismissing the suit. 2. The parties are referred to as per their original ranking before the Trial Court as plaintiff and defendant in order to avoid confusion and for convenience of the Court. 3. The factual matrix of the case is that the land bearing Sy.No.7/4B measuring 3 acres 15 guntas situated at Chikkabettahalli Village, Yelahanka Hobli, Bengaluru North Taluk was the property of one Sri Lal Ahmed Sab. He was having six sons. After the death of Lal Ahmed Sab, 1 acre 15 guntas of land was transferred in the name of his fourth son viz., Rahim Sab in the revenue records on the consent given by his other brothers. Thereafter, the said Rahim Sab was in possession and enjoyment of the above said 1 acre 15 guntas of land. After the death of Rahim Sab, his son Syed Gani has succeeded to the same as his legal heir. After the death of Syed Gani, his wife Smt.Jaahira Bi, was in possession and enjoyment of the said land. Said Syed Gani had six sons among them one Syed Amanullah was his first son and he has inherited the said 1 acre 15 guntas of land through Panchayath Parikath. On the strength of the same, khatha of the said land was transferred in his name as its owner. 4. Out of the said 1 acre 15 guntas of land, on 07.10.2004, the said Syed Amanullah has sold 8 guntas of land in favour of this plaintiff for valid sale consideration through a registered sale deed. The plaintiff after purchasing the same got 8 guntas of land transferred to his name and in all the revenue records, his name has been entered. 5. That on 18.03.2008, this plaintiff noticed the defendant excavating work with the help of his contractors to put up compound wall over the suit schedule property and also he has collected construction materials like hollow bricks over the scheduled site. Having come to know the same, the plaintiff obstructed the defendant for the said work showing his sale deed and other documents and the defendant had stopped his construction work having verified the same. 6. Having come to know the same, the plaintiff obstructed the defendant for the said work showing his sale deed and other documents and the defendant had stopped his construction work having verified the same. 6. That on 22.03.2008, when the plaintiff again visited the said land, by that time, the defendant had already put up a compound wall on the eastern side of the suit schedule property and he was carrying on with the construction work. Once again, the plaintiff requested the defendant not to carry on the construction activities, at that time, the defendant threatened to the life of plaintiff. It is contended by the plaintiff that the sale deeds dated 15.10.1996 and 21.11.2001, reflect that the defendant is the adjacent owner of 20 guntas of land. In the sale deed dated 15.10.1996, the existence of land of Syed Amanullah is shown towards the eastern side of the land. Though the defendant is well aware of all those facts he has put up construction of his compound wall by encroaching over the plaintiff’s land. Hence, the plaintiff without having any other alternative remedy was constrained to approach the jurisdictional police and the Police declined to entertain the complaint on the ground that the matter in dispute is civil in nature. The very act of the defendant is illegal and unauthorized one. Hence, the plaintiff was constrained to file the present suit. 7. In pursuance of the suit notice, defendant appeared through his Counsel and filed his written statement denying all the averments made in the plaint. The defendant denied the contention of the plaintiff that out of 1 acre 15 guntas of land in Sy.No.7/4B of Chikkabettahalli Village to his vendor has derived the title as contended that the said Rahim Sab was having seven sons and all his sons have succeeded to their share in the said 1 acre 15 guntas of land. 8. The defendant in the written statement has stated that, the land in Sy.No.7/4B was totally measuring 3 acres 38 guntas. Out of the same, 1 acre 8 guntas was fallen to the share of Ali Sab, 1 acre 15 guntas was fallen to the share of Rahim Sab and 1 acre 15 guntas was fallen to the share of Syed Abbas. Syed Amanullah alone has inherited the land in Sy.No.7/4B of Chikkabettahalli Village. 9. Out of the same, 1 acre 8 guntas was fallen to the share of Ali Sab, 1 acre 15 guntas was fallen to the share of Rahim Sab and 1 acre 15 guntas was fallen to the share of Syed Abbas. Syed Amanullah alone has inherited the land in Sy.No.7/4B of Chikkabettahalli Village. 9. It is contended that the three sons of Lal Ahmed Sab viz., Ali Sab was allotted with 1 acre 8 guntas. After his death, his three children viz., (1) Bibi Jan (daughter), (2) Syed Khalak and (3) Syed Alim, have succeeded to the same as its owners. Out of them, Syed Khalak and Syed Alim died leaving behind their sons viz., Syed Mahaboob and Syed Ghouse as his legal heirs. Thereafter, Bibi Jan has taken 24 guntas, Syed Khalak has taken 12 guntas and Syed Alim has taken 12 guntas out of that 1 acre 8 guntas of land in Sy.No.7/4B allotted to the share of Lal Ahmed Sab. 10. On the strength of the same, khatha in the revenue records are changed in their names. That on 15.10.1996, M.Bharath Kumar and M.Raghuram have jointly purchased an area of 20 guntas in Sy.No.7/4B out of 1 acre 8 guntas existing within the boundaries described as follows: East by : Property of Syed Amanulla West by : Others property North by : Property of Reddappa Setty South by : Remaining land in Sy.No.7/4B 11. On the strength of said registered sale deed they got transferred 20 guntas of land in their names. The defendant had purchased this property on 21.11.2001, the very same extent from Bharath Kumar and Raghuram through their power of attorney holder for valid consideration. After purchase he got transferred the property in his name. Thereafter, the defendant has filed an application before the Survey Settlement Authority to bifurcate his 20 guntas of land out of 3 acres 20 guntas of land in Sy.No.7/4B. 12. Considering the request of defendant, the survey authorities have effected hissa phod durestin respect of the land of defendant in the year 2004. Thereafter, they have assigned a new number to the same as Sy.No.7/4B2. The said fact is evident from the Survey Proceedings. The remaining land in Sy.No.7/4B is assigned with Sy.No.7/4B1. This defendant has not encroached over any portion of land in Sy.No.7/4B1 as contended by the plaintiff in the plaint. Thereafter, they have assigned a new number to the same as Sy.No.7/4B2. The said fact is evident from the Survey Proceedings. The remaining land in Sy.No.7/4B is assigned with Sy.No.7/4B1. This defendant has not encroached over any portion of land in Sy.No.7/4B1 as contended by the plaintiff in the plaint. The vendor of the plaintiff was the owner of 1 acre 15 guntas of land in Sy.No.7/4B1. Unless the plaintiff gets his land demarcated in Sy.No.7/4B1, he cannot contend that the property in possession of this defendant as his encroached property. This plaintiff has not produced any revenue records before the Court to prove the actual location of his purchased property in the land bearing Sy.No.7/4B1. Hence, the plaintiff is not entitled for the relief of declaration, possession and injunction and the same is not maintainable. The plaintiff has not impleaded all the owners of land in Sy.No.7/4B1 as parties to the suit. Hence, the suit is bad for nonjoinder of necessary parties. 13. It is contended that the vendor of the plaintiff had no right, title or interest over the defendant’s land bearing Sy.No.7/4B2, as such, the plaintiff will not derive any title to the same. It is contended that this defendant has purchased his property much earlier than the property purchased by the plaintiff. The very allegation made in the plaint with regard to interference of the defendant for filing this suit is false and frivolous and there is no cause of action to file the suit. 14. Based on these pleadings, the Trial Court has framed the following issues: 1. Whether the plaintiff proves his ownership over the suit schedule property? 2. Whether the plaintiff further proves the interference and obstruction in his possession over the suit schedule property by the defendant? 3. Whether the plaintiff is entitled for the recovery of possession of the suit schedule property? 4. Whether the suit of the plaintiff is bad for nonjoinder of necessary parties? 5. Whether the plaintiff has got cause of action to file the suit? 6. Whether the plaintiff is entitled for the relief sought for? 7. What order or decree? 15. The plaintiff in order to substantiate his case, he examined himself as P.W.1, got marked 11 documents as Exs.P1 to P11 and negatives of the photos are marked as Exs.P8(a) to P11(a) and closed his side. 6. Whether the plaintiff is entitled for the relief sought for? 7. What order or decree? 15. The plaintiff in order to substantiate his case, he examined himself as P.W.1, got marked 11 documents as Exs.P1 to P11 and negatives of the photos are marked as Exs.P8(a) to P11(a) and closed his side. The defendant in order to substantiate his case, he examined himself as D.W.1 and adduced evidence of one witness as D.W.2 and got marked 29 documents as Exs.D1 to D29. A Court Commissioner was also appointed for making local inspection of the suit property and the Court Commissioner is also examined as C.W.1 and Exs.C1 to C5 are marked. 16. The Trial Court after completion of the evidence heard the arguments of the respective Counsel and answered issues No.1 to 6 as negative and dismissed the suit. Hence, the present appeal is filed before this Court. 17. The plaintiff in this appeal would contend that the Trial Court did not consider both oral and documentary evidence in a right perspective and the reasoning assigned by the Trial Court is arbitrary in nature. The Trial Court has totally misread the evidence of D.W.1 and documentsExs.D1 to D29 and comes to an erroneous conclusion that the suit schedule property is part of 20 guntas of land, which belongs to the defendant. Though the suit schedule property and the property of the defendant are not overlapping and they are different and substantially prove that the defendant has encroached the excess land than what he has purchased under the registered Sale Deed – Ex.D1. The said portion of 20 guntas would be out of total extent of 3 acres 38 guntas in Sy.No.7/4B1. 18. The Trial Court has also totally misconceived in respect of the Commissioner’s report, wherein, it is crystal clear that he had identified the location of the land bearing Sy.No.7/4B1, Sy.No.7/4B2 and Sy.No.7/4B3 and that the property claimed by the defendant and the suit schedule property is a part and parcel of Sy.No.7/4B1 out of total extent of 2 acres 36 guntas, as such, the Trial Court is not justified in dismissing the suit of the plaintiff by holding that the plaintiff failed to examine his vendor improving his title over the suit schedule property and the encroachment of the defendant over the suit schedule property. 19. 19. The case of the defendant is that, he had purchased the property, a portion measuring 20 guntas out of Sy.No.7/4B1, as per Ex.P7, wherein, towards eastern side, suit schedule property is shown by mentioning the eastern boundary as property of Amanullah and out of the said property Amanullah executed Ex.P3 in favour of plaintiff, which clearly identified in the Commissioner’s report at Sl.No.10 and 13 described the property as CQPORB. Even then, the Trial Court erred in passing the impugned Judgment and Decree in dismissing the suit. 20. The Trial Court also erred in dismissing the suit of the plaintiff though held as it is true that, in the sale deed pertaining to the plaintiff’s property, the existence of road towards eastern side of plaintiff’s property is marked. But the said boundaries are contrary to the boundaries described by the plaintiff’s vendor in Ex.D25. The plaintiff ought to have stated as those 8 guntas of land is situated or not. When the sale deed marked at Ex.D25 shows the existence of the road towards the western side of Amanullah’s land that itself clearly indicates that, road intervenes between 20 guntas of land purchased by the defendant’s vendor and remaining land of Amanullah in Sy.No.7/4B. 21. The Trial Court failed to consider the Commissioner report, which clearly indicates that the defendant has encroached 8 guntas of land, the Trial Court ought not to have dismissed the suit and ought to have decreed the suit for the relief of declaration and possession and the very dismissal of the suit amounts to miscarriage of justice and hence, it requires interference of this Court by reappreciating the evidence available on record. 22. Learned counsel appearing for the plaintiff/appellant in his arguments, he vehemently contended that there is no dispute between the parties that the property originally measures 1 acre 15 guntas, belongs to one Lal Ahmed Sab though he was having six children, his son Rahim Sab succeeded the said property with the consent of his other brothers. The son of the said Rahim Sab, one Syed Gani succeeded the said property and after his death, his son Syed Amanullah succeeded the total extent of 1 acre 15 guntas of land. The defendant also did not dispute the very flow of property in favour of the vendor of the plaintiff. 23. The son of the said Rahim Sab, one Syed Gani succeeded the said property and after his death, his son Syed Amanullah succeeded the total extent of 1 acre 15 guntas of land. The defendant also did not dispute the very flow of property in favour of the vendor of the plaintiff. 23. The specific case of the plaintiff is that, out of 1 acre 15 guntas, the plaintiff had purchased 8 guntas of land. The boundary described in the sale deed, which is marked as Ex.P3. On the east, it is mentioned as road, on the west, it is mentioned as defendant’s property, on the north it is mentioned as private property and on the south it is mentioned as remaining land of Sy.No.7/4B. 24. The plaintiff’s counsel also would contend that the property, which was allotted in favour of Smt.Bibi Jan, to the extent of 20 guntas was sold out of 1 acre 8 guntas of land. The plaintiff’s counsel would also contend that they are also not disputing the title of the defendant. The Trial Court fails to take note of the boundaries mentioned in the sale deed of the plaintiff and also the sale deed of the defendant. In the sale deed of the defendant, it is clearly mentioned on the east, it is specifically mentioned, it is the property of Amanullah i.e., vendor of the plaintiff. It is further contended that in the sale deed of the plaintiff, it is specifically mentioned on the west, it is the property of the defendant and hence, it is clear that the defendant is the adjacent owner of the property of the plaintiff and the same has not been appreciated by the Trial Court. It is also contended by the Counsel that the Commissioner report is very clear that the property which has been purchased by the plaintiff is the property of Amanullah and Amanullah got 1 acre 15 guntas of land out of that a portion of the property, which is adjacent to the defendant’s property was sold in favour of the plaintiff. It is also contended by the Counsel that the Commissioner report is very clear that the property which has been purchased by the plaintiff is the property of Amanullah and Amanullah got 1 acre 15 guntas of land out of that a portion of the property, which is adjacent to the defendant’s property was sold in favour of the plaintiff. No doubt, the Commissioner in the report specifically showed that the property which was sold in favour of the plaintiff and also the property, which was in the possession of the defendant overlaps each other and the property which the plaintiff has purchased from Amanullah is the property of the said Amanullah and not the property of the vendorSmt.Bibi Jan. When such being the case, the Commissioner’s report also indicates such facts, the Trial Court ought not to have dismissed the suit of the plaintiff instead of the Trial Court ought to have granted the relief of declaration and possession and hence, it requires the interference of this Court. 25. On the other hand, learned counsel appearing for the defendant/respondent, in his arguments, he would contend that the plaintiff has purchased the property on 07.10.2004 and the very case of the plaintiff is that the defendant has encroached the property, which the plaintiff has purchased. The Commissioner was appointed and he made local inspection in presence of both the parties and he gave the report. The defendants have placed the material before the Court that after purchasing the property, the property was phoded and subsequently, the property was also alienated for the nonresidential purpose and the defendant has put up the compound wall and the Commissioner report is clear that the defendant has been in possession only to the extent of 20 guntas which he had purchased. 26. The Trial Court clearly appreciated both oral and documentary evidence and rightly comes to the conclusion that the plaintiff did not examine the vendor and not proved the case. 27. The Trial Court has not committed any error in appreciating both oral and documentary evidence and there are no grounds to interfere with the findings of the Trial Court and hence, the same is liable to be dismissed. 28. 27. The Trial Court has not committed any error in appreciating both oral and documentary evidence and there are no grounds to interfere with the findings of the Trial Court and hence, the same is liable to be dismissed. 28. Having heard the arguments of both plaintiff’s and defendant’s Counsel and in keeping the contentions urged in this appeal, this Court has to reappreciate the material on record and the points that arise for the consideration of this Court are: 1. Whether the Trial Court has committed an error in dismissing the suit of the plaintiff seeking the relief of declaration and possession and it requires interference of this Court? 2. What order? Point Nos.1 and 2: 29. Having considered the pleadings and the evidence available on record, there is no dispute with regard to the title of the parties. It is emerged in both the pleadings and evidence that the land in Sy.No.7/4B situated at Chikkabettahalli, Yelahanka Hobli, Bengaluru North Taluk is totally measuring an extent of 3 acres 38 guntas, which originally belongs to one Sri. Lal Ahmed Sab, who had six sons. The land measuring an extent of 1 acre 15 guntas was allotted in favour of his 4th son Rahim Sab and khatha was also transferred in his name with the consent of other brothers. After his death, the said property was fallen to the share of his son Syed Gani and he was in possession of the said property during his lifetime. Subsequent to the demise of Syed Gani, his wife Smt.Jaahira Bi was in possession of the said land and after her death, the property was inherited by Syed Amanullah, who is the first son of Syed Gani through Palu Panchayat Parikath. Hence, it is clear that the vendor of the plaintiff is the owner in respect of the land measuring an extent of 1 acre 15 guntas, out of which, he had sold 8 guntas of land in favour of the plaintiff on 07.10.2004 in terms of Ex.P3 for a valuable sale consideration. The plaintiff after purchasing the said property got transferred the revenue documents in his favour. 30. It is the contention of the plaintiff that the defendant started the excavation work over the suit schedule property with the help of his contractors on 18.03.2008, which was later stopped with the intervention of the police. The plaintiff after purchasing the said property got transferred the revenue documents in his favour. 30. It is the contention of the plaintiff that the defendant started the excavation work over the suit schedule property with the help of his contractors on 18.03.2008, which was later stopped with the intervention of the police. After one week i.e., on 22.03.2008, when the plaintiff again visited the schedule property, he came to know that the defendant has put up the compound wall including the land of the plaintiff and hence, he had sought for the relief of declaration and possession. The defendant also claims the right in respect of the very same property bearing Sy.No.7/4B, which was purchased by his vendor measuring an extent of 20 guntas vide sale deed dated 18.12.1996 and he had purchased the same on 17.10.2011. It is the case of the defendant that Smt.Bibi Jan is the original owner of the land measuring an extent of 1 acre 8 guntas. 31. Taking into consideration of all these pleadings, it is clear that all are claiming the rights in respect of the very same property bearing Sy.No.7/4B. None of the parties i.e., either the plaintiff or defendant is claiming any title in respect of these properties as contended in the plaint and written statement, but the dispute is only with regard to the identity of the property. It is the claim of the plaintiff that the defendant has encroached the land measuring an extent of 8 guntas, which he had purchased. The defendant has contended that he had purchased the land measuring an extent of 20 guntas and after purchasing the said property, the same was phoded and durasth work was also completed. He has been in possession of the property measuring an extent of 20 guntas of land. 32. In order to identify the property, a Court Commissioner was appointed by the Trial Court. The Commissioner has submitted his report in terms of Ex.C2, wherein, he has also drawn the sketch and identified the property measuring total extent of 3 acres 38 guntas. In his report, at serial No.8, he has specifically mentioned that the land is measuring totally an extent of 3 acres 38 guntas and in terms of partition, it was divided into three portions. In his report, at serial No.8, he has specifically mentioned that the land is measuring totally an extent of 3 acres 38 guntas and in terms of partition, it was divided into three portions. Smt. Bibi Jan and others i.e., the vendors of the defendant got 1 acre 8 guntas of land, Syed Amanullah, the vendor of the plaintiff has got 1 acre 15 guntas of land, and Syed Abbas also got 1 acre 15 guntas of land. It is also stated in his report that in terms of division of the property into three portions, the same were entered in RTC and mutation, but no separate phod has been done in the survey records. The Commissioner, who is the surveyor based on the sale deeds as well as the possession, has determined the respective possessions. 33. It is to be noted that it has been mentioned in the Commissioner Report that the property in Sy.No.7/4B1 is measuring totally an extent of 2 acres 36 guntas of land, where layout was formed and residential houses are constructed, but the same has not been approved from any competent authority. The lands are disposed of in terms of acres and also in terms of sites. The Commissioner, at serial No.3 of his report has stated that after the defendant has purchased the property, the same was phoded and converted for nonagricultural purpose. It is also mentioned that the said land measuring an extent of 20 guntas was compounded. The sketch also discloses that the land in Sy.No.7/4B3 is measuring an extent of 22 guntas and the total measurement of the said property is to an extent of 3 acres 38 guntas. 34. It is also mentioned at serial No.11 that the land measuring an extent of 18 guntas is used for formation of the public road. On perusal of the Commissioner’s Report, the Commissioner at serial No.9 has specifically mentioned that the area, which is allotted in terms of partition to Smt.Bibi Jan i.e., vendor of the defendant is marked in the sketch as ‘ABROLMNS’ in respect of the land measuring to an extent of 1 acre 8 guntas. On perusal of the Commissioner’s Report, the Commissioner at serial No.9 has specifically mentioned that the area, which is allotted in terms of partition to Smt.Bibi Jan i.e., vendor of the defendant is marked in the sketch as ‘ABROLMNS’ in respect of the land measuring to an extent of 1 acre 8 guntas. The Commissioner also earmarked the land measuring an extent of 1 acre 15 guntas, which was allotted to the share of the vendor of the plaintiff in the sketch as ‘BCDEIJKLOR’ and so also the land which was allotted in favour of Syed Abbas measuring an extent of 1 acre 15 guntas is clearly earmarked in the sketch as ‘EFGHI’. Now coming to serial No.10 of the report, it is mentioned that from the 2nd shareholder viz., Syed Amanullah, the plaintiff had purchased the property vide sale deed dated 07.10.2004 as mentioned in the sale deed, which is earmarked in the sketch as ‘CQPORB’ in respect of the land measuring an extent of 8 guntas. The same is within the portion of the property allotted in favour of the vendor of the plaintiff Syed Amanulla. 35. It is also specifically stated in the report that at the time of mentioning the boundary to the schedule while executing the sale deed in respect of land measuring an extent of 8 guntas, towards west, the name of the vendor of the defendant i.e., Smt.Bibi Jan is shown. At serial No.11 of the report, it is also specifically stated with regard to the property which has been purchased by the defendant measuring an extent of 20 guntas of land vide sale deed of vendor of the defendant dated 15.10.1996 and sale deed of defendant dated 21.11.2011. While mentioning the boundary of the schedule to the sale deed, it is mentioned that towards east, the land of Amanullah i.e., vendor of the plaintiff is shown. 36. The Commissioner in the sketch has specifically mentioned that the property of the plaintiff and defendant, which is earmarked as ‘CQPORB’ is the land, which was sold in favour of the plaintiff. It is also important to note that the defendant had purchased the property measuring an extent of 20 guntas of land, which is earmarked as ‘ABCQRS’ and the same has been compounded, which is inclusive of 8 guntas of land that was purchased by the plaintiff. It is also important to note that the defendant had purchased the property measuring an extent of 20 guntas of land, which is earmarked as ‘ABCQRS’ and the same has been compounded, which is inclusive of 8 guntas of land that was purchased by the plaintiff. It is pertinent to note that the land which was allotted in favour of the vendor of the defendant has been clearly shown as ‘ABROLMNS’ and when such being the case, the land measuring an extent of 8 guntas, which was sold in favour of the plaintiff and earmarked as ‘CQPORB’ is the land which was allotted in favour of Syed Amanullah and hence, the defendant has no right to the property measuring an extent of 8 guntas, which was sold by Syed Amanullah in favour of the plaintiff, since he does not hold any title. The lands, which were allotted in favour of Smt.Bibi Jan, Syed Amanullah and Syed Abbas in terms of their partition is clearly demarcated in the sketch. Hence, it is clear that the defendant is in possession of eight guntas of land of the plaintiff, which originally belong to Syed Amanullah. Therefore, the defendant has no right in respect of the same. 37. It is pertinent to note that the Commissioner, who has been examined before the Court has categorically deposed in terms of the sketch, which he has prepared in the presence of the respective parties and he was also subjected to crossexamination by the defendant’s counsel since he had filed objections to the Commissioner’s Report. 38. CW.1 the Commissioner, who was appointed by the Trial Court is a Surveyor and he categorically says that he had executed a Commissioner Warrant by fixing the date as 10.11.2011 to inspect the property. On such inspection, he drawn the rough sketch and thereafter, he had prepared the sketch, map of the schedule property and submitted the report, which is marked as Ex.C2. 39. In the crossexamination, learned counsel appearing for the defendant himself got elicited that Ex.D28 is the memo of instructions given by the defendant. He admits in the crossexamination that earlier to 2003, the lands bearing Sy.Nos.7/4B, 7/4B1, 7/4B2 and 7/4B3 were phoded. It is elicited that at the time of execution of Commissioner Warrant, he carried out tippani pertaining to lands in Sy.Nos.7/4B1 to 7/4B3. He admits in the crossexamination that earlier to 2003, the lands bearing Sy.Nos.7/4B, 7/4B1, 7/4B2 and 7/4B3 were phoded. It is elicited that at the time of execution of Commissioner Warrant, he carried out tippani pertaining to lands in Sy.Nos.7/4B1 to 7/4B3. As per tippani, the land in Sy.No.7/4B1 measures 2 acres 36 guntas, the land in Sy.No.7/4B2 measures 20 guntas and the land in Sy.No.7/4B3 measures 22 guntas. The land in Sy.No.7/4B is totally measuring an extent of 3 acres 38 guntas. He admits that a road is existing towards the eastern side of the land in Sy.No.7/4B2, that road passes through the land in Sy.No.7/4B1. He admits that the edge of land in Sy.No.7/4B1 touches the points at ‘CQPK’ as mentioned in Ex.C2 and towards the eastern side of points at ‘CQPK’, the portion of land in Sy.Nos.7/4B1 and 7/4B3 are situated. It is suggested that the portion described with letters ‘BCQRB’ is a part and parcel of the land in Sy.No.7/4B2 and the same was denied. He also admits that at the time of execution of the Commissioner Warrant, he prepared a rough sketch at the spot and brought the said rough sketch to the Court on that day. The witness showed the rough sketch to the defendant’s counsel. However, he admits that the defendant Lakshminarayana has put up compound wall over the property which is described as ‘ABCQRSA’ and dug the borewell over the said property. He admits that once the hissa phod are set right by the Survey Authority, there will be entry in the revenue records unless the same is set aside. He admits that hissa phod of Sy.No.7/4B2 is not yet set aside. It is suggested that he prepared the sketch marked at Ex.C2 on the basis of the plaintiff’s sale deed and the boundaries mentioned in the schedule of the plaint. 40. Having considered the evidence of CW.1 the Commissioner coupled with the evidence of P.W.1 and D.W.1, it is clear that the dispute is only with regard to the identity of the property. In the crossexamination of P.W.1, it is elicited that he does not know the boundaries of the land measuring an extent of 1 acre 15 guntas belong to Syed Amanullah, but he admits that the defendant has put up compound wall over his property. He volunteers that the defendant constructed such compound including his property also. 41. In the crossexamination of P.W.1, it is elicited that he does not know the boundaries of the land measuring an extent of 1 acre 15 guntas belong to Syed Amanullah, but he admits that the defendant has put up compound wall over his property. He volunteers that the defendant constructed such compound including his property also. 41. On perusal of the evidence of P.W.1, it is clear that the defendant has put up compound wall including the land of the plaintiff. But he admits that after the property being purchased by him, the Survey Settlement Authority have surveyed the said land and effected hissa phod. He claims that 8 guntas of land is situated towards the eastern side of the land in Sy.No.7/4B1 and the road is existing towards the eastern side of his land. The defendant’s land is situated towards the western side. 42. The defendant who is examined as D.W.1 was also subjected to crossexamination and in his crossexamination, he admits that one Ali Sab was his vendor’s father. Further, he admits that there is a mention in Ex.D.10 regarding acquiring of 1 acre 15 guntas of land by Syed Amanullah in Sy.No.7/4B, but he denied the suggestion that the land measuring an extent of 1 acre 8 guntas in Sy.No.7/4B was purchased by the plaintiff from Syed Amanullah. He claims that he had purchased 20 guntas of land in Sy.No.7/4B from Basanth Kumar and Raghuram through their GPA holder Mariyappa. He categorically admits that in his sale deed, the property of Syed Amanullah is shown towards the eastern side of his purchased property. It is suggested that the land in Sy.No.7/4B1 is situated towards the eastern side of his compound wall and not the road as mentioned in Ex.D.14 and the same was denied. However, he admits that the land in Sy.No.7/4B1 is situated towards the eastern side of his property. It is specifically suggested that he has put up compound wall by encroaching upon the land in Sy.No.7/4B1 to an extent of 8 guntas of land and the same wad denied. 43. However, he admits that the land in Sy.No.7/4B1 is situated towards the eastern side of his property. It is specifically suggested that he has put up compound wall by encroaching upon the land in Sy.No.7/4B1 to an extent of 8 guntas of land and the same wad denied. 43. Taking into consideration of the oral evidence of P.W.1, D.W.1 and also the evidence of CW.1, so also his report, which is marked as Ex.C2, there is no dispute with regard to the title in respect of the land measuring an extent of 3 acres 38 guntas in Sy.No.7/4B and the same was divided into three portions to an extent of 1 acre 8 guntas, which belonged to the vendor of the defendant, so also the land measuring an extent of 1 acre 15 guntas each, which was allotted in favour of Syed Amanullah and Syed Abbas. 44. It is also important to note that the sale deed which came into existence in the year 1996 was executed in favour of the defendant in terms of Ex.D29 and on perusal of the schedule to the sale deed, it clearly reveals that towards the eastern side of the property which was sold in favour of the defendant, it is mentioned that the property belong to Syed Amanullah. It is also pertinent to note that the land measuring an extent of 8 guntas was sold in favour of the plaintiff by the vendor of the plaintiff. In the boundary of the schedule towards western side, the property of the defendant is mentioned. Hence, it is clear that the property of the defendant and the plaintiff are adjoining to each other. The sketch, which has been prepared by the Commissioner who is the competent authority i.e., the surveyor is clear that the property belongs to the vendor of the defendant and the same is earmarked as ‘ABROLMNS’, but the defendant had put up compound wall including the property of the plaintiff, which has been clearly mentioned as ‘CQPORB’ and the said property comes within the purview of the land allotted in favour of Syed Amanullah. 45. The Commissioner has categorically identified the suit schedule property based on the boundaries mentioned in the sale deed of the plaintiff and also the sale deed of the defendant. 45. The Commissioner has categorically identified the suit schedule property based on the boundaries mentioned in the sale deed of the plaintiff and also the sale deed of the defendant. It is also pertinent to note that the land which has been earmarked as ‘road’ is also shown as ‘DJKPQC’ and hence, it is clear that towards the eastern side of the property of the plaintiff, there is an existence of road. When such being the case, the Trial Court has committed an error in not appreciating the report of the Commissioner in a right perspective. 46. The defendant also did not dispute the fact that his vendor was having land only to an extent of 1 acre 8 guntas and also that Syed Amanullah had got 1 acre 15 guntas of land, so also Syed Abbas had got the land measuring an extent of 1 acre 15 guntas. When such being the case, the Trial Court ought not to have made the observation that the plaintiff did not examine the vendor. There is no need to examine the vendor since there is no dispute with regard to the title of the properties. The dispute is only with regard to the encroachment of the land of the plaintiff. The survey sketch, which is marked as Ex.C2 clearly discloses that the defendant has been in occupation of the land which has been earmarked as ‘CQPORB’ and that of the encroached portion measuring an extent of 8 guntas of land belongs to the plaintiff. 47. No doubt the defendant had put up compound wall, but he had put up such structure encroaching the land of the plaintiff. When such being the case, the Trial Court failed to appreciate both oral and documentary evidence available on record. The defendant did not dispute the fact that in the boundary of the schedule to his sale deed, towards the eastern side, the land of Syed Amanullah i.e., the vendor of the plaintiff is shown. The defendant also did not dispute the fact that in the boundary of the schedule to the sale deed of the plaintiff, towards the western side, the property of the defendant is shown. When such being the case, the Trial Court has committed an error in not appreciating the both oral and documentary evidence available on record in its right perspective. 48. When such being the case, the Trial Court has committed an error in not appreciating the both oral and documentary evidence available on record in its right perspective. 48. It is to be further noted that the plaintiff did not file any objections to the Commissioner Report, because it is very clear that the defendant had encroached upon the property of the plaintiff measuring to an extent of 8 guntas of land, which has been indicated at serial No.10 of Commissioner Report. It is evident that the property of the plaintiff towards the eastern side of the property of the defendant has been encroached upon by the defendant. When such being the case, the Trial Court ought to have considered the same in a right perspective and come to the conclusion that the defendant has been in possession of the property of the plaintiff measuring an extent of 8 guntas. 49. The case of the plaintiff is also that the defendant has encroached upon his land and specifically claimed that when the defendant tried to excavate the property, he objected the same and was able to stop the work on that particular day. But subsequently, he came to know that he has put up compound wall encroaching upon the land of the plaintiff. Hence, the plaintiff has made out the case that the defendant had encroached the property of the plaintiff measuring an extent of 8 guntas of land, which has been sold by Syed Amanullah in his favour and the sketch prepared by the surveyor also clearly discloses that the property measuring an extent of 8 guntas of land, which has been sold by Syed Amanullah out of his property measuring an extent of 1 acre 15 guntas, has been encroached upon by the defendant and the said land belongs to Syed Amanullah. Therefore, it requires interference of this Court. 50. The Trial Court has committed an error in not appreciating properly the evidence of Commissioner and also the Commissioner’s Report at Ex.C2, which clearly demonstrate that the defendant has been in illegal occupation of the land of the plaintiff measuring an extent of 8 guntas of land. The evidence of P.W.1 and D.W.1 is also not properly appreciated. Hence, the plaintiff is entitled for the relief of declaration and consequential relief of possession. 51. The evidence of P.W.1 and D.W.1 is also not properly appreciated. Hence, the plaintiff is entitled for the relief of declaration and consequential relief of possession. 51. Learned Trial Judge has failed to appreciate the material on record and the very contention of the defendant’s counsel that he had been in possession of the property to an extent to which he had purchased is erroneous. Merely because the defendant had obtained the order for alienation of the property for non agricultural purpose, that itself will not create the right and so also the phod which has been made by the Authority inclusive of the land of the plaintiff cannot create any right in favour of the defendant. The defendant’s claim should be within the boundary of the property that belongs to his vendor Smt.Bibi Jan. 52. The defendant ought to have phoded the land which he had purchased but not the land of the plaintiff, which was originally belong to Syed Amanullah and he had sold the same in favour of the plaintiff. Hence, it is the considered opinion of the Court that the findings of the Trial Court is required to be interfered. 53. In view of the discussions made above, I pass the following: ORDER (i) The appeal is allowed. (ii) The impugned judgment and decree dated 01.09.2012 passed in O.S.No.2294/2008 on the file of XXXVII Additional City Civil and Sessions Judge (CCH.38), Bangalore City is hereby set aside. (iii) The suit filed by the plaintiff is decreed and he is entitled for the relief of declaration and also the consequential relief of possession as claimed in the plaint. (iv) The parties to bear their own costs.