JUDGMENT : V.SRISHANANDA, J. 1. Heard Sri. Vishwanath Hegde, learned counsel for the appellant. None appears for the respondent. 2. Unsuccessful plaintiffs are the appellants challenging the dismissal of the suit in OS No.15147/2005 on the file of Additional City Civil Judge, Mayo Hall, Bangalore. 3. Facts in the brief which are utmost necessary for disposal of the present appeal are as under: 3.1 A suit came to be filed by the plaintiff in respect of the following property (hereinafter referred to as 'suit property'): DESCRIPTION All the part and parcel of the property No.24, 'E' No.4th Street, Old Madres Road, Ulsoor, Bangalore 560 008, measuring east to west on the Northern side 22 feet inches 21, 3 inches on the southern side: North to South on East 27 feet 4 inches, on the West 29 feet 6 inches, totally measuring 617.5 Sq.ft encroached by the defendants measuring 221.4 sq.ft as shown and bounded on east by wide passage: West by Road "E" No.4th Street, North by House No.23 and South by House No.25. 3.2 The suit is filed with a prayer for declaration that the plaintiffs are the owners of the suit property and an order of permanent injunction and eviction of seventh defendant from the portion of the suit property including the damages. 3.3 Plaintiff's contended that Sri. Gambuswamy, was the owner of the suit property. He had a brother by name Muthuswamy who died issueless was the owner of the property. Gambuswami had two sons namely Lokanathan and Nateshan. Nateshan is the father of the plaintiffs. Lokanathan had six children and after the death of Gambaswamy, there was a oral partition between Lokanathan and the Nateshan and the suit property had fallen to the share of Sri. G. Nateshan. 3.4 It is further contended that as per the oral partition between Nateshan and Lokanathan, the suit property which had fallen to the share of Nateshan, ASri. Nateshan lived along with his wife Papammal in the suit property. 3.5 Lokanathan said to have died on 08.10.1971 and Nateshan said to have died on 30.08.1981. 3.6 It is further contented that during the lifetime of Lokanathan, he had sold the property bearing No.23 'E' 4 th Street, Ulsoor in favour of G. Ramachandran. Eight defendant is the daughter of Lokanathan and seventh defendant is her husband. 3.5 Lokanathan said to have died on 08.10.1971 and Nateshan said to have died on 30.08.1981. 3.6 It is further contented that during the lifetime of Lokanathan, he had sold the property bearing No.23 'E' 4 th Street, Ulsoor in favour of G. Ramachandran. Eight defendant is the daughter of Lokanathan and seventh defendant is her husband. Lokanathan and Nateshan were enjoying the respective properties as per the oral partition and Lokanathan having sold his property, is not having any right, title or interest over the suit property. 3.7 Therefore, it is the Nateshan who is the absolute owner of the suit property, who has paid taxes to the suit property and obtained electrical connection in his name, but the katha of the property stood in the name of Sri Lokanathan, who are the elder brother out of respect. 3.8 It is further contented that an earlier suit was filed in OS No.10596/1987, wherein it is observed that defendants No.10 to 15 in the present suit were in possession of the suit property. 3.9 It was also contented by the plaintiffs that in the said suit in paragraph No.14, it has been observed that the said property belonging to Nateshan and there was no material evidence placed on record. As such, taking advantage of the observation made in the judgment of OS No.10596/1987, Corporation Authorities refused to transfer the katha of the suit property in the name of the plaintiffs and advised the plaintiffs to obtain a declaratory decree and thus suit came to be filed. 3.10 Pursuant to the suit summons, defendants No.1 to 6 appeared before the Court and filed common written statement wherein they admitted that the property earlier belonged to Gambaswamy as the absolute owner of the suit property. 3.11 It is their specific case that after death of Gambaswamy, his two sons namely Lokanathan and Nateshan affected the oral partition in respect of the suit property where the suit property had been allotted to G. Nateshan. But they denied that there was a oral partition and suit property having been allotted to G. Nateshan. They also denied that the Corporation Authorities denying to effect the change of katha in the name of plaintiffs and they maintained that property was in possession of Lokanathan and after his death it is in the possession of the defendants. But they denied that there was a oral partition and suit property having been allotted to G. Nateshan. They also denied that the Corporation Authorities denying to effect the change of katha in the name of plaintiffs and they maintained that property was in possession of Lokanathan and after his death it is in the possession of the defendants. 3.11 Defendant No.8(d) filed a separate written statement contending that Lokanathan sold the property bearing No.23 in favour of Sri. G. Ramachandran, son of M. Gopaldas. 3.12 It was also contented that Lokanathan was in occupation of the suit property as joint family property and Lokanathan and Muthuswamy who is grandsons of Gambuswamy, born to Thyagaraj and they are in joint possession of the suit property. 3.13 It is also contended that Lokanathan executed a Will in favour of Smt. Radha Bai by in the year 1969 in respect of the suit property on 15.04.1969 bequeathing the suit property in favour of eighth defendant. 3.14 Thus, after death of Lakanathan, it is the eighth defendant who became the owner of the suit property and by virtue of the said Will, it is Defendants No.8(a) to 8(g), who are now the absolute owner of the suit property on account of death of eighth defendant. 3.15 When plaintiff started interfering with the enjoyment of the suit property, eighth defendant and his children were constrained to file a suit in OS No.10596/1987, wherein it has been clearly held that Nateshan failed to prove his title over the suit property and therefore the suit filed is not maintainable and sought for dismissal of the suit. 3.16 Based on the rival contents of the parties, following issues were framed: 1) Whether the plaintiffs prove that suit schedule property fell to the share of their father G.Nateshan in a partition? 2) Whether plaintiffs prove that the khatha of the suit schedule property as on 15.5.81 stood in the name of Loganathan and still continues in the records of Corporation? 3) Whether plaintiffs prove that they are the absolute owners of suit schedule property? 4) Whether plaintiffs prove that defendants 7 and 8 have encroached a portion o the suit property measuring East to West 10 feet and North to South 30 feet? 5) Whether defendants 1 to 6 prove that the court fee paid on the plaint is insufficient? 3) Whether plaintiffs prove that they are the absolute owners of suit schedule property? 4) Whether plaintiffs prove that defendants 7 and 8 have encroached a portion o the suit property measuring East to West 10 feet and North to South 30 feet? 5) Whether defendants 1 to 6 prove that the court fee paid on the plaint is insufficient? 6) Whether the plaintiffs are entitled for the relief of declaration and permanent injunction? 7) Whether the plaintiffs are entitled for possession of the ne suit schedule property from D7 and D8? 3) Whether the plaintiffs are entitled for damages as as sought for? 9) To what order or decree? 3.17 In order to prove the case of the plaintiff, the Gajendra - fifth plaintiff got examined himself as PW1 and placed on record as many as 54 documents which were exhibited and marked as Exhibits P1 to P54. Among them, Exhibit P1 is the Special Power of Attorney, Exhibit P2 is the Genealogical Tree, Exhibit P3 is the Hoarding Certificate, Exhibit P4 is Death Certificate of Lokanathan, Exhibit P5 is the Death Certificate of G. Nateshan, Exhibit P6 is the survey sketch, Exhibit P7 is the certified copy of the partition deed, Exhibit P8 is the certified copy of the defendant's No.7 property's sale deed, Exhibit P9 is the City Survey notice served on G. Nateshan, notices, tax paid receipts, Plumbing map, water bill, electricity bill, certificate issued by the KEB, Electoral Court, sketch of the suit property, ration card, tax paid receipts, encumbrance certificates, photographs and negatives. 3.18 As against the evidence placed on record by the plaintiff, Sri. G.R. Chandrasekhar - Defendant No.8D Chandrasekhar got examined himself as DW1 and placed on record seven documents which were exhibited and marked as Exhibits D1 to D7 comprising of copy of the deposition of PW1 Gajendra in OS No.10596/1987 wherein he was examined as DW5, original sale deed, Will dated 15.04.1969, certified copy of the division letter, Khata Extract, tax paid receipt, Death certificate. 3.19 On conclusion of the recording of evidence, learned Trial Judge heard the arguments of the parties and by impugned judgment, dismissed the suit of the plaintiff holding that the plaintiff failed to make out a title to the suit property. 4. 3.19 On conclusion of the recording of evidence, learned Trial Judge heard the arguments of the parties and by impugned judgment, dismissed the suit of the plaintiff holding that the plaintiff failed to make out a title to the suit property. 4. Being aggrieved by the same, plaintiffs have filed the present appeal on the following grounds: - The learned City Civil Judge wholly failed to take note of the categorical admission of DW-1 to the effect that the appellants were born and brought up in the suit schedule property and continued to live in the said property from the lifetime of their parents. The admission ought to have persuaded the learned City Civil Judge to grant the decree of declaration in favour of the appellants. - The learned City Civil Judge wholly failed to infer that possession follows title and the admitted possession of the appellants over the suit schedule property ought to have taken note of by the learned City Civil Judge to hold that the appellants are the owners of the suit schedule property - The learned City Civil Judge erred in proceeding on the erroneous appreciation of the tax paid receipts produced from the custody of the appellants and marked as Ex.P13 to 24 and Ex.P43 to P47 - The learned City Civil Judge wholly erred in holding that the survey records and tax paid receipts are not deeds of title which will prove the title of Sri.G.Nateshan and after his death, the title of the appellants. The reading of the documentary evidence by isolating the same has lead to an erroneous conclusion by the learned City Civil Judge. - The learned City Civil Judge wholly erred in observing that the documents produced by the plaintiffs/appellants never inspire confidence in proving the fact that the suit schedule property was under the absolute ownership of Sri. G. Nateshan, fallen to his share in an oral partition, who was the absolute owner in possession of the same and that after his death, the plaintiffs/appellants jointly succeeded to the suit schedule property. This finding is wholly capricious and perverse. G. Nateshan, fallen to his share in an oral partition, who was the absolute owner in possession of the same and that after his death, the plaintiffs/appellants jointly succeeded to the suit schedule property. This finding is wholly capricious and perverse. - The learned City Civil Judge wholly erred in not noticing that the appellants were continued to be in lawful uninterrupted possession of the suit schedule property for more than 12 years as on the date of filing the suit and hence entitled for declaration of their title to the suit schedule property. - The learned City Civil Judge erred in not noticing that the plaint averment that Sri.Loganathan being the elder brother of the plaintiffs father Sri G.Nateshan, the Katha of the suit schedule property as on 15-05-1981 stands in the name of Sri. Loganathan in the records of the Corporation is not disputed by the defendants and there was no reason for the learned City Civil Judge to disbelieve the said contention. - The learned City Civil Judge failed to notice that the plea of the appellants that the suit schedule property fell to the share of Sri.G.Nateshan in the oral partition is probabilised from the fact that the plaintiffs/appellants have continued to be in possession of the suit schedule property since the time of their father. - The learned City Civil Judge also failed to consider the documents produced by the appellants to show that electricity and water connections to the suit schedule property were obtained by Sri.G.Nateshan which also inferred that Sri. G. Nateshan himself exercised the ownership rights over the suit schedule property - The learned City Civil Judge further failed to consider other documents produced before the court by the appellants in support of their contention thereby arriving at an erroneous conclusion and dismissing the suit. - The learned City Civil Judge also erred in ignoring the documents produced by the appellants in proof of their lawful possession over the suit schedule property and giving a finding that the plaintiffs/appellants have failed to prove issue Nos. 1 to 4. - The learned City Civil Judge also erred in ignoring the documents produced by the appellants in proof of their lawful possession over the suit schedule property and giving a finding that the plaintiffs/appellants have failed to prove issue Nos. 1 to 4. - That the learned City Civil Judge erred in ignoring the fact that in view of the possession of the suit property by appellants, as admitted by the respondents, and in the absence of any proof of title produced by the respondents, the prayer of the appellants for permanent injunction restraining the respondents from interfering with their possession should have been granted - That the learned City Civil Judge should have held that the un-interrupted possession of suit property by the appellants since more than 45 years has matured into their title to the suit property and thus should have held that the appellants have established their title to the suit schedule property - That the learned City Civil Judge failed to notice that in O.S.No.10596/1987 wherein these appellants and respondents were parties to the same subject matter involved in this suit, the first respondent herein who was examined as PW-1 has categorically mentioned in his deposition that Late Loganathan was paying property tax in respect of the suit property on behalf of the appellants' father G. Nateshan as could be seen in para 14 of the Judgment Ex.P-35 which fact along with continued possession of appellants on suit schedule property since more than 45 years and the other exhibits establishes the title of the appellants to the suit schedule property. - The Judgment and Decree passed by the Trial Court suffers from further legal infirmities which will be pointed out at the time of hearing. 5. Sri. Vishwanth Hegde, learned counsel for the appellants reiterating the grounds urged in the appeal memorandum vehemently contented that there is no dispute that the property earlier belonged to Gambuswamy. 6. Admittedly Gambuswamy had two sons namely Lokanathan and Nateshan. 5. Sri. Vishwanth Hegde, learned counsel for the appellants reiterating the grounds urged in the appeal memorandum vehemently contented that there is no dispute that the property earlier belonged to Gambuswamy. 6. Admittedly Gambuswamy had two sons namely Lokanathan and Nateshan. He would further contend that there was a oral partition between Lokanathan, children of Gambuswamy namely Lokanathan and Nateshan and whereby the property that was sold by the Lokanathan bearing No.23 'E' No.4 th Street, Old Madras Road, Ulsoor, Bangalore had fallen to his share and the suit property had fallen to the share of Nateshan and plaintiffs being the children of Nateshan, are entitled to get the ownership of the suit property declared in their favour which has not been properly considered by the learned Trial Judge in the impugned judgment. As such appellants sought for admitting the appeal for further consideration. 7. It is also contention of Sri. Hegde that the eighth defendant it is only the legal representatives of eight defendant who have contested the suit. Answers elicited in the cross-examination of DW1 would make it clear that the alleged Will executed by Lokanathan in favour of his daughter namely Smt. Radha Bai is not proved. Therefore it is to be construed that it is the suit property had fallen to the share of Nateshan. Therefore plaintiffs are entitled for a decree of declaration as prayed for and portion of the property that has been in occupation of seventh defendant and the possession of the portion of the property which is in occupation of seventh defendant needs to be handed over to the plaintiff. 8. None appears for the respondents to advance arguments opposing the appeal and to substantiate cross objectors. 9. Having heard the arguments of Sri Vishwanath Hegde, this Court perused the material on record meticulously. 10. On such perusal of the material on record, it is crystal clear that the plaintiffs have come up with the plea that in a oral partition, the suit property had fallen to the share of G. Nateshan who is the father of PW1. Defendants 1 to 6 have denied in their written statement about the earlier partition. 11. Admittedly, the katha of the suit property stands in the name of G. Lokanathan. The said fact would falsify the stand taken by the plaintiff. 12. Defendants 1 to 6 have denied in their written statement about the earlier partition. 11. Admittedly, the katha of the suit property stands in the name of G. Lokanathan. The said fact would falsify the stand taken by the plaintiff. 12. In the suit filed by the father of the eighth defendant in OS No.10596/1987, very same PW1 has deposed before the Court stating that Smt. Radha Bhai and family of Sri Ramachandran are in possession of the portion of the suit property in his examination-in-chief itself. 13. He admits in his cross-examination that he is not aware of when Gambuswamy passed away and he does not know about the particulars of the property where his grandfather was residing. 14. He also admitted therein that there were tenants in the half portion of the property bearing No.26 which is now half portion which is in occupation of Smt. Radha Bhai and Sri. D'Silva was the tenant in the said property and he pleaded ignorance about the rate of rent. 15. He further admitted that D'Ssilva was not paying rent to his father Sri. G. Nateshan. In his further cross- examination he admitted that it is the Lokanathan who was paying taxes to the suit property from the beginning and Bangalore City Corporation was issuing receipts for payment of taxes in the name of Lokanathan with regard to the suit property. 16. These admissions when placed in juxtaposition with the plaint averments, it is noted that plaint averments are contradictory to the admissions made by PW1 on oath in OS No.10596/1987. 17. It is settled principles of law that, an admission of a party binds him in the subsequent proceedings and such admissions cannot be permitted to be withdrawn. 18. At the most, the admissions made by the witness namely PW1 in the said suit who has been examined as DW5 could have been explained under what circumstances such admissions have been given by the plaintiff. 19. But in the teeth of such admissions on oath by the PW1 in OS No.10596/1987 wherein he is examined as DW5, false averments are made in the plaint stating that suit property had fallen to the share of Nateshan and his father was in possession and he was paying taxes to the suit property. 20. 19. But in the teeth of such admissions on oath by the PW1 in OS No.10596/1987 wherein he is examined as DW5, false averments are made in the plaint stating that suit property had fallen to the share of Nateshan and his father was in possession and he was paying taxes to the suit property. 20. These aspects of the matter has been taken note of by the learned Trial Judge while holding that the plaintiffs have failed to prove the title to the suit property. 21. Further, it is to be noted that the alleged partition between Lokanathan and Nateshan after the death of Gambaswamy is not proved by placing any material on record. 22. Further, no witnesses are examined and Gajendran, who is examined as PW1 on behalf of the plaintiffs, pleaded ignorance about the factual aspects of the matter with regard to the sharing of the property including the possession of the property by Sri. Gambuswamy himself. 23. Under such circumstances, learned Trial Judge noting the fact that the plaintiffs have suffered a decree in O.S.No.10596/1987 may be for the portion of the property, failed to establish title over the suit property. 24. It is settled principles of law and requires no emphasis that whenever a person seeks for the declaratory decree of the title, such person must make out a legal title to the suit property. 25. In the case on hand, except the oral testimony of PW1 that there was an oral partition between Lokanathan and Nateshan and the suit property had fallen to the share of Nateshan has not been proved by placing at least plausible evidence on record. 26. Merely on the ground that the Will that has been executed by Lokanathan in favour of Smt. Radha Bhai, having not been established would not ipso facto make out a case for the plaintiffs to get a decree of declaration in respect of the suit property as they are the owners of the suit property. 27. Thus, dismissal of the suit by the Trial Court in the impugned judgment is just and proper which requires no further consideration for admitting the appeal. 28. Insofar as the cross objection is concerned, admittedly the Counter-assertion made by Smt. Radha Bhai were dismissed by the Trial Court while dismissing the suit. 29. 27. Thus, dismissal of the suit by the Trial Court in the impugned judgment is just and proper which requires no further consideration for admitting the appeal. 28. Insofar as the cross objection is concerned, admittedly the Counter-assertion made by Smt. Radha Bhai were dismissed by the Trial Court while dismissing the suit. 29. In a suit filed by plaintiff seeking declaration, a counter-assertion without there being a proper counter claim by paying the court fee could not have been taken consideration of by the Trial Judge and therefore it was rightly rejected. Against such a finding of the trial Court, there cannot be a cross-objection. 30. Moreover none appeared for the cross objector to address the arguments. Therefore, there is no necessity to admit the cross objection for further consideration. 31. In view of the foregoing discussions, following order: ORDER (i) Appeal and cross-objection are meritless and hereby dismissed.