JUDGMENT : ASHOK S. KINAGI, J. 1. This appeal is filed by the appellant challenging the judgment and decree dated 22.04.2013 passed in RA No.63/2011 by the learned Fast Track Court, Chikmagalur (‘First Appellate Court’ for short) and the judgment and decree dated 22.02.2011 passed in OS No.5/2006 by the learned Principal Senior Civil Judge, Chikmagalur (‘Trial Court’ for short). 2. For convenience, the parties are referred based on their rankings before the Trial Court. The appellant was the plaintiff and the respondents were the defendants. 3. Brief facts leading rise to the filing of this appeal are as follows: 3.1. The plaintiff filed a suit against the defendants for the relief of declaration and possession of the suit schedule property. It is the case of the plaintiff that, the land bearing Sy.No.43 measures 5 acres 4 guntas situated at Hukkunda Village, Chikmagalur Taluk belonged to one Chennamma. Chennamma sold the entire property in favour of the plaintiff’s father Sri. Muniswamy under a registered sale deed dated 07.02.1952 and handed over the possession of the property. After purchase, Khata was transferred in the name of the plaintiff’s father. After his death, the property was transferred in the name of plaintiff’s mother Smt. Devanamma. The plaintiff and Devanamma continued to be in possession of the suit schedule property. It is contended that, the mother of the plaintiff sold the portion of land measuring 3 acres 16 guntas in favour of defendant No.1 under a registered sale deed dated 13.01.1994 and retained 1 acre 28 guntas of land for their cultivation. It is contended that, the defendants have no right, title or interest over the suit schedule property to the extent of 1 acre 28 guntas. It is contended that, Devanamma executed a registered gift deed in favour of the plaintiff under a registered gift deed dated 13.04.2000, wherein she gifted the suit schedule property in favour of the plaintiff. The plaintiff became the absolute owner of the suit schedule property under a registered gift deed dated 13.04.2000 and khata was transferred in the name of the plaintiff. It is contented that, the defendants have encroached upon the property of the plaintiff. The plaintiff lodged a complaint before the concerned Police. Since they have not taken any steps, a cause of action arose for the plaintiff to file a suit. Accordingly, prays to decree the suit. 4. It is contented that, the defendants have encroached upon the property of the plaintiff. The plaintiff lodged a complaint before the concerned Police. Since they have not taken any steps, a cause of action arose for the plaintiff to file a suit. Accordingly, prays to decree the suit. 4. Defendant Nos.1, 3 and 4 filed their separate written statements denying the averments made in the plaint and it is contented by defendant No.1 that, the defendants have not made any encroachment in the suit property as alleged by the plaintiff in the plaint and it is contented that, the mother of the plaintiff sold a portion of land measuring 3 acres 16 guntas under a registered sale deed and the defendants are in possession of the land bearing Sy.No.43 to the extent of 3 acres 16 guntas. It is contended that, the plaintiff has not shown the correct boundaries in the plaint schedule. The suit is not maintainable for the non-joinder of necessary parties. Defendant No.3 contended that he is in possession of the property since more than 30 years and perfected his possession. Defendant No.4 contended that, the land encroached by defendant No.4 is a Government land and plaintiff has no manner of right over it. Hence, pray to dismiss the suit against defendant Nos.1, 3 and 4. 5. The Trial Court, based on the pleadings of the parties, framed the following issues: 1) Whether the plaintiff proves that she and her mother have sold a portion of the property measuring 3.16 acres including 5 guntas of kharab land to the 1st defendant and retained remaining 1.23 acres of property? 2) Whether plaintiff proves that she is the absolute owner of the suit schedule property? 3) Whether the plaintiff proves that defendants have encroached the suit schedule property? 4) Whether the suit is bad for mis-joinder of necessary parties? 5) Whether the plaintiff is entitled for the relief of declaration and possession? 6) Whether the plaintiff is entitled for mesne profits? 7) What order or decree? 6. The plaintiffs, to substantiate her case, examined herself as PW-1, examined two witnesses as PWs-2 and 3, and marked 17 documents as Exhibits P1 to P17. In rebuttal, defendant No.1 was examined as DW1 and marked 2 documents as Exhibits D1 and D2. 7. 6) Whether the plaintiff is entitled for mesne profits? 7) What order or decree? 6. The plaintiffs, to substantiate her case, examined herself as PW-1, examined two witnesses as PWs-2 and 3, and marked 17 documents as Exhibits P1 to P17. In rebuttal, defendant No.1 was examined as DW1 and marked 2 documents as Exhibits D1 and D2. 7. The Trial Court, after recording the evidence, hearing both sides and assessing the verbal and documentary evidence, answered issue Nos.1 to 6 in the negative, and issue No.7 as per the final order. The suit of the plaintiff was dismissed vide judgment dated 22.02.2011. 8. The plaintiff, aggrieved by the dismissal of the suit in OS No.5 of 2006, preferred an appeal in RA No.63 of 2011 on the file of the First Appellate Court. 9. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: 1) Whether the Judgment and decree passed by the Prl. Senior Civil Judge, Chikmagalur dt 22.2.2011 in O.S.No.5/2006 dismissing the suit of the plaintiff is illegal, perverse and liable to be set aside? 2) Whether the impugned judgment and decree calls for any interference? 3) Whether I.A. No.I filed under O 26 Rule 9 and 10 CPC deserves to be allowed? 4) What order? 10. The First Appellate Court, after re-appreciating the entire evidence on record, answered point Nos.1 to 3 in the negative, and point No.4 as per the final order. The appeal was dismissed vide judgment dated 22.11.2013 and the judgment and decree passed by the Trial Court was confirmed. 11. The plaintiff, aggrieved by the impugned judgments and decrees passed by the Courts below, has filed this Regular Second Appeal. 12. Heard the arguments of learned counsel for the plaintiff, learned counsel for defendant No.1 and learned counsel for defendant No.2. 13. Learned counsel for the plaintiff submits that, the defendants have not denied the title of the plaintiff to the extent of 1 acre 28 guntas. He submits that, originally, the suit schedule property was owned and possessed by the plaintiff's father, and after his demise, the property was transferred in the name of Devanamma. 13. Learned counsel for the plaintiff submits that, the defendants have not denied the title of the plaintiff to the extent of 1 acre 28 guntas. He submits that, originally, the suit schedule property was owned and possessed by the plaintiff's father, and after his demise, the property was transferred in the name of Devanamma. Devanamma sold a portion of the land bearing Sy.No.43 to an extent of 3 acres 16 guntas in favour of defendant No.1 under a registered sale deed and she retained the remaining portion of the land to an extent of 1 acre 28 guntas. He submits that, the said Devanamma executed a registered gift deed regarding the suit schedule property in favour of the plaintiff. It is submitted that, the plaintiff became the absolute owner of the suit schedule property by virtue of a registered gift deed. It is submitted that, the boundaries shown in the gift deed and the boundaries shown in the plaint are similar. Hence, the Courts below committed an error in recording their finding that the boundaries shown in the registered gift deed and the boundaries shown in the plaint are different. The said findings recorded by the Courts below are arbitrary and erroneous. He also submits that, the plaintiff filed an application for the appointment of Commissioner before the First Appellate Court. The First Appellate Court rejected the said application without assigning any reasons. Hence, on these grounds, he prays to allow the appeal. 14. Per contra, learned counsel for the defendant Nos.1 and 2 submit that, defendant No.1 had purchased the property from Devanamma i.e., the mother of the plaintiff to an extent of 3 acres 16 guntas under the registered sale deed. Defendant No.1 is in possession and enjoyment of the land to an extent of 3 acres 16 guntas. The defendants have not made any encroachment on the land belonging to the plaintiff in Sy.No.43. They also submit that, the plaintiff, except the oral testimony of PW- 1, has not examined any witnesses to prove the alleged encroachment by the defendants. They submit that, the plaintiff has filed a suit for declaration of title and possession. The initial burden is on the plaintiff to establish that the plaintiff is the absolute owner of land bearing Sy.No.43 to an extent of 1 acre 28 guntas and also about the alleged encroachment. They submit that, the plaintiff has filed a suit for declaration of title and possession. The initial burden is on the plaintiff to establish that the plaintiff is the absolute owner of land bearing Sy.No.43 to an extent of 1 acre 28 guntas and also about the alleged encroachment. Hence, both the Courts below have concurrently recorded a finding of fact against the plaintiff. Hence, on these grounds, they pray to dismiss the appeal. 15. This Court, vide order dated 30.10.2014, admitted the appeal to consider the following substantial questions of law: (i) Whether the Courts below have not properly considered the documentary as well as oral evidence produced by the plaintiff and have wrongly dismissed suit? (ii) Whether Courts below are justified in dismissing the suit on the ground that boundaries stated in the gift deed and in the suit schedule are not tallying with each other, even though plaintiff has placed evidence to prove the same? Reg. Substantial Questions of Law: 16. Substantial questions of law Nos.(i) and (ii) are inter-linked; hence, they are taken together for a common discussion to avoid the repetition of facts. 17. The plaintiff, to substantiate her case, examined herself as PW-1 and she has deposed that, though originally the suit schedule property was owned and possessed by Chennamma, she sold the said land in favour of the plaintiff’s father i.e., Muniswamy under a registered sale deed dated 07.02.1952 and handed over the possession of the same. Khata of the property was transferred in the name of Muniswamy. Muniswamy died leaving behind his wife and the plaintiff. After the demise of Muniswamy, the property was transferred in the name of Devanamma i.e., his wife. During her lifetime, Devanamma sold a portion of the land in Sy.No.43 measuring 3 acres 16 guntas in favour of defendant No.1 under a registered sale deed dated 13.01.1994 and retained the remaining portion of land measuring 1 acre 28 guntas. The defendants have encroached upon the land of the plaintiff. It is deposed that, the defendants have no right, title or interest over the suit schedule property and also deposed that Devanamma gifted the suit schedule property in favour of the plaintiff under a registered gift deed dated 13.04.2000. The plaintiff is cultivating the suit schedule property. The defendants have encroached upon the land of the plaintiff. It is deposed that, the defendants have no right, title or interest over the suit schedule property and also deposed that Devanamma gifted the suit schedule property in favour of the plaintiff under a registered gift deed dated 13.04.2000. The plaintiff is cultivating the suit schedule property. The plaintiff, to substantiate her case, has produced the following documents: i. Exhibits P1 to P4 are the certified copies of the RTCs; ii. Exhibit P5 is a certified copy of the mutation register extract; iii. Exhibits P6 and P7 are the certified copies of the two sale deeds; iv. Exhibit P8 is a certified copy of the registered gift deed which discloses that Devanamma gifted the land in Sy.No.43 to the extent of 1 acre 28 guntas in favour of the plaintiff and she delivered the possession; v. Exhibit P9 is a certified copy RR; vi. Exhibit P10 is a certified copy of the indexed land records; vii. Exhibits P11 and P12 are the certified copies of kandayam paid receipts; viii. Exhibit P13 is the sketch certificate; ix. Exhibit P14 is a certified copy of Akarbandh; x. Exhibit P15 is a certified copy of RTC. xi. Exhibit P16 is the certified copy of the complaint which discloses that the plaintiff has filed a complaint against the defendants and the Police have not taken any action against the defendants; xii. Exhibit P17 is the original registered gift deed. 17.1. During the course of cross-examination of PW-1, she has deposed that, the extent of land in Sy.No.43 is 5 ½ acres, but the same is mentioned in the plaint as 5 acres 4 guntas. Further, the plaintiff also examined PW-2 i.e., Dharmesh, who is the attesting witness to the registered gift deed, wherein Devanamma executed a gift deed in favour of the plaintiff to the extent of 1 acre 28 guntas as per Exhibit P17 i.e., the original registered gift deed. He deposed that, the plaintiff and her mother have sold a portion of land in Sy.No.43 to an extent of 3 acres 16 guntas and the remaining land is in possession of the plaintiff. PW-2 was examined only to prove the execution of a registered gift deed by Devanamma in favour of the plaintiff. The plaintiff also examined one Subramani as PW-3, who deposed in the same line of PWs-1 and 2. PW-2 was examined only to prove the execution of a registered gift deed by Devanamma in favour of the plaintiff. The plaintiff also examined one Subramani as PW-3, who deposed in the same line of PWs-1 and 2. During the cross-examination of PW-3, he has given a different boundaries to the property retained by the plaintiff measuring 1 acre 28 guntas as: east by channel road and land of Thimme gowda; west by land of defendant No.1; north by land of one muslim; and south by the road. The boundaries and extent of the land retained by the plaintiff in Sy.No.43 differs from the pleadings to the evidence placed by the plaintiff. 18. In rebuttal, defendant No.1 examined herself as DW-1 and she has deposed that, the suit schedule property was sold by Devanamma and the plaintiff in favour of defendant No.1 under a registered sale deed measuring 3 acres 16 guntas in Sy.No.43, and Devama and the plaintiff delivered the possession of the same. Defendant No.1 is in possession of 3 acres 16 guntas of land in Sy.No.43. Defendant No.1 has not made any encroachment in the land bearing Sy.No.43 alleged to have been owned and possessed by the plaintiff. Defendant No.1, to substantiate his defence, marked the document Exhibits D1 and D2 RTCs which show that defendant No.1 is absolute owner of land in Survey No.43 measuring 3 acres 16 guntas. During the course of cross-examination of DW-1, it was suggested that defendant No.1 encroached the land of the plaintiff. The said suggestion was denied by DW-1. 19. From the perusal of the entire evidence on record, it is an undisputed fact that, originally, the land was owned and possessed by Chennamma, who sold the said land in favour of plaintiff's father Muniswamy under a registered sale deed dated 07.02.1952. The father of the plaintiff was in possession and enjoyment of the land in Sy.No.43, measuring 5 acres 4 guntas. After his demise, the property was transferred in the name of his wife Devanamma. Thereafter, Devanamma and the plaintiff have jointly sold the land bearing Sy.No.43 to the extent of 3 acres 16 guntas in favour of defendant No.1. 20. Although the plaintiff contended that the defendants have encroached upon the land of the plaintiff, the plaintiff, except the oral testimony of PW-1, has not taken any steps to get survey of the land. Thereafter, Devanamma and the plaintiff have jointly sold the land bearing Sy.No.43 to the extent of 3 acres 16 guntas in favour of defendant No.1. 20. Although the plaintiff contended that the defendants have encroached upon the land of the plaintiff, the plaintiff, except the oral testimony of PW-1, has not taken any steps to get survey of the land. The plaintiff filed a suit without ascertaining whether defendant No.1 had encroached the land of the plaintiff. In the absence of material evidence on record, both the Courts below have concurrently recorded a finding of finding that the plaintiff has failed to establish that the defendants have encroached upon the suit schedule property. Further, the defendants have also seriously disputed regarding the identity, location and boundaries of the suit schedule property. The plaintiff has produced the original gift deed marked as Exhibit P17, wherein the Trial Court compared both the boundaries shown in the registered gift deed and the boundaries shown in the plaint. Both are different. They are not similar. It is rightly contented by the defendant that the boundaries shown in the plaint are not correct and it is not in accordance the boundaries shown in Exhibit P17. The plaintiff claims to be the owner of the suit schedule property based on Exhibit P17. As observed above, the boundaries shown in the plaint and in the gift deed are totally different. There is a serious dispute regarding to the boundaries and measurement of the suit schedule property. The Courts below are justified in passing the impugned judgments. 21. The learned counsel for the plaintiff submits that, the plaintiff has filed an application for the appointment of Court Commissioner before the First Appellate Court. The First Appellate Court rejected the said application. The plaintiff, before filing the suit, could have ascertained whether the defendants have made an encroachment on the land of the plaintiff. Without ascertaining, whether the defendants have encroached the land of the plaintiff, she filed a suit based on the assumption and presumption. The plaintiff has not taken any steps to file an application for the appointment of Commissioner before the Trial Court. The plaintiff, to fill up a lacuna, and to overcome the judgment and decree passed by the Trial Court, filed an application to appoint a Court Commissioner to identify the land i.e., the suit land. 22. The plaintiff has not taken any steps to file an application for the appointment of Commissioner before the Trial Court. The plaintiff, to fill up a lacuna, and to overcome the judgment and decree passed by the Trial Court, filed an application to appoint a Court Commissioner to identify the land i.e., the suit land. 22. Insofar as identification of the suit land is concerned, the plaintiff could have submitted an application to the survey authorities to demarcate the suit schedule property. The plaintiff did not take any steps. Both the Courts below have rightly held that the plaintiff has failed to establish that, the plaintiff and her mother have sold portion of property measuring 3 acres 16 guntas including 5 guntas of kharab land to defendant No.1 and retained remaining 1 acre 23 guntas of the land and failed to prove that the plaintiff is the absolute owner of the suit schedule property based on Exhibit P17 i.e., the registered gift deed and also the plaintiff has failed to prove the alleged encroachment by the defendants. Both the Courts below, considering the entire evidence on record, have rightly passed the impugned judgments. The Court below have properly considered the documentary as well as oral evidence produced by both the parties, and recorded a finding of fact that the boundaries shown in the registered gift deed, and the plaint are different. Both the Courts below were justified in passing impugned judgments. 23. In view of the above discussion, I answer substantial question of law No.1 in the negative and substantial question of law No.2 in the affirmative. Accordingly, I proceed to pass the following: ORDER i. The Appeal is dismissed. ii. The judgments and decrees passed by the Courts below are hereby confirmed. iii. No order as to the costs. iv. In view of dismissal of the appeal, pending IAs, if any, shall stand disposed of accordingly.