JUDGMENT : (H.P. SANDESH, J.) 1. This matter is listed for admission. Heard the learned counsel for the appellant and the learned counsel for the respondent. 2. The factual matrix of case of the plaintiff while seeking the relief of permanent injunction and mandatory injunction, specifically pleaded before the Trial Court that originally suit property was belongs to Srinivasa S/o late Ramaiah and Smt.Venkatalakshmamma W/o late Ramaiah as the plaintiff obtained the suit property through a registered sale deed dated 22.08.1994. Thereafter, necessary documents were transferred in the name of the plaintiff. Since, then, the plaintiff has been in possession and enjoyment of the suit property. He has also got converted the property into the site. The defendant being the neighbourer of the property of the plaintiff, has encroached an area measuring East to West -12 feet, North to South – 9 fee and constructed the house. Though the plaintiff has conducted panchayath in this regard, the defendant did not heeded the words of the panchayathdars and he is trying to put up construction over the encroached area of the plaintiffs. Hence, filed the suit. In pursuance of the suit summons, the defendant appeared and filed written statement contending that the suit itself is not maintainable and further contended that site property bearing municipal old assessment No.2154 and new assessment No.2192 measuring East-West-30 feet and North-South-50 feet situated at Kikkerammana Kottalu belonging to Town municipality was purchased by him on 18.07.1987 from one Yallappa S/o Nanjaiah. After purchase of the said property, having obtained license from the town municipality concerned with respect to construction of house in the measurement of East to West -2.6 feet and North to South – 3.9 feet by leaving set back measuring East to West – 3.3 feet and North to South – 4.6 feet constructed a Mangalore tiled house and also grown 2 coconut saplings towards southern side of his house. ON 20.12.1999 by obtaining license from the town municipality, Holenarasipura, he got demolished the Mangalore tiled hose and has constructed RCC house on the same dimension and in possession of the house. In the site of the defendant, there existed kote agalu on the southern direction – 30 feet. He has put up barbed fence by installing pillars on the southern side form the said kote agalu. In the site of the defendant, there existed kote agalu on the southern direction – 30 feet. He has put up barbed fence by installing pillars on the southern side form the said kote agalu. The kote agalu in the width of 30 feet is in existence between the property of the plaintiff and defendant. The plaintiff is also having knowledge of the said fact. The plaintiff has filed the suit only with an intention to trouble the defendant and prayed the Court to dismiss the suit. The Trial Court having considered the pleadings of the parties, framed the issues with regard to permanent injunction as issue Nos.1 to 3 and also addl. issue is framed in view of the specific pleading that the defendant had encroached suit schedule property and also in view of pleading of the defendant addl. issue was framed with regard to the existence of Kote agalu measuring width of 30 feet in between the plaintiff and the defendant’s property as contended by the defendant. The parties have lead their evidence and plaintiff examined himself as P.W.1 and also examined witnesses P.W.2 to P.W.4 and got marked the documents as Ex.P.1 to Ex.P.13. The defendant also examined himself as D.W.1 and examined one witness as D.W.2 and got marked Ex.D.1 to Ex.D.21. The Court Commissioner Sri.Kodandaramaiah is also examined as Ex.C.1 and got marked Ex.C.1 and Ex.C.2. The Trial Court having considered both oral and documentary evidence placed on record as well as the Court Commissioner’s evidence, comes to the conclusion that plaintiff has proved the issue Nos.1 to 3 with regard to the permanent injunction as well as the Trial Court answered the addl. issue No.1 partly as affirmative since there is a difference of measurement in terms of the Commissioner report and hence, answered the same as partly affirmative and addl. issue No.2 in respect of the claim of the defendant answered as negative that plaintiff has not proved the very defense which he has taken and granted the relief of permanent injunction and mandatory injunction against the appellant. 3. Being aggrieved by the said judgment, R.A.No.27/2018 is filed before the First Appellate Court. issue No.2 in respect of the claim of the defendant answered as negative that plaintiff has not proved the very defense which he has taken and granted the relief of permanent injunction and mandatory injunction against the appellant. 3. Being aggrieved by the said judgment, R.A.No.27/2018 is filed before the First Appellate Court. The First Appellate Court also having considered the grounds urged in the appeal memo and also the contentions of the respective counsels, framed the point for consideration as whether the Trial Court has not properly appreciated the evidence material on record and whether the judgment of the Trial Court requires an interference and whether the Trial court has passed the judgment without considering the Ex.D.1 and Ex.D.21 and also an application is filed before the Appellate Court for seeking an amendment as per I.A.No.3 for effective adjudication. The First Appellate Court having re-assessed the material available on record, answered all the points as negative and confirmed the judgment of the Trial Court. The very contention of the appellant that plaintiff has not sought for the relief of declaration also discussed in paragraph No.39 of the judgment of the Appellate Court and also in paragraph No.41 taken note of claim made by the plaintiff and also discussion was made taking into consideration of judgment of Anathula Sudhakar’s case reported in the AIR 2008 SC 2033 where plaintiff title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Therefore, when the title of the plaintiff is not in serious dispute, the question of seeking declaration of title does not arise in view of the principles laid down in the judgment also taken note of in paragraph No.42. Therefore, when the title of the plaintiff is not in serious dispute, the question of seeking declaration of title does not arise in view of the principles laid down in the judgment also taken note of in paragraph No.42. The Appellate Court also having considered the Commissioner report apart from the oral and documentary evidence of respective witnesses in paragraph No.46 discussed in detail that Commissioner who appointed the suit at the instance of the plaintiff has visited disputed property and after having inspected and measured the property as per the memo of instructions of respective counsels submitted the report, wherein specifically mentioned that defendant has constructed the cattle shed in the dimension measuring East to West-10.6 feet and North to South- 8.2 feet in the property of the plaintiff by encroaching his property and also taken note of the Commissioner report and Sketch Ex.C.1 and Ex.C.2 and also discussion was made in paragraph No.47 with regard to the encroachment is concerned and considered in the course of cross-examination of D.W.1, he had depose that he was not present when the Court Commissioner had visited the spot. Therefore, adverse information has to be drawn against the defendant. In the circumstances and having regard to the evidence on record, the plaintiff has proved the encroachment and construction made and so also with regard to the amendment sought also in detail discussed in paragraph Nos.48, 49 and 50 that the attempt was made in a belated time after lapse of 10 years. The suit was filed in the year 2009 and application was filed in the year 2019 and rejected even the application filed by the appellant and confirmed judgment of the Trial Court. 4. Being aggrieved by the judgment of Trial Court as well as the First Appellate Court, the present second appeal is filed before this Court. The main contention of the counsel appearing for the appellant in the second appeal would vehemently contend that even no ground is urged or specific defense is taken in the written statement with regard to the limitation is concerned, the First Appellate Court can consider the same. The main contention of the counsel appearing for the appellant in the second appeal would vehemently contend that even no ground is urged or specific defense is taken in the written statement with regard to the limitation is concerned, the First Appellate Court can consider the same. The counsel also would vehemently contend that Trial Court committed an error in decreeing the suit of the plaintiff relying upon the Commissioner report and also counsel would vehemently contend that First Appellate Court was not right in confirming the judgment and decree of the Trial Court. Both the Courts mainly relies upon the evidence of Commissioner and the same is erraneous. 5. The counsel also would vehemently contend that when the suit is filed for the relief of permanent injunction and mandatory injunction and when the appellant disputed the very title of the plaintiff, ought to have filed a suit for the relief of declaration and sought for the relief of possession and hence, the Court has to frame substantial question of law. 6. Per Contra, the counsel appearing for the respondent in his argument would vehemently contend that that specific case of the plaintiff that the defendant is having the property on the northern side of the property of the plaintiff. The specific case is also that there is no any existence of any other property and defendant took the contention that the property belongs to the municipality is in existence in between the same and Commissioner was also appointed and Commissioner also given the report stating that no such property is in existence and also given definite finding that the defendant had constructed the cattle shed in the property belongs to the plaintiff and also no objection is filed to the Commissioner report and the same is also observed in the judgment of the First Appellate Court in paragraph No.50 of the judgment, when such being the case, now he cannot contend that the construction made by him that is in the property in between the plaintiff and defendant which belongs to the C.M.C and Trial Court also given the definite finding with regard to the additional issue No.2 that no such existence of that property. Both the Courts given fact finding with regard to the very contention of the defendant that no such property is in existence. Both the Courts given fact finding with regard to the very contention of the defendant that no such property is in existence. When such being the case, there is no ground to admit and framed any substantive question. Hence, it doesn't require any interference. 7. Having heard the appellant’s counsel and also the counsel appearing for the respondent and taking into note of the averments made in the plant, it is a very specific case of the plaintiff that he had purchased the property and thereafter, property is also converted and also the specific case that defendant has encroached portion of the site belongs to the plaintiff and on the other hand, it is the contention of the defendant in the written statement that he did not encroach the property of the plaintiff but what he had put up construction that is the property belongs to the C.M.C and not the property of the plaintiff. 8. It is important to note that when the suit is filed for the relief of permanent injunction, Court has to take note of the possession of the plaintiff and with regard to issue Nos.1, to 3, the same has been answered in coming to the conclusion that from the date of purchase, the plaintiff is in possession of the property and also taken note of the pleadings of the plaintiff with regard to the encroachment and also seeking the relief of mandatory injunction and also the defense of the defendant was also considered and framed an additional issue No.2 and additional issue Nos. 1 and 2 also dealt with by the Trial Court having considered the factual aspects of the case and evidence available on record that is both oral and documentary evidence. The fact that Commissioner was appointed is also not in dispute and he has given the report in terms of Ex.C.1 and Ex.C2 that is the report and sketch were also marked before Trial Court and also no objection is filed to the Commissioner report regarding encroachment is concerned and the same is taken note of by the Trial Court as well as the First Appellate Court. When such being the case, the very contention of the appellant’s counsel that both the Courts have committed an error in appreciating the material cannot be accepted and other contention that document Ex.D.1 to Ex.D.21 are also not appreciated cannot be accepted. 9. When such being the case, the very contention of the appellant’s counsel that both the Courts have committed an error in appreciating the material cannot be accepted and other contention that document Ex.D.1 to Ex.D.21 are also not appreciated cannot be accepted. 9. The main contention of the counsel that this Court has to frame substantial question of law with regard to the limitation as well as fact finding of the Trial Court cannot be accepted. The very contention that both the Courts have committed an error in coming to the conclusion that there is an encroachment and counsel would contend that when the plaintiff is not the owner of the suit property, cannot seeks for permanent injunction and mandatory injunction. 10. The counsel appearing for the respondent brought to notice of this Court except contending that in between the plaintiff property, there is a property belongs to the CMC not denied the very title of the plaintiff and it is also not the contention of the defendant that he is claiming title in respect of the property of the plaintiff. When such being the case, the Trial Court also taken note of the judgment of Anathula Sudhakar’s case. The very contention of the counsel that without seeking the relief of declaration cannot seek the relief of mandatory injunction cannot be accepted and when the definite finding was given by the both the Trial Court as well as the First Appellate Court that there is an encroachment on the part of the defendant rightly granted the relief of mandatory injunction. 11. The other contention that the Appellate Court ought to have considered the item No.3 for the amendment. The Appellate Court also in detail discussed the amendment sought and even in paragraph Nos.48, 49 and 50 taken note of Article 65 of Limitation Act for possession of immovable property or any interest therein, based on title is 12 years when the possession of the defendant becomes adverse to the plaintiff also discussed in paragraph No.49. The very reason given by the appellant before the Appellate Court also taken note of and also taken note of the suit was filed in the year 2009 and an amendment was sought in the year 2019 after thought when the appellant has suffered a decree of clearing of encroachment which was in his encroachment. The very reason given by the appellant before the Appellate Court also taken note of and also taken note of the suit was filed in the year 2009 and an amendment was sought in the year 2019 after thought when the appellant has suffered a decree of clearing of encroachment which was in his encroachment. When such reasoning is given by the Appellate Court, I do not find any ground even frame any substantive question of law as contended by the appellant’s counsel. The reasoning given by the Trial Court as well as First Appellate Court is not perverse and that too based on the factual aspects as well as Commissioner report who visited the spot and given the report in terms of Ex.C.1 and Ex.C2. When such material on record, I do not find any ground to admit and frame substantive question of law. 12. In view of the discussions made above, I pass the following : ORDER The Second Appeal is dismissed.