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6. The summary of the written statement of defendant no.2 is as under;

that this defendant no.2 has not trespassed into any property much less the schedule property, infact the plaintiff is trying to interfere with the possession of the defendants over the property bearing No:15/74, 3rd Cross, Govinayakanahalli Gramatana, Kumaraswamy Layout, Bangalore City. The defendant no.2 purchased the said site and he is in peaceful possession and enjoyment of the same without anybody's interruption for the last ten years. Prior to the said sale the vendor of defendant no.2 was in possession and enjoyment of the same for more than ten years. This defendant is not at all concerned with the suit schedule property and its identity is seriously disputed. This defendant is not in possession of the suit schedule property and it is infact in possession of one Krishnappa, but the plaintiff has wrongfully instituted suit against these defendants. That this defendant came to know about the filing of the execution petition against Muniraju, when he instituted a suit in OS.No:7351/2000, so he immediately applied and got the copies of the documents produced in the said Ex.P.No:1136/96. It appears from the records of the said case that said Smt.Rangalakshmamma had filed suit against one Muniyappa in the year 1994 and when she was attempting to take possession of that property said Muniraju obstructed the execution and he filed an application as an Objector and it appears that on account of the some secret understanding between the parties of that case, this suit was came to be filed. It is submitted that the said Muniraju sold that property to Krishnappa, therefore the property which the plaintiff is referring in the plaint schedule is different from the property which is in the occupation of the defendant. The sole intention of the plaintiff is to knock of the property of this defendant, who is in lawful and peaceful possession and enjoyment of the said property, bearing no.15/74, 3rd Cross, Govinayakanahalli Gramatana, Kumaraswamy Layout, Bangalore City. Consequently the documents produced by the plaintiff are all concocted and fabricated with malafide intention to deprive this defendant of his own property. The plaintiff is clandestinely intends to knock of the property of this defendant with all sorts of illegal methods through Smt.Rangalakshmamma and when they failed, this plaintiff has come into picture on his own. That court fee paid on the plaint is insufficient, plaint is deliberately under valued and by invoking wrong provision of KCF & SV Act, fee paid. As on the date of filing of the suit market value of the suit property was more than Rs.35 lakhs and now it is more than Rs.60 lakhs but ironically the plaintiff has wrongly valued its market price at Rs.2,50,000/-. The plaintiff has no right to institute this suit for declaration and possession and it is liable to be dismissed. That suit is false, frivolous, vexatious and highly speculative. The plaintiff has come to the court with distorted facts and on untenable grounds. The other plaint averments that suit property and other sites originally belonged to Venkateshaiah and the said Venkateshaiah sold site no.7 to Siddappa and Siddappa sold it to Smt.Rangalakshmamma and after constructing building there, She sold it to the plaintiff are all false and denied. This defendant is not aware that executing court delivered possession to the plaintiff on 21.10.2000 as alleged in Para-4 of the plaint and if any such endorsement is made on the delivery warrant it is nothing but a make believe and collusive one. The said order was obtained by Smt.Rangalakshmamma by hoodwinking the court and by playing fraud on it. That fraud avoids all judicial acts, ecclesiastical or temporal, therefore any order obtained by playing fraud is a nullity and non est in the eye of law. It is stoutly denied that these defendants unauthorisidely occupied the schedule property during the last week of October 2000. Rest of the contrary plaint averments are false, frivolous and vexatious, wherefore, the defendant no.2 prays to dismiss the suit with costs.

14. It is simple case of the plaintiff that he purchased the suit property under a registered sale deed from Smt.Rangalakshmamma in the year 2003 and since these defendants were illegally trespassed into the schedule property in the last week of October 2000, he seeks for declaration of his title, recovery of possession and for damages from the date of suit till possession is delivered to him. The plaintiff traces his title to the suit property bearing site no.7, Govinayakanahalli Gramatana, Ward No.55 of Bangalore City with the boundaries described in the plaint schedule from the original owner Venkateshaiah S/o Vallabha Shastry. He has narrated how the title flows from the said owner to Smt.Rangalakshmamma and to him in turn. In a bid to establish his plaint allegations, as I already said the plaintiff examined his P.A. Holder as PW1 and through him reiterating the plaint averments got exhibited the GPA, through which he enabled the PW1 to depose on his behalf, as Ex.P1, certified copy of the sale deed dt.29.1.1959 in respect of site no.1, 2, 3 and 4 of Govinayakanahalli Gramatana executed by Jodidar Venkateshaiah in favour of one V.B.Chandrashekhar S/o Venkata Subbaiah as Ex.P2, another certified copy of the sale deed dt.14.8.1961 in respect of site no.6 executed by Venkateshaiah S/o Vallabha Shastry in favour of Munivenkatappa S/o Giddappa as Ex.P3, certified copy of the sale deed dt.14.8.1961 in respect of site no.7 of Govinayakanahalli Gramatana executed by very Venkateshaiah S/o Vallabha Shastry in favour of Siddappa S/o Dobi Marappa as Ex.P4, original sale deed dt.17.3.1982 executed by said Siddappa S/o Marappa in favour of Smt.Rangalakshmamma in respect of the very site no.7 of Govinayakanahalli Gramatana as Ex.P5 and the sale deed executed by said Smt.Rangalakshmamma in his favour on 27.8.2003 in respect of that very site no.7 of Govinayakanahalli Gramatana as Ex.P6. In so far as Ex.P2 and P3 are concerned admittedly they do not belong to the suit property. The purpose for which the said documents are produced by the plaintiff is, to demonstrate that the original owner Jodidar Venkateshaiah had formed several sites in the gramatana land of Govinayakanahalli and he went on alienating them to different buyers under different sale deeds. According to me we are concerned with Ex.P4 to P6, which relates to the schedule property. I again emphasize that Ex.P4 is dt.14.8.1961 whereas Ex.P5 is of 1992 and Ex.P6 is of2003. Among these documents, Ex.P4 reveals that said Venkateshaiah S/o Vallabha Shastry of Sarjapura alienated site no.7 formed in gramatana land of Govinayakanahalli for consideration of Rs.50/- to one Siddappa S/o Dobi Marappa with the boundaries as under:

Again all these documents are subsequent to the date of suit and they have no relevance to prove the flow of title to DW1. The cross-examination of DW1 shows that though he went on denying the sale deeds produced at Ex.P4 to P6 and possessing of sites by Venkateshaiah in the Gramatana land of Govinayakanahalli in his pleading and his chief, he did not deny those transactions in the said cross-exam. He expressed his ignorance and revealed that Govinayakanahalli and Kumaraswamy Layout are two different places and initially he was residing in the rented house at Kumaraswamy layout and later he shifted to Govinayakanahalli i.e. to the suit property. When it was suggested that Gramatana of Govinayakanahalli earlier belonged to Venkateshaiah he did not deny that suggestion. He was unable to explain how his vendors Malamma and Gopal got the property so as to execute the sale deed to him.

19. In the very beginning of his cross-exam he admitted that suit property is situating in the gramatana of Govinayakanahalli whereas Kumaraswamy layout, to which they are referring is away from that place and he has no title deed of the schedule property to prove his title over the property he is asserting. He also admitted that in the Govinayakanahalli gramatana several sites have been formed and all those sites are in regular rows. He explained that he came in possession of the schedule property in the year 1994 without producing document to that effect. In Para-17 of his cross-exam he did not deny the possession of Siddappa S/o Marappa by virtue of the sale deed executed by Venkateshaiah S/o Vallabha Shastry nor the sale deed between the said Siddappa and Smt.Rangalakshmamma. What it shows is that he himself is not sure what he has pleaded and what he has deposed in the chief. He gone to the extent of denying the filing of suit by Smt.Rangalakshmamma and decreeing of it. When it was specifically confronted to him that himself and defendant no.1 illegally trespassed into the schedule property in the last week of October he denied it as false, however he admitted that suit filed by him O.S.7351/2000 was came to be dismissed and it is evidenced by Ex.P25. Here itself I would like to say that Ex.P25 is the certified copy of the order sheet of that suit and it shows that DW2 had filed that suit for permanent injunction against Smt.Rangalakshmamma and he himself withdrew it. He further stated that after dismissal of his suit he has not filed any other suit against the plaintiff or Smt.Rangalakshmamma and lastly cited that there is no BMP or BBMP record in his name in respect of the schedule property nor he is paying tax to it. Having referred to his cross-examination and also his non-denial of execution of delivery warrant on 21.10.2000 rather expressing of his socalled ignorance I will again turn to Ex.P22. It is the mahazar prepared by Bailiff in Ex.P.No:1136/96 on 21.10.2000 stating that when he had been to the decreetal property along with warrant, in the said property he found two sheds with doors facing to the east and in one shed Smt.Byramma W/o Ramakrishna (wife of defendant no.1) and in another shed C.Kannan (defendant no.2) were residing and after enquiry Arunkumar S/o C.Kannan and Smt.Panchali W/o Kannan initially sought time to vacate the said property, but later agreed to vacate and vacated it. Mahazar also recites that the decree holder Smt.Rangalakshmamma had been to the said property along with the jurisdictional police. It may be noted that the said mahazar is attested by "Smt.Panchali W/o Kannan as well as others who were present there. The purpose of referring to the contents of mahazar is to show how these defendants 1 and 2 in total breach of law illegally repossessed the schedule property, regarding which already title was decided in the previous suit and possession was delivered to Smt.Rangalakshmamma by lawful means. If at all these defendants were aggrieved by the execution of the delivery warrant, it was open for them to question the execution by recourse to law. Without following that path high handedly, illegally and taking advantage that Smt.Rangalakshmamma is a woman they once again entered into schedule property and compelled her to alienate the property in favour of this plaintiff. Perhaps in the light of that development and their illegal act of reoccupying the property, they went wayward having no proper defence to make. If the defendants claim that they are in possession of the schedule property, then it is for them to explain how they got into that property as already delivery warrant was executed on 21.10.2000 placing Smt.Rangalakshmamma in possession of that property. They themselves being law breakers they went on attacking PW1 stating that he is engaged in real estate business, that he has not produced layout map; that BMP khata produced by PW1, even after sale by Siddappa shows his name in the BMP records and for sending Ex.D2, the copy of the plaint with their address as 15/74/1, 3rd cross, Govinayakanahalli, Kumaraswamy Layout, Bangalore, which is contrary to the original plaint on record. It is true that as rightly contended by them some undeniable errors are committed by plaintiff and it is also true that the plaintiff has not come to the court to give evidence on his own. It is further true that as brought out in the course of PW1 he is a person engaged in real estate business, but what the court has to weigh is between the two sides i.e., the plaintiff on one side and the defendants on the other side, who has to ultimately abide by the rule of law. The conduct of the defendants in wantonly disobeying the law of the land with no pinch of respect to it show that they have no right to raise fingers at others. It is quite common that in a zeal to present their case with more smartness parties like to add some falsehood in their case and defence, but ultimately it is the duty of the court to churn their pleadings and to find out who is nearer to the truth that is what the underlying principle behind every litigation. Now a days it is very hard to see that parties would be approaching the court of law with clean breast. In the decision reported at AIR 2003 SC 4548 in the case of (R.V.E.Venkatachala Gounder v Arumigu Viswesaraswami and V.P.Temple and another) at Para-29 explaining the burden of proof and the onus of proof, the Hon'ble Supreme Court held that burden of proof lies upon a person who has to prove the fact and which never shifts. Whereas the onus of proof shifts and such shifting of onus is a continuous process in the evaluation of evidence. It further held that in a suit for possession based on the title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant, it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff's title. In the case in hand by producing the title deeds and by producing the delivery warrant, mahazar and possession receipt the plaintiff has shown that it is his vendor Smt.Rangalakshmamma, who was the lawful owner of the schedule property and she took possession by recourse to law and she came to be dispossessed by high handed act of defendants. I again say that since the title of Smt.Rangalakshmamma was decided in a suit, the defendant no.1/DW1 having taken the sale deed from the successor in interest of Thoti Muniya, who was a defendant in that case, will not derive any kind of title over the schedule property. All the documents dumped by the defendants exfacia show that they are all subsequent to the execution of sale deed produced at Ex.D2B and after they took illegal possession of suit property in the month of October 2000, therefore absolutely they will not have any reliable quotient in them. The high degree of probability as referred in the judgment cited above lies in favour of the plaintiff.