SRI. J. S. MAHADEV vs SRI. MANJEGOWDA
- Court
- Karnataka High Court
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 6 DAY OF OCTOBER, 2026
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
REGULAR SECOND APPEAL NO. 1812 OF 2017 (DEC)
BETWEEN:
1. SRI. J. S. MAHADEV
S/O SAMBEGOWDA
(SINCE HE WAS DEAD HIS LRS)
1(A) SMT. VASANTHAMMA
W/O LATE J.S. MAHADEV
AGED ABOUT 48 YEARS.
1(B) SRI. MADHU J.M
S/O LATE J.S. MAHADEV
AGED ABOUT 29 YEARS
BOTH ARE R/AT JAKKANAHALLI VILLAGE
GANDASI HOBLI, ARASIKERE TALUK
HASSAN DISTRICT – 573 201.
…APPELLANTS
(BY SRI. G.V.NARASIMHAMURTHY, ADVOCATE)
Digitally
signed by
VANDANA S
Location:
High Court
of
Karnataka
AND:
SRI. MANJEGOWDA
S/O SHIVANANJEGOWDA
R/AT SINGENAHALLI VILLAGE,
GANDASI HOBLI,
ARSIKERE TALUK,
HASSAN DISTRICT – 573 201.
…RESPONDENT
(BY SRI. H T NATARAJ AND
SRI. P.B. DIVAKARA, ADVOCATES)
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT
& DECREE DTD01.08.2017 PASSED IN R.A.NO.51/2016 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC., ARSIKERE., DISMISSING THE
APPEAL AND CONFRIMING THE JUDGEMENT AND DECREE
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DTD19.09.2016 PASSED IN OS.NO.414/2011 ON THE FILE OF THE II ADDL.
CIVIL JUDGE AND JMFC.,ARSIKERE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
ORAL JUDGMENT
The appellant was the defendant in O.S.No.414/2011
instituted by the respondent – plaintiff for declaration of his title
over the suit ‘A’ and ‘B’ schedule properties, for recovery of
possession of ‘B’ schedule property by demolishing the shed
constructed thereon and for other reliefs.
2. The plaintiff contended that he purchased the suit ‘A’
schedule property vide registered sale deed dated 25.02.2004, in
pursuance of which, the Khata was registered in his name and he
was paying taxes and was the absolute owner in lawful and
peaceful possession and enjoyment of the suit ‘A’ schedule
property. It was contended that the ‘B’ schedule property was a
portion of the ‘A’ schedule property and when the defendant
attempted to interfere with the plaintiff’s possession and enjoyment
of the suit schedule property, the plaintiff instituted a suit for bare /
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permanent injunction in O.S.No.119/2010 which was contested by
the defendant and during the pendency of which, the plaintiff filed
an application under Order 23 Rule 1 CPC seeking permission to
withdraw the suit with liberty to file a fresh suit and after the same
was dismissed as withdrawn with liberty to file a fresh suit in favour
of the plaintiff on 17.10.2011, the defendant attempted to encroach
upon a portion of the ‘A’ schedule property which is the suit ‘B’
schedule property and since the application filed by plaintiff under
Order 6 Rule 17 CPC in O.S.No.119/2010 was dismissed by the
Trial court and the defendant encroached upon the ‘B’ schedule
property, the plaintiff instituted the instant suit in O.S.No.414/2011
seeking the aforesaid reliefs against the defendant.
3. The defendant filed written statement and disputed and
denied the various allegations and claim made by the plaintiff and
contended that he was the absolute owner in lawful and peaceful
possession and enjoyment of the property bearing Khata No.460
measuring 20ft x 10ft and the plaintiff who does not have any right
over the said property, is deliberately showing wrong boundaries to
the ‘B’ schedule property to put forth an unlawful claim over the
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same and that the present suit of the plaintiff was also barred by
res judicata and the same was liable to be dismissed.
4. Based on the aforesaid pleadings, the Trial court framed
the following issues:
“1. Whether plaintiff proves that, he is the owner of
the "A" schedule property, which comprises of "B" schedule
property?
2. Whether plaintiff proves that, the defendant has
illegally constructed a shed in "B' schedule property and the
same is require to be removed?
3. Whether plaintiff proves that he is in possession
and enjoyment of suit "A" and "B" schedule property as on
the date of institution of suit?
4. Whether plaintiff proves that the defendant has
interfered with his peaceful possession and enjoyment of
plaint "A and "B" schedule property?
5. Whether plaintiff is entitle for the relief of
Declaration, mandatory Injunction and Permanent injunction
in respect of suit 'A' and "B" schedule properties?
6. What order or decree?”
5. The plaintiff examined himself as PW-1 and documentary
evidence at Exs.P1 to P24 were marked, while defendant
examined himself as DW-1 and one witness as DW-2 and
documentary evidence at Ex.D1 to D9 were marked on his behalf.
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The Trial court appointed Sri.H.S.Chandrashekar as court
commissioner who conducted local inspection and submitted his
report, sketch etc., and his evidence as CW-1 was recorded by the
Trial court and documentary evidence at Exs.C1 to C5 were
marked.
6. After hearing the parties, the Trial court proceeded to
pass the impugned judgment and decree decreeing the suit in
favour of the plaintiff against the defendant as hereunder:-
“8. ISSUE No.1:-
Before discussing on issue No.1, it is necessary to
discuss on one of the defense taken by the defendant. The
defendant taken specifics stand that this court has no
jurisdiction to try the suit. The defendant not specifically
pleaded on what ground this court has no jurisdiction to try
this suit. It is the not the case of the defendant that the
value of the subject matter of the suit is more than 5 lakhs.
Coming to territorial jurisdiction this court has jurisdiction,
because the suit schedule property situated within this court
territorial jurisdiction. Therefore, the contention of the
defendant that this court has no jurisdiction to try the suit
holds no water.
9. The defendant took another stand that the suit is
barred by law of res-judicata. Plaintiff in his plaint, he
admitted that earlier, he filed a suit which numbered as
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O.S.119/2010 for permanent injunction against the
defendant with respective of suit schedule property. The
plaintiff withdrew the said suit. The defendant admitted that
there was a suit between them. In order to prove that
plaintiff withdrew the O.S.119/2010, plaintiff produced
Ex.P.12, which is certified copy of order sheet
O.S.119/2010. By perusing Ex.P.12, it is clear that the
O.S.119/2010 withdrawn by the plaintiff by filing application
under order 23 rule 1 of CPC. Therefore, it is clear that the
said suit not disposed on merits. Hence, the question of
principal of res-judicata does not apply for the present case.
10. In order to prove issue No.1, plaintiff examined
himself as P.W.1, reiterated all plaint averments, therefore
reiterating once again all those facts not necessary for the
purpose of discussion. In order to prove that plaintiff
purchased property bearing site No.420, Janjar No.972,
assessment number 810/A measuring east west 45 feet's
north south 16 ½ feet situated at Gandasi village, Gandasi
Hobli, Arasikere Taluk. Plaintiff produced Ex.P.15. Ex.P.15,
is the sale deed dated 25.02.2004 executed by the
Rajashekara in favour of the plaintiff. The execution of sale
deed by the Rajashekara in favour of plaintiff on 25.02.2014
is not in dispute. It is also not in dispute that boundaries
mentioned in the sale deed is not correct. The defendant
never denied the availability of land and the existence of
property, which was sold by the Rajashekar in favour of
plaintiff, who is the brother of the defendant. Therefore, it is
clear that plaintiff purchased the above said property from
Rajashekar through a registered sale deed on 25.02.2004.
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11. The defendant taken a specific stand that plaintiff
filed the suit by mentioning wrong boundaries. Defendant
further taken a stand that the defendant constructed the
building on his own place by obtaining valid license and
plaintiff deliberately given wrong boundaries to knock of the
property of defendant that is "B" schedule property. At this
stage, it is very much necessary to discus on boundaries
given by the plaintiff. In the Plaint, plaintiff shown
boundaries for the suit schedule "A" property as here under.
East by: road leads to well, west by: Channarayapatna
Arasikere Road, north by: Defendant's house, south by: 4
feet's vacant place and then house of J.H Krishnegowda.
But in the sale deed boundaries mentioned for plaintiff
property as here under: East by: Road leads to well, west
by: road, south by: J.H Krishnegowda's house, north by:
J.S. Mahadevaiah's house who is the defendant. The
boundaries shown in the plaint and boundaries mentioned
in the Ex.P.15 are tallying each other except towards
southern side. Plaintiff produced Ex.P.9, which is the
certified copy of plaint of O.S.119/2010. In O.S.119/2010,
the boundaries mentioned as here under. East by: Road
leads to well, west by: Channrayapatna- Arasikere Road,
north by: 2½ feet's Galli thereafter defendant property,
south by: 2 ½ feet's Galli, thereafter J.H Krishnegowda's
house. By examining Ex.P.9 Ex.P.15, Ex.P.17 and plaint
schedule property, it is clear that towards southern side,
plaintiff not properly described as per sale deed. In the
plaint, there is no proper explanation given by the plaintiff.
Ex.P.17 is the Land tax assessment register also clearly
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reveals that boundaries mentioned in the sale deed that is
Ex.P.15 and Ex.P.17 are one and the same, but in the
plaint, plaintiff shown wrong boundaries particularly
southern side. But in the present case, the dispute between
the plaintiff and defendant is towards eastern side of suit
schedule property. Therefore, discussing much on the
southern side of suit schedule "A" property is not necessary.
Even by taking consideration in the written statement filed
by the defendant in O.S.119/2010 that is Ex.P.11, where
clearly reveals that the defendants vacant site situated
behind the vacant site of plaintiff. In the cross-examination
of P.W.1 it is not suggested by the defendant counsel that
boundaries mentioned in the Ex.P.15 is not correct.
Therefore, the boundaries mentioned in the Ex.P.15 are
binding on the parties. In Ex.P.15 that is sale deed clearly
reveals that towards northern side of plaintiff property, the
property of defendant is situated. Towards eastern side of
plaintiff property, road which leads to well. These
boundaries particularly towards eastern side and northern
side mentioned Ex.P.15, are not challenged by the
defendant. Therefore, it is clear that plaintiff is the absolute
owner of suit schedule property. Accordingly, plaintiff
proved that he is the absolute owner, which is mentioned in
the plaint as "A" schedule property.
12. Plaintiff claims that suit schedule "B" property is the
portion of suit schedule "A" property. The defendant
specifically took a stand that the defendant is the owner of
property bearing khatha No.416 measuring 20x10 out of
which the defendant obtained license for construction of
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shed for the measurement of 17x7 bounded on east by
drainage and Rajanna's house, west by plaintiff vacant site,
north by portion of defendants house, south by
Krishnegowda's house. In order to prove that the defendant
is the absolute owner of property bearing khathaNo.416,
defendant produced Ex.D.1. Ex.D.1 is the building approval
plan. Where it is held that the defendant obtained license for
constructing building. It is admitted that during the pendency
of 0.S.119/2010, the defendant got Ex.D.1. The Counsel for
the plaintiff drawn this court attention on Ex. P.1, Ex.P.3 and
Ex.P.17. Ex.P.3 is the tax assessment register. In Ex.P.3 it
is clearly held that defendant is the absolute owner of
property bearing assessment No.810/B measuring 45x18
bounded on east by: road leads to well, west by: Arasikere
Channrayapatna road, north by: Galli, thereafter
Boregowda's house, south by: plaintiff property. As already
stated here in above the boundaries mentioned in the sale
deed that is executed by the Rajashekar in favour of the
plaintiff and the defendant do not dispute boundaries
mentioned in the Ex.P.3. The counsel for the defendant
seriously argued on Ex.D.9. Ex.D.9 is the tax assessment
register produced by the Gandasi Grama Panchayath
secretary who is Rangaswamy. Rangaswamy examined by
the defendant as D.W.2 to prove defendant's case. D.W.2 in
his examination in chief as well in his cross-examination, he
specifically stated that
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The evidence of D.W.2 and resolution passed by the
Gandasi Grama Panchayath on 19.03.2010 remained un-
challenged. When D.W.2, defendant's own witness who is
public official stated contrary to the pleadings of defendant,
it is the duty of the defendant to explain for such
admissions. Therefore, Ex.D.9, place important role in this
case. Ex.D.9 is the tax assessment register, where it is held
that the defendant's property measures 45x18 not 55x24.
The boundaries also mentioned in Ex.D.9 remained un-
challenged. Ex.D.9 clearly reveals that towards southern
side of defendant property, the property of plaintiff situated.
Therefore, it is clear that defendant is not the owner of
property mentioned in Ex.D.1. By obtaining Ex.D.1, the
defendant constructed shed on plaintiff property that is suit
schedule "B" property. At this stage, it is very relevant to
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state that towards eastern side of plaintiff and defendants
property, the road leads to well is situated. Therefore, the
contention of the defendant that towards western side of his
newly constructed building, the property of plaintiff situated
is not correct. Defendant is encroached plaintiff property
and constructed a shed on it by showing wrong documents
to the Panchayath and got license. In the present case, a
commissioner was appointed, if he examined as C.W.1 and
produced Ex.C.1 to Ex.C.5. Ex.C.4 is the sketch which
clearly reveals tat encroachment made by the defendant
that is suit schedule "B" property. Ex.C.4 tallies with
Ex.P.14. Defendant did not challenge existence of Ex.P.14.
Even for the assuming that commissioner not filed report by
following all procedures, since there is no challenge by the
defendant pertaining to the Ex.P.14, the commissioner
report holds good. Therefore, the plaintiff proved that
plaintiff is the absolute owner of schedule "A" property and
schedule "B" property is the portion of "A" schedule
property. Hence, issue No.1 held in the Affirmative .
13. ISSUE No.2:-
As already stated herein above that plaintiff is the
absolute owner of "A" schedule property which includes "B"
schedule property. It is admitted that on the B schedule
property, the defendant constructed a shed. While
discussing issue No.1, it is held that defendant constructed
shed on "B" schedule property which is portion of "A"
schedule property. The defendant had no right to construct
shed on "B" schedule property, which belongs to plaintiff.
Therefore, plaintiff proved that defendant illegally
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constructed a shed on "B" schedule property. Accordingly
issue No.2 held in the Affirmative .
14. ISSUE No.3 and 4:-
Since issue No.3 and 4 are interlinked with other they
are taken up together to avoid repetition of facts. It is the
specific case of the plaintiff that plaintiff is in possession of
the remaining portion of "A" schedule property. The
defendant constructed shed on schedule "B" property. It is
also specific case of the plaintiff that direct the defendant to
deliver vacant possession of "B" schedule property by
demolishing the shed to the plaintiff. Since plaintiff himself
admitted that defendant is in possession of "B" schedule
property, the question of discussing whether the plaintiff is
in possession of "B" schedule property is not necessary.
Admittedly the plaintiff is in possession remaining portion of
"A" schedule property except "B" schedule property. The
plaintiff specifically stated and proved that defendant is
interfering plaintiff peaceful possession and enjoyment of
suit schedule "A" property. Therefore, plaintiff is proved the
alleged interference and defendant illegally constructed
shed on "B" schedule property. Therefore, issue No.3 held
Partly Affirmative and issue No.4 held in the Affirmative.
Because, plaintiff himself admitted that plaintiff is not in
possession of "B" schedule property the question of framing
issue with respect to whether plaintiff is in possession of suit
schedule "B" property does not arise.
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15. ISSUE No.5:-
As already stated herein above that defendant
constructed a shed illegally on schedule B property.
Schedule B property is part and parcel of schedule A
property. Since, defendant illegally constructed by
encroaching plaintiff's property, the plaintiff is entitled for
mandatory injunction as prayed for. The plaintiff entitled for
vacant possession of schedule B property from the
defendant. Since, interference proved by the plaintiff,
plaintiff also entitled for permanent injunction against the
defendant. Accordingly, issue No.5 held in the Affirmative .
16. ISSUE No.6 :-
For the above said reasons, I pass the following:-
ORDER
The suit of the plaintiffs is hereby decreed
with costs.
It is hereby declared that plaintiff is the
absolute owner of suit schedule "A" property.
It is further declared that "B" schedule
property is part and parcel of A schedule
property.
The defendant is here by directed to
deliver vacant possession of schedule B
property by demolishing the shed within 2
months from the date of Judgment, which is on
suit schedule B property. Failing which the
plaintiff is at liberty to work out his remedy as
per law.
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Defendant is hereby permanently
restrained from not to interfere with plaintiff
peaceful possession and enjoyment of suit
schedule properties.
Draw decree Accordingly.”
7. The defendant filed an appeal in R.A.No.51/2016 which
was also dismissed by the First Appellate Court vide impugned
judgment and decree, thereby confirming the judgment and decree
passed by the Trial court as hereunder:-
“ 10 . On hearing the matter and on re-appreciation of the
evidence on record, the following points would arise for my
consideration:
POINTS
1) Whether plaintiff proves that, he is the owner
of the 'A' Schedule property, which comprises
of B' Schedule property?
2) Whether plaintiff proves that, the defendant
has illegally constructed a shed in B' Schedule
property and the same is require to be
removed?
3) Whether plaintiff is entitled for the relief of
declaration and injunction?
4) Whether there are sufficient grounds for
interfering with the judgment and decree
passed by the trial court?
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5) Whether the judgment passed by lower court
is perverse, capricious, illegal one and opposed
to the facts and circumstances of the case?
6) To what order or decree?
11 . My findings on the above points are as under:
Point No. 1 : In the affirmative
Point No. 2 : In the affirmative
Point No. 3 : In the affirmative
Point No. 4 : In the Negative
Point No. 5 : In the Negative
Point No.6: As per final order for the
following:
REASONS
12 . Point Nos.1 to 3: Since these points are interlinked
with each other hence, they are taken up together for
common discussions in order to avoid the repetition of facts.
It is the case of the plaintiffs that he is the owner of the
'A' schedule property, which comprises of 'B' schedule
property which is the portion of the 'A' schedule property.
He had purchased the same from one Rajashekar under the
registered sale deed dated 25.2.2004. From the date of the
sale, plaintiff is in peaceful possession and enjoyment of the
said property and katha stood in his name. He is paying
kandayam regularly in respect of the suit schedule property.
13 . Defendant had entered his appearance through the
Advocate and filed his written statement wherein at para
No.3 he had stated that 'para No.2 of the plaint is partly
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admitted and rest are denied as false. On perusal of the
said para, nowhere defendant has specifically denied the
ownership of plaintiff over suit schedule property. As per
order 8 of CPC where the defendant fails to make specific
denial, it amounts to implied admission. Further, the written
statement contention reveals at para 8 that towards west of
defendant's property he has indicated plaintiff's vacant site.
This goes to show that the existence of the property of
plaintiff towards the western side is admitted. However, the
defendant contend that his property is bearing katha
No.416, measuring 20x10 feet, out of which the defendant
has obtained licence for 17x7 feet to construct the building.
Towards northern side of 'A' schedule property, there is
gally measuring 6 feet and on the southern side of the
schedule property, there is gally measuring 1½ feet and
towards eastern side of the vacant site of plaintiff, defendant
has constructed the building after obtaining valid licence on
12.3.2010. Thus, defendant contend that the plaintiff has
deliberately given wrong schedule to knock off the property
of defendant that is gally left by the defendant measuring 6
feet to put up staircase to his house and to move to his
vacant site and building which is situated behind the
plaintiff's site. Moreover, defendant has constructed building
in his place by obtaining the valid licence from the
appropriate authority and hence the encroachment as
alleged by the plaintiff to the extent of 16½ feet towards
north-south and 10 feet towards east-west is denied.
14 . However, the plaintiff has disclosed 'A' schedule
property as assessment No.810/A, site No.420, Janjar
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No.972, measuring east to west 45 feet and north to south
16½ feet. As indicated earlier, defendant has disputed the
schedule as furnished by the plaintiff. So, the burden is
upon the plaintiff in order to prove his measurement and
boundaries in respect of 'A' schedule property. In this regard
plaintiff has produced Ex.P.15 sale deed dated 25.2.2004.
Ex.P.1 to P.3, P.16 and 17, the assessment extracts, Ex.P.5
to P.8, P.21 to P.23, the photographs, tax paid receipts as
per Ex.P.18 to 20.
15. On perusal of Ex.P.15 sale deed, it is registered sale
deed under which the plaintiff had purchased the property
from its previous owners Rajashekar and his wife Pankaja.
The schedule given in the sale deed shows site No.420,
assessment No.810/A measuring east to west 45 feet, north
to south 16½ feet. The schedule further discloses the
measurement as towards east: road leading to well, towards
west: road, south: J.H. Krishnegowda's house and towards
north: J.S. Mahadeva's house. The above assessment
extracts shows the measurement of plaintiff's property as
east to west 45 feet and north to south 16½ feet. The
boundaries indicated in assessment extracts clearly tallies
with the boundaries given in the suit schedule. However,
towards the south as indicated in the plaint shows 4 feet
vacant space and then the house of Krishnegowda.
Whereas the sale deed Ex.P.15 shows towards south, the
house of Krishnegowda. Other than this, there is no much
discrepancies. Moreover, there is no dispute between the
parties in respect of the southern boundary. The dispute is
only in respect of east to west measurement and boundary.
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Therefore, this minor difference does not proof fatal to the
case of plaintiff. It is also noticed that Ex.P.9 is the plaint
copy in O.S.119/2010, Ex.P.11 is the written statement filed
in that case and Ex.P.12 is the order sheet. These
documents are admitted by the defendant, wherein the
measurement of the suit schedule property is shown as 45
X 16 feet.
16. Further, plaintiff in support of his above case has
got examined himself as PW.1 and reiterated the above
aspects in his evidence. Other than putting suggestion that
plaintiff has kept certain documents, no suggestion is put
denying the measurement of 'A' schedule property to the
extent of 45x16½ feet. It is pertinent to note here that DW.1
has admitted in his cross-examination that:
ಾಾ ಆ ಯ ಪ ವ ೆ ನನ ೇ ೆ ಾಗೂ
. -
ಎರಡೂವ ೆ ಗ ಬರುತ ೆ ಪ !ಮ ೆ ಅರ ೕ ೆೆ
.
ಚನ ಾಯಪಟ&ಣ ರ(ೆ ಬರುತ ೆ ಉತ ರ ೆ ನನ ಮ*ೆ
6 .
ಾಗೂ ಅ+ ಗ ಬರುತ ೆ ದ-ಣ ೆ ನನ .ಾವ
.
ಕೃಷ23ೌಡನ ಮ*ೆ ಾಗೂ ಎರಡೂವ ೆ ಅ+ ಗ ಬರುತ ೆ
- 45
ಈಗ *ಾನು ೇ6ದ 7ೆಕು ಬಂ9 ಒಳಗ<ೆ ಪ ಪ ಅ+
- 16 .
ಉ ದ ಅ+ ಬರುತ ೆ ಾಾ ಆ ನನ3ೆ
.
=>ಾ?@ ತಾA ಬಂ9ರುತ ೆ
810 810
ಾಜCೇಖರ ಆ ಎ ಮತು ನನ ಆ E
.
ಎಂದು ನು+ಯು>ಾ ೆ
The above oral and documentary evidence of plaintiff
clearly goes to show that the plaintiff has proved that his
property measures 45x16½ feet.
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17. It is noticed that the defendant in order to prove that
his property is bearing katha No.416, measuring 20x10 feet,
he has produced assessment extracts as per Ex.D.3 to 6,
encumbrance certificates as per Ex.D.7 and 8, Ex.D.9
assessment extract and resolution copy, Ex.D.2 the tax paid
receipts. On perusal of the assessment extracts and
encumbrance certificates which shows that assessment
No.410/B, which stands in the name of defendant measures
55x24 feet. But the said measurement is not disclosed in
the written statement. He has stated that he had obtained
licence to put up construction to the extent of 17x17 feet. To
this extent, Ex.D.1 licence is being produced by the
defendant. Thus, from the above documents, it is noticed
that defendant property is measuring 55x24 feet. It is
pertinent to note here that plaintiff has also produced the
assessment extracts as per Ex.P.3 and P.4 in respect of the
defendant's property, wherein the measurement is shown
as 45 x 18 feet.
18. Learned Advocate for defendant submitted that by
mistake he had disclosed his property measurement as
55x24 feet. In fact his property is measuring 45x18 feet. In
this regard he had given application to the Revenue
authorities and they had rectified the mistake by passing
resolution as per Ex.D.9 and Ex.D.3 and 4 the assessment
extracts stand cancelled. In order to prove his contention he
had got examined the PDO of the concerned Grama
Panchayath as DW.2 who has clearly stated in his
evidence that:
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eÉ.J¸ï ªÀĺÀzÉêÀ ©£ï ¸ÀuÉÚÃUËqÀ¤UÉ ªÀÄÆ®ªÁV 45 EAlÄ 18
Cr D¹Û EvÀÄÛ 45 EAlÄ 18 JAzÀÄ ªÉÆzÀ¯Éà £ÀªÀÄÆzÁVvÀÄÛ. ¤r-
4 £ÀÄß ¥ÀæwªÁ¢AiÀÄÄ vÀ¥ÀÅà ªÀiÁ»w PÉÆnÖzÀÝjAzÀ £ÀªÀÄÆ¢¹gÀÄvÉÛãÉ.
£ÀAvÀgÀ ªÁ¢AiÀĪÀgÀÄ PÉÆlÖ CfðAiÀÄ ªÉÄÃgÉUÉ ¥ÀgÀªÁ¤UÉ PÉÆr
JAzÀÄ PÉÆlÖ CfðAiÀÄ ªÉÄÃgÉUÉ £ÁªÀÅ ¸ÀܼÀ ¥Àj²Ã®£É ªÀiÁrzÉÝêÀÅ
DUÀ £ÀªÀÄUÉ ¥ÀæwªÁ¢AiÀÄÄ PÉÆnÖgÀĪÀ ªÀiÁ»w vÀ¥ÀÅà JAzÀÄ
UÉÆvÁÛ¬ÄvÀÄ. ¸ÀzÀj «µÀAiÀĪÀ£ÀÄß ¢£ÁAPÀ 19.3.2010 gÀAzÀÄ ¸À¨sÉAiÀÄ
ªÀÄÄAzÉ EmÉÖªÀÅ.
In the background of the above evidence, I am of the
opinion that, defendant property measures 45 x 18 feet.
19. On perusal of the trial Court records, it is noticed that
during the pendency of the proceedings, the Court
Commissioner was appointed for local inspection and he
has visited the spot and prepared the sketch and submitted
the report before the Court, which discloses that plaintiff's
property measures 45 X 16½ feet and the defendant's
property measures 45x18 feet. The learned Advocate for
defendant has seriously disputed Ex.D.9, the resolution
copy contending that it does not bear the seal and signature
of the concerned panchayath. But Ex.D.9 which contains
even the assessment extract and the resolution together
discloses that it is being issued by the competent authority
who have maintained the records in an ordinary course of
business and hence, the contents of the same has
presumptive value under law. Mere denial by the defendant
is not sufficient. He ought to have proved that the plaintiff
has played fraud in concocting the said document, which
they have utterly failed to do. On the other hand, defendant
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has proved the said document by examining the concerned
PDO as DW.2. Hence, the above denial of the defendant
has no value in the eye of law. Thus, the above oral and
documentary evidence put together in culmination with the
Commissioner report clearly reveals that plaintiff's property
measures 45x16½ feet and defendant property measures
45x18 feet.
20. It is the specific contention of the plaintiff that
defendant has encroached about 10 feet east to west
portion of 'A' schedule property and the encroached portion
is shown as B' schedule and put up construction of the
shed. Since 'B' schedule is a part and parcel of 'A' schedule
property, it amounts to illegal construction, which is liable to
be demolished. On the other hand, the defendant has
denied the alleged encroachment as stated by the plaintiff
and contend that he has obtained licence from the
competent authorities and put up construction in his own
property to the extent of 17x17 feet. Since the documentary
and oral evidence placed on record by both parties was not
sufficient to come to the conclusion regarding the alleged
encroachment, the trial Court had appointed the Court
Commissioner for local investigation who has
submitted his report as per Ex.C.1 and sketch Ex.C.4 . In
his report he has clearly stated that defendant has
encroached the plaintiff's property towards eastern side to
the extent of 10 feet. He has shown the encroached portion
in his sketch Ex.C.4. Moreover, it is noticed that defendant
has submitted his objection to the Commissioner report
contending that the Commissioner has not at all taken into
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consideration the memo of instructions that is being filed by
the defendant. This is the major objection raised by the
defendant not only to the Commissioner report before the
trial Court, but it is also his main ground of appeal before
this Court. But however the defendant has not specifically
pleaded the same as his ground of appeal in writing,
because it is totally absent in the appeal memo. On perusal
of the memo of instructions submitted by the defendant to
the Court Commissioner on 5.10.2015 shows that
defendant had asked the Commissioner to measure the
property of the defendant house and also the plaintiff's
vacant site. This is being done by the Court Commissioner.
Further, he had asked the Court Commissioner to prepare
the sketch along with measurement by obtaining revenue
documents. This is also been complied by the Court
Commissioner. Only thing which is not done by Court
Commissioner is taking photographs or the video. This is
not a major lacuna so as to disprove the Commissioner
report. Because the Commissioner is being examined
before the Court on his report as CW.1 and nothing material
was elicited from his cross-examination conducted by the
learned Advocate for defendant. His evidence coupled with
the document clearly indicate that he has followed all the
procedures and conducted the local investigation lawfully.
Hence, there is no ground as to disbelieve the
Commissioner report. Hence, the above submission of
learned Advocate of appellant is not sustainable.
21. Thus, from the above discussion it is clear that the
plaintiff has produced sufficient materials on record in order
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to prove that the defendant has encroached 10 feet of the
plaintiff's property. Defendant might contend that he has
obtained licence to put up construction as per Ex.D.1. But
the Court Commissioner has also noticed that defendant
has obtained licence, but during the local investigation he
has found that:
¸ÀܼÀ ¥ÀgÀ²Ã®£ÉAiÀÄ°è C¼ÀvÉ ªÀiÁrzÁUÀ, 45 Cr
Dgï.¹.¹. ªÀÄ£ÉAiÀÄ£ÀÄß ¤«Äð¹gÀÄvÁÛgÉ. ºÁUÀÆ ¥ÀǪÀðPÉÌ 4
Cr MvÀÄÛªÁjAiÀiÁV ªÀiÁrzÁÝgÉ. ºÁUÀÆ 10 Cr ºÉZÀÄѪÀj
D¹ÛAiÀÄ ¸ÀASÉå 810 J SÁvÉ ¸ÀASÉå: 972 gÀ°è EgÀĪÀ C¼ÀvÉ,
X
¥ÀÇ-¥À 45 18 EzÀÄÝ, DzÀgÉ ºÉZÀÄѪÀjAiÀiÁV 4 Cr
MvÀÄÛªÁjAiÀiÁV ªÀiÁqÀĪÀÅzÀgÀ eÉÆvÉUÉ ¥ÀPÀÌzÀ ªÀÄAeÉÃUËqÀ
©£ï ²ªÀ£ÀAeÉÃUËqÀ EªÀgÀ ¤ªÉñÀ£ÀzÀ°è 10 Cr eÁUÀ
MvÀÄÛªÀj ªÀiÁrPÉÆAqÀÄ ªÀÄ£ÉAiÀÄ£ÀÄß ¤«Äð¹gÀĪÀÅzÀÄ
PÀAqÀħA¢zÉ.
In the presence of these materials on record, I am of the
opinion that the contention of the plaintiff that there is illegal
encroachment from the defendant has to be accepted.
Therefore, when plaintiff has proved his title over the suit
schedule properties and the alleged encroachment, the
plaintiff is entitled for the main relief of declaration along
with consequential reliefs. Accordingly, these points are
answered in the affirmative.
22. Point Nos.4 and 5: On perusal of the Judgement and
on re-appreciation of the entire materials available on
record, I am of the opinion that the trial Court has assessed
both oral and documentary evidence placed on record by
respective parties and came to a right conclusion that the
plaintiff has proved his title over the suit schedule property.
The trial Court has properly appreciated the Court
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Commissioner report and came to the conclusion that there
is encroachment from the defendant. The only ground of
appeal stated by the appellant is that the trial Court has not
appreciated the evidence properly, which cannot be
believed. Hence, I am of the opinion that there is no
sufficient grounds in order to interfere with the resent
Judgment passed by the trial Court. Hence, these points
are answered in the negative.
23 . Point No.6: In view of my above discussion and
findings on point Nos. 1 to 5, I proceed to pass the
following:
ORDER
Appeal filed by the appellant under order
41 rule 1 of CPC is hereby dismissed.
The judgement and decree passed by
the trial Court in O.S.414/2011 dated
19.9.2016 is hereby confirmed.
No order as to costs.
Draw decree accordingly.”
8. Heard learned counsel for the appellant and learned
counsel for the respondent and perused the material on record.
9. A perusal of the material on record will clearly indicate
that both the Courts have correctly and properly considered and
appreciated the entire material on record and have recorded
categorical findings of fact based on legal and acceptable evidence
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that the plaintiff had proved that he was the absolute owner of the
‘A’ schedule property which comprises of the ‘B’ schedule property.
Both the Courts also came to the correct conclusion that the
material on record including the report of the court commissioner
and his evidence as CW-1 and other documents produced by him
established that the defendant had illegally and highhandedly put
up unauthorised construction over the ‘B’ schedule property which
was liable to be removed by granting a decree for declaration,
mandatory injunction and possession in favour of the plaintiff
against the defendant. The said findings of fact recorded by both
the Courts based on legal and acceptable evidence cannot be said
to suffer from any illegality or infirmity nor can the same be said to
capricious or perverse or contrary to law and facts so as to give
rise to any question of law, much less substantial question of law
that arises for consideration in the present appeal.
10. Accordingly, I do not find any merit in the appeal and the
same is hereby dismissed at the stage of admission itself.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
BMC/SRL