Karnataka High Court
Durgavva W/O. Yamanappa Madar vs Ningappa S/O. Timmappa Mulimani on 3 February, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 03RD DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.5304/2013 (DEC)
BETWEEN
1. SMT.DURGAVVA
W/O YAMANAPPA MADAR,
AGED : 68 YEARS,
OCC: HOUSEHOLD.
2. SMT.LAXMAVVA
YAMANAPPA MADAR,
AGED : 42 YEARS,
OCC: HOUSEHOLD.
3. HANAMANT
S/O YAMANAPPA MADAR
AGED : 40 YEARS,
OCC: AGRICULTURE.
4. DURGAPPA
S/O YAMANAPPA MADAR
AGED : 38 YEARS,
OCC: AGRICULTURE.
5. SHIVAPPA
S/O YAMANAPPA MADAR
AGED : 36 YEARS,
OCC: AGRICULTURE.
6. LAXMAPPA
S/O YAMANAPPA MADAR
AGED : 32 YEARS,
OCC: AGRICULTURE.
2
7. MALLAPPA
S/O GANGAPPA BILKERI,
AGED : 57 YEARS,
OCC: AGRICULTURE.
ALL ARE R/O : ANKALAGI,
TQ: BAGALKOT,
DIST: BAGALKOT-587101.
... APPELLANTS
(BY SRI P.H.GOTAKHINDI, ADV.)
AND
NINGAPPA
S/O TIMMAPPA MULIMANI,
AGED : 52 YEARS,
OCC: AGRICULTURE,
R/O ANKALAGI,
TQ: BAGALKOT,
DIST: BAGALKOT-587101.
... RESPONDENT
(BY SRI SHIVARAJ P.MUDHOL, ADV.)
THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO SET
ASIDE THE JUDGEMENT & DECREE DATED 13.09.2012 PASSED
IN R.A.NO.11/2012 BY THE PRINCIPAL CIVIL JUDGE, BAGALKOT
CONFIRMING THE JUDGMENT AND DECREE DATED 07.01.2012
PASSED IN O.S.NO.151/2009 PASSED BY THE COURT OF ADDL.
CIVIL JUDGE AND JMFC, BAGALKOT IN THE INTEREST OF
JUSTICE AND EQITY.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
3
: JUDGMENT :
Learned counsel appearing for the respondent-
decree holder has filed a memo enclosing the order of
the Executing Court indicating that the possession
warrant was issued and the present appellants did not
contest the execution proceedings and possession has
been handed over to the respondent-decree holder
through process of Court.
2. Perused the order passed by the Executing
Court dated 25.06.2019. On perusal of the same, this
Court would find that the possession is already handed
over.
3. The present suit was filed by respondent-
plaintiff seeking possession of encroached portion of
land in question. The said suit was contested by the
appellants-defendants.
4. The Trial Court having examined oral and
documentary evidence on record and also on the
report submitted by the Court Commissioner who is of
the rank of Deputy Director of Land Records. On
survey, it was found that the appellants-defendants
have encroached to an extent of 9 guntas and 1
gunta. The Commissioner's report was also marked as
Ex.C.1 to C.3. The Trial Court decreed the suit by
judgment and decree dated 07.01.2012. The
judgment and decree of the Trial Court is confirmed by
the First Appellate Court on 13.09.2012.
5. The decree in absence of contest by
appellant-defendant is executed by the Executing
Court. Possession was handed over way back in the
year 2019. The contention of appellants-defendants
that the authority has handed over possession in
excess of what was prayed in the plaint cannot be
entertained at this juncture. If the decree for
possession is already executed and possession was
handed over based on the Commissioner's report
indicating that there was an encroachment to the
extent of 9 guntas and 1 gunta by the defendants, I
am of the view that no substantial question of law
arises. This Court would find that there is no
miscarriage of justice also, which would warrant
interference at the hands of this Court.
6. In that view of the matter, the second
appeal filed by defendants is dismissed by taking note
of handing over of possession in EP.No.80/2015.
7. In view of the disposal of the appeal,
pending application in I.A.No.2/2013 does not survive
for consideration. Accordingly, the same stands
disposed off.
SD/-
JUDGE
EM
