Mahadev S/O Siddappa Pujeri @ ... vs Balappa Maharuddrappa Hadaginal
2022 Latest Caselaw 2388 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 15TH DAY OF FEBRUARY 2022

                           BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                 RSA.NO.5096/2013 (DEC/INJ)
BETWEEN

1.    MAHADEV S/O SIDDAPPA PUJERI @ VADER
      AGE: 39 YEARS, OCC: AGRL,
      R/O: MAMADAPUR, TQ: GOKAK, DIST: BELGAUM.
2.    SATTEPPA S/O SIDDAPA PUJERI @ VADER
      AGE: 34 YEARS, OCC: AGRL,
      R/O: MAMADAPUR, TQ: GOKAK, DIST: BELGAUM.

3.    TIPPANNA S/O SIDDAPPA PUJERI @ VADER,
      AGE: 24 YEARS, OCC: AGRL,
      R/O: MAMADAPUR, TQ: GOKAK, DIST: BELGAUM.

4.    SMT.DUNDAWWA D/O. SIDDAPPA PUJARI @ VADER
      DUNDAWWA W/O LAXMAN BENCHINMARADI
      AGE: 25 YEARS, OCC: HOUSEHOLD WOKR, R/O:
      CHIKKANANDI,TQ: GOKAK, DIST: BELGAUM.

5.    BEERAPPA S/O SHIVARAYAPPA PUJERI @ VADER
      AGE: 44 YEARS, OCC: HOUSEHOLD WOKR, R/O:
      CHIKKANANDI,TQ: GOKAK, DIST: BELGAUM.

                                               ... APPELLANTS
(BY SRI.V.S.KOUGALAGI, ADV. FOR SRI.G.R.RURAMARI, ADV.)

AND

      BALAPPA MAHARUDDRAPPA HADAGINAL
      SINCE DECEASED BY HIS L RS

1.    SMT.SHANTAWWA W/O BALAPPA HADAGINAL,
      AGE: 39 YEARS, OCC: AGRL,
      R/O: MAMADAPUR, TQ: GOKAK, DIST: BELGAUM.
                              2




2.    SAVAKKA D/O BALAPA HADAGINAL,
      AGE: 24 YEARS, OCC: AGRL,
      R/O: MAMADAPUR, TQ: GOKAK, DIST: BELGAUM.

3.    MAHADEVI D/O BALAPPA HADAGINAL,
      AGE: 15 YEARS, OCC: STUDENT,

4.    MAHARUDRAPPA S/O BALAPPA HADAGINAL,
      AGE: 13 YEARS, OCC: STUDENT,

5.    SHIVANAGOUDA S/O BALAPPA HADAGINAL
      AGE: 9 YEARS, OCC: STUDENT,

      MINOR REPRESENTED BY THEIR MOTHER MINOR GUARDIAN,
      RESPONDENT NO.1
      ALL ARE R/O: MAMADAPUR, TQ: GOKAK, DIST: BELGAUM.

6.    SMT.SANVAKKA W/O BALAPPA HADAGINAL
      AGE: 69 YEARS, OCC: HOUSEHOLD WORK,
      R/O: MAMADAPUR, TQ: GOKAK, DIST: BELGAUM.

7.    ASSISTANT DIRECTOR OF LAND RECORDS,
      BAILHONGAL.

8.    GOVERNMENT OF KARNATAKA
      REPRESENTED BY THE DEPUTY COMMISSIONER,
      BELGAUM, DIST: BELGAUM.

9.    SHRISHAIL MAHARUDRAPA HADAGINAL,
      AGE: 23 YEARS, OCC: AGRL,
      R/O: MAMADAPUR, TQ: GOKAK, DIST: BELGAUM.

                                             ... RESPONDENTS
(BY SRI.D.M.KULKARNI, ADV. FOR C/R1 TO R5)

      THIS APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE COURT
OF THE PRL. SENIOR CIVIL JUDGE, GOKAK AT GOKAK IN
R.A.NO.51/2009 DATED 31.07.2012 CONFIRMING THE JUDGMENT
AND DECREE PASSED IN O.S.NO.149/1994 BY THE COURT OF
PRL.CIVIL JUDGE (JR.DN.) GOKAK DATED 11.04.2005 AND ALLOW
THE REGULAR SECOND APPEAL.
                                  3




    THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                              JUDGMENT

The captioned regular second appeal is filed by

unsuccessful plaintiffs wherein both the courts have

dismissed the suit filed by the present appellants/plaintiffs

seeking relief of declaration and for consequential relief of

injunction.

2. Appellants/plaintiffs claim that they owned

agricultural land bearing Sy.No.643/3 measuring 1 acre 16

guntas. The plaintiffs claim that to the north of the suit

land respondents/defendants are owners of land bearing

Sy.No.643/1 measuring 1 acre 3 guntas. The

appellants/plaintiffs claim that title documents of plaintiffs

and defendants clearly indicates that plaintiffs property

which is a suit land bearing Sy.No.643/3 measures 1 acre

16 guntas whereas defendants adjoining land bearing

Sy.No.643/1 measures 1 acre 3 guntas. However, when

the land was surveyed by the authorities, it was found that

defendants are in possession of 1 acre 16 guntas when

they are lawful owners to an extent of 1 acre 3 guntas

whereas plaintiffs land measures 1 acre 3 guntas though

they have lawful owners to an extent of 1 acre 16 guntas.

The present appellants/plaintiffs are seeking relief of

declaration and consequential relief of injunction claiming

that they are in exclusive possession of the suit land and

since respondents/defendants are obstructing claimed the

relief of injunction against the respondents/defendants.

3. On receipt of summons, respondents/defendants

appeared and defendant No.1 filed detailed written

statement whereas defendant No.4 filed a memo adopting

the written statement filed by defendant No.1. The

defendants stoutly denied the entire averments made in

the plaint. Defendant No.1 claims that he is the owner to

an extent of 1 acre 16 guntas and is in exclusive

possession and therefore, contended that there was no

cause of action for filing the present suit. In the

alternative, respondents/defendants also contended that

they are in possession of alleged portion continuously to

the knowledge of appellants/plaintiffs and their ancestors.

Therefore, defendant Nos.1 and 4 claimed that they have

perfected title and possession over the suit land. The

appellants/plaintiffs in support of their contention let in

ocular evidence and produced documentary evidence vide

Exs.P1 to P11, whereas respondents/defendants let in

ocular evidence by examining five witnesses and produced

rebuttal evidence vide Exs.D1 to D49.

4. The Trial Court having assessed the oral and

documentary evidence on record, has answered issue no.3

and 4 in affirmative. While answering issue No.4, the Trial

Court affirmed that as per Ex.D3, the PT sheet was

prepared in respect of Survey No.643 by the then ADLR,

Bailhongal on 25.06.1982 and therefore, the Trial Court

was of the view that if the appellants-plaintiffs found the

respondents-defendants are in possession of encroached

portion in 1982, the appellants-plaintiffs ought to have filed

a suit within twelve years, which is not done in the present

case on hand. Therefore, the Trial Court having answered

issue No.4 in affirmative held that the suit is barred by law

of limitation and dismissed the suit. Feeling aggrieved, the

appellants-plaintiffs preferred an appeal in

R.A.No.51/2009. The First Appellate Court having re-

appreciated the oral and documentary evidence found that

the appellants-plaintiffs are not in possession of disputed

extent measuring 13 guntas and therefore, the First

Appellate Court held that except assertions in the pleading

there is no ocular evidence to indicate that the appellants-

plaintiffs are found to be in possession of the suit land.

Therefore, the First Appellate Court also proceeded to

dismiss the appeal thereby confirming the judgment and

decree of the Trial Court.

5. Heard the learned counsel for appellants-

plaintiffs as well as the learned counsel appearing for

respondents-defendants.

6. It is stated across the bar that on suggestion

made by this Court to the parties to try to settle the

matter, in terms of settlement process, the respondents-

defendants have filed an affidavit on 08.12.2021 and in the

said affidavit, the respondents-defendants have agreed to

provide 10 feet road east-west on the northern corner of

the land owned by them. While arguing the matter, both

the counsels are in agreement that appellants-plaintiffs are

using this road, which is provided by respondents-

defendants. Both the Courts below have concurrently held

that the appellants-plaintiffs are not in possession of 13

guntas of land, which is encroached by respondents-

defendants. The Trial Court has recorded a finding that the

ADLR surveyed the suit land in 1982 and it was found that

respondents-defendants have encroached over appellants'

land to an extent of 13 guntas, but however proceeded to

dismiss the suit by holding that though appellants-plaintiffs

had found the alleged encroachment in the year 1982, they

slept over their rights for almost more than 12 years and

the present suit is filed on 08.06.1994, which is barred by

law of limitation. The First Appellate Court on

reappreciation of oral and documentary evidence has come

to the conclusion that the appellants-plaintiffs are not in

possession over the encroached portion of 13 guntas and

therefore, applying the provisions of Section 34 of the

Specific Relief Act, has proceeded to dismiss the suit

holding that it is not maintainable.

7. The parties are litigating since 1994. Even if the

appellants-plaintiffs are declared to be owners of the

encroached portion, no purpose would be served and it will

not come to the aid of the appellants-plaintiffs as they are

not found to be in possession, though consequential relief

of injunction is sought in the present case on hand.

8. This Court has to take cognizance of subsequent

developments. Along with affidavit, photographs are

produced by the respondents-defendants. The

respondents-defendants, in terms of affidavit and

photographs furnished, have stated on oath that there is a

10 feet road and said road is situated in the land of

respondents-defendants and same is being utilized by the

appellants to have access to the main road. The learned

counsel for the appellants-plaintiffs though admitted the

existence of such road however, he submitted that his

clients are demanding that the 10 feet road is inadequate.

If the subsequent affidavit and the photographs furnished

by the respondents-defendants are taken into

consideration, this Court would find that the real dispute is

in regard to access to the main road, which is known as

Chikkanandi-Panchanayakanahalli road. The appellants-

plaintiffs are expecting access to the main road in excess of

10 feet width through the land of respondents-defendants,

whereas respondents-defendants have produced

photographs indicating that they have already provided 10

feet road and they have given undertaken in the form of

affidavit, that they will allow the appellants-plaintiffs to use

that road. It is also brought to the notice of this Court by

the learned counsel appearing for the respondents-

defendants that this road is already being used by the

appellants-plaintiffs. In the light of subsequent

development, though I do not find any error in the

judgment and decree of the Courts below, in the light of

subsequent developments wherein appellants-plaintiffs are

provided to have access through the land of respondents-

defendants to the extent of 10 feet road so as to reach the

main road, I do not find any illegality or infirmity in the

judgment recorded by the Courts below. Even if the

appellants-plaintiffs have lost 13 guntas of land, the same

stands compensated as the respondents-defendants have

provided 10 feet road in their land to enable the

appellants-plaintiffs to have access to the main road. In

that view of the matter, no grave injustice is caused to the

appellants-plaintiffs even though they have lost 13 guntas

of land on account of encroachment by respondents-

defendants. Since there is a concurrent finding of the

Courts below that the appellants-plaintiffs are not in

possession even though they are declared as owner of 13

guntas, no purpose will be served as discussed supra. No

substantial question of law is involved in the present

appeal. In that view of the matter, the second appeal being

devoid of merits is hereby dismissed.

9. In view of dismissal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and are dismissed accordingly.

SD/-

JUDGE MBS/YAN/-