Dhondiram S/O Subhana Mali vs Ganagapati S/O Gundu Jadhav
2022 Latest Caselaw 1326 Kant

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

          DATED THIS THE 31ST DAY OF JANUARY 2022

                          BEFORE

      THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

        REGULAR SECOND APPEAL NO.5716 OF 2012 (DEC)

BETWEEN

1.    DHONDIRAM S/O SUBHANA MALI
      AGE: 63 YEARS, OCC: AGRICULTURE,
      R/O. LOKUR, TQ: ATHANI-591304,
      DIST: BELGAUM

2.    SHIBAJI S/O BASALING MALI
      AGE: 58 YEARS, OCC: AGRICULTURE,
      R/O. LOKUR, TQ: ATHANI-591304,
      DIST: BELGAUM

3.    BALESHA S/O BASALING MALI
      AGE: 53 YEARS, OCC: AGRICULTURE,
      R/O. LOKUR, TQ: ATHANI-591304,
      DIST: BELGAUM
                                               ...APPELLANTS

(BY SRI. MADANMOHAN M KHANNUR, ADVOCATE)

AND
1.    GANAGAPATI S/O GUNDU JADHAV,
      AGE: MAJOR (CORRECT AGE NOT KNOWN)
      OCC: AGRICULTURE,
      R/O. LOKUR, TQ: ATHANI-591304,
      DIST: BELGAUM

2.    CHANDRA SUBANA MALI
      AGE: MAJOR CORRECT AGE NOT KNOWN)
      OCC: AGRICULTURE AND HOUSE HOLD WORK,
      R/O. LOKUR, TQ: ATHANI-591304,
      DIST: BELGAUM
                             2




3.    SUVARNA SUBHANA MALI
      AGE: MAJOR (CORRECT AGE NOT KNOWN)
      OCC: AGRICULTURE AND HOUSE HOLD WORK,
      R/O. LOKUR, TQ: ATHANI-591304,
      DIST: BELGAUM

4.    ARUNA W/O GANAPATI MALI
      AGE: MAJOR (CORRECT AGE NOT KNOWN)
      OCC: AGRICULTURE AND HOUSE HOLD WORK,
      R/O. BEDAG, TQ: MIRAJ,
      DIST: SANGLI - 416416.

5.    KALAVATI W/O KASHINATH MALI @ KURAN
      AGE: MAJOR (CORRECT AGE NOT KNOWN)
      OCC: AGRICULTURE AND HOUSE HOLD WORK,
      R/O KURANDWAD, TQ: SHIROL,
      DIST: KOLHAPUR-416013.

6.    MANGAL W/O RAMESH SHINDHE
      AGE: 59 YEARS, OCC: HOUSEHOLD WORK,
      R/O KAMANVES, MIRAJ,
      DIST: SANGLI - 416416

7.    VISHAL S/O RAMESH SHINDHE,
      AGE: 43 YEARS, OCC: NOT KNOWN,
      R/O KAMANVES, MIRAJ,
      DIST: SANGLI-416416

8.    SEEMA W/O BHASKAR PAWAR,
      AGE: 36 YEARS, OCC: HOUSEHOLD WORK,
      R/O. LOKUR,TQ: ATHANI-591304,
      DIST: BELGAUM

9.    SHAKUNTALA W/O GOPAL SHINDHE,
      AGE: 44 YEARS, OCC: HOUSEHOLD WORK,
      R/O.ASHTA, TQ: HATAKANLANGADA,
      DIST: KOLHAPUR.

10.   SANTOSH S/O GOPAL SHINDHE,
      AGE: 26 YEARS, OCC: STUDENT,
      R/O. ASHTA, TQ: HATAKANLANGADA,
      DIST: KOLHAPUR
                                   3




11.   KUMAR SANDEEP S/O GOPAL SHINDHE,
      AGE: 24 YEARS, OCC: STUDENT,
      R/O.ASHTA, TQ: HATAKANLANGADA,
      DIST: KOLHAPUR

12.   KUMARI NANDITA D/O GOPAL SHINDHE
      AGE: 22 YEARS, OCC: NOT KNOWN,
      R/O.ASHTA, TQ: HATAKANLANGADA,
      DIST: KOLHAPUR

13.   SURESH S/O LAXMAN SHINDHE
      AGE: MAJOR (CORRECT AGE NOT KNOWN)
      OCC: AGRICULTURE,
      R/O.NAGAKATTA, MIRAJ, DIST: SANGLI

14.   RAMU S/O NANA BHAGAT
      AGE: MAJOR (CORRECT AGE NOT KNOWN)
      OCC: AGRICULTURE,
      R/O.LOKUR, TQ:ATHANI-591304,
      DIST: BELGAUM
                                                     ...RESPONDENTS

(BY SRI. RAVI S BALIKAI, ADV., FOR C/R1)


      THIS   RSA   IS   FILED    U/SEC.100   CPC.,   AGAINST    THE
JUDGEMENT      &   DECREE       DATED   31.03.2012     PASSED    IN
R.A.NO.18/1998 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT AT ATHANI, DISMISSING THE APPEAL, FILED
AGAINST THE JUDGMENT DATED 21.02.1998 AND THE DECREE
PASSED IN O.S.NO.20/1985 ON THE FILE OF THE CIVIL JUDGE
(JR.DN) & ADDL. JMFC., ATHANI, DECREEING THE SUIT FILED FOR
DECLARATION.


      THIS RSA COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                  4




                            JUDGMENT

The captioned regular second appeal is filed by the

unsuccessful defendants 1, 5 and 6 questioning the

concurrent judgment and decree passed by the Courts

below, wherein the Courts below have directed the

present appellants herein to handover the encroached

portion of 2 acres of land in favour of the respondents-

plaintiffs.

2. The respondents-plaintiffs filed a suit for

declaration and possession alleging that the present

appellants-defendants have encroached an area of 2

acres in Survey No.48/5. The respondents-plaintiffs have

specifically contended that Survey No.48/5 is their

ancestral property and they are absolute owners.

Respondents-plaintiffs have also contended that the

adjoining land bearing Survey No.46/6 is owned by

defendants 1 to 3 and Survey No.48/3 is owned by

defendants 5 and 6. It is the specific case of the

respondents-plaintiffs that the agricultural lands bearing

Survey No.48/5 and 48/6 are adjoining to each other and

accordingly, hand-sketch map is also furnished along with

the plaint to depict the factual matrix. It is a specific case

that the father of defendant No.2 namely Subhana Raghu

Mali encroached 2 acres in Survey No.2 way back in the

year 1958. This compelled the plaintiffs to get the suit

land surveyed in the year 1959 and it was found that the

father of defendant No.2 has encroached 2 acres of land

towards western side of respondents-plaintiffs land.

Accordingly 'PT' sheet was prepared. Respondents-

plaintiffs submitted an application to the Revenue

Authorities seeking possession of encroached portion of 2

acres of land and on enquiry, the Assistant Commissioner

adjudicated the issue and directed the father of

defendant No.2 to handover 2 acres of land by order

dated 13.08.1968. This order was taken in appeal by the

father of defendant No.2 before the Revenue Appellate

Tribunal, Bangalore in Appeal No.988/1970. The order

passed by the Assistant Commissioner was confirmed by

the Revenue Appellate Tribunal by order dated

30.11.1970. Having succeeded before the Revenue

Appellate Tribunal, the present respondent No.1-plaintiff

submitted an application before the authority to seek

possession from defendants. The said application was

disputed by the present appellants herein by contending

that they have perfected their title by way of adverse

possession and it is in this background, the revenue

authorities relegated the parties to workout their remedy

before the Competent Civil Court. Based on this order

and on these set of cause of action, the present

respondent No.1-plaintiff filed a suit for declaration and

for consequential relief of possession in O.S.No.20/1985.

The present appellants-defendants, on receipt of

summons, contested the proceedings and stoutly denied

the entire averments made in the plaint. The respondent

No.1-plaintiff, to substantiate his claim, examined himself

as PW1 and also examined one independent witness as

PW2 and relied on documentary evidence vide Ex.P1 to

Ex.P22. The present appellants-defendants in support of

their contention, examined one witness as DW1 and

relied on rebuttal documentary evidence vide Ex.D1 to

Ex.D12. The Trial Court having assessed the oral and

documentary evidence answered Issue No.1 in affirmative

by recording a finding that the father of defendant No.2

has encroached 2 acres of land in suit survey No.48/5.

While answering issue No.3, the Trial Court has recorded

a finding that the appellants-defendants have failed to

establish that they have perfected their title by way of

adverse possession in respect of 2 acres of land.

Therefore, on these set of reasons, the Trial Court has

come to the conclusion that respondent No.1-plaintiff is

entitled to seek possession of 2 acres of disputed land

and accordingly proceeded to decree the suit. The First

Appellate Court, on reappreciation of oral and

documentary evidence, has independently assessed the

material on record and has come to the conclusion that

respondent No.1-plaintiff has succeeded in establishing

that the present appellants have encroached 2 acres of

land in Survey No.48/5. The First appellate Court was

also of the view that the appellants-defendants having set

up a plea of adverse possession, have failed to establish

that they have perfected their title by way of adverse

possession. The Appellate Court was also of the view that

since the appellants-defendants have failed to prove that

they have perfected their title by way of adverse

possession, the question of limitation would not arise.

Therefore, based on the title, the respondent No.1-

plaintiff is entitled to seek possession of encroached

portion of 2 acres of land. On these set of reasons, the

First Appellate Court has dismissed the appeal. It is these

concurrent judgments of the Court below against which

the appellants-defendants have preferred this appeal.

3. Along with the appeal memo, the appellants-

defendants have produced a copy of the sale deed dated

22.04.1901. Placing reliance on this sale deed, the

appellants-defendants are contending that the

respondents-plaintiffs owned land only to the extent of 2

acre 32 guntas and therefore, the finding recorded by the

Courts below that there is an encroachment of 2 acres of

land is perverse and therefore, he would submit to this

Court that the additional evidence, which was not

produced before the Courts below would be very much

effective for adjudication of the controversy between the

parties. Therefore, placing reliance on additional

evidence, the counsel for appellants submits that on

account of production of additional evidence, a

substantial question of law would arise for consideration

and hence he submits to this Court that this is a fit case

for admission.

4. Per contra, learned counsel for respondents-

plaintiffs, repelling the arguments canvassed by the

counsel for the appellants-defendants, would submit to

this Court that additional evidence relied on by the

appellants-defendants cannot be considered at this stage

in an appeal filed under section 100 of CPC. Even

otherwise, he would submit to this Court that the

document is of the year 1901 whereas the land bearing

Survey No.48 has undergone sub-divisions and the sub-

divisions are invariably based on actual possession and

enjoyment. He would submit to this Court that the

appellants-defendants have never challenged the Phodi

proceedings, which have become final. If the lands held

by respective parties are independent pursuant to sub-

division, the sale deed indicating the extent would be of

no consequence and would not come to the aid of the

appellants-defendants.

5. Heard learned counsel appearing for the

appellants and learned counsel appearing for the

respondent No.1-plaintiff. Perused the judgments under

challenge.

6. Respondent No.1-plaintiff has approached the

Court with a specific case that the appellants-defendants

have encroached to an extent of 2 acres in Sy.No.48/5

totally measuring 5 acres 30 guntas. Respondent No.1-

plaintiff to substantiate his claim has relied on Ex.P.22,

which is a 'PT' sheet prepared by the authorities coupled

with Ex.P10 which is report of ADLR dated 17.01.1995,

Ex.P11 is map prepared by the surveyor. Respondent

No.1-plaintiff has also placed reliance on Ex.P5, which is

a certified copy of the order passed in Appeal

No.988/1970 passed by the Revenue Appellate Tribunal

confirming the 'PT' sheet prepared by the authority.

These documents if taken into consideration, clearly

reveal that this case has got checkered history. It is very

unfortunate that respondent No.1-plaintiff has been

running around from pillar to post seeking justice at the

hands of the Court. If the encroachment to an extent of

two acres was found in the year 1960, respondent No.1-

plaintiff is virtually compelled to fight litigation for almost

six decades. The clinching evidence placed on record by

respondent No.1-plaintiff would clearly indicate that the

owner of hissa No.3 i.e., Sy.No.48/3 has clearly

encroached 2 acres of land in hissa No.5 i.e., Sy.No.48/5

which is owned by respondent No.1-plaintiff. Ex.P11 is

the map prepared by Court Commissioner-Taluka

Surveyor and the Commissioner in his map has

unequivocally depicted that there is an encroachment of

two acres in Sy.No.48/5. This encroachment is also

examined in context of Ex.P22, which is 'PT' sheet

prepared on the basis of post hissa measurement dated

17.12.1959. Apart from this clinching evidence,

respondent No.1-plaintiff has also taken pain to examine

the Court Commissioner as PW2. PW2 in his ocular

evidence has specifically deposed that he measured the

land bearing Sy.No.48 of Lokur village. He has specifically

deposed that, to ascertain encroachment he has

measured all the pot hissa in Sy.No.48 and thereafter has

prepared a map indicting that there is encroachment of 2

acres 2 guntas of land in Sy.No.48/5.

7. As against this clinching evidence, the

appellants/defendants have led in ocular evidence of

DW1. The Trial Court has referred to the relevant cross-

examination of DW1. At paragraph 15 of the Trial Court

judgment, this Court would find that DW1 who is

examined on behalf of appellants-defendants has virtually

pleaded ignorance in regard to the alleged encroachment,

extent of pot hissas, particulars of mutations effected

during 1982 and also the measurement made way back

in the year 1959 indicating encroachment to an extent of

2 acres of land. What emerges from the cross-

examination of DW1 is that, he is not at all aware of the

lis between the parties. He has pleaded ignorance.

Therefore, there is absolutely no rebuttal evidence led in

by appellants-defendants to refute the claim made by

respondent No.1-plaintiff.

8. On the contrary this Court would find that

DW1 was not at all competent to depose on behalf of

appellants-defendants to counter the specific allegations

made by respondent No.1-plaintiff in regard to

encroachment.

9. The claim of respondent No.1-plaintiff in

regard to right and title over the suit land Sy.No.48/5

would further get strengthen and would weaken the case

of the appellants-defendants in light of findings recorded

by both the Courts below on Issue No.3. In a title suit, if

the appellants-defendants contested by asserting right

and title by pleading adverse possession, then in such

cases, respondent No.1-plaintiff can be non-suited only if

appellants-defendants succeed in establishing that they

have perfected their title by way of adverse possession.

Once a plea of adverse possession is taken, the initial

burden that is cast on respondent No.1-plaintiff who has

come to the Court claiming right and title stands

discharged and the onus shifts on the appellants-

defendants. Therefore, it is clear that respondent No.1-

plaintiff can be non-suited only if defendants succeed in

establishing that they have perfected their title by way of

adverse possession. Both the Courts have concurrently

held that the appellants-defendants have failed to prove

that they have perfected their title by way of adverse

possession. The clinching evidence on record under the

provisions of the Land Revenue Act in regard to

encroachment has attained finality. The contention of

appellants/defendants before this Court that respondent

No.1-plaintiff at the first instance has to establish his title

to an extent of 5 acres 39 guntas cannot be acceded to at

this stage. This would be of no consequence. Admittedly

Sy.No.48 already has undergone sub-divisions. The

proceeding relating to sub-divisions have attained finality.

Therefore, appellants-defendants cannot have any

grievance in regard to the extent of land held by

respondent No.1-plaintiff. If Sy.No.48 was one compact

block then the question of actual extent held by

respective parties has to be assessed by title documents.

The title of respondent No.1-plaintiff's ancestors cannot

be gone into and there cannot be an enquiry as to what is

the exact extent that was purchased by the ancestors of

respondent No.1-plaintiff. By way of additional evidence,

the appellants-defendants have made a feeble attempt

and are contending that the sale deed is of the year 1901

and in the said document the extent is shown as 2 acres

32 guntas.

10. Having regard to the clinching evidence which

is placed on record by respondent No.1-plaintiff, I am of

the view that the additional evidence which is sought to

be produced at this stage under Section 100 of CPC has

no bearing on the lis between the parties. The said

document cannot be received as additional evidence and

no grounds are made out to accept the sale deed of the

year 1901 by way of additional evidence. When there are

already sub-divisions and these sub-divisions have

attained finality and the fact that the appellants-

defendants do not dispute the sub-divisions, the sale

deed of the year 1901 would be of no consequence. In

survey proceedings, the Assistant Commissioner, way

back in the year 1959 has come to conclusion that the

owner of Sy.No.48/5 encroached to an extent of 2 acres.

This survey is confirmed by the Revenue Appellate

Tribunal by order dated 30.11.1970. Therefore the

concurrent judgment and decree of the Courts below in

accepting the clinching evidence which is placed on

record by respondent No.1-plaintiff and the consequent

findings recorded by both the Courts below that

respondent No.1-plaintiff being owner of Sy.No.48/5 is

entitled to seek possession of encroached portion of 2

acres is in accordance with law and is based on legal

evidence.

11. No substantial question of law arises. The

appeal is devoid of merits and accordingly the same

stands dismissed. Consequently application filed in

I.A.No.1/2020 seeking production of additional evidence

is also dismissed.

Sd/-

JUDGE YAN/EM