Maheshappa S/O Shivappa ... vs Hanumanthappa S/O Shiddappa ...
2022 Latest Caselaw 239 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

        DATED THIS THE 06TH DAY OF JANUARY, 2022
                        BEFORE

     THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

             R.S.A. No.100817/2014 (DEC/INJ)


BETWEEN

1.     MAHESHAPPA S/O SHIVAPPA TUMMINAKATTI
       AGE: 32 YEARS, OCC: AGRICULTURE
       R/O: KADUR, TQ: HIREKERUR
       DIST: HAVERI-581111.

2.     BASAPPA S/O BHIMAPPA MYACHAR
       AGE: 73 YEARS, OCC: AGRICULTURE
       R/O: KADUR, TQ: HIREKERUR
       DIST: HAVERI-581111.
                                           ...APPELLANTS
(BY SRI.AVINASH BANAKAR, ADVOCATE)

AND

1.     HANUMANTHAPPA S/O SHIDDAPPA BILASANUR
       AGE: 67 YEARS, OCC: AGRICULTURE
       R/O: KADUR, TQ: HIRKERUR
       DIST: HAVERI-581111.

2.     ANANTAPPA S/O SHIDDPPA BILASANUR
       AGE: 57 YEARS, OCC: AGRICULTURE
       R/O: KADUR, TQ: HIRKERUR
       DIST: HAVERI-581111.

3.     SMT.RUDRAMMA W/O TIPPANNA KUTRER
       AGE: 47 YEARS, OCC: AGRICULTURE
       R/O: LOKIKERI,TQ & DIST: DAVANAGERE
       DIST: DAVANAGERE -577001.
                                          ...RESPONDENTS
                               2




(BY SRI.LINGESH.V.KATTIMANI, ADVOCATE FOR
SRI.S.G.KADADAKATTI, ADVOCATE)

      THIS APPEAL IS FILED U/S.100 OF CPC., AGAINST THE
JUDGEMENT    &   DECREE    DTD:18.09.2014   PASSED   IN
R.A.NO.11/2013 ON THE FILE OF THE SENIOR CIVIL JDUGE
AND JMFC, HIREKERUR, DISMISSING THE APPEAL, AND
CONFIRMING THE JUDGMENT AND DECREE DTD:19.03.2012
PASSED IN O.S.NO.96/2006 ON THE FILE OF THE CIVIL JUDGE
AND JMFC, HIREKERUR, DECREEING THE SUIT FILED FOR
DECLARATION, POSSESSION AND INJUNCTION.

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

                        JUDGMENT

The defendants in O.S.No.96/2006 on the file of Civil

Judge Hirekerur are the appellants in R.A.No.11/2013 on

the file of Senior Civil Judge and JMFC., Hirekerur. The suit

for possession filed by the plaintiffs claiming possession of

28 guntas in Sy.No.372/1+2A/4 of Kadur village, Tq:

Hirekerur, Dist: Haveri is decreed. The plaintiff has filed

the suit on the ground that the defendant is encroacher of

28 guntas of suit property in the aforementioned land.

2. The basis for the plaintiff to file the suit for

possession is the report dated 29.06.2006 submitted by

the Surveyor. Said report indicates that the defendants are

in possession of the suit property as encroachers.

3. The defendants contesting the suit have raised

a defence that the survey sketch is incorrect and notice of

survey is not issued to them and no survey has taken

place. Alternately, the defendants also raised plea of

adverse possession.

4. The trial Court has framed the issues and after

hearing the parties has come to the conclusion that the

survey sketch prepared by the surveyor is not called in

question by the defendants in an appropriate forum. The

contention of the defendants that the surveyor has not

issued notice before conducting survey is also not

established by cross-examining the surveyor. In fact no

attempt is made by the defendants to summon the

surveyor and to cross-examine him to establish their

contention that no notice is issued before conducting

survey.

5. Learned counsel for the appellants has also

raised the contention that the suit is not maintainable in

view of remedy available under Section 142 of Karnataka

Land Revenue Act (for short 'KLA Act'). Learned counsel

would submit that the Civil Court has no jurisdiction to

entertain the suit.

6. This Court considered the judgment and decree

passed by the trial Court as well as the first appellate

Court. From the judgments and decrees impugned in this

appeal, it is apparent that the suit for possession is

decreed placing reliance on the survey sketch. There is no

dispute over the fact that the survey report is submitted

by an authorized surveyor. The application was filed by the

plaintiff to measure his land. The surveyor has submitted a

report which indicated that the defendants are in

possession of 28 guntas as encroachers in the suit

property. The contention of the defendants that the notice

is not issued before conducting the survey is not

established in the manner known to law. No material is

placed before the Court to disbelieve the survey report.

Thus Court has no option but to accept the summery

report.

7. As far as the contention raised by relying on

Section 142(2) of the KLA Act is concerned, from reading

of said Section it is apparent that the Tahasildar may

summarily evict any land-holder, who is wrongfully in

possession of any land which has been adjudged so in

the settlement of a boundary. This power conferred on

the Tahasildar does not oust the jurisdiction of the Civil

Court to entertain a suit for possession. This aspect of the

matter is apparent from reading of Section 62(c) of the

Karnataka Land Revenue Act, which recognizes the

jurisdiction of the Civil Court to decide the dispute relating

to possession of any land being a hole survey number or

sub-division of a survey number or part thereof. The

present suit certainly falls under Section 62(c) of the

Karnataka Land Revenue Act, 1964. Section 142 of the Act

is one more remedy available to the party. However,

remedy under Section 142 cannot be construed of having

ousted the jurisdiction of the Civil Court.

8. As far as plea of adverse possession is

concerned, both the Courts have concurrently held that

said plea is not established by the defendants. Necessary

ingredients both in pleading and evidence to uphold the

plea of adverse possession are missing. Admittedly, the

plaintiff is the owner of the suit property. There is nothing

on record to hold that the survey sketch relied upon by the

plaintiff is incorrect. And said report reveals that

defendants are in possession of the suit property.

9. The first appellate Court in exercise of its

power under Section 96 of Code of Civil Procedure has

considered all the relevant materials on record and has

concurred with the finding given by the trial Court. This

Court does not find any reason to interfere with the

judgment and decree passed by the trial Court as well as

that of the first appellate Court. No substantial question of

law would arise for consideration.

10. For the reasons aforesaid, appeal is dismissed.

11. In view of dismissal of the main appeal,

pending applications, if any, do not survive for

consideration and accordingly, they are disposed of.

SD/-

JUDGE

am