Nagralu Venkobappa S/O Nagaralu ... vs Y.Venkatesh S/O Late Y ...
2022 Latest Caselaw 410 Kant

                IN THE HIGH COURT OF KARNATAKA
                        DHARWAD BENCH

            DATED THIS THE 11TH DAY OF JANUARY 2022

                              BEFORE

       THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                 RSA.NO.100076/2014 (DEC/INJ)
BETWEEN

SRI.NAGRALU VENKOBA S/O NAGARALU BHEEMAPPA,
AGED ABOUT: 48 YEARS, OCC: AGRICULTURIST,
R/O: UPPARAHOSAHALLI VILLAGE,
TQ: SIRUGUPPA, DIST: BELLARY.
                                                   ... APPELLANT
(BY SRI.S.G.KADADAKATTI, ADV.)

AND

1.    Y.VENKATESH S/O Y. BHEEMANAGOUD,
      AGED ABOUT: 48 YEARS,

2.    Y HANUMANTHAGOUD,
      S/O Y. BHEEMANAGOUD,
      AGED ABOUT: 45 YEARS,

3.    Y. CHANDRAPPA @ CHADRAREDDY,
      S/O Y. BHEEMANAGOUD,
      AGED ABOUT: 43 YEARS,

4.    Y GOPAL S/O Y. BHEEMANAGOUD,
      AGED ABOUT: 37 YEARS,

5.    Y. VEERESH S/O Y. BEEMANAGOUDA,
      AGED ABOUT: 35 YEARS,

6.    Y. HANUMESH S/O Y. BEEMANAGOUDA,
      AGED ABOUT: 34 YEARS,

      ALL ARE R/O: UPPARA HOHALLI VILLAGE,
      SIRUGUPPA TOWN, DIST: BELLARY.
                                                ... RESPONDENTS
(BY SRI.GODE NAGARAJA, ADV. FOR C/R5)
                                    2




     THIS APPEAL IS FILED UNDER 100 OF CPC, AGAINST THE
JUDGEMENT & DECREE DTD:02.12.2013 PASSED IN R.A.NO.101/2012
ON THE FILE OF THE PRL. DISTRICT & SESSIONS JUDGE, AT
BELLARY, DISMISSING THE APPEAL, FILED AGAINST THE JUDGMENT
AND DECREE DTD:27.01.2010 AND THE DECREE PASSED IN O.S.
NO.14/2006 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) & JMFC.,
SIRUGUPPA, DECREEING THE SUIT FILED FOR DECLARATION,
POSSESSION AND MESNE PROFITS.

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

                           JUDGMENT

The captioned Regular Second Appeal is filed by the

unsuccessful defendant No.2 who has challenged the

concurrent finding of the courts below declaring that

respondents/plaintiffs are absolute owners of Schedule 'A'

property and consequentially defendant No.1 and present

appellant/defendant No.2 are directed to deliver the

marked portion to respondents/plaintiffs. However, the

claim of respondents/plaintiffs in regard to mesne profit

and future mesne profit is rejected.

2. Brief facts leading to the case are that, the

respondents/plaintiffs filed a suit for declaration,

possession and mesne profits against the present

appellant/defendant No.2 by specifically contending that

their father purchased Sy.No.267/B/2A along with another

land bearing Sy.No.267/B/2B under registered sale deed

dated 18.06.1999 from one Parvathamma. The

respondents/plaintiffs further contended that pursuant to

sale deed, their father was in exclusive possession and

enjoyment over the suit schedule property and after his

death, the present respondents/plaintiffs have inherited the

suit schedule property and they are in exclusive

possession. It is further contended that, in the year 2004

defendant No.1/respondent No.1 attempted trespass into

Schedule 'A' property. Therefore, the respondents/plaintiffs

have filed a bare suit for injunction in O.S.No.69/2014

against defendant No.1. In the said suit, Taluk Surveyor

was appointed as Court Commissioner to measure the suit

schedule property, which is marked as ABCD in the plaint.

The Commissioner submitted his report. In the said report,

it was found that defendant No.1 has encroached 26 cents

of land in Schedule 'A' property and defendant No.2 who

was not a party to the suit was also found to have

encroached 17 cents of land in Schedule 'A' property, which

is marked as MBCD in the rough sketch. Therefore, on

receipt of Commissioner's report, respondents/plaintiffs

withdrew O.S.No.69/2004 with liberty to file fresh suit. It is

in this background, the earlier suit was withdrawn and

fresh suit for declaration and consequential relief of

possession was filed in O.S.No.14/2006.

3. In response to the suit summons, legal

representatives of defendant No.1 and defendant No.2 filed

written statement and stoutly denied the allegations that

they have encroached the land owned by

respondents/plaintiffs. Respondents/plaintiffs contested the

proceedings and let in evidence and produced documents

at Ex.P1 to P49. However, the present appellant did not

enter into the witness box. Therefore, the trial court

decreed the suit on 23.09.2008 declaring that the

respondents/plaintiffs are absolutely owners in possession

and enjoyment of Schedule 'A' property. But however,

dismissed the relief of possession and mesne profits.

4. Being aggrieved by the judgment and decree of

the trial court, the present respondents/plaintiffs preferred

an appeal in R.A.No.100/2008. The first appellate court

allowed the appeal and set aside the finding of the trial

court and the matter was remitted back to consider the

objections of the defendants to the Commissioner's report

by affording an opportunity to lead evidence on

Commissioner report.

5. However, after remand, though court issued

notice to both the parties, the appellant submitted that he

does not intend to lead any oral evidence. On re-

appreciation of oral and documentary evidence, the trial

court answered issue Nos.1 and 2 in the affirmative

declaring that respondents/plaintiffs are absolute owners of

Schedule A & B properties and further recorded a finding

that defendant No.1 has encroached 26 cents of land and

defendant No.2 has encroached 17 cents of land. Being

aggrieved by the judgment and decree of the trial court,

the present appellant preferred an appeal before the first

appellate court. The first appellate court on re-appreciation

of oral and documentary evidence has concurred with the

finding recorded by the trial court and has proceeded to

dismiss the appeal. It is against these concurrent findings

of the courts below, defendant No.2 is before this court.

6. I have heard the learned counsel for the

appellant, learned counsel for the respondents and perused

the judgments under challenge.

7. Respondents/plaintiffs claim that they have

absolute owners of the suit schedule property and further

alleged that defendant Nos.1 and 2 have encroached over

respondents/plaintiffs land to an extent of 26 and 17 cents

respectively. To substantiate the same,

respondents/plaintiffs placed reliance on the

Commissioner's report. Though defendants have filed

objections to the Commissioner's report, however, they did

not choose to lead any rebuttal evidence. The first

appellate court remanded the matter to enable the

defendants to lead evidence and substantiate their claim in

regard to the alleged encroachment averred by the

respondents/plaintiffs in the plaint. Even after remand, the

present appellant has not chosen to contest the

proceedings by leading any rebuttal evidence. Both the

courts have concurrently placed reliance on the

Commissioner's report and have recorded a finding that the

present appellant has encroached the suit land to an extent

of 17 cents. It has come during the trial wherein the

Commissioner in his cross-examination has specifically

stated that present appellant/defendant No.2 was present

at the spot when he was measuring the land in question. It

has also come in his evidence that present appellant has

refused to sign the mahazar. The Commissioner's report

clearly indicates that present appellant has encroached 17

cents. Both the courts below have concurrently held that

the present appellant has encroached the suit land to an

extent of 17 cents as per the sketch prepared by the

Commissioner.

8. The appellant had two opportunities to refute

the claim made by the respondents/plaintiffs in regard to

encroachment. In the first round of litigation he did not

choose to lead any rebuttal evidence. The trial court

decreed the suit in part declaring that

respondents/plaintiffs are owners of the suit land, but

however refused to grant consequential relief of

possession. This compelled the respondents/plaintiffs to

prefer an appeal before the first appellate court in

R.A.No.100/2008. The first appellate court on re-

appreciation of oral and documentary evidence remanded

the matter reserving liberty to the present appellant to lead

evidence regarding the allegation of encroachment. Even

after remand, the appellant has not chosen to contest the

proceedings by leading rebuttal evidence. Therefore, this

conduct of the appellant in not choosing to enter into the

witness box and refute the allegations made by the

plaintiffs would go against the present appellant herein. In

the absence of rebuttal evidence, both the courts below

have recorded a concurrently held that appellant has

encroached 17 cents.

9. To corroborate the Commissioner's report, the

Commissioner was also examined who has deposed to the

effect that there is an encroachment to an extent of 17

cents by the present appellant/defendant No.2. Nothing

worth is elicited in the cross-examination of the

Commissioner. In that view of the matter, I do not find any

illegality or infirmity in the judgments under challenge. No

substantial question of law arises for consideration in the

present appeal.

The appeal is devoid of any merits is accordingly,

dismissed.

Sd/-

JUDGE MBS/-