Somashekrappa S/O. Shankarappa ... vs Raju Uliyappa Harlapur
2022 Latest Caselaw 568 Kant

                             1


             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

         DATED THIS THE 13TH DAY OF JANUARY, 2022

                           BEFORE

   THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

                 R.S.A.NO.100533 OF 2014

BETWEEN:

SOMASHEKRAPPA S/O SHANKARAPPA
HURAKADLI, AGE: 49 YEARS,
OCC: BUSINESS,
R/O: NEAR MALATESH THEATER, RATTIHALLI,
TQ: HIREKERUR, DIST: HAVERI-58411

                                              ...APPELLANT

(BY SRI.S.L.MATTI, ADV.)

AND:

1. RAJU S/O ULIYAPPA HARLAPUR,
AGE: 42 YEARS,
OCC: CONTRACTOR
R/O RATTIHALLI, TQ: HIREKERUR-581111

2. THE CHIEF EXECUTIVE OFFICER,
ZILLA PANCHAYAT, HAVERI-581111

3. THE EXECUTIVE OFFICER,
TALUKA PANCHAYAT, HIREKERUR-581111

4. THE SECRETARY
VILLAGE PANCHAYAT, RATTIHALLI,
TQ: HIREKERUR-581111

5. THE DEPUTY DIRECTOR OF PUBLIC
INSTRUCTION, HEAVERI-581111
                               2


6. THE EDUCATION OFFICER,
HIREKERUR-581111

7. THE CHIEF SECRETARY
GOVERNMENT OF KARNATAKA
BANGALORE-01

                                                     ...RESPONDENTS

(R1 TO R7 SERVED AND UNREPRESENTED.)

      THIS APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY ON
30.06.2014 BY SENIOR CIVIL JUDGE AND JMFC, HIREKERUR IN
R.A.NO.29/2012 DISMISSING THE APPEAL BY CONFIRMING THE
JUDGMENT AND DECREE IN O.S.NO.188/2000 DATED 15.09.2012
PASSED BY CIVIL JUDGE AND JMFC, HIREKERUR AND ALLOW THIS
APPEAL BY DECREEING THE SUIT OF PLAINTIFF AS PRAYED IN THE
SUIT.

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

                         JUDGMENT

The captioned second appeal is filed by the

unsuccessful plaintiff who has questioned the concurrent

judgment and decree of the Courts below wherein both the

Courts have dismissed the suit filed by the

appellant/plaintiff herein.

2. The facts leading to the case are as under:

The present appellant claims that he is the owner of

old residential building and contends that he has purchased

suit schedule property on 01.07.1969. The

appellant/plaintiff claims that he is in exclusive possession

and enjoyment over the suit schedule property which is

shown as 'ABCDEJ' in the hand sketch annexed to the

plaint. The grievance of the appellant is that though the

respondents/defendants have no semblance of right and

interest over the suit schedule property, the defendant

No.1 has started construction of class rooms by

encroaching over the appellant/plaintiff suit schedule

property. The appellant/plaintiff has also specifically

averred in the plaint that earlier he had filed

O.S.No.339/1996 seeking removal of class room and

compound wall and that he had issued a legal notice

against defendant Nos.2 to 6 on 26.02.1996 and a notice

was issued against defendant No.7 on 15.04.1996 seeking

removal of class room and compound which has been

constructed illegally. The appellant/plaintiff has further

contended that he withdrew the earlier suit and has filed

the present suit.

3. The respondents/defendant Nos.2, 3, 5 to 7 filed

written statement and stoutly denied the entire averments

made in the plaint. The respondents/defendants

specifically contended that there is absolutely no iota of

records in Grama Panchayat of Rettihalli Village which

would indicate the exact measurement of the suit property

bearing Nos.9 and 10. The respondents/defendants further

contended that the measurement shown by the plaintiff in

regard to suit property is without any basis. The

defendants contended that the property bearing VPC No.30

originally belonged to Gauthana and the same was granted

for the purpose of construction of a school and accordingly,

defendant No.1 who is the contractor has constructed

rooms and compound as per the directions of the

authorities and hence, prayed for dismissal of the suit.

4. The appellant/plaintiff in support of his

contention examined himself as PW.1 and examined an

independent witness as PW.2 and produced documentary

evidence vide Exs.P-1 to P-11. The

respondents/defendants have not chosen to either lead any

ocular evidence or documentary evidence.

5. The Trial Court having assessed the oral and

documentary evidence has answered issue Nos.1 to 3 in

the negative. The Trial Court having assessed the oral and

documentary evidence has taken note of the cross-

examination of the plaintiff who is examined as PW.1 and

after examining the cross-examination has found that the

plaintiff has admitted in unequivocal terms to the effect

that he does not know the exact measurement of the suit

property which was purchased by him from the erstwhile

vendor. He has also admitted that he is not aware of the

source of acquisition of the suit schedule property by his

erstwhile vendor. Therefore, the Trial Court was of the

view that the plaintiff himself is not aware as to what is the

actual extent of the suit property which was purchased by

him. It is also elicited in cross-examination wherein the

plaintiff has admitted that he is not aware that he is not

aware as to when the respondents/defendants encroached

upon his property. He has further admitted as to who has

encroached upon his property. The Trial Court has also

gone through the evidence of PW.2 and on examination of

ocular evidence of PW.2, the Trial Court was of the view

that the evidence of PW.2 does not come to the aid of the

appellant/plaintiff. While dealing with issue No.3, the Trial

Court was of the view that the present suit is filed without

issuing any notice to defendant Nos.2 to 7 and therefore,

there is non-compliance of Section 80 of CPC. On these

set of reasonings, the Trial Court both on merits and on the

ground that no notice was issued to defendant Nos.2 to 7

has proceeded to dismiss the suit.

6. Being aggrieved by the judgment and decree of

the Trial Court, the appellant/plaintiff preferred an appeal

before the First Appellate Court. The Appellate Court on

re-appreciation of oral and documentary evidence has

meticulously examined the ocular evidence on record. The

Appellate Court while affirming the reasons assigned by the

Trial Court has also concurred with the findings of the Trial

Court. The Appellate Court was also of the view that no

credence can be attached to Ex.P-8. Having independently

assessed Ex.P-8, the Appellate Court was of the view that

it does not tally with the suit property and therefore, Ex.P-

8 would not come to the aid of the appellant/plaintiff. The

Appellate Court has also held that there is absolutely no

material on record indicating vendors' source of title over

the suit schedule property. Having examined Exs.P-1 to P-

6, the Appellate Court was also of the view that the said

documents do not disclose the actual measurement of the

suit property. Therefore, the Appellate Court by concurring

with the findings and reasons assigned by the Trial Court

has proceeded to dismiss the appeal.

7. Heard learned counsel appearing for the

appellant. The respondents are served and are

unrepresented.

8. I have meticulously examined the judgment and

decree of the Courts below. I am of the view that the

appellant/plaintiff has failed to establish that

respondents/defendants are attempting to encroach over

his property. The question of encroachment can be looked

into only if appellant/plaintiff is able to establish his title

over the suit schedule property and also its exact

measurement. Unless the appellant/plaintiff establishes

the actual measurement of the suit schedule property, the

question of encroachment cannot be ascertained.

Therefore, both the Courts have rightly disbelieved the

case set up by the plaintiff in the plaint. Both the Courts

have concurrently held that the appellant/plaintiff has not

produced any documents to establish his vendors' title and

its measurement.

9. What further emerges from the records is that

the respondents/defendants have already constructed class

rooms and the same is surrounded by a compound. This

aspect is also fatal to the case of the appellant/plaintiff.

The appellant/plaintiff has filed a suit for declaration and

has sought consequential relief of injunction. If class

rooms are already constructed and the same is fenced by a

compound, I am of the view that even otherwise the suit in

the present form is not at all maintainable and the same is

hit by Section 34 of the Specific Relief Act. In that view of

the matter, I am of the view that the judgment of the

Courts below does not suffer from any infirmity or illegality

and does not give rise to any substantial questions of law.

10. The appeal is devoid of merits and the same is

accordingly dismissed.

Sd/-

JUDGE CA