Karnataka High Court
Narayan Devdas Revankar vs Vanamala W/O Jangalisab Galagi on 20 January, 2022
Bench: Sachin Shankar Magadum
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO.5206 OF 2013(POS)
BETWEEN:
1. NARAYAN DEVDAS REVANKAR
AGE: 50 YEARS, OCC: BUSINESS,
RESIDING AT GOUDAR ONI,
GULAGANJIKOPA, DHARWAD-580008.
2. VENKATESH DEVDAS REVANKAR,
AGE: 50 YEARS, OCC: BUSINESS,
RESIDING AT GOUDAR ONI,
GULAGANJIKOPA, DHARWAD-580008.
...APPELLANTS
(BY SMT.PRAFULLA S.NAIK, ADV.)
AND:
SMT. VANAMALA W/O JANGALISAB GALAGI,
AGE: 50 YEARS, OCC:SERVICE,
RESIDING AT GOUDAR ONI,
GULAGANJIKOPA, DHARWAD-580008.
...RESPONDENT
(BY SRI.ARUN A.NEELOPANT & SRI.SHRIHARASH A.NEELOPANT,
ADVS.)
2
THIS RSA IS FILED UNDER SECTION 100 OF THE CIVIL
PROCEDURE COURT IS PLEASED TO ALLOW THE APPEAL AND SET
ASIDE JUDGMENT AND DECREE PASSED BY THE IIIRD ADDITIONAL
CIVIL JUDGE, SENIOR DIVISION, DHARWAD IN R.A.NO.74/2008
DATED 06.11.2012 CONFIRMING THE JUDGMENT AND DECREE
PASSED BY THE IIIRD ADDITIONAL CIVIL JUDGE, JR.DIVISION,
HUBLI IN OS NO.342/2006 DATED 05.04.2008 OF THE PLAINTIFF
IN THE INTEREST OF JUSTICE.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the unsuccessful
plaintiffs questioning the concurrent judgment and decree of
the Courts below wherein the suit filed by the
appellants/plaintiffs seeking relief of possession is dismissed.
2. The facts leading to the case are as under:
The appellants/plaintiffs filed a suit for possession
claiming delivery of possession of suit schedule property
bearing CTS.No.55/B/1 totally measuring 40 ft. East-West and
1 ft. North South. The appellant/plaintiff contended that there
is an encroachment to an extent of 1 ft. by the adjoining
owner i.e., the defendant herein.
3. The appellants/plaintiffs in support of their
contention relied on the survey report dated 18.11.2004 as
per Ex.P-7 and contended that the respondent/defendant has
encroached to an extent of 1 ft. and therefore, sought
possession by alleging that the respondent/defendant has
encroached over the property owned by the appellant/plaintiff.
4. The respondent/defendant, on receipt of summons,
contested the proceedings and stoutly denied the entire
averments made in the plaint. The respondent/defendant by
way of rebuttal evidence also produced the survey report as
per Ex.D-2 and examined the author of Ex.D-2 who is none
other than the City Surveyor.
5. The Trial Court having assessed the oral and
documentary evidence held that the appellants/plaintiffs have
failed to prove the alleged encroachment. The Trial Court was
of the view that since the appellants/plaintiffs have not
examined the author of Ex.P-7, therefore, the alleged
encroachment is not established. On the contrary, the Trial
Court was of the view that the respondent/defendant has
succeeded in establishing that there is no encroachment by
producing a fresh survey report prepared by the City Surveyor
who is examined as DW.2 and who has corroborated to
substantiate the claim of the respondent/defendant in his
ocular evidence. Therefore, the Trial Court placing reliance on
rebuttal documentary evidence, has come to conclusion that
the alleged encroachment is not established by the
appellants/plaintiffs. On these set of reasonings, the Trial
Court proceeded to dismiss the suit and the same is confirmed
by the First Appellate Court.
6. It is against these concurrent findings of the Courts
below, the appellant/plaintiff is before this Court.
7. Learned counsel appearing for the
appellants/plaintiffs strenuously argued and contended that
the appellants/plaintiffs have succeeded in establishing the
alleged encroachment by producing the survey report
prepared by the authority as per Ex.P-7. She would further
submit to this Court that the concurrent findings of the Courts
below suffers from perversity and the reasons assigned are
contrary to the clinching evidence adduced by the
appellants/plaintiffs.
8. Per contra, learned counsel appearing for the
respondent/defendant would submit to this Court that the
allegations made by the appellants/plaintiffs are refuted by the
respondent/defendant by placing on record the clinching
rebuttal evidence and therefore, she would submit to this
Court that the concurrent findings of the Courts below in
dismissing the suit by recording a finding that the alleged
encroachment is not established would not warrant any
interference at the hands of this Court.
9. Heard learned counsel for the appellants and
learned counsel for the respondent. Perused the judgment
under challenge.
10. The appellants/plaintiffs have alleged that the
respondent/defendant has encroached to an extent of 1 ft. and
to substantiate their claim has placed reliance on Ex.P-7.
Though Ex.P-7 indicates that there is an encroachment,
however, to substantiate their claim, the author of Ex.P-7 is
not examined. On the contrary, the respondent/defendant
having produced the survey report as per Ex.D-2 has also
examined the City Surveyor as DW.2 and DW.2 in his ocular
evidence has specifically deposed that he has conducted the
survey on 26.06.2006 and having measured all the properties
has prepared the survey and on local inspection, he found that
there is no encroachment by the respondent/defendant as
alleged by the appellants/plaintiffs. Both the Courts have
examined Ex.P-7 and Ex.D-2 and have come to conclusion
that the survey report as per Ex.D-2 would outweigh the
survey report vide Ex.P-7. Both the Courts were of the view
that the survey report as per Ex.D-2 carries more credence
since the author of Ex.D-2 is examined as DW.2 and he has
narrated the manner in which spot inspection was carried out.
Both the Courts have also taken note of the fact that the
respondent/defendant has constructed building after securing
permission from the competent authority. By way of rebuttal
evidence, the respondent/defendant has also placed on record,
the sanction plan as per Ex.D-15 and completion certificate as
per Ex.D-17.
11. It has also come in evidence that the
respondent/defendant has constructed toilet as well as
bathroom and compound much prior to purchase of suit
schedule property by the appellants/plaintiffs. All these
significant details are taken into consideration by both the
Courts below and having meticulously assessed the evidence
on both sides, both the Courts have come to conclusion that
the alleged encroachment as alleged in the plaint is not
established by the appellants/plaintiffs. The concurrent
findings of facts recorded by the Courts below which are based
on clinching rebuttal documentary evidence cannot be re-
looked into and reassessed under Section 100 of CPC which is
impermissible in law.
12. Therefore, no substantial questions of law would
arise for consideration in the present appeal. Accordingly, the
appeal is dismissed.
Sd/-
JUDGE
CA
