Virupakshappa S/O. Holiyappa ... vs Teerthacharya S/O Fakkirappa ...
2022 Latest Caselaw 8701 Kant

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                                       RSA No. 100531 of 2015




IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

         DATED THIS THE 14th DAY OF JUNE, 2022

                           BEFORE
          THE HON'BLE MR JUSTICE E.S.INDIRESH
       REGULAR SECOND APPEAL NO. 100531 OF 2015
                         (DEC/INJ-)
BETWEEN:

1.     VIRUPAKSHAPPA S/O. HOLIYAPPA PUJAR,
       SINCE DECEASED BY HIS L.RS.

1A.    JAYAMMA KOM BOJARAJ ANGADI,
2B.    VEERESH S/O. VIRUPAKSHAPPA PUJAR,
2C.    SHMBULING S/O. VIRUPAKSHAPPA PUJAR,
2D.    PRABHULING S/O. VIRUPAKSHAPPA PUJAR,
2E.    HOLIYAPPA S/O. VIRUPAKSHAPPA PUJAR,

       ALL RESIDENT OF BILLAHALLI,
       TQ. RANEBENNUR, DIST. HAVERI.
                                                    ...APPELLANTS
(BY SRI. DINESH M. KULKARNI (NOC), ADVOCATE)

AND:


1.    TEERTHACHARYA S/O FAKKIRAPPA KAMAR,
      SINCE DECEASED BY HIS L.RS.

1A.   SMT. SUSHILAMMA W/O. TGEERTACHARI KAMMAR @
      BADIGER, AGE 72 YEARS, OCC: HOUSEHOLD, R/O.
      BILLAHALLI VILLAGE, TQ. RANEBENNUR, DIST. HAVERI.

1B.   JAYAMMA W/O. MOUNESHAPPA BADIGER,
      AGE 54 YEARS, OCC: HOUSEHOLD,
      R/O. TAVERAGI, TQ. HIREKERUR, DIST. HAVERI.

1C.   VASANTKUMAR W/O. MOUNESHAPPA BADIGER, AGE 47
      YEARS, OCC: HOUSEHOLD, R/O. TAVARAGI, TQ.
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                                      RSA No. 100531 of 2015


      HIREKERUR, DIST. HAVERI.

1D. SMT. SAROJAMMA W/O. KRISHNAPPA KAMMAR,AGE 45
    YEARS, OCC: HOUSEHOLD, R/O. HEDIGGONDA, TQ.
    BYADAGI, DIST. HAVERI.

1E.   VEERESH S/O. TEERTHACHARI KAMMAR @ BADIGER, AGE
      72 YEARS, OCC: AGRIL, R/O. BILLAHALLI VILLAGE, TQ.
      RANEBENNUR, DIST. HAVERI.

1F.   PARAMESH S/O. TEERTHACHARI KAMMAR @ BADIGER,
      AGE 41 YEARS, OCC: AGRIL & CARPENTER, R/O.
      BILLAHALLI VILLAGE, TQ. RANEBENNUR, DIST. HAVERI.

1G. SMT. MANJAMMA W/O. SHIVARUDRAPPA BADIGER,
    AGE 39 YEARS, OCC: AGRIL,
    R/O. HANUMANAHALLI, TQ. AND DIST. HAVERI.

1H. KRISHNACHARI S/O. TEERCHARI KAMMAR @ BADIGER,
    AGE 32 YEARS, OCC: AGRIL & CARPENTER,
    R/O. BILLAHALLI VILLAGE, TQ. RANEBENNUR,
    DIST. HAVERI.

1I.   SHAMBULINGACHARI S/O. TEERCHARI KAMMAR @
      BADIGER, AGE 32 YEARS, OCC: AGRIL AND CARPENTER,
      R/O. BILLAHALLI VILLAGE, TQ. RANEBENNUR,
      DIST. HAVERI.

2.    KALLESHCHARI S/O. FAKKIRAPPA BADIGER
      AGE: 87 YEARS,
      OCC: AGRICULTURE AND CARPENTER WORK
      R/O. BILLAHALLI VILLAGE TQ: RANEBENNUR,
      DIST: HAVERI

3.    SURESHCHARI S/O. FAKKIRAPPA BADIGER
      AGE: 49 YEARS, OCC: AGRICULTURE AND CARPENTER,
      R/O. BILLAHALLI VILLAGE, TQ: RANEBENNUR DIST:
      HAVERI

4.    RAYANAGOUDA S/O. MOUONACHARI BADIGER,
      AGE: 32 YEARS,
      R/O. BILLAHALLI VILLAGE TQ: RANEBENNUR,
      DIST: HAVERI

5.    ERNAGOUDA S/O. BHARAMAGOUDA SORATUR
      AGE: 32 YEARS, OCC: BILLAHALLI VILLAGE,
      TQ: RANEBENNUR, DIST: HAVERI
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                                        RSA No. 100531 of 2015


6.   SHASHIGOUDA S/O. BHARAMAGOUDA SORATUR
     AGE: 24 YEARS, OCC: AGRICULTURE
     R/O. BILLAHALLI VILLAGE
     TQ: RANEBENNUR, DIST: HAVERI


                                                   ...RESPONDENTS

(SRI. PRUTHVIRAJ P. HITTALAMANI, ADVOCATE FOR R2 & R3;
R1 (A, B AND D TO I) ARE SERVED;
NOTICIE TO R1(C), 5 AND 6 IS HELD SUFFICIENT)

     THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 02.05.2015 PASSED IN
R.A.NO.101/2013 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE,
RANEBENNUR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 02.08.2013 AND THE DECREE
PASSED IN O.S.NO.382/2008 ON THE FILE OF THE PRINCIPAL CIVIL
JUDGE AND I ADDL. JUDICIAL MAGISTRATE FIRST CLASS COURT,
RANEBENNUR, DECREEING THE SUIT FILED FOR DECLARATION,
POSSESSION AND PERMANENT INJUNCTION.
     THIS RSA COMING ON FOR ORDERS THIS DAY, THE COURT
MADE THE FOLLOWING:



                              ORDER

This Regular Second Appeal is filed by the defendant

No.1, challenging the Judgment and Decree dated

02.05.2015 in R.A.No.101/2013 on the file of the Addl.

Senior Civil Judge Court, Ranebennur, confirming the

Judgment and Decree dated 02.08.2013 in

O.S.No.382/2008 on the file of the Principal Civil Judge

RSA No. 100531 of 2015

and Addl. JMFC Court, Ranebennur, decreeing the suit of

the plaintiff.

2. For the sake of convenience the parties to this

Regular Second Appeal are referred to as per their ranking

before the trial Court.

3. The relevant facts for adjudication of this appeal

are that, the subject land belonging to the plaintiffs and

the defendant Nos.1 to 4 are situated adjacent to each

other and the plaintiffs are the joint owners of the land

bearing Survey No.14/1 to an extent of 2 acres 22 guntas

of Billahalli village and it is the case of the plaintiffs that,

the defendants have encroached the land to an extent of 4

guntas towards eastern side and 01 gunta towards

western side and it is further stated in the plaint that, the

plaintiffs are in actual possession of remaining land of

Survey No.14/1. It is also averred in the plaint that, the

plaintiffs have made an application to the Taluka Surveyor

to measure the properties and thereafter, they came to

know that the defendant No.1 has encroached 01 gunta of

RSA No. 100531 of 2015

land on western side of the property of the plaintiffs' and

defendant Nos.2 to 4 have encroached upon 04 guntas of

land of the plaintiffs' towards western side and as such,

the plaintiffs have filed O.S.No.382/2008 on the file of the

trial Court, seeking relief of declaration with consequential

relief.

4. On service of summons, the defendants have

entered appearance and filed written statement denying

the averments made in the plaint.

5. The defendant No.1 contended that, the sketch

annexed to the plaint is incorrect and same is made to get

unjust gain from the defendants. It is further stated that,

the plaintiffs have encroached the land belonging to the

defendant No.1 and in this regard, the defendant No.1 has

filed suit in O.S.No.178/2007 before the Civil Court and

thereafter, the plaintiff has presented O.S.No.382/2008

and as such, the suit filed by the plaintiffs suffers from

infirmity on the ground of res judicata and accordingly,

RSA No. 100531 of 2015

sought for dismissal of the suit. The defendant Nos.2 to 4

have also urged for dismissal of the suit.

6. Based on the pleadings on record, the trial

Court has formulated the issues for its consideration.

7. In order to establish their case, the plaintiff

No.1 has examined himself as P.W.1 and got marked 11

documents as Ex.P.1 to P.11. On the other hand, the

defendants have examined 02 witnesses as D.W.1 and

D.W.2 and got marked 02 documents as Ex.D.1 and

Ex.D.2. The Court Commissioner was examined as C.W.1

and a copy of the document filed by the Commissioner

was marked as Ex.C.1. The trial Court after considering

the material on record, by its Judgment and Decree dated

02.08.2013, decreed the suit and as such, directed the

defendants to handover the vacant possession of Item

Nos.1 and 2 of the plaint. Feeling aggrieved by the same,

the defendant No.1 filed R.A.No.101/2013 on the file of

the First Appellate Court and the same was resisted by the

plaintiffs.

RSA No. 100531 of 2015

8. The First Appellate Court after respondent-

appreciating the material on record, by its Judgment and

Decree dated 02.05.2015, dismissed the appeal,

consequently the Judgment and Decree in

O.S.No.382/2008 came to be confirmed. Being aggrieved

by the impugned Judgments and Decree passed by the

Courts below, defendant No.1 has preferred this second

appeal. During pendency of the appeal, the defendant

No.1/appellant herein died and as such, the legal

representatives of the defendant No.1 were brought on

record. It is also submitted that the respondent No.1 died

during the pendency of the appeal and the legal

representatives of the respondent Nos.2/plaintiff No.1

were brought on record.

9. Heard Sri. Dinesh M. Kulkarni, learned counsel

appearing for the appellant and Sri. Pruthviraj P.

Hittalamani, learned counsel appearing for the respondent

Nos.2 and 3.

RSA No. 100531 of 2015

10. Sri. Dinesh M. Kulkarni, learned counsel

appearing for the appellant contended that, both the

Courts below have not properly appreciated the material

on record and solely based on the Ex.P.7, decreed the suit

of the plaintiffs. He also contended that, the defendant

No.1/appellant herein has filed application in

I.A.No.1/2021 and under Order 41 Rule 27 of Code of Civil

Procedure and sought to produce certain documents to

lead additional evidence and therefore, he contended that,

in view of the documents annexed in I.A.No.1/2021, the

matter requires remand and accordingly, he sought for

interference of this Court in view of the subsequent events

with regard to the development of the schedule properties.

11. Per contra, learned counsel appearing for the

respondent Nos.2 and 3 argued that both the Courts

below, taking into account the oral and documentary

evidence of the parties, has rightly decreed the suit in

favour of the plaintiffs and therefore, in view of the

concurrent facts on record, no interference be called for

RSA No. 100531 of 2015

under Section 100 of CPC and accordingly, he sought for

dismissal of the appeal.

12. In the light of the submissions made by the

learned counsel appearing for the parties and taking into

consideration the finding recorded by the Courts below, it

is not in dispute that the plaintiffs and the defendants are

the owners of the neighboring land and the plaintiffs have

filed suit seeking relief against the defendants with regard

to the encroachments made by them with regard to 01

gunta and 04 gunta on the either side of the land. On

perusal of the finding recorded by the trial Court, wherein

the Commissioner was appointed by the Court with regard

to conducting the survey in respect of schedule land and in

this regard on perusal of Ex.P.7 filed before the trial Court

would indicate about the encroachment made by the

defendants. That apart, I have carefully examined the

evidence of D.W.1, wherein the deposition rendered

therein is not supported by cogent material on record and

taking into consideration of the evidence of C.W.1, Ex.P.7

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RSA No. 100531 of 2015

and Ex.C.1-extract, I am of the view that, the trial Court

has rightly decreed the suit in favour of the plaintiffs. It is

also forthcoming from the finding recorded by the trial

Court that the defendant No.1 has filed O.S.No.178/2007

against the plaintiff herein and same is with regard to the

subject matter of this suit and it was argued by the

learned counsel appearing for the respondent that the said

suit came to be dismissed against which, the appeal was

preferred, which also came to be dismissed and in that

view of the matter, I find force in the submission made by

the learned counsel appearing for the respondent that the

plaintiff has proved that, the defendants have encroached

the property belonging to the plaintiffs. However, Sri.

Dinesh M. Kulkarni, learned counsel appearing for the

appellant/legal representatives of the defendant No.1

made available recent revenue documents along with the

sketch and a carbon copy and also a letter addressed by

the Office of the Deputy Commissioner, Haveri, Deputy

Director of Land Records dated 24.07.2021 and the

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RSA No. 100531 of 2015

perusal of those documents annexed with the application

are subsequent events and cannot be accepted as an

additional evidence in the present proceedings. The First

Appellate Court after re-appreciating the entire material on

record, particularly with regard to the evidence of C.W.1

has rightly confirmed the Judgment and Decree passed by

the trial Court.

13. Having taken note of the arguments advanced

by the parties, though I have not satisfied with the

arguments of Sri. Dinesh M. Kulkarni, with regard to

I.A.No.1/2021 and the same are the subsequent events

that the survey has been conducted by the revenue

authorities, I am of the view that, it is open for the legal

representatives of the defendant No.1 to raise their

contentions in appropriate proceedings, if so advised by

proving their title in respect of title and boundary in

respect of the land bearing Survey No.15.

14. In the result, as both the Courts below have

rightly decreed the suit in favour of the plaintiffs and the

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RSA No. 100531 of 2015

appellants/defendant No.1 has not made out a case for

interference under Section 100 of Code of Civil Procedure

and no substantial question of law has been urged in this

appeal, I do not find any acceptable ground to disturb the

well reasoned Judgments and Decrees passed by the

Courts below and accordingly, the appeal is dismissed at

the stage of admission.

15. In view of the dismissal of the appeal, pending

I.As. if any, does not survive for consideration and

accordingly, the same are disposed of.

Sd/-

JUDGE

SVH