Andappa S/O. Hanamappa Golabhavi vs Ravi S/O. Hanamant Kurabet
2022 Latest Caselaw 9323 Kant

                            -1-




                                     RSA No. 100826 of 2018


     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

          DATED THIS THE 22ND DAY OF JUNE, 2022

                          BEFORE
            THE HON'BLE MR JUSTICE E.S.INDIRESH
     REGULAR SECOND APPEAL NO. 100826 OF 2018 (POS-)
BETWEEN:

1.   PANDAPPA S/O. HANAMAPPA GOLABHAVI
     AGE:61 YEARS,OCC:AGRICULTURE,
     R/O. RANJANAGI-587313,
     TAL:MUDHOL,DIST:BAGALKOT.

2.   YALLAPPA S/O. BHIMAPPA CHOURADDI
     AGE:77 YEARS,OCC:AGRICULTURE,
     R/O. RANJANAGI-587313,
     TAL:MUDHOL,DIST:BAGALKOT.

3.   PRAKASH S/O. SHANKREPPA CHOURADDI
     AGE:53 YEARS,OCC:ADV and AGRICULTURE,
     R/O. RANJANAGI-587313,TAL:MUDHOL,
     DIST:BAGALKOT.



                                               ...APPELLANT'S

(BY SMT. DEEPA.J, ADVOCATE FOR SRI.MRUTYUNJAY TATA BANGI,
ADVOCATE)

AND:

1.   RAVI S/O. HANAMANT KURABET
     AGE:28 YEARS,OCC:AGRICULTURE,
     R/O. CHANNAL-587313,
     TALMUDHOL,DIST:BAGALKOT.

2.   PRAKASH S/O. HANAMANT KURBET
     AGE:17 YEARS,OCC:STUDENT,
     BEING MINOR RPERESENTED BY HIS GUARDIAN NATURAL
     MOTHER SMT MAHJADEVI W/O. HANAMANT KURABET-
                               -2-




                                      RSA No. 100826 of 2018


     RESPONDENT NO.3
     R/O. CHANNAL-587313,TAL:MUDHOL,
     DIST:BAGALKOT.

3.   SMT MAHADEVI W/O. HANAMANT KURABET
     AGE:51 YEARS,OCC:HOUSEHOLD WORK,
     R/O. CHANNAL-587313,
     TAL:MUDHOL,DIST:BAGALKOT.

4.   HANAMANT S/O. BASALINGAPPA KURABET
     AGE:59 YEARS,OCC:AGRICULTURE,
     R/O. CHANNAL-587313,
     TAL:MUDHOL,DIST:BAGALKOT.



                                               ...RESPONDENT'S

      THIS RSA FILED     U/O 41 RULE 1 SEC.100 OF CPC, 1908,
AGAINST THE JUDGEMENT & DECREE DTD:19.9.2018 PASSED IN
R.A.NO.31/2017 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE   AND   JUDICIAL   MAGISTRATE   FIRST   CLASS,   MUDHOL,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DTD:23.9.2017, PASSED IN O.S. NO.236/2011 ON THE FILE
OF THE ADDITIONAL CIVIL JUDGE, MUDHOL, DISMISSING THE SUIT
FILED FOR POSSESSION.

      THIS APPEAL IS COMING ON FOR ADMISSION THIS DAY. THE
COURT DELIVERED THE FOLLOWING.

                          JUDGMENT

This Appeal is filed by the plaintiffs, challenging the

judgment and decree dated 19/9/2018 in R.A.No.31/2017

on the file of the Prl. Senior Civil Judge and JMFC, Mudhol,

RSA No. 100826 of 2018

confirming the judgment and decree dated 23/09/2017 in

O.S.No.236/2011 on the file of the Addl. Civil Judge &

JMFC, Mudhol, dismissing the suit of the plaintiffs.

2. For the sake of convenience, the parties to this

appeal are referred to with their rank before the trial Court.

3. It is the case of the plaintiffs that, the plaintiffs are

the owners of land bearing Sy.No.105/4 measuring 4 acres

35 guntas, Sy.No.105/5A measuring 4 acres 38 guntas and

Sy.No.105/5B measuring 4 acres 39 guntas of land

situated at Ranjanagi village of Mudhol taluk. It is the case

of the plaintiffs that the defendant No.1 is the owner of the

land bearing Sy.No.87/1A/1 measuring 2 acres, defendant

No.2 is the owner of the land bearing Sy.No.87/1A/2

measuring 2 acres. It is further stated in the plaint that the

land of the defendants are situated on the eastern side of

the land of the plaintiffs and in between the lands of the

plaintiffs and the defendants, there exists public road i.e.

pathway and therefore, the plaintiffs have filed application

before the revenue authorities for joint measurement and

RSA No. 100826 of 2018

accordingly, survey was conducted on 13/12/2008 and in

this regard, the defendant Nos.3, 4 and two other persons

preferred appeal before the Technical Assistant to the

Deputy Commissioner, Bagalkot and thereafter, survey was

conducted on 20/5/2011 as per the order of the Technical

Assistant to the Deputy Commissioner, Bijapur, boundaries

were fixed on 31/05/2011. It is further stated in the plaint

that, in view of the said survey conducted by the revenue

authorities, the defendants have encroached 3 guntas and

9 guntas respectively of the land in question and

accordingly, the plaintiffs have filed O.S.No.236/2011 on

the file of the trial Court seeking relief of the possession of

the encroached land of 3 guntas.

4. After service of summons, defendants entered

appearance and filed detailed written statement, denying

the averments made in the plaint with regard to

encroachment of the suit schedule property. It is the

specific defence of the defendants that, there is no road

towards western side of the land belonging to the

RSA No. 100826 of 2018

defendant Nos. 1 and 2, which is situated in the south and

north boundaries and the said road has been identified as

Yadwad-Ranjanagi Public road and towards western side of

the said public road, the land belonging to the plaintiffs is

situated and accordingly, the defendants pleaded that as

the Yadwad-Ranjanagi road is a public road, which

belonged to the State Government and as such the

plaintiffs cannot seek ownership or possession in respect of

the public road and accordingly, sought for dismissal of the

suit.

5. The trial Court, based on the pleadings on record,

formulated issues for its consideration. To establish their

case, the plaintiffs got examined six witnesses as PW.1 to

PW.6 and produced twelve documents and the same were

marked as Exs.P.1 to 12. Defendants have examined one

witness as DW.1 and produced three documents and the

same were marked as Exs.D.1 to 3. The trial Court, after

considering the material on record, by its judgment and

decree dated 23/09/2017, dismissed the suit. Feeling

RSA No. 100826 of 2018

aggrieved by the same, the plaintiffs have filed

R.A.No.31/2017 before the First Appellate Court and the

said appeal was resisted by the defendants. The First

Appellate Court, after considering the material on record,

by its judgment and decree dated 19/09/2018, dismissed

the appeal, consequently, confirmed the judgment and

decree in O.S.No.236/2011 on the file of the trial Court.

Feeling aggrieved by the same, the plaintiffs have

preferred this appeal.

6. Heard Smt. Deepa J, learned counsel representing

on behalf of Sri. Mrutyunjay Tata Bangi, learned counsel

appearing for the appellants.

7. Smt. Deepa J, learned counsel appearing for the

appellants vehemently contended that both the courts

below have not properly appreciated the revenue

documents produced by the plaintiffs with regard to

encroachment made by the defendants. She further

contended that, both the Courts below have not properly

appreciated the description of the suit schedule property

RSA No. 100826 of 2018

with regard to the contention raised by the defendants in

the pleadings as well as the evidence. She also pleaded

that, fixation of the boundaries and maintenance of the

boundaries are the exclusive jurisdiction of the revenue

authorities and therefore, she submits that the trial Court

has not properly appreciated the evidence of PW.6 and

therefore, she contended that the finding recorded by both

the courts below requires interference in this appeal.

8. Having heard the learned counsel appearing for the

appellants, I have carefully considered the finding recorded

by both the Courts below.

9. Core question to be answered in this appeal is with

regard to encroachment of 3 and 9 guntas of land by the

defendants belonging to the plaintiffs as per P.T. sheet

produced at Ex.P.12. In this regard, it is a specific case of

the plaintiffs that, the plaintiffs came to know about the

encroachment by the defendants only after the survey was

conducted on 13/12/2008, 20/5/2011 and boundaries were

fixed on 31/05/2011. Though the learned counsel

RSA No. 100826 of 2018

appearing for the appellants is justified in arguing that it is

the duty of the revenue authorities to maintain the

boundaries, however, perusal of the documents produced

by the plaintiffs would indicate about their ownership

insofar as properties in Survey Nos.105/4, 105/5A, 105/5B

and their extent as per parent document not produced

before that Court. Nothing is stated in the plaint with

regard to how the plaintiffs got these properties, nature of

the properties as well as boundaries shown with regard to

each items of the land bearing Sy.Nos.105/4, 105/5A,

105/5B. In this regard, I have carefully considered the

evidence of both PW.1 and PW.6, which indicate that there

is a public road exists in between the plaintiffs' and the

defendants' properties and in that view of the matter, as

boundaries have been fixed by the revenue authorities as

per the village map, I am of the view that, the trial Court is

justified in declining to accept the suit filed by the plaintiff.

The First Appellate Court after re-appreciating the entire

material on record and taking into account EX.D.1-village

RSA No. 100826 of 2018

map has come to the conclusion that road exists between

the plaintiffs' and the defendants' properties, which

belongs to the Government and further taking into

consideration of the evidence of PW.6, who has not

specifically deposed about the encroachment as made by

the defendants as per PT Sheet-Ex.P.12. I am of the view

that, both the Courts below have rightly arrived at

conclusion to reject the plaint filed by the plaintiffs. Since,

the appellants have not made out the case for interference

with the concurrent finding of the facts made by the Courts

below and also not made out the case for framing of

substantial question of law as required under Section 100

of Cr.P.C., accordingly, the appeal fails.

Sd/-

JUDGE

VB