Karnataka High Court
The President vs Krishnamurthi S/O Ramannanayak ... on 30 September, 2022
Bench: Ravi V.Hosmani
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RSA No. 100074 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
REGULAR SECOND APPEAL NO. 100074 OF 2022 (DEC/POS-)
BETWEEN:
THE PRESIDENT,
BHUVANESHWARI VIDYA VARDHAKA SAMITI (REG),
J.T. HIGH SCHOOL, GATTIRADDIHAL ROAD,
MUNDARGI - 582 118,
DISTRICT GADAG.
...APPELLANT
(BY SRI. C.S. SHETTAR, ADVOCATE)
AND:
1. KRISHNAMURTHI S/O RAMANNANAYAK SAVAKAR
AGE. 47 YEARS,
OCC. AGRICULTURE,
R/O. KOTE BHAG, MUNDARGI- 592 118,
TQ. MUNDARGI,
DIST. GADAG.
...RESPONDENT
(BY SRI. ARVIND D.KULKARNI, ADVOCATE)
RSA FILED UNDER SECTION 100 READ WITH ORDER
XLII RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 24.09.2021 PASSED IN R.A.NO.160/2019 ON THE FILE
OF THE SENIOR CIVIL JUDGE MUNDARAGI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
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RSA No. 100074 of 2022
DATED 29.08.2019 PASSED IN O.S. NO.75/2016 ON THE FILE
OF THE CIVIL JUDGE MUNDARAGI, PARTLY DECREEING THE
SUIT FILED FOR DECLARATION AND RECOVERY OF
POSSESSION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Challenging judgment and decree dated
24.09.2021 passed by Senior Civil Judge, Mudargi
in R.A.no.160/2019 and judgment and decree
dated 29.08.2019 passed by Civil Judge and
Judicial Magistrate First Class, Mundargi in
O.S.no.75/2016, this appeal is filed.
2. Appellant herein was defendant, while
respondent herein was plaintiff. For sake of
convenience, they shall hereinafter be referred to
by their rank in suit.
3. O.S.no.75/20156 was filed seeking for
declaration that land measuring 12 guntas marked
with letters 'ABCD' in plaint sketch in RS.no.115/2
RSA No. 100074 of 2022
of Mundargi village, (hereinafter referred to as
'suit property') and for mesne profits etc.
4. In plaint, it was stated that land bearing
RS.no.115/2 totally measuring 21 acres 17 guntas
belonged to plaintiff. Out of same, an extent of 1
acre 07 guntas was converted for non-agricultural
purposes. Suit property measuring 12 guntas was
apart from this NA land. It was stated that said
extent 12 guntas was encroached by defendant
who was owner of a portion of RS.no.115/2 to
extent of 2 acres 20 guntas marked with letters
'CDGH' in plaint hand sketch map. It was stated
that during May, 1996, plaintiff had sold an extent
of 2 acres 20 guntas out of RS.no.115/2 to
defendant and plaintiff was in possession of
remaining extent except 2 acres 20 guntas sold to
defendant. However about three months prior to
suit, plaintiff noticed that defendant had
encroached upon plaintiff's property. Immediately,
RSA No. 100074 of 2022
he got his land measured through an engineer and
found extent of encroachment was 12 guntas.
Thereafter, though defendant was asked to remove
encroachment, it refused giving rise to cause of
action for filing suit.
5. On service of suit summons, defendant
entered appearance and filed written statement
denying encroachment and plaint sketch. It was
contended that after sale of 2 acres 20 guntas in
favour of defendant, plaintiff had put them in
possession by fixing boundary and thus defendant
was in possession and enjoyment of property
within said boundaries. It was further contended
that in year 2011, defendant had constructed
compound wall without any objection by plaintiff
and therefore denied encroachment. It was further
contend that suit was barred by limitation.
6. Based on pleadings, trial Court framed
following issues:
RSA No. 100074 of 2022
«ªÁzÁA±ÀUÀ¼ÀÄ
1. ªÁ¢AiÀÄÄ vÁ£ÀÄ zÁªÁ D¹Û U É ªÀiÁ°ÃPÀgÀÄ JA§ÄzÀ£ÀÄß
¥ÀÄgÁªÉUÉƽ¹gÀÄvÁÛ g ÉAiÉÄÃ?
2. ªÁ¢AiÀÄÄ ¥Àæ w ªÁ¢AiÀÄÄ zÁªÁ D¹Û A iÀÄ°è 12 UÀÄAmÉ
D¹Û A iÀÄ£ÀÄß ªÁzÀ¥ÀvÀæ z À°è ºÉýzÀAvÉ CwÃPÀæ ª ÀÄt
ªÀiÁrzÁÝgÉ JA§ÄzÀ£ÀÄß ¥ÀÄgÁªÉUÉƽ¹gÀÄvÁÛ g ÉAiÉÄÃ?
3. ªÁ¢AiÀÄÄ zÁªÉAiÀÄ°è PÉýzÀAvÀºÀ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä
CºÀðgÉÃ?
4. AiÀiÁªÀ DzÉñÀ CxÀªÁ rQæ ?
7. Thereafter, plaintiff examined one
witness as PW.1 and got marked Exs.P1 to P30.
While defendant examined two witnesses as DWs.1
and 2 and got marked Exs.D1 and D8. Taluka
surveyor was also appointed as Court
Commissioner. He submitted his report along with
P.T. Sheet marked as Exs.C1 and C1(a).
8. On consideration, trial Court answered
issues no.1 and 2 in affirmative, issue no.3 partly
in affirmative and issue no.4 by decreeing suit
declaring plaintiff as owner of suit property and
RSA No. 100074 of 2022
directing defendant to handover encroached
portion of 12 guntas of land marked with letters
'ABCD' in Court Commissioner report, within two
months from date of decree.
9. Challenging same, defendant filed
R.A.no.160/2019 of several grounds. It was
contended that judgment and decree passed by
trial Court was opposed to law, facts of case and
weight of evidence. It was contended that trial
Court did not appreciate oral and documentary
evidence and proper issues were not framed. It
was submitted that though plaintiff led oral and
documentary evidence there were not pleadings
about many sub-divisions in main survey numbers
and without pleading which claim of encroachment
of property by defendant could not be established.
It was further contended that plaintiff pleaded that
he had given application to revenue authorities for
conversion of 1 acre 17 guntas and obtained order
RSA No. 100074 of 2022
of conversion, no separate number was assigned to
this extent. Even 12 guntas of land left for his
personal use towards eastern side of NA land was
not established.
10. In Ex.P4, measurement of Sy.no.115/A
was shown as 18 acres 20 guntas of which 16
acres of land stood in name of plaintiff and 2 acres
20 guntas stood in name of defendant. Therefore,
it would indicate that said land was in joint
ownership of plaintiff and defendant. It was
contended that when plaintiff's land was situated
towards eastern side of road, claim of plaintiff to
have left 12 guntas of land towards western side of
road would be highly improbable. It was also
contended that Court Commissioner's report did
not mention about existence of RS.nos.115/1,
115/2, 115/3 and 115/4. Court Commissioner
merely stated that he measured entire extent of 21
acres and 17 guntas and found defendant had
RSA No. 100074 of 2022
encroached suit property which was unsustainable.
It was further submitted that defendant is an
educational institution which had constructed
building after obtaining permission from
appropriate authorities. It was lastly contended
that property was purchased by defendant in year
1998 and suit filed in year 2016 was barred by
limitation under Article 65. It was further
submitted that defendant had made improvements
by putting up construction and pleaded equity.
11. Based on contentions urged, first
appellate Court framed following points for its
consideration:-
(1) Whether the judgment and
decree passed by the learned
trial Court in O.S.no.75/2016
needs to be interfered? If so, to
what extent?
(2) What order?
RSA No. 100074 of 2022
12. On appreciation of contentions urged, it
answered point no.1 in negative and point no.2 by
dismissing appeal.
13. Against concurrent findings, defendant is
in appeal.
14. Sri. C.S. Shettar, advocate for defendant
submitted that both Courts failed to appreciate
peculiar facts of case in proper perspective. He
submitted that defendant did not dispute that
plaintiff was owner of land bearing Sy.no115/2
measuring 21 acres 17 guntas in total. There was
also no dispute about plaintiff's sale of extent 2
acres 20 guntas to defendant under registered sale
deed of year 1996. It was submitted that when
there was no dispute about land sold by plaintiff,
defendant cannot be prevented from enjoying any
extent of land, less than 2 acres 20 guntas. It was
submitted that though defendant had purchased
land in year 1996 and had constructed building and
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RSA No. 100074 of 2022
compound wall by obtaining permission in year
2011, suit filed in year 2016 would be barred by
limitation prescribed under Article 65 of Limitation
Act. It was lastly submitted that Court
Commissioner committed an error in not fixing
boundaries of defendant's land by first
demarcating boundaries of road from its
centerline.
15. In light of above facts, learned counsel
submitted that following substantial question of
law would arise for consideration:
"i) When admittedly defendant had
purchased extent of 2 acres and 20
guntas of land from plaintiff,
whether plaintiff can allege
encroachment and seek for
possession which would result in
reduction of defendants holding to
less than that purchased by it?
ii) whether rejection of IA no.5 for
appointment of Court
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RSA No. 100074 of 2022
Commissioner by first appellate
Court was justified?
16. He further submitted that before first
appellate Court, defendant filed I.A.no.5 for
appointment of Court Commissioner to measure
entire property. However same came to be
rejected erroneously. Even rejection of I.A.no.5 by
first appellate Court without proper consideration
would be substantial question of law.
17. On other hand, Sri. Arvind D. Kulkarni,
learned counsel appearing for plaintiff opposed
appeal and submitted that finding of trial Court
about encroachment was finding of fact after
appreciation of evidence on record. Even first
appellate Court after reappreciation has dismissed
appeal. Therefore there was concurrent finding of
fact regarding encroachment by both Courts and
same was not open for interference in appeal
under Section 100 of C.P.C. It was submitted that
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RSA No. 100074 of 2022
defendant never contended that fixation of
boundaries of road was erroneous and therefore
said contention cannot be raised for first time in
second appeal.
18. It was further submitted that though
defendant had filed I.A.no.5 for appointment of
Court Commissioner, said effort was not made by
him before trial Court. He further submitted that
Taluka Surveyor appointed as Court Commissioner
to measured entire extent of 21 acres 17 guntas.
Taking note of same, trial Court had accepted
Court Commissioner's report while passing
impugned judgment and decree.
19. Submission of counsel for appellant that
there should be proper identification of his extent
2 acres 20 guntas and same should be protected,
would not lie in suit filed by plaintiff for
declaration and possession of encroached portion,
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RSA No. 100074 of 2022
without consideration or separate suit filed by
defendant.
20. From above submission, it is not in
dispute that plaintiff was owner of RS.no.115/2
totally measuring 21 acres 17 guntas. It is further
not in dispute under sale deed of 1996, an extent
of 2 acres 20 guntas was sold by plaintiff to
defendant. It is also not in dispute that an extent
of 1 acre 07 guntas out of land remaining with
plaintiff, was got converted for non-agricultural
purposes.
21. While plaintiff claims that an extent of 12
guntas of land on eastern side of said NA land was
retained by him and kept open for personal use
was encroached by defendant and therefore he was
entitled for declaration and possession; it is case
of defendant that there was no encroachment and
he was in possession of extent of 2 acres 20
guntas purchased by it. It is submitted that
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RSA No. 100074 of 2022
defendants never contended that fixation of
boundaries of road was erroneous and therefore
said contention cannot be raised for first time in
second appeal.
22. While passing judgment and decree, trial
Court referred to deposition of PW.1 and exhibits
produced by plaintiff. From Ex.P2-record of rights,
it observed that Ex.P2 indicated ownership of land
bearing RS.no.115/2 was with plaintiff. Further
Exs.P4, P5, P6 and P10 would disclose division of
RS.no.115 into several sub-divisions consequent
upon sale and conversion of portion of property.
From Ex.D3-sale deed, it noted that defendant had
purchased 2 acres 20 guntas from plaintiff in
middle portion of RS.no.115/2. From recitals of
Ex.D3, it concluded that defendant was owner of
extent of 2 acres 20 guntas out of RS.no.115/2.
With regard to encroachment, trial Court referred
to report submitted by Taluka Surveyor as Court
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RSA No. 100074 of 2022
Commissioner. On perusal of Ex.C1-Court
Commissioner's report it concluded that there was
encroachment to extent of 12 guntas by defendant
shown with letters 'ABCD' in report. It also
referred to deposition of DW.2 - Engineer and
Contractor of defendant that construction put by
defendant was after ascertaining boundaries
through Government Survey Officials.
23. It observed that despite such assertion,
no evidence was led to substantiate same. It
further observed that Ex.D8 - sketch prepared by
DW.2 would be of no assistance.
24. In view of categorical observation of
Court Commissioner, trial Court proceeded to
accept it and decree suit holding that defendant
had encroached over plaintiff's property to extent
of 12 guntas. While considering issue regarding
limitation, it observed that period of limitation
prescribed under Article 65 would begin to run
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RSA No. 100074 of 2022
from date when possession of defendant became
adverse to plaintiff. It observed that defendant
had not made any effort to lead evidence about
starting point of limitation and therefore held that
suit was not barred by time. For said reason, it
also held that plea adverse possession by
defendant would be ill founded. On said finding, it
proceeded to decree suit.
25. On perusal of Order dated 05.03.2021
passed on IA's.no.1 and 5, (made available by
learned counsel for appellant) it is seen that first
appellate Court rejected I.A for appointment of
Court Commissioner on ground that application
filed for survey entire property RS.no.115 of
Mudargi, when defendant was owning 2 acres 20
guntas, application was not bonafide and filed with
intention to dilate proceedings. Therefore, it
dismissed appeal by concurring with findings of
trial Court.
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RSA No. 100074 of 2022
26. Though learned counsel for appellant
contended that fixation of boundaries of
defendant's land by surveyor was erroneous as
surveyor did not first fix boundaries of road by
measuring it from centerline and submits that
defendant would have no objection for
appointment of fresh Court Commissioner for
measuring entire extent of land in RS.no.115 for
proper identification of extent of 2 acres 20 guntas
purchased by him, is only to be noted for being
rejected as it was never case of defendant that he
was not in possession of extent of 2 acres 20
guntas purchased by him or that there was any
short fall. This suit was filed by plaintiff for
declaration and for removal of encroachment. Prior
to filing suit plaintiff had got his land measured
through engineer. Thereafter, it was also got
measured through Court Commissioner. Taluka
Surveyor appointed as Court Commissioner, has
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RSA No. 100074 of 2022
clearly stated in his report that entire extent 21
acres 17 guntas of RS.no.115 was measured and
thereafter encroached portion was marked with
letters 'ABCD' and land belonging to defendant was
marked with letters 'CDGH'.
27. Under circumstance, it would not be
tenable for defendant to contend that Surveyor
ought to have first fixed boundaries of road from
centerline and thereafter identified 2 acres 20
guntas of land belonging to defendant.
28. Challenge ground that impugned decree
was in executable is misconstrued. However, it is
at liberty to seek to establish same before
Executing Court, as permitted by law.
29. Both Courts have concurrently arrived at
a finding of fact that there is encroachment by
defendant to an extent of 12 guntas marked with
letters 'ABCD' in sketch annexed to Court
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RSA No. 100074 of 2022
Commissioner's report. There are no good grounds
to interfere with same.
30. No substantial question of law would
arise for consideration. Hence, I pass following:
ORDER
Appeal is dismissed with observation as
above.
SD
JUDGE
GRD
