G Mohammed Ashpak vs Asif Sharif
2023 Latest Caselaw 5343 Kant

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                                                      NC: 2023:KHC:27756
                                                         RSA No. 868 of 2017




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 7TH DAY OF AUGUST, 2023

                                           BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                    REGULAR SECOND APPEAL NO. 868 OF 2017 (DEC/INJ)

                   BETWEEN:

                   1.    G. MOHAMMED ASHPAK
                         S/O LATE G. HASSAN SAHEB
                         AGED ABOUT 51 YEARS,
                         RESIDENT OF DODDAMANEKERI
                         THIRTHAHALLI TALUK
                         SHIMOGA DISTRICT-577215
                         KARNATAKA
                                                                 ...APPELLANT
                                (BY SRI K. SREEDHAR, ADVOCATE)
                   AND:

                   1.    ASIF SHARIF
                         S/O T.D. MOHAMMED HSAZRIFF
                         AGED ABOUT 47 YEARS,
                         RESIDENT OF A.P.ROAD
Digitally signed
by SHARANYA T            THIRTHAHALLI TOWN
Location: HIGH           PRESENTELY RESIDING
COURT OF                 AT SANGAM HOUSE
KARNATAKA
                         7TH CROSS, TIPPUNAGARA
                         SHIMOGA CITY-577 201.
                                                               ...RESPONDENT
                              (BY SRI Y.P. RAKSHITH JOIS, ADVOCATE)

                        THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE
                   JUDGMENT & DECREE DTD26.11.2016            PASSED IN
                   R.A.NO.48/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE
                   AND JMFC., THIRTHAHALLI., DISMISSING THE APPEAL AND
                   CONFIRMING THE JUDGMENT AND DECREE DTD: 07.01.13
                   PASSED IN O.S.NO.139/2000 ON THE FILE OF THE
                   ADDITIONAL CIVIL JUDGE AND JMFC., THIRTHAHALLI.
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                                      NC: 2023:KHC:27756
                                            RSA No. 868 of 2017




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

                          JUDGMENT

This matter is listed for admission.

I have heard the learned counsel for the appellant and

also the counsel appearing for the respondent.

2. The appellant/plaintiff filed the suit for the relief of

declaration and possession contending that he is the absolute

owner in possession of the 'A' schedule property as he has

purchased the same under registered sale deed dated

6.5.1998. It is also contention of the plaintiff that defendant

has illegally encroached upon the plaint 'B' schedule property

and defendant also appeared and filed written statement

contending that Court has no pecuniary jurisdiction to try the

suit and having considered the averments made in the plaint

and also the written statement, the Trial Court has framed the

issues and allowed the parties to lead evidence and also

Commissioner was appointed before the Trial Court.

3. The plaintiff examined two witnesses i.e. PWs.1 and 2

and defendant also examined one witness as D.W.1 and

NC: 2023:KHC:27756 RSA No. 868 of 2017

plaintiff relied upon the documents Exs.P1 to P5 and defendant

not placed any document before the Trial Court. The Trial Court

having considered the material available on record and on

appreciation of both oral and documentary evidence comes to

the conclusion that plaintiff though purchased the property as

contended in the plaint with regard to the encroachment is

concerned and the same is not proved and answered issues as

negative.

4. Being aggrieved by the judgment of the Trial Court, an

appeal is filed and the same is numbered as R.A.No.48/2013.

The First Appellate Court having considered the grounds urged

in the appeal memo and also on re-appreciation of both oral

and documentary evidence formulated the point, whether the

trial Judge erred in holding that plaintiff has failed to prove that

he is absolute owner in possession of plaint 'A' property, as he

has purchased the same under the registered sale deed dated

6.5.1998 and also whether the Trial Court has erred in holding

that plaintiff failed to prove that defendant has illegally

encroached upon the 'B' schedule property and committed an

error in declining the relief as sought in the suit. The First

Appellate Court also on re-appreciation of both oral and

NC: 2023:KHC:27756 RSA No. 868 of 2017

documentary evidence answered all the points for consideration

as negative.

5. The counsel appearing for the appellant would

vehemently contend that both the Courts have committed an

error in not appreciating both oral and documentary evidence

and properties purchased by the plaintiff and defendant are

separate and distinct, with separate measurements and

boundaries and the Courts below ought to have accepted the

sale deed of the plaintiff and defendant and defendant

contention that he is in continuous possession of the

encroached portion, could not have been accepted by the Court

below and hence counsel would vehemently contend that both

the Courts are committed an error. This Court has to frame the

substantial question of law.

6. Per contra, the counsel appearing for the respondent

would vehemently contend that, in case of the plaintiff in the

suit that the defendant has encroached by making an

improvement and addition and the same has not been proved

and even Commissioner was appointed and Commissioner also

given the report that no such improvement or any addition and

NC: 2023:KHC:27756 RSA No. 868 of 2017

hence rightly both the Courts comes to the conclusion in

considering both oral and documentary evidence that the

plaintiff has not made out any case.

7. The First Appellate Court also in paragraph No.30 in

detail discussed with regard to the very contention raised by

the appellant before the First Appellate Court and rightly comes

to the conclusion that the appellant has not made out any

ground.

8. Having heard the counsel for the appellant and also

counsel for the respondent, the very case of the plaintiff before

the Court that he had purchased the property under the

registered sale deed dated 6.5.1998 and also defendant has

illegally encroached upon the plaint 'B' schedule property, the

main relief is in respect of 'B' schedule property on the ground

that he had encroached. In order to prove the said

encroachment, the Trial Court also taken note of the fact that

the property originally belongs to the same family and owners

are co-owners and from them only both plaintiff and defendant

purchased the property and plaintiff claims that he had

purchased the same to the extent of 40 X 100 ft. and also Trial

NC: 2023:KHC:27756 RSA No. 868 of 2017

Court made an observation in paragraph No.29 that before

purchasing the property whether he had measured the same or

not, nothing on record and in order to prove that he had

encroached and put up additions and also encroachment, no

document is placed before the Court and rejected the same.

The First Appellate Court also on re-appreciation of both oral

and documentary evidence in keeping the grounds urged before

the First Appellate Court taken note of the contentions of the

parties, in paragraph Nos.28 and 29 and also having considered

both oral and documentary evidence particularly document

marked by the plaintiff and also considering the evidence of

D.W.1, there is no dispute with regard to both of them have

purchased the property. The First Appellate Court also

considering the evidence of PWs.1 and 2 comes to the

conclusion that, it can be gathered that it is an admitted fact

that property of the plaintiff is a vacant site. The plaintiff claims

to have title and possession of the 'A' schedule property and 'B'

schedule property, however, the plaintiff can get possession

only of the extent actually in possession of his vendor. It is also

taken note of by the Appellate Court that PW1 categorically

admitted that property of defendant has tiled house and out

NC: 2023:KHC:27756 RSA No. 868 of 2017

house which is of several decades and it is also admitted that

the sites of the plaintiff and defendant had belonged to co-

owners and in the compromise decree there was no survey and

properties were divided as per the actual possession and there

was no separate delivery of possession from the Court. The

records also discloses that there was a compromise in the said

suit earlier and taken note of house structure, tiled roof, and

hence, it certainly will be projected to an extent of 1 to 2 feet

outside the house wall and also taken note of the Commissioner

report wherein also Commissioner categorically stated that

there is no improvement or additions made to the existing wall

and tiled house and out house of the defendant and in order to

identify the encroachment as contended by the plaintiff and

also taken note of the fact that the encroachment is made only

by the defendant without measuring all the properties in the

line as the boundary wall of one house is the boundary of the

adjoining property and there is no separate boundary wall

between the property of the plaintiff and defendant as per

Ex.P1. When both the Trial Court and also First Appellate Court

having considered both oral and documentary evidence, I do

not find any error committed by both the Courts and material

NC: 2023:KHC:27756 RSA No. 868 of 2017

available on record considered by both Trial Court as well as

the First Appellate Court and First Appellate Court also on re-

appreciation comes to a categorical finding that no

improvement or addition. When such being the case, the

contention of the plaintiff that there is encroachment by the

defendant cannot be accepted and hence, I do not find any

merit in the second appeal to invoke Section 100 of CPC to

admit and frame substantial question of law to decide the same

in the second appeal.

9. In view of the discussions made above, I pass the

following:

ORDER

Appeal is dismissed.

Sd/-

JUDGE

AP