Karnataka High Court
Mr A Paul Rodrigues vs Mr Dolphi Saldanha on 31 August, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:31318
RSA No. 821 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 821 OF 2021 (INJ)
BETWEEN:
1. MR. A.PAUL RODRIGUES
S/O. SANTHAN RODRIGUES
AGED ABOUT 74 YEARS,
RESIDING AT MELTHOTA HOUSE
PADAVU VILLAGE, KULSHEKAR
MANGALORE TALUK-575 005.
SINCE DECEASED THE APPELLANT
IS REPRESENTED BY LEGAL HEIRS
1(a) MRS. EMILLIANA RODRIGUES
AGED ABOUT 71 YEARS
W/O. MR. PAUL RODRIGUES
RESIDING AT MELTHOTA HOUSE
PADAVU VILLAGE, KULSHEKAR
MANGALORE TALUK-575 005.
Digitally signed
by SHARANYA T 1(b) MRS. PAMELA RODRIGUES
Location: HIGH AGED ABOUT 46 YEARS
COURT OF
KARNATAKA D/O. MR. PAUL RODRIGUES
RESIDING AT MELTHOTA HOUSE
PADAVU VILLAGE, KULSHEKAR
MANGALORE TALUK-575 005.
1(c) MRS. SONIA RODRIGUES PINTO
AGED ABOUT 43 YEARS
D/O. MR. PAUL RODRIGUES
RESIDING AT MELTHOTA HOUSE
PADAVU VILLAGE, KULSHEKAR
MANGALORE TALUK-575 005.
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RSA No. 821 of 2021
1(d) MR. BRIAN RAVI PAUL RODRIGUES
AGED ABOUT 48 YEARS
S/O. LATE PAUL RODRIGUES
RESIDING AT 20-64
CHURCH COMPOUND
3RD CROSS
OPP SACRED HEART SCHOOL
KULSHEKAR
MANGALORE TALUK-575 005.
...APPELLANTS
(BY SRI NITIN A M., ADVOCATE FOR A1 (a) - (d))
AND:
1. MR. DOLPHI SALDANHA
AGED ABOUT 65 YEARS,
S/O. LATE JOHN SALDANHA
R/AT CHEZELLE MELTHOTA
PADAVU VILLAGE, KULASHEKAR
MANGALORE-575 005.
2. MR. ROSARIO OSWALD SALDANHA
AGED ABOUT 72 YEARS,
S/O. LATE JOHN SALDANHA
R/AT OSLEEN, KASABA BAZAR VILLAGE,
DARBE, PUTUR-574 202.
...RESPONDENTS
(BY SRI NANDISH PATEL, ADVOCATE FOR R1 & R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC 1908
AGAINST THE JUDGMENT AND DECREE DATED 27.09.2021
PASSED IN RA.NO.35/2020 ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MANGALURU,
D.K., ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 29.11.2019 PASSED IN
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RSA No. 821 of 2021
OS.NO.226/2014 ON THE FILE OF THE I ADDITIONAL CIVIL
JUDGE, MANGALURU, D.K.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and learned
counsel for the respondents.
2. The matter is listed for admission and this Court,
while hearing the matter for admission on 21.03.2022, having
considered the dispute between the parties, observed that the
appeal essentially revolves round the dispute regarding
boundaries of R.S.No.197/1B2 in No.79 of Padavu Village and
Sy.No.139/3B1 in No.79 of Padavu Village.
3. Admittedly, the plaintiff has filed the suit
contending that defendants are encroaching from the northern
side of the land in Sy.No.197/1B2, while the defendants claim
that it is the plaintiff, who is encroaching from southern side of
Sy.No.139/3B1. Having considered the said averments, in
order to put an end to the dispute, this Court found that it is
imminent that a Revenue Surveyor be appointed to identify the
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limits of Sy.Nos.197/1B2 and 139/3B1. Hence, directed the
Assistant Director of Land Records, Mangaluru Taluk ("the
ADLR" for short) to conduct a survey and fix the boundaries of
Sy.Nos.197/1B2 and 139/3B1 and further directed that, if it is
found that a revenue survey is not possible, then the ADLR,
City Survey, Mangaluru Taluk to conduct such survey and
based on the available maps, fix the boundaries of aforesaid
survey numbers and directed the parties to be present at the
spot. Accordingly, the ADLR has conducted spot inspection and
has submitted a report identifying the properties of the
respective parties and the same is taken on record.
4. No doubt, the learned counsel for the appellants
also filed statement of objection to the said report, the fact that
plaintiff filed the suit for the relief of permanent injunction is
not in dispute, wherein in the boundaries mentioned in the suit,
he has categorically mentioned that on the northern side, there
is a survey line and land belonging to the defendants i.e.,
Sy.No.139/3B1. The ADLR, who was directed to conduct a
survey has only identified and marked both the survey numbers
i.e., Sy.Nos.197/1B2 and 139/3B1 and no dispute with regard
to the fact that there is a survey line between both the
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properties and also, there is no dispute with regard to the title
is concerned and the only allegation is that the parties are
encroaching upon each others property. Further the property of
the plaintiff i.e., Sy.No.197/1B2 and the property of the
defendants i.e., Sy.No.139/3B1 are demarcated in the ADLR
report that both the parties are separated by a survey line and
in the plaint also, the plaintiff has shown that in the northern
boundary, there exists a survey line. When such being the
case and the survey line is demarcating the property of the
plaintiff and the defendants, the question of either the plaintiff
encroaching the property of the defendants or the defendants
encroaching the property of the plaintiff does not arise since,
the property is demarcated by the survey line.
5. Though the appellants have filed statement of
objection to ADLR Report and in the report of the ADLR also,
nothing is stated about encroachment made by either the
plaintiff or the defendants and when the only work entrusted
was to identify and demarcate the boundaries in
Sy.Nos.197/1B2 and 139/3B1 and no doubt, in Sy.No.197/1B2
also, portion of the property of the plaintiff is also attached to
Sy.No.197/1B1 and so also in respect of Sy.No.139/3B1, the
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southern portion, the survey sketch prepared by ADLR is clearly
demarcating the property belonging to the defendants. When
such being the case, the plaintiff and the defendants have to
enjoy their property in terms of the sketch which is prepared by
the Surveyor i.e., ADLR as identified by the ADLR in terms of
the order passed and in view of this sketch prepared by the
ADLR and the same is also earmarked in the sketch showing
the property of the plaintiff and the defendants which is in
existence and not to encroach upon either the property of the
plaintiff or the property of the defendants and in between the
two properties, there is a survey line and they have to enjoy
their property to the extent they are eligible when the property
is demarcated by the survey line which is also mentioned in the
northern boundary of the plaint. Hence, the survey sketch is
also made part of the judgment i.e., ADLR Sketch, in order to
avoid future dispute between the parties.
6. Accordingly, the second appeal is disposed of by
concluding that the property of the plaintiff as well as the
defendants has been demarcated in view of the report of the
ADLR and either of the parties are directed not to encroach
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upon each other property and enjoy the property as
demarcated by the ADLR in the survey sketch.
Accordingly, the second appeal is disposed off.
Sd/-
JUDGE
ST
