Shivu @ Shivraj vs T R Gopal
2023 Latest Caselaw 1343 Kant

                                                 -1-
                                                           RSA No. 126 of 2022




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 16TH DAY OF FEBRUARY, 2023

                                              BEFORE

                                THE HON'BLE MR JUSTICE H.P.SANDESH

                      REGULAR SECOND APPEAL NO. 126 OF 2022 (DEC/POS)

                      BETWEEN:

                      1.    SHIVU @ SHIVRAJ
                            D/o KULLA ERANNA
                            AGED ABOUT 41 YEARS
                            AGRICULTURIST
                            R/O. MACHENAHALLI (TUDIPETE)
                            TARIKERE TOWN
                            TARIKERE TALUK
                            CHIKKAMAGALURU DISTRICT-577 228
                                                                   ...APPELLANT
                                   (BY SRI. SANDESH T.B., ADVOCATE)

                      AND:

                      1.    T.R. GOPAL
                            S/O RAMANNA
Digitally signed by
SHARANYA T                  AGED ABOUT 50 YEARS
Location: HIGH              AGRICULTURIST
COURT OF
KARNATAKA                   R/O. THYAGARAJ NAGARA EXTENSION
                            TARIKERE TOWN, TARIKERE TALUK
                            CHIKKAMAGALURU DISTRICT-577 228
                                                                 ...RESPONDENT
                                  (BY SRI. GNANESHA N.I., ADVOCATE)

                           THIS RSA IS FILED UNDER SECTION 100 OF CPC
                      AGAINST THE JUDGMENT AND DECREE DATED 04.11.2020
                      PASSED IN RA.No.65/2018 ON THE FILE OF THE I SENIOR
                      CIVIL JUDGE AND PRINCIPAL JMFC, TARIKERE, DISMISSING
                      THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE
                      DATED 06.09.2018 PASSED IN O.S.No.267/2014 ON THE FILE
                      OF THE CIVIL JUDGE AND ADDITIONAL JMFC, TARIKERE.
                                  -2-
                                           RSA No. 126 of 2022




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

                          JUDGMENT

This matter is listed for admission today. Heard the

learned counsel appearing for the appellant and the learned

counsel appearing for the respondent.

2. This appeal is filed challenging the judgment and

decree dated 04.11.2020 passed in R.A.No.65/2018 on the file

of the Senior Civil Judge and Principal JMFC., Tarikere.

3. The parties are referred to as per their original

rankings before the Trial Court to avoid the confusion and for

the convenience of this Court.

4. The factual matrix of the case of the plaintiff before

the Trial Court is that the suit schedule property is granted in

favour of plaintiff to the extent of 3 acres and the defendant

has encroached to the extent of 23 guntas of land. Hence,

sought for the relief of possession to the extent of 23 guntas.

The defendant appeared before the Trial Court and filed the

written statement, but not cross-examined P.W.1 and also not

led any evidence.

RSA No. 126 of 2022

5. The Trial Court after considering both oral and

documentary evidence answered issue Nos.1 and 2 as

affirmative and came to the conclusion that the plaintiff has

proved the title with regard to the suit schedule property and

also came to the conclusion that the defendant had encroached

to the extent of 23 guntas in respect of the suit schedule

property. Hence, granted the relief of declaration, declaring

that the plaintiff is the absolute owner of the suit schedule

property and further held that the plaintiff is entitled for the

possession of an area of 23 guntas encroached by the

defendant as described in the suit schedule property and also

directed the defendant to handover the actual possession of 23

guntas as described in the suit schedule property in favour of

the plaintiff within three months. Being aggrieved by the said

judgment and decree, the defendant has filed an appeal in

R.A.No.65/2018, wherein, it is contended that the Trial Court

has committed an error in not considering the material on

record due to his ill-health, the defendant could not produce

certain documents to his Counsel. Therefore, the judgment and

decree requires to be interfered with.

RSA No. 126 of 2022

6. It is also contended that the Trial Court without

providing sufficient time for conducting the cross-examination

and leading defense evidence and also without verifying the

documents referred in the written statement and also

committed an error in passing the judgment in a hurried

manner. Hence, prayed this Court to set aside the judgment

and decree.

7. The First Appellate Court on perusal of the grounds

urged in the appeal formulated the point that whether the Trial

Court has committed an error in answering issue Nos.1 to 4 in

affirmative holding that the plaintiff has proved his ownership

over the suit schedule property and also encroachment made

by the defendant, whether such judgment is illegal, capricious

and not in accordance with law and also formulated the point

with regard to whether the Trial Court has not granted

sufficient time to conduct the cross-examination of P.W.1 and

lead his evidence.

8. The First Appellate Court considering the both oral

and documentary evidence placed on record in detail

considered the pleadings of the parties i.e., averments of plaint

RSA No. 126 of 2022

and also the written statement as well as taken note of the

evidence available on record in paragraph No.18 taken note of

filing an application for extension of time for filing written

statement and after completion of 90 days only considered the

statement of the defendant as NIL. Even after that also written

statement was filed along with an application and the Trial

Court allowed the same and taking into note of the said fact

and also observed in the order that no application is filed even

in the First Appellate Court also to produce any document

invoking Order 41 Rule 27 of CPC.

9. Having considered the material on record, the First

Appellate Court in paragraph No.20, taken note of the

defendant has not explained as to why he could not produce

the documents along with written statement and also not cross-

examined the witness. The defendant even not chosen to

produce any documents and to lead any evidence when the

specific allegation is made against the defendant that he had

encroached the property of the plaintiff to the extent of 23

guntas. On overall appreciation of both oral and documentary

evidence available on record, the First Appellate Court

dismissed the appeal.

RSA No. 126 of 2022

10. Now, the contention of the learned counsel

appearing for the appellant in the second appeal is that the

appellant is not having good health and also the Advocate, who

is conducting the case also was not having good health and

could not produce any document before the Trial Court and if

the matter is remanded to the Trial Court, he will produce the

documents. On perusal of the material available on record, the

suit was filed in the year 2014 and the suit was considered on

merits in the year 2018 i.e., four years after filing the suit.

P.W.1 was not cross-examined. The plaintiff has also relied

upon the documents viz., Ex.P1-Grant Certificate, Ex.P2-

Mutation register Extract, Ex.P3-RTC Extract, Ex.P4-survey

sketch, Ex.P5-Haddubasth Sketch, Ex.P6-Notice and Ex.P7-

Endorsement, the same has not been disputed by the

defendant before the Trial Court. Even the contention of the

appellant is that no opportunity was given by the Trial Court

and even in the First Appellate Court no documents are placed

invoking under Order 41 Rule 27 of CPC. The First Appellate

Court also had taken note of the said fact into consideration in

paragraph No.20 of the judgment. Merely filing the written

statement and not adducing any evidence and also not cross-

RSA No. 126 of 2022

examining the witnesses, only the contention is that he was the

owner of the suit schedule property and the said property

devolves upon him as family property and to substantiate that

contention even in the appeal also he had not produced any

document except stating that no opportunity was given. When

the defendant has not contested the matter and in a second

appeal this Court cannot cure the defect and also in support of

the contention of the learned counsel for the appellant that the

defendant was not having good health, no document is placed

before the Court even for remanding the matter. The ground

that they were not keeping well and they could not adduce any

evidence cannot be accepted unless cogent material is placed

before the Court for remanding the matter. Hence, I do not

find any merit in the second appeal to admit and frame

substantial question of law as the appellant has not contested

the matter before the Trial Court and not adduced any evidence

before the Trial Court and also not made any effort before the

First Appellate Court to produce any document.

RSA No. 126 of 2022

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

following:

ORDER

The appeal is dismissed.

In view of dismissal of the appeal, I.A.No.3/2022 for

Vacating Stay does not survive for consideration and the same

stands disposed of.

Sd/-

JUDGE

CP