Karnataka High Court
Ajit Bharamappa Akki vs Venkanagouda Hanmanthgouda ... on 11 July, 2023
Bench: Anil B Katti
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RSA No. 273 of 2008
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
REGULAR SECOND APPEAL NO. 273 OF 2008
BETWEEN:
1. AJIT BHARAMAPPA AKKI
AGE: 32 YEARS OCC:BUSINESS
2. BHARAMAPPA JAIKIRTEPPA AKKI
AGE: 72 YEARS OCC:BUSINESS
SINCE DECEASED BY LRs
2(a) DHANAPAL S/O BHARAMAPPA
Digitally
signed by AKKI AGE:56 YEARS, OCC:BUSINESS
POOJA
POOJA DEELIP R/O: ANTURBENTUR, TQ: GADAG
DEELIP SAVANUR
SAVANUR Date: DIST: GADAG.
2023.07.13
11:20:54 -
0700
2(b) RAVI S/O BHARAMAPPA AKKI
AGE: 53 YEARS, OCC: BUSINESS
R/O: GUDAGERI, TQ: KUNDAGOL
DIST: DHARWAD.
2(c) CHANDRAKANTH S/O BHARAMAPPA AKKI
AGE: 51 YEARS, OCC: COOLIE
R/O: GUDAGERI, TQ: KUNDAGOL
2(d) UDAYAKUMAR S/O BHARAMAPPA AKKI
AGE: 47 YEARS, OCC: COOLIE
R/O: GUDAGERI, TQ: KUNDAGOL
DIST: DHARWAD. ...APPELLANTS
(BY SHRI G.N.NARASAMMANAVAR, ADVOCATE)
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RSA No. 273 of 2008
AND:
VENKANAGOUDA HANMANTHGOUDA SALMANI
AGE: 71 YEARS, OCC: AGRICULTURE
AND RETIRED WORKER
R/O:GUDAGERI Tq: KUNDAGOL
DISTRICT DHARWAD 581107. ...RESPONDENT
(BY SHRI M.H. PATIL, ADVOCATE)
***
THIS REGULAR FIRST APPEAL IS FILED U/S. 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DT.30.10.2007
PASSED BY THE I ADDL. CIVIL JUDGE (SR.DN), HUBLI, IN
R.A.NO.139/2006 AND THE JUDGEMENT AND DECREE
DT.12.10.2006 PASSED BY THE CIVIL JUDGE (JR.DN) & JMFC
KUNDAGOL IN O.S.NO.18/2005.
THIS REGULAR SECOND APPEAL COMING ON FOR
FURTHER HEARING AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 17.03.2023, THIS DAY, THE
COURT, DELIVERED THE FOLLOWING:
JUDGMENT
Appellants/defendants feeling aggrieved by the judgment
of first Appellate Court on the file of I Addl. Civil Judge
(Sr.Dn.), Hubballi, in R.A.No.139/2006 dated 30.10.2007
preferred this appeal.
2. Parties to the appeal are referred with their ranks as
assigned in the trial Court for the sake of convenience.
3. The factual matrix leading to the case of plaintiff
can be stated in nutshell to the effect that Kundagol taluk
RSA No. 273 of 2008
Gudageri gram panchayat, Gudageri village property bearing
R.S.No.538/1/3 plot No.1 and property bearing No.1417 are
the properties purchased by plaintiff under the registered sale
deed dated 23.07.1993 from its' erstwhile owner Basavaraj
Shivappa Malali. The defendants are the owners of property
bearing gram panchayat No.254 measuring 1 gunta in
R.S.No.538 of Gudageri village. The property of plaintiff
bearing No.207/1 is also situated adjacent to the suit schedule
property. The defendants have encroached 8 1/2 annas in
property bearing No.1417 plot No.1 in R.S.No.538/1/3. The
plaintiff filed an application to conduct survey of the suit
schedule property in the year 2004 and notice was issued to
the defendants. On 05.01.2005, Taluka Surveyor visited the
suit schedule properties and prepared PT sheet by fixing the
boundaries to the suit schedule properties by showing 8 1/2
annas area encroached by the defendants. The defendants
have refused to remove the encroachment in the plot belonging
to the plaintiff. Therefore, the plaintiff was constrained to
institute the suit on hand for the relief claimed in the suit.
4. In response to suit summons, defendants appeared
through counsel and filed written statement contending that
land bearing R.S.No.538/1/1 measuring 1 gunta East-West 33
RSA No. 273 of 2008
feet, North-South 33 feet is purchased by the defendants under
registered sale deed dated 30.07.1973 from its erstwhile owner
Narayan Saralai, assigned with Gram Panchayath No.254. The
said property is in exclusive possession of the defendants since
from the date of its purchase. The defendants on obtaining
permission from Gudageri gram panchayath put up fence. The
defendants have not encroached any portion of plot No.1 in
property bearing No.1417 of R.S.No.538/1/3 as claimed by
plaintiff. Therefore, prayed for dismissal of the suit.
5. The trial Court has framed necessary issues.
Plaintiff in order to prove his case relied on the evidence of
PWs-1 and 2 and the documents Ex.P.1 to Ex.P.23. The
defendants have relied on the evidence of DWs-1 and 2 and the
documents Ex.D.1 to Ex.D.19. The trial Court after
appreciation of evidence on record has decreed the suit of
plaintiff and directed the defendants to hand over the
encroached area of 8 1/2 anna within a period of 30 days from
the date of decree, failing which plaintiff shall be entitled to get
the suit schedule property through the process of law.
6. The defendants feeling aggrieved by the said
judgment and decree of trial Court filed appeal before the first
RSA No. 273 of 2008
Appellate Court on the file of I Addl. Civil Judge (Sr.Dn.),
Hubballi, in R.A.No.139/2006. The first Appellate Court after
re-appreciation of evidence has dismissed the appeal and
confirmed the judgment and decree of trial Court.
7. Appellants/defendants challenged the said
concurrent finding of both the Courts below contending that
Courts below have not properly appreciated the pleadings of
the parties and evidence on record. The suit itself is not
maintainable without seeking the relief of declaration. The
Courts below have committed serious error in relying on Ex.P.1
Survey Sketch produced by the plaintiff which is challenged by
the defendants. The Assistant Commissioner, Dharwad, on
hearing both sides allowed the appeal on 02.08.2006 and set
aside the PT sheet Ex.P.1, further remanded the matter for
fresh survey. The plaintiff has not denied the title of
defendants over 1 gunta of land in R.S.No.538/1/1 measuring
East-West 33 ft. - North South - 33 ft. purchased from its'
erstwhile owner Narayan Saralai under registered sale deed
dated 30.07.1973 assigned with GP No.254. The plaintiff has
failed to prove that defendants have encroached 8 1/2 annas in
plot No.1 of R.S.No.538/1/3. However, both the Courts below
contrary to the evidence on record committed serious error in
RSA No. 273 of 2008
holding that the defendants have encroached 8 1/2 annas in
the property belonging to the plaintiff. Therefore, on these
grounds prayed for allowing the appeal and to set aside the
judgment and decree of both the Courts below. Consequently,
to dismiss the suit of plaintiff.
8. In response to notice of appeal, respondent
appeared through counsel.
9. This Court by order dated 18.02.2008 has framed
the following substantial question of law for consideration:
"Whether the Courts below were justified in
granting a decree of possession when the
plaintiff's title to the property encroached upon is
denied without seeking declaration?"
10. Heard the arguments of both sides.
11. On careful perusal of oral and documentary
evidence placed on record by the parties to the suit, it would go
to show that plaintiff has purchased R.S.No.207/1 bearing
Gram Panchayath No.1428 plot No.2 and R.S.No.538/1/3
bearing plot No.1 Gram Panchayath No.1417. The total extent
of both these properties is 90 ft. X 72 ft. covered under the
registered sale deed dated 23.07.1993 for total consideration of
RSA No. 273 of 2008
Rs.45,000/- Ex.P.14. The boundaries of both the plots as
described in the sale deed Ex.P.14 are as follows:
East: Girls High School and panchayath road
West: Railway boundary
North: R.S.No.207/1 plot No.1 PWD road and
land of Bharamappa Akki, open space of
girls high school
South: Plot of Nagappa Mundargi
12. The defendants have purchased 1 gunta of land in
R.S.No.538/1/1 measuring East-West 33 feet, North-South 33
feet from its' erstwhile owner Narayan Saralai under registered
sale deed dated 30.07.1973 assigned with G.P. No.254 Ex.D.4
having the following boundaries:
North: Government road,
South: 538/1/3
East: 538/1/2
West: 207/1
13. The plaintiff has contended that the defendants
have encroached portion of the property in R.S.No.538/1/3 plot
No.1 Gram Panchayath No.1417 to the extent of 8 1/2 annas.
The said encroached portion is shown as EBKD in red colour.
The Courts below have concurrently held that defendants have
encroached 8 1/2 annas of area in R.S.No.538/1/1 plot No.1
RSA No. 273 of 2008
Gram Panchayath No.1417. Therefore, granted decree of
possession of the said encroached area to the plaintiff.
14. The basis on which the plaintiff is claiming that
defendants have encroached 8 1/2 annas in R.S.No.538/1/3
plot No.1 Gram Panchayath 1417 is the PT sheet Ex.P.1 dated
05.01.2005 prepared by the Taluka Surveyor and the author of
PT sheet is examined as PW-2 and through him produced
Ex.P.18 PT sheet, Ex.P.19 notice sent to parties, Ex.P.20 postal
receipt, Ex.P.21 panch ya dast, Ex.P.22 statement of plaintiff.
The defendants have denied the alleged encroachment of 8 1/2
annas claimed by plaintiff and challenged the correctness of the
PT sheet prepared by PW-2. The defendants though have
contended that appeal is filed against PT sheet prepared by
PW-2 dated 05.01.2005 have not produced any documents to
show that appeal is filed challenging the PT sheet prepared by
PW-2 dated 05.01.2005. On the contrary, DW-1 in the cross-
examination admitted that no appeal is filed challenging the PT
sheet dated 05.01.2005. The document at Ex.P.23 is the notice
issued by the Joint Director, Land Records, Belagavi, with
respect to PT sheet prepared while effecting pot hissa of
Sy.No.538 and GP No.4/1987 and the same does not pertain to
PT sheet prepared by PW-2 dated 05.01.2005 Ex.P.1 and
RSA No. 273 of 2008
Ex.P.18. DW-1 admits in his cross-examination that PW-2 has
issued notice for surveying the land and his son was present at
the time of effecting survey. It is also admitted by PW-1 that
to the northern side of suit property his property is situated and
to the southern side of his property the property of plaintiff is
situated. It is also not in serious dispute that both the
properties purchased by the plaintiff under the registered sale
deed dated 23.07.1993 are adjacent to each other. In view of
the above referred admission of DW-1, it is evident that the
defendants are adjoining owner of the suit property. The hand
sketch map appended to the plaint and the PT sheet Ex.P.1 and
Ex.P.18 produced by PW-2 also substantiates the said fact.
DW-1 has admitted in his cross-examination that he has not
verified the survey records with regard to measurement of his
property purchased, further he has not got measured the area
purchased by him either before or after purchase of 1 gunta of
land under Ex.D.4. It means that the defendants have not
seen pot hissa PT sheet to the extent of 1 gunta of land
purchased by him under Ex.D.4.
15. The defendants have relied on sanad attested copy
Ex.D.1 and the original sanad Ex.D.2 issued by the Collector
dated 17.05.1945 wherein 1 gunta of land in R.S.No.538/1/1
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RSA No. 273 of 2008
measuring East-West 33 feet North South 33 feet was given to
Topanna Bharmappa Kundur including the sketch map as part
of the said sanad. No doubt, division of Sy.No.538 is shown in
schedule, but in the sketch entire Sy.No.538 is shown. The
defendants have not produced any PT sheet or sketch prepared
by the Survey Authority while effecting the division. The said
extent of land was sold by Topanna Bharamappa Kundur to one
Narayan Saralai under registered sale deed dated 31.10.1969
Ex.D.3 who in turn sold the same to defendant No.2 under
registered sale deed dated 30.07.1973 Ex.D.4. The extent of
so area purchased i.e., 33 ft. X 33 ft. totally measures 1089
sq. ft. The plaintiff is claiming that the defendants have
encroached to an extent of 8 1/2 annas and they are claiming
41 ft. X 27 ft. which is equal to 1107 sq. ft. as the area
belonging to defendants.
16. Indisputably, none of the documents relied by the
defendants an extent of 41 feet X 27 feet is shown or the
extent of 33 feet X 33 feet is also not shown. However, in all
the documents at Ex.D.1 to Ex.D.4 it is only shown as 1 gunta
of land in Sy.No.538/1/1. The map incorporated in the sanad
Ex.D.1 is with respect to entire extent of Sy.No.538. However,
the division is shown only in the schedule while describing the
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RSA No. 273 of 2008
survey number and the boundaries. The map incorporated in
the sanad Ex.D.1 does not reflect the division of Sy.No.538.
However, the calculation of the extent per gunta in the form of
square feet is equal to 1089.
17. The evidence of PW-2 would go to show that
excluding the encroached portion, there is land of defendants to
the extent of 1 gunta. The extent of 1 gunta of land of
defendants is to the eastern side of the property belonging to
the plaintiff. The survey was effected on the basis of the
records available in the office. Learned counsel for defendants
though subjected PW-2 to cross-examination, nothing worth
material was elicited to discredit his evidence about the
encroachment of defendants to the extent of 8 1/2 annas. The
son of DW-1 was very much present at the time of survey. The
PT sheet prepared by PW-2 as per Ex.P.1 and Ex.P.18 has not
been disputed by the defendants. However, the defendants
have claimed that appeal was filed but no any such documents
were produced to show that PT sheet as per Ex.P.1 and Ex.P.18
has been challenged before any appropriate forum. Therefore,
both the Courts below were justified in relying on the evidence
of PW-2 and the PT sheet as per Ex.P.1 and Ex.P.18.
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RSA No. 273 of 2008
18. The extent of land purchased by the plaintiff under
the registered sale deed dated 23.07.1993 is not disputed by
the defendants. Plaintiff had filed O.S.No.33/2003 Ex.P.15 with
respect to the very same property against Raju Basavaraj
Nagarhalli and others. The said suit came to be decreed and
decree has been drawn as per Ex.P.16. The extent of land
purchased by plaintiff under Ex.P.14 is further strengthened by
the judgment and decree in O.S.No.33/2003 as per Ex.P.15
and Ex.P.16.
19. The title acquired by plaintiff with respect to suit
property under the registered sale deed dated 23.07.1993 as
per Ex.P.14 and the title of defendants over an extent of
1 gunta of land in Sy.No.538/1/1 as per Ex.D.4 is not in
dispute. The question is as to whether decree of possession
over the encroached land to the extent of 8 1/2 annas marked
as 'EBKD' can be granted without the relief of declaration.
20. The substantial relief of possession over encroached
portion is sought by the plaintiff. The encroachment of
defendants is proved by the plaintiff out of the evidence of PW-
2 and the sketch map as per Ex.P.1 and Ex.P.18. The evidence
of PW-2 - Surveyor with the sketch map will have a great
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RSA No. 273 of 2008
probative value and the oral evidence of the parties will have to
be assessed in the light of the same. The assessment of
evidence placed on record by the parties, coupled with the
evidence of Surveyor - PW- 2 and the sketch map Ex.P.1 and
Ex.P.18, so also the presence of son of defendant at the time of
survey sketch is not disputed and there is nothing in the cross-
examination of PW-2 to disbelieve his evidence, would only
demonstrate the fact that defendants have encroached portion
shown as 'EBKD' in the sketch map as per Ex.P.1 and Ex.P.18.
When the defendants have not denied the extent of land of
plaintiff and the plaintiff having proved the encroachment of 8
1/2 annas in Sy.No.538/1/3 plot No.1 panchayath No.1417
then in that event of the matter again seeking relief of
declaration does not arise. Accordingly, the substantial
question of law is answered in affirmative. Consequently,
proceed to pass the following:
ORDER
Appeal filed by appellants/defendants is hereby
dismissed.
The judgment and decree passed by the first Appellate
Court on the file of I Addl. Civil Judge (Sr.Dn.), Hubballi, in
R.A.No.139/2006 dated 30.10.2007 which confirmed the
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RSA No. 273 of 2008
judgment and decree of trial Court in O.S.No.18/2005 on the
file of the Civil Judge (Jr.Dn.) and JMFC, Kundagol, dated
12.10.2006 are hereby confirmed.
The registry is directed to transmit the records with the
copy of this judgment to trial Court.
(Sd/-)
JUDGE
Jm/-
