Sri Gokula vs H N Swamy
2023 Latest Caselaw 3836 Kant

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                                                         NC: 2023:KHC:22606
                                                            RSA No. 461 of 2016




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 30TH DAY OF JUNE, 2023

                                                BEFORE
                              THE HON'BLE MS. JUSTICE JYOTI MULIMANI
                       REGULAR SECOND APPEAL NO.461 OF 2016 (DEC/INJ)
                      BETWEEN:

                      SRI GOKULA
                      S/O KODAIAH,
                      AGED ABOUT 64 YEARS,
                      R/O DASAGOWDARA STREET,FORT,
                      HOLENARASIPUR TOWN,
                      HASSAN DISTRICT - 576 101.
                                                                   ...APPELLANT
                      (BY SMT.AZRA.J.DUNDGE., ADVOCATE FOR
                           SRI.GURURAJ.R., ADVOCATE)

                      AND:

                      1.    H.N.SWAMY
                            S/O SANNAIAH,
                            AGED ABOUT 49 YEARS,
                            R/O GANDHINAGARA, FORT,
Digitally signed by         HOLENARASIPUR TOWN,
THEJASKUMAR N               HASSAN DISTRICT - 576 101.
Location: HIGH
COURT OF
KARNATAKA             2.    SMT.LALITHA
                            W/O H.N.SWAMY,
                            AGED ABOUT 43 YEARS,
                            R/O GANDHINAGARA, FORT,
                            HOLENARASIPUR TOWN,
                            HASSAN DISTRICT - 576 101.
                                                                ...RESPONDENTS

                      (BY SRI.S.V.ANGADI., ADVOCATE FOR R1 AND R2[ABSENT])

                           THIS REGULAR SECOND APPEAL IS FILED UNDER
                      SECTION 100 OF THE CPC., SEEKING CERTAIN RELEIFS.
                                 -2-
                                          NC: 2023:KHC:22606
                                             RSA No. 461 of 2016




     THIS APPEAL IS COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                           JUDGMENT

Smt.Azra J.Dundge., learned counsel on behalf of

Sri.Gururaj.R., for the appellant has appeared in person.

2. There is no representation on behalf of

respondents.

The captioned appeal was listed before the Court on

13.06.2023. On that day, there was no representation on

behalf of respondents, hence, the appeal was ordered to be

listed on 20.06.2023. The appeal was listed on 20.06.2023 and

even on that day also, there was no representation on behalf of

respondents. Hence, the matter was ordered to be listed on

27.06.2023. The appeal was again listed on 27.06.2023. Even

on that day also, there was no representation on behalf of

respondents. This Court heard learned counsel for the appellant

and ordered that the appeal to be listed on 30.06.2023 to hear

counsel for respondents.

The appeal is listed today for further hearing. Today also,

there is no representation on behalf of respondents.

NC: 2023:KHC:22606 RSA No. 461 of 2016

3. Heard, the learned counsel for the appellant.

4. This is an appeal from the Court of Senior Civil

Judge, Holenarasipur.

5. For the sake of convenience, the status of the

parties shall be referred to as per their ranking before the Trial

Court.

6. The plaintiff filed a suit against the defendants for

declaration, permanent injunction, possession, mesne profits,

and for the cost of the suit. According to the plaintiff, the suit

schedule property belongs to his father Kodaiah. The katha

stands in the name of his mother Singamma. His parents are

dead. After their death, the plaintiff being the elder male

member of the family was looking after the suit schedule

property. The defendants started the construction of the house

on the eastern side saying that the site has been given by the

municipality. It is said that they went ahead with the

construction without obtaining a license from the Town

Municipality or the Town Planning Authority. Though the

defendants have no manner of right, title, or interest over the

suit schedule property, tried to encroach the suit schedule

NC: 2023:KHC:22606 RSA No. 461 of 2016

property and the Plaintiff requested the defendants not to

encroach. But the defendants did not listen to the request.

Hence, the plaintiff was constrained to approach the Court of

law and filed the present suit.

After the service of the summons, the defendants

appeared through their counsel and filed a written statement.

They denied the plaint averments. They contended that katha

No.5025/4680 in Ward No.13 was granted under Ashraya

Yojane to the first defendant. He has borrowed the loan for the

construction of the house and he has left 1½ feet set back on

all sides. He denied the encroachment. Among other grounds,

he prayed for the dismissal of the suit.

7. Based on the above pleadings, the Trial Court

framed issues. To substantiate their contention, the parties led

their evidence, and documents were marked and exhibited. On

the trial of the action, the Trial Court dismissed the suit. On

appeal, the First Appellate Court set aside the Judgment and

Decree of the Trial Court and declared that the plaintiff is the

absolute owner of the suit schedule property, and a permanent

injunction was also granted restraining the defendants from

NC: 2023:KHC:22606 RSA No. 461 of 2016

interfering with the plaintiff's peaceful possession and

enjoyment of the suit schedule property. However, the prayer

for recovery of possession and mesne profits was dismissed

and liberty was granted to recover the amount towards the

value of encroached part i.e., 1.32 X 28 feet in the suit

schedule property following the law from the defendants.

Hence, this Regular Second Appeal is filed by the plaintiff under

Section 100 of CPC.

8. Learned counsel for the appellant has urged several

contentions.

Heard, the contentions urged on behalf of the appellant

and perused the records with utmost care.

The facts have been sufficiently said and the same does

not require reiteration. The issue falls into a narrow compass,

and the important question in the case is about the rejection of

the prayer for recovery of possession and for mesne profits.

The First Appellate Court on a reappraisal of the material proof

concluded that the plaintiff has proved his title over the suit

schedule property and hence declared that he is the absolute

NC: 2023:KHC:22606 RSA No. 461 of 2016

owner of the suit property, and he is in lawful possession and

enjoyment of the same.

Smt.Azra J.Dundge., learned counsel for the appellant in

presenting her argument strenuously urged that the Appellate

Judge has erred in rejecting the prayer of recovery of

possession and mesne profits. She argued by saying that the

Commissioner's Report reveals that the defendants have

encroached on the part of the suit schedule property. Based on

the Commissioner report and other material proof, the

Appellate Judge has also held that the defendants have

encroached on the property of the plaintiff to an extent of 1.32

X 28 feet, however, the Judge has erroneously rejected the

prayer for possession and mesne profit. She drew the attention

of the Court to Commissioner's report.

Perused the Commissioner's Report with utmost care. It

is marked at Ex.C.1, Ex.C1(a) & C1(b) are sketch.

A careful perusal of the same would reveal that the

defendants have encroached a part i.e., 1.32 X 28 feet of the

property which belongs to the plaintiff. The relevant part of the

NC: 2023:KHC:22606 RSA No. 461 of 2016

Commissioner's Report about the encroached area is extracted

as under:

"F aºÉ߬ÄAzÀ UÀÄgÀÄw¹gÀĪÀÅzÀÄ ¸À.£ÀA:72/1J2 ªÀÄvÀÄÛ 72/1J1 gÀ°è ¥ÀæwªÁ¢AiÀĪÀgÁzÀ ºÉZï.J¸ï.¸Áé«Ä S/o.¸ÀtÚAiÀÄå

EªÀgÀÄ ªÀvÀÄÛªÀj ªÀiÁrgÀĪÀ «¹ÛÃtð: GzÀÝ CUÀ® - 28 Cr x 1.32

Cr ¥ÀæzÉñÀªÁVgÀÄvÀÛzÉ."

The law is well settled that when the plaintiff proves the

encroachment, it is the duty of the Court to pass a proper order

either for demolition of the encroached part or pass an order

for compensation if the demolition would cause hardship to the

defendant. Let me see what the encroached part in the present

case is. Learned counsel for the appellant submits that the

defendants have put up a brick compound wall in the

encroached part and the Appellate Judge has erred in

concluding that the plaintiff will be compensated for the loss of

his property. She vehemently contended that the Appellate

Judge ought to have directed the defendants to hand over the

encroached part of the property to the plaintiff. Hence, an

attempt is made on the part of the appellant that the rejection

of the prayer for recovery of possession is bad in law.

NC: 2023:KHC:22606 RSA No. 461 of 2016

Learned counsel for the appellant is right in contending

that the Appellate Judge is not justified in passing an order for

compensation. In the present case, the encroached part

measures 1.32 X 28 feet and it is only a brick compound wall.

If the defendant is directed to remove the compound wall and

hand over the encroached part to the plaintiff, no prejudice will

be caused to the defendants. The Appellate Judge has entirely

misunderstood the law and has erred in passing an order for

compensation. No doubt at all that the decision at which the

Appellate Judge arrived is against the well-settled principles of

law. I may venture to say that the order about possession and

mesne profits should have been the other way. The plaintiff is

entitled to possession of the encroached part of the property

and for mesne profits.

9. The substantial questions of law framed by this

Court are answered accordingly.

10. The result, therefore, is that the appeal must be

allowed. The Judgment and Decree dated 20.01.2016 passed

by the Senior Civil Judge, Holenarasipura in R.A.No.27/2012 as

far as rejection of recovery of possession and mesne profit is

NC: 2023:KHC:22606 RSA No. 461 of 2016

liable to be set aside and accordingly it is set aside.

Accordingly, the Regular Second Appeal is allowed.

11. The defendants are directed to hand over the

encroached part i.e., 1.32 X 28 feet to the plaintiff within two

months from today. The Trial Court is hereby directed to hold

an inquiry about mesne profits following the law.

12. The Registry concerned is directed to draw a decree

accordingly.

Sd/-

JUDGE

TKN