Keriyappa Vajrappa Andagi vs Vyavasay Seva Sahakari
2023 Latest Caselaw 2593 Kant

                                                   -1-
                                                         RSA No. 100037 of 2014




                             IN THE HIGH COURT OF KARNATAKA,

                                        DHARWAD BENCH

                           DATED THIS THE 25TH DAY OF MAY, 2023

                                             BEFORE
                     THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
                      REGULAR SECOND APPEAL NO. 100037 OF 2014
                    BETWEEN:

                        KERIYAPPA VAJRAPPA ANDAGI
                        AGED ABOUT 63 YEARS, OCC: MERCHANT AND RAYAT
                        R/O. MUNDGOD, TQ: MALGI-581349.

                                                                    ...APPELLANT
                    (BY SRI. VISHWANATH HEGDE.,ADVOCATE)

                    AND:

                        VYAVASAY SEVA SAHAKARI SANGH LTD., MALGI
                        TQ: MUNDGOD
                        REPRESENTED BY ITS CHAIRMAN RAMACHANDRA
                        HANUMANTHAPPA DHAVALE,
                        AGE: 54 YEARS,RYOT, MALGI-581349.
        Digitally
SUJATA  signed by
SUBHASH SUJATA
PAMMAR SUBHASH
        PAMMAR
                                                                  ...RESPONDENT
                    (BY SRI. V G BHAT.,ADVOCATE)

                          THIS RSA FILED U/S.100 OF CPC, AGAINST THE JUDGEMENT &
                    DECREE DTD:08.11.2013 PASSED IN R.A.NO.171/2006 ON THE FILE
                    OF THE SENIOR CIVIL JUDGE, YELLAPUR, DISMISSING THE APPEAL,
                    FILED AGAINST THE JUDGMENT AND DECREE DTD:21.03.1998 AND
                    THE DECREE PASSED IN O.S. NO.34/1995 ON THE FILE OF THE
                    CIVIL JUDGE (JR.DN.), MUNDGOD, DECREEING THE SUIT FILED FOR
                    DECLARATION AND PERMANENT INJUNCTION.

                         THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
                    COURT DELIVERED THE FOLLOWING:
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                                       RSA No. 100037 of 2014




                          JUDGMENT

This appeal is filed by the defendant, challenging

Judgment and Decree passed in OS No.34/1995 on the file

of the Civil Judge(Jr.Dn), Mundgod and affirmed by the

Senior Civil Judge, Yellapur in RA No.171/2006 with

certain modification pertaining to lease hold rights instead

of ownership rights pertaining to plaintiff.

2. For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the Trial Court.

3. Brief facts of the case are as under:

The plaintiff society filed a suit for declaration that

the suit property measuring 10 guntas is owned by

plaintiff and defendant having encroached the said

property illegally sought for possession of the same. The

plaintiff asserts that the suit schedule property measuring

10 guntas was leased in favour of the plaintiff. The

defendant has appeared and filed written statement

disputing the claim. It is admitted by the defendant that

RSA No. 100037 of 2014

10 guntas of suit survey number was leased to the plaintiff

and he has purchased 30 guntas of the land under

registered sale deed. However, he disputed the other

claim. The Trial Court on the basis of the rival pleadings

has framed the following issues:-

Issues

"1. Whether the plaintiff proves his title to suit property?

2. Whether the description of the suit property is not properly given in plaint?

3. Whether plaintiff proves interference with his lawful possession from defendant as claimed in the plaint?

4. Whether defendant proves purchase of suit property from its previous owner under regd., sale deed dt; 15.7.75?

5. Whether the valuation of suit is not correct and court fee paid is not proper?

6. Whether the suit is barred by time?

7. What decree or order?

ADDITIONAL ISSUES

1. Whether the plaintiff proves he was in actual possession and enjoyment of the suit property?

RSA No. 100037 of 2014

2. Whether the defendant proves, he was in adverse possession of the suit property against the plaintiff?

3. Whether the plaintiff is entitled for possession by evicting the defendant from the suit property, if the court held that the defendant was in unlawful possession of the suit property?"

4. Plaintiff society has got examined 2 witnesses

as PW1 and PW2 and placed reliance on three documents

marked at Exs.P1 to P3 while defendant got examined

himself as DW1 and placed reliance on sale deed-Ex.D1 in

his favour.

5. The Trial Court after appreciating the oral as

well as documentary evidence, decreed the suit of the

plaintiff declaring that the plaintiff society is the owner of

the suit schedule property measuring 10 guntas in Survey

No.3 situated in Malagi village marked by letters ABCD in

the survey report and directed the defendant to handover

the vacant possession of the same to the plaintiff.

RSA No. 100037 of 2014

6. Being aggrieved by the same, defendant has

filed RA no.171/2006 (Old RA No.73/1998) on the file of

the Senior Civil Judge, Yellapur. The learned Senior Civil

Judge, after re-appreciating the oral as well as

documentary evidence, has dismissed the appeal by

modifying the judgment to the extent of a declaring the

lease hold rights in favour of the plaintiff rather than

ownership rights. Being aggrieved by these concurrent

findings, the defendant is before this Court.

7. Heard the arguments advanced by the learned

counsel for the appellant-defendant and learned counsel

for the respondent - plaintiff. Perused records.

8. Learned counsel for the appellant would

contend that the plaintiff is having interest in lease hold

rights to the extent of 10 guntas only and defendant has

purchased 30 guntas of disputed Survey No.3 under

registered sale deed Ex.D1. He would contend that he has

not at all encroached and survey report is contrary to the

RSA No. 100037 of 2014

sale deed as well as lease deeds produced by the parties

and as such, he would contend that both the courts below

have failed to appreciate this aspect which has resulted in

miscarriage of justice. He would submit that substantial

question of law is involved regarding appreciation of the

evidence in the form of oral and documentary evidence by

the trial Court as well as the First Appellate Court and

hence, he would seek for allowing the appeal.

9. Per contra, the learned counsel for the

respondent -plaintiff would submit that the survey report

is in accordance with the lease deed as well as sale deed

and makes it clear that the defendant has encroached the

property of the plaintiff and both the Courts below have

appreciated oral as well as documentary evidence in detail

with reference to the evidence led by both the parties. He

would submit that both the courts have concurrently held

that the plaintiff is entitled for possession of the suit

schedule property which is leased to the plaintiff after

appreciating oral and documentary evidence and he would

RSA No. 100037 of 2014

submit that there is no merit in the appeal and no

substantial question of law is involved. As such, he seeks

for dismissal of the appeal.

10. Having heard the arguments and perusing the

records, it is evident that the plaintiff was granted 10

guntas of land in Survey no.3 by way of lease which is

undisputed. It is also an undisputed fact that the

defendant has purchased 30 guntas of disputed Survey

No.3 situated at the southern side of the property of

plaintiff, i.e. the suit schedule property. The respective

claims over 10 guntas and 30 guntas is undisputed.

According to the plaintiff, the defendant has encroached

10 guntas belonging to the plaintiff. The defendant

disputed this aspect and claims that he is in possession of

30 guntas purchased by him. However, the survey report

Ex.D2 establishes that ABCD is the disputed area of 10

guntas. Further admittedly, Survey No.3 totally measures

40 guntas and Hissa No.1 is measuring 10 guntas which is

shown by letters ABCD while Hissa No.2 is measuring 30

RSA No. 100037 of 2014

guntas shown by letter CDEF. The report of the ADLR

further disclose that the defendant has encroached ABCD

area and he is in possession of 40 guntas. As per the own

admission of the defendant, he has purchased only 30

guntas of land under the registered sale deed Ex.D1.

When the defendant has purchased 30 guntas of the land,

question of he claiming possession over entire area totally

measuring 40 guntas does not arise at all. Further, there

is no dispute of the fact that the plaintiff has also

constructed a structure on the northern side of the suit

schedule property in his own property which is not a part

of the suit schedule property. Records also disclose that

suit schedule property situated on the southern side of the

plaintiff's structure. Considering these aspects, there is

material evidence to show that the defendant has

encroached ABCD area which is measuring 10 guntas and

his right is restricted to CDEF which is measuring 30

guntas.

RSA No. 100037 of 2014

11. Both the Courts have appreciated the oral and

documentary evidence in detail and have justified in

decreeing the suit. Though the Trial Court has committed

a mistake in declaring the ownership right of the plaintiff,

though it is not sought, the Appellate Court has rectified

the said mistake by granting lease hold rights in favour of

the plaintiff. The judgment and decree passed by both

the Courts below does not suffer from any infirmity or

illegality so as to call for any interference. No substantial

question of law is involved in the instant appeal so as to

admit the appeal. Hence, the appeal being devoid of

merits does not survive for consideration and accordingly,

it stands dismissed.

Sd/-

JUDGE

VMB