Karnataka High Court
Geeta W/O Bhimanagouda Biradar vs Vishwanath S/O Veerabhadrappa ... on 2 April, 2024
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RSA No. 7133 of 2013
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO.7133 OF 2013 (DEC)
BETWEEN:
GEETA W/O BHIMANAGOUDA BIRADAR
AGE: 37 YEARS, OCC: H. H. WORK,
R/O MASABINAL, TQ. B.BAGEWADI,
NOW AT KASAGERI GALLI, C/O SHIROL ADVOCATE,
BIJAPUR-586101, REPRESENTED BY HER SPA
HOLDER, IRANAGOUDA @ VIRANAGOUDA BIRADAR,
S/O MALLANAGOUDA BIRADAR,
AT POST MASABINAL, TQ. BASAVAN BAGEWADI,
DIST. BIJAPUR-586203.
...PETITIONER
(BY SRI D. P. AMBEKAR, ADVOCATE)
Digitally signed
by KHAJAAMEEN
L MALAGHAN AND:
Location: HIGH
COURT OF
KARNATAKA VISHWANATH S/O VEERABHADRAPPA BAGEWADI
AGE: 50 YEARS,
OCC: AGRICULTURE AND ADVOCACY,
R/O MASABINAL TQ. B.BAGEWADI, NOW AT
EXTENSION AREA, NEAR OLD COURT BUILDING,
B.BAGEWADI,
DIST. BIJAPUR-586203.
...RESPONDENT
(BY SRI P. S. PATIL, ADVOCATE (ABSENT))
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RSA No. 7133 of 2013
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC R/W ORDER 41 RULE 1 OF CPC, PRAYING
TO, ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND
DECREE DATED 01-02-2013 PASSED BY THE FAST TRACK
COURT-II BIJAPUR, AT BIJAPUR ALLOWING R.A.NO.25/2007
AND RESTORE THE JUDGMENT AND DECREE DATED 15-02-
2007 PASSED BY THE CIVIL JUDGE (SR.DIV), B. BAGEWADI IN
O.S.NO.166/2003 WITH COST THROUGHOUT. AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 28.03.2024, COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed against divergent findings in
judgment and decree passed in RA No.25/2007 on the file
of the Fast Track-II Court, Vijayapura dated 01.02.2013,
which was arising out of the judgment and decree passed
in O.S.No.166/2003 by the Civil Judge (Sr.Dn.), Basavan
Bagewadi dated 15.02.2007.
2. The appellant is the plaintiff in O.S.
No.166/2003. The parties are referred as per their
ranking before the Trial Court for the sake of convenience.
3. The appellant filed a suit against the defendant
for relief of declaration and consequential relief of
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injunction, alternatively for possession of the suit
property. It is contended that the plaintiff is the owner of
land bearing CB (Consolidated Block) No.69 measuring 5
acres 1 guntas and the defendant is the owner of land
bearing CB No.67/5 measuring 3 acres 37 guntas of
Masabinal village, Basavan Bagewadi Taluk. The land of
the defendant is situated on the Northern side of Block
No.69 of the plaintiff. The plaintiff contend that there is
bund in between the property of the plaintiff and
defendant since long time. The defendant converted his
land Block No.67/5 into non agriculture and formed the
layout in the same. While doing so, he has encroached
into the property of the plaintiff and formed plots on the
bund, which exclusively belongs to the plaintiff. Such
encroachment is measuring 12 feet North-South and 500
ft East-West, shown by letters 'AEJH' in the hand-sketch
map annexed to the plaint. It was also contended that
while laying the plots, the defendant had removed the
latrines constructed by Gram Panchayat on the Western
side. The defendant having no manner of right title or
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interest in the suit property, has illegally encroached the
property of the plaintiff and when the requests made by
the plaintiff were not heeded to, the plaintiff was
constrained to file the suit with above prayers.
4. The defendant on his appearance before the
Trial Court contended that he has laid the plots in his lands
only by converting his lands into non agricultural one. The
defendant admitted that his land is on the Northern side of
the land of the plaintiff. It is his contention that the bund
in between the land of the plaintiff and the defendant is
situated in his property and therefore there is no such
encroachment as alleged by the plaintiff. Thus, denying
the contention of the plaintiff, he has sought for dismissal
of the suit.
5. On the basis of the above pleadings, the Trial
Court framed the issues. The P.A. holder of the plaintiff
was examined as PW1 and Ex.P1 to Ex.P7 were marked.
On behalf of the defendant, he has examined as DW1 and
Ex.D1 to Ex.D5 were marked. A Court Commissioner was
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appointed by the Trial Court and he was examined as CW1
and his report came to be marked as Ex.C1. After hearing
the arguments by both the sides and considering the
evidence on record the Trial Court has given finding as
below and decreed the suit.
Sl. Issues Finding
No
1. Whether the plaintiff proves In the affirmative.
that she is the owner and in
possession of the suit
property?
2. Whether the plaintiff proves In the affirmative.
that the defendant has laid
plots by encroaching the land
of plaintiff shown at AEJH
portion to the extent of 12
feet North-South and 500
feet East-West?
3. Whether the suit is not In the negative.
properly valued and court fee
paid is not proper and
correct?
4. Whether the plaintiff is In the affirmative.
entitled for the relief claimed
in the suit?
5. What decree or order? As per final order
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6. Being aggrieved by the judgment of the Trial
Court, the defendant went in appeal in R.A.No.25/2007.
The plaintiff appeared before the first appellate Court as
respondent and after hearing both the sides, the first
appellate Court framed the following points for
consideration and answered the same as below:
Sl. Points for consideration Finding
No.
1. Whether the plaintiff proves In the negative.
that the defendant has laid
plots by encroaching the land
of plaintiff shown at AEJH in
the hand sketch to the
extent of 12 ft. North-South
and 500 ft. East-West?
2. Whether the judgment and In the affirmative.
decree passed by the Trial
Court requires to be
interfered?
3. What order? As per final order:
7. Being aggrieved by the reversal of the decree
by the first appellate Court, the plaintiff is before this
Court in second appeal. At the time of admission, this
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Court has framed the following substantial questions of
law:
1) Whether the lower appellate Court was right
in holding that Ex.P3 demonstrate that the
plaintiff is not an encroacher, in the light of
the admissions by the defendant that some
portion of the plots formed at the Southern
side of the bund and that the bund in the
land of the plaintiff?
2) Whether the lower appellate Court has
misread the Ex.P3 and Ex.P6, the order with
regard to encroachment alleged against the
defendant?
3) Whether the lower appellate Court is
justified in not drawing an adverse inference
against the defendant on the failure to place
on record the registered sale deed to
demonstrate the extent under his
ownership?
4) For consideration of any other substantial
question of law which may arise for
consideration while hearing the appeal?
8. The Trial Court records have been secured. On
issuance of notice, the defendant/respondent has
appeared through his counsel before this Court.
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9. Heard the arguments by learned counsel for the
appellant. Despite granting several opportunities, the
counsel for the respondent has not appeared to advance
his arguments.
10. Point No.1 & 2 reg:- It is admitted fact by
both the sides that land bearing CB No.69 measures 5
acres 1 gunta and that on the Northern side, the land of
the defendant bearing CB No.67/5 is situated. As per the
usage, there is a bund in between the land of the plaintiff
and defendant. These aspects are not in dispute. The
defendant converted his 3 acres 27 guntas for non
agricultural use and after approval by the competent
authority, has formed a layout. It is also an admitted fact
that on the Northern side of the land of the defendant,
there is a public road from Ingaleshwar to Masabinal.
11. The plaintiff contend that while laying the plots
the defendant has encroached the land of the plaintiff to
the extent of 12 ft. x 500 ft. and laid plots on the bund
belonging to the plaintiff. In support of his contention, an
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argument is advanced that on the Northern side of CB
No.67/5 of the defendant, the road was having width of 12
meters and later it has been widened to 15 meters and
therefore the defendant has encroached into the land of
the plaintiff on the Southern side to fit his layout. On the
other hand, the defendant contend that the bund in
between the property of the plaintiff and defendant
belongs to him as per the sale deed under which he
purchased the property, but the plaintiff is falsely claiming
that the bund belongs to him.
12. Before the Trial Court, a Court Commissioner
was appointed and he surveyed the property of the
plaintiff and the defendant and gave a report as per Ex.C1
stating that there is no encroachment by the defendant in
the property of the plaintiff. However, he did not show
the existence of the bund as he was not called upon to
show the same.
13. The plaintiff rely upon the survey sketch
prepared by the Survey Authority as per Ex.P3. It was
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prepared for the purpose of fixing the boundaries since
there was a dispute between the plaintiff and the
Panchayat. The survey map show certain encroachment
by Panchayat and therefore the President of the Gram
Panchayat has filed appeal to ADLR, Vijayapur. The
appeal filed by Gram Panchayat was dismissed by the
ADLR. Therefore, the plaintiff sought a clarification from
the DDLR Vijayapur, who clarified that the sketch prepared
by ADLR dated 18.03.2001 was in pursuance to a decree
of the Court in the year 1950. Therefore, the said sketch
in confirmed. The plaintiff has also relied on the approved
layout plan produced at Ex.P5 pertaining to Block No.67/5
of the defendant.
14. The defendant is relying upon the approved
layout plan, order of conversion of land for non agriculture
which are produced at Ex.D2 to Ex.D5. Ex.D1 is the PT
sheet pertaining to Block No.67/5 and 67/4 showing the
Ingaleshwar - Masabinal road.
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15. The Trial Court on the basis of the above
documents and the oral testimony of the plaintiff and
defendant, held that the survey sketches do not show
about the bund which separate land of the plaintiff and
defendant. It held that the defendant has admitted in the
cross examination that the two lands are separated by a
bund. The defendant though stated that his sale deed
discloses that the bund belongs to him, did not produce
the same and therefore came to the conclusion that the
bund belongs to the plaintiff. It also rejected the report of
the Court Commissioner since it did not show the
existence of the bund and the defendant has admitted that
he had laid some plots on the bund belonging to the
plaintiff. On above grounds it had decreed the suit.
16. The first appellate Court by impugned judgment
relied upon the report of the Court Commissioner and
Ex.P3 and held that they are binding on the plaintiff; it
observed that the survey sketch of Ex.P3 was prepared at
an undisputed point of time, concerning a dispute raised
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by the plaintiff with the Panchayat. The appeal filed by
the Panchayat was dismissed and therefore the survey
sketch prepared in the year 1950 was confirmed. It is
relevant to note that the Ex.P3 is not the sketch prepared
in the year 1950. In fact Ex.P3 relied on the survey
sketch prepared in the year 1950 and identified the
encroachments in the property of the plaintiff. Obviously
survey was held to identify the encroachments on
18.03.2001. Therefore, Ex.P6 order does not pertain to the
Ex.P3.
17. The learned counsel appearing for the
appellant/plaintiff submits that the Trial Court was right in
holding that the defendant had encroached into the bund
belonging to the plaintiff. He submits that the Ex.P3
shows a small bund on the Northern side of Block No.69 of
the plaintiff, but it does not show encroachment. He
contends that the defendant, pursuant to widening of the
road on the Northern side of his property has encroached
into the bund shown in Ex.P3. This was properly
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considered by the Trial Court by referring to the oral
testimony and therefore the first appellate was not
justified in relying on Ex.P3 only. It is his contention that
Ex.P3 is not relied by the plaintiff to show the
encroachment, but it is only to show the existence of bund
in the property of the plaintiff.
18. On a careful perusal of the records, especially
the report the Court Commissioner at Ex.C1, it may be
seen that the Court Commissioner has measured Block
No.67/5, Block No.69, Block No.70 and also the Block
No.41/1 and 41/2 situated on the Northern side of the
Block No.67/5 of the defendant. After verifying, he has
shown that there is no such encroachment by the
defendant and the boundary of the plaintiff and the
defendant is demarcated by letters 'NF'. In his testimony
before the Court as CW1, he states that in Ex.P3, a bund
is shown on the Northern side of Block No.69, within Block
No.69. He admits that Ex.P3 is confirmed by the order in
Ex.P6 by DDLR. His cross examination by the plaintiff
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shows that he is a distant relative of defendant, but he has
denied any favour being made to the defendant.
19. What can we found from the above sketches is
that though there is a bund on the Northern side on the
property of the plaintiff, the exact measurement of the
bund is not available. Ex.P3 shows the bund which falls
within the property of the plaintiff. It does not show the
bund which falls in the property of the defendant. In other
words, the boundary line of Block No.69 and 67/5 runs
through within the bund. Under these circumstances, it
was incumbent upon the plaintiff to establish that there
was an encroachment by the defendant in the property of
the plaintiff. When the report of the Court Commissioner
does not show any encroachment, the plaintiff wants to
rely on the testimony of the DW1 that he had laid plots on
the bund portion, claiming that such bund is shown to be
in the property of the plaintiff in Ex.P3.
20. Conspicuously, the plaintiff does not file any
memo instructions to the Court Commissioner asking him
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to show the bund also in his sketch. Now, he wants to rely
on the oral testimony of the plaintiff and the defendant
and seek adverse inference to be drawn against the
defendant since he did not produce the sale deed.
21. It is evident that the documentary evidence will
prevail over the oral evidence. When the plaintiff is unable
to establish through the survey conducted by the Court
Commissioner he wants to rely on the oral evidence of the
defendant. Even if the oral testimony of the DW1 is
considered, where he has admitted that there is a bund in
between his land and that of the plaintiff, it falls short of
establishing that the entire bund belongs to the plaintiff.
He denies the suggestion that as per Ex.P3 the entire bund
belongs to the plaintiff.
22. Another important aspect, in the cross
examination of the PW1 is that he contends that the
encroachment shown by blue colour in Ex.P3 is the
encroachment of the defendant. Curiously the
encroachment shown in blue colour in Ex.P3 is the
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encroachment by the owner of Block No.70. Therefore, it
is evident that the oral testimony of the plaintiff also does
not cater to the requirement of the plaintiff.
23. From the above conspectus of the material, it is
evident that the reliance of the Trial Court on the oral
testimony and rejection of the documentary evidence as
well as the report of the Court Commissioner is not proper.
The first appellate Court was right in holding that Ex.P3
demonstrate that the defendant is not encroacher. The
admission of the defendant and his non production of the
sale deed cannot be held adverse to him. I do not find
any reason to hold that lower appellate Court had mislead
Ex.P3 and Ex.P6 regarding the encroachment. Both these
documents did not show any encroachment by the
defendant. They were pertaining to the encroachment by
the Panchayat. Therefore, the first and second substantial
questions of law are answered in the affirmative.
24. Re: Point No.3: The plaintiff has to prove
his case and he cannot rely on the weakness of the
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defendant. When there is nothing on record to show that
the defendant had encroached into the land of the plaintiff
and that the entire bund separating their lands is
belonging to the plaintiff alone, non production of the sale
deed of the defendant cannot be of any help to the
plaintiff. Hence, the third substantial of law is answered
in the affirmative.
25. No other substantial question of law is
canvassed by the appellant. Hence, the following:
ORDER
The appeal is dismissed.
The judgment of the first appellate Court in RA
No.25/2007 on the file of the Fast Track-II, Vijayapura
dated 01.02.2013, dismissing the suit of the plaintiff is
hereby confirmed.
Sd/-
JUDGE
SMP
CT:PK
