Karnataka High Court
Shivaraj S/O Khandoji Gowli vs Karim Sab S/O Basheer And Ors on 5 January, 2024
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RSA No. 7459 of 2013
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 7459 OF 2013 (INJ)
BETWEEN:
SHIVARAJ S/O KHANDOJI GOWLI,
AGE:48 YEARS, OCC: AGRICULTURE,
R/O DEVADURGA,
DIST. RAICHUR-584101.
...APPELLANT
(BY SMT. REKHA PATIL FOR SRI. I.R.BIRADAR, ADVOCATE)
AND:
1. KARIM SAB S/O BASHEER,
AGE: 64 YEARS, OCC: POST MASTER,
KARADAKALA, KIRANA SHOP AT KARADAKAL,
POST: KARADAKAL,
TQ. LINGASUGUR, DIST. RAICHUR.
Digitally signed
by SACHIN 2. SHAIK JAFFAR AHMED
Location: HIGH S/O SHAIK MURADASAB,
COURT OF
KARNATAKA OCC: RUNNING THE FLOOR MILL,
R/O SIDDA RAMESHWARA ONI,
DEVADURGA TOWN,
DIST. RAICHUR-584101.
3. BASANAGOUDA
S/O SHABANNA SHALKAPUR,
AGE: 45 YEARS, OCC: AGRICULTURE,
AT PRESENT LIVING AT
KUNTRAL VILLAGE, POST MASARAKAL,
TQ. DEODURGA, DIST. RAICHUR-584101.
...RESPONDENTS
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RSA No. 7459 of 2013
(BY SRI. G.B.YADAV AND SRI. M.A.JAGIRDAR, ADVOCATES
FOR R1 & R2;
SRI. K.N.TIMMAPURI & SRI. N.L.MALLI, ADVOCATE FOR R3)
THIS RSA IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE, PRAYING TO ALLOW THIS REGULAR
SECOND APPEAL AND TO SET ASIDE THE JUDGMENT AND
DECREE DATED 07.09.2013, PASSED BY THE LEARNED I
ADDITIONAL DISTRICT JUDGE AT RAICHUR, IN
R.A.NO.58/2011, CONFIRMING THE JUDGMENT AND DECREE
DATED 27.06.2011, PASSED BY THE LEARNED PRINCIPLE CIVIL
JUDGE (SR.DN.) RAICHUR IN O.S.NO.210/2005.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed by the plaintiff challenging the
judgment and decree dated 07.09.2013 passed in
RA.No.58 of 2011 on the file of the I Additional District
Judge at Raichur, dismissing the appeal and confirming the
judgment and decree dated 27.06.2021 passed in
OS.No.210 of 2005 on the file of the Principal Senior Civil
Judge, Raichur.
2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and
ranking before the trial Court.
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3. It is the case of the plaintiff that, the plaintiff is
the owner in possession of the land bearing Sy.No.
194/1 measuring 2 acres, 10 guntas and Sy.No.194/4
measuring 39 guntas situate at Devadurga. It is the
grievance of the plaintiff that, the defendant No.1,
who is the owner of land bearing Sy.No.196/2,
measuring 1 acre, 39 guntas, is encroaching the land
belonging to the plaintiff and therefore, plaintiff has
filed suit before the Trial Court in OS No.210 of 2005,
seeking relief of injunction against the defendants.
4. After service of notice defendants entered
appearance and filed written statement denying the
averments made in the plaint.
5. On the basis of pleadings on record, issues were
framed by the Trial Court.
6. In order to establish their case, plaintiff has
examined two witnesses as PW1 and PW2 and
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produced 16 documents, marked as Exs.P1 to P16. On
the other hand, defendant No.1 examined as DW1 and
got marked 08 documents as Exs.D1 to D8. During
the course of proceedings Court Commissioner-
Superintendent, Tahasildar Office (Survey Division),
Hospet was examined as CW1 and got marked
documents as C1 to C8.
7. The Trial Court, after considering the material on
record dismissed the suit and feeling aggrieved by the
same, the plaintiff has filed RA No.58 of 2011 on the
file of the First Appellate Court. The appeal was
resisted by the defendants. The First Appellate Court,
after re-appreciating the material on record by its
judgment and decree dated 07.09.2013 dismissed the
appeal, consequently, confirmed the judgment and
decree passed by the Trial Court. Feeling aggrieved by
the same, the plaintiff has preferred this Regular
Second Appeal under Section 100 of CPC.
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8. I have heard Smt Rekha Patil appearing on behalf
of Sri I.R.Biradar, learned counsel appearing for the
appellant; Sri G.B.Yadav and Sri M.A. Jagirdar,
learned counsel appearing for the respondents 1 and 2
and Sri K.N.Timmapuri and Sri N.L.Mali learned
counsel appearing for the respondent No.3.
9. It is the contention of the learned counsel
appearing for the appellant that both the courts below
have not considered the material on record and the
report made by the Court Commissioner was not
signed by the plaintiff and therefore, it is contended
that, both the Courts below have committed error in
dismissing the suit of the plaintiff.
10. Per contra, learned counsel appearing for the
contesting respondents sought to justify the judgment
and decree passed by the both the Courts below.
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11. In the light of the arguments advanced by the
learned counsel appearing for the parties, on careful
examination of the appeal papers, it is not in dispute
that, the plaintiff is the owner of the land bearing
Sy.Nos.194/1 and 194/4 of Devadurga, Raichur
District, to an extent of 2 acres, 10 guntas and 39
guntas, respectively. In order to ascertain the fact
whether the defendants have encroached the land
belonging to the plaintiff, the Trial Court has
appointed the Court Commissioner-Superintendent,
Tahasildar office, (Survey Division), Hospet, to
conduct survey of land in question and report of the
Commissioner was produced at Exs.C1 to C8. It is not
in dispute that, learned counsels appearing for the
parties were present at the time of survey of the land
in question and memo of instructions were filed. The
report of the Commissioner would indicate that, there
is no encroachment made by the defendants. In that
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view of the matter, both the Courts below, after
appreciating and re-appreciating the material on
record, arrived at a conclusion that the defendants
have not encroached the property belonging to the
appellant/plaintiff. Therefore, I am of the opinion that,
no interference is called for in this appeal under
Section 100 of CPC. Accordingly, the Regular Second
Appeal is dismissed.
Pending applications, if any, stands disposed of.
Sd/-
JUDGE
SB
