Karnataka High Court
Shri.Sudhir vs Shri.Chandrasekhar on 6 June, 2024
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RSA No. 100412 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100412 OF 2016 (INJ-)
BETWEEN:
1. SHRI SUDHIR S/O RAMAPPA HALEMANI,
AGE: 53 YEARS, OCC: PRIVATE SERVICE,
RESIDENT OF: CTS.NO.10947, IIND MAIN,
9TH CROSS, SADASHIV NAGAR, BELAGAVI-590001.
2. SHRI ARUN S/O RAMAPPA HALEMANI,
AGE: 56 YEARS, OCC: PRIVATE SERVICE,
RESIDENT OF: CTS.NO.10947,
IIND MAIN, 9TH CROSS,
SADASHIV NAGAR, BELAGAVI-590001.
...APPELLANTS
(BY SRI SANTOSH B RAWOOT, ADVOCATE)
AND:
Digitally signed 1. SHRI. CHANDRASEKHAR V. HARUGOPP
by SAROJA AGE: MAJOR, OCC: RETIRED,
HANGARAKI RESIDENT OF: CTS.NO.10938,
Location: HIGH IIND MAIN, 9TH CROSS,
COURT OF
KARNATAKA SADASHIV NAGAR,
DHARWAD BELAGAVI-590001.
BENCH
DHARWAD
2. SMT. SHANTA @ KAMALA
W/O CHANDRASEKHAR HARUGOPP,
AGE: MAJOR, OCC: RETIRED,
RESIDENT OF CTS.NO.10938,
IIND MAIN, 9TH CROSS,
SADASHIV NAGAR,
BELAGAVI-590001.
...RESPONDENTS
(BY SRI ABHISHEK PATIL, ADVOCATE FOR R1 & R2)
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RSA No. 100412 of 2016
THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO ALLOW THE
APPEAL PRESENTED BY SETTING ASIDE THE JUDGMENT AND
DECREE DATED 04.03.2016 PASSED BY X ADDITIONAL DISTRICT
AND SESSIONS JUDGE, BELAGAVI IN R.A.NO.221/2015 BY
CONFIRMING THE JUDGMENT AND DECREE PASSED BY THE II
ADDITIONAL CIVIL JUDGE AND JMFC, BELAGAVI IN
O.S.NO.248/2008 DATED 07.04.2010 BY DECREEING THE SUIT OF
THE PLAINTIFFS AS PRAYED FOR AND AWARDING COSTS
THROUGHOUT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The above second appeal is filed under Section 100
of the Code of Civil Procedure1 by the plaintiffs challenging
the Judgment and decree dated 14.03.2016 passed in
R.A.No.221/2015 by the X Additional District and Sessions
Judge, Belagavi2, and the Judgment and decree dated
07.04.2010 passed in O.S.No.248/2008 by the II
Additional Civil Judge and JMFC Court, Belagavi3,
whereunder the suit for mandatory and permanent
injunction filed by the plaintiffs has been dismissed with
Hereinafter referred to as 'the CPC'
Hereinafter referred to as 'the first appellate Court'.
Hereinafter referred to as 'the trial Court'.
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costs by the trial Court which has been affirmed by the
first appellate Court.
2. The parties will be referred to as per their
ranking before the trial Court for the sake of convenience.
3. It is the case of the plaintiffs that, they are the
absolute owners of the house property being CTS
No.10947 in R.S.No.1365/A/1B, situated at Sadashiv
Nagar, Belgaum, the same having been purchased by their
father under a registered Sale Deed dated 14.07.1961.
The suit property is an open space measuring 60 feet X 20
feet, towards the southern side abutting property bearing
CTS No.10947.
4. That the defendants are claiming to be the
owners of the property abutting the suit property. It is the
further case of the plaintiffs that, their father enjoyed the
suit property for more than 40 years without any
interruption and the father of the plaintiff has fenced the
entire CTS No.10947 including suit property i.e. open
space. That the defendants were initially throwing
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garbage, rubbish and rotten waste in the suit property to
prevent the usher of the same by the plaintiffs and his
family members. That the defendants encroached the
northern half of an area to the extent of 60 ft X 10 ft and
constructed a compound wall by forcibly removing the
fence. Hence, the plaintiff filed the suit seeking for
mandatory and permanent injunction.
5. The defendants entered appearance in the suit
and denied the case of the plaintiffs. It is contended that,
the Sale Deed dated 14.07.1961 does not include the suit
property and that the plaintiffs cannot claim any right over
the same. That the defendant No.1 purchased the plot
No.5 through a registered Sale Deed dated 28.03.1990
and defendant No.2 is the wife of the defendant No.1. That
the defendants are in possession of the property
measuring 716 6/9 square yards without any interruption.
That the City Survey Enquiry Officer issued notice to the
owners of the properties bearing CTS Nos.10947 and
10938, visited the spot, conducted survey by measuring
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the plots and gave a decision showing the area of the
property bearing CTS No.10947 as 514-1/9 square yards
and CTS No.10938 as 716 6/9 square yards. That nobody
has challenged the said decision of the City Survey Enquiry
Officer dated 28.10.1978 and the same has become final.
That, as per the layout plan there was a service road
(Bangi passage) of 20 feet width in between plot No.14
held by the plaintiff and plot No.5 owned by defendant
No.1. That, subsequently, service road was cancelled and
defendant No.1 has become the absolute owner and is in
absolute possession and enjoyment of the entire CTS
No.10938 measuring 716 6/9 square yards. That the
owner of the property when laying plots had left the road
and service road (Bangi passage) as per the law prevailing
then.
6. It is the further case of the defendants that, the
plaintiffs filed a revision before the Joint Director in REV
SR 69/2001-02 for rectification of the survey records
pertaining to CTS No.10947. That the said revision was
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dismissed vide order dated 13.08.2002 which has not been
challenged by the plaintiffs and the said order has become
final.
7. It is further contended that, the defendants
have planted two coconut trees and two mango trees in
the suit property and the plaintiffs have no semblance of
right over the same. That the defendants have put up a
compound wall in their own area without committing any
encroachment over the property of the plaintiffs. That the
area of the defendants stretches 10 feet beyond the said
compound wall towards the property of the plaintiffs.
Hence, the defendants sought for dismissal of the suit.
8. Based on the pleadings of the parties, the trial
Court framed the following issues:
1. Whether the plaintiffs prove that they are in
actual possession and enjoyment of the suit
schedule property as on the date of institution
of the suit?
2. Whether the plaintiffs prove that the
defendants illegally constructed a compound
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wall by encroaching the northern half of an
area to the extent of 60 ft X 10 ft in the suit
schedule property by forcibly removing the
fence ?
3. Whether the valuation made by the plaintiffs for
the purpose of court fee and jurisdiction is
proper and correct ?
4. Whether the suit filed by the plaintiffs is
maintainable?
5. Whether the plaintiffs are entitled for reliefs as
prayed for ?
6. What order ?
9. The plaintiff No.1 examined himself as P.W.1.
Ex.P.1 to Ex.P.15 have been marked. Defendant No.1 has
been examined as D.W.1. Ex.D.1 to Ex.D.6 have been
marked. The trial Court by its Judgment and decree dated
07.04.2010 dismissed the suit of the plaintiffs with costs.
Being aggrieved, the plaintiffs preferred R.A.No.221/2015.
The defendants entered appearance before the first
appellate Court and contested the same. The first
appellate Court framed the following points for
consideration:
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(i) Whether the suit of the plaintiffs for the relief of
mandatory and permanent injunction was
maintainable ?
(ii) Whether interference with the Judgment of the
trial Court is necessary?
(iii) What order?
10. The first appellate Court by its Judgment and
decree dated 04.03.2016 dismissed the appeal of the
plaintiffs with costs and affirmed the Judgment and decree
passed by the trial Court. Being aggrieved, the present
second appeal is filed.
11. Learned counsel for the appellants vehemently
contends that, both the Courts have concurrently erred in
not noticing that the defendant has encroached the area
belonging to the plaintiffs and ought to have granted
injunction as sought for by the plaintiffs. Hence, he seeks
for allowing of the above appeal and granting of the relief
sought for.
12. Per contra, learned counsel for the respondent
Nos.1 and 2 justifies the concurrent findings recorded by
both the Courts and submits that, the same is not required
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to be interfered with by this Court in the present second
appeal.
13. The submissions of both the learned counsels
have been considered and the materials on record have
been perused.
14. The trial Court while adjudicating upon the
issues framed by it for consideration, has recorded the
following findings:
(i) The plaintiffs have not furnished the correct
particulars necessary for proper identification of the suit
property and in view of the same, the plaintiffs are not
entitled to any relief due to incorrect description of the suit
property;
(ii) As per the sale deed at Ex.P.4, towards south of
the plot No.4, purchased by the plaintiffs father an area 20
feet is shown as having been earmarked for road. This
area is not sold to the plaintiffs' father under Ex.P.4.
Therefore, in my opinion, the plaintiffs cannot lay any
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claim over the said 20 feet area shown laying to the south
of that plot No.14;
(iii) The plaintiffs have not stated on what date,
month and year the defendants have constructed the
compound wall by committing encroachment in the suit
property;
(iv) P.W.1 in his cross-examination has stated that,
on 09.01.2003, the defendants laid the foundation and
immediately constructed the compound wall. This
presupposes that the plaintiffs were not in possession of
the suit property from 09.01.2003. This itself is sufficient
to hold that, the plaintiffs are not in possession of the suit
property as on the date of the suit;
(v) What is elicited in the cross-examination of
P.W.1 shows that, the plaintiffs are having the knowledge
that the defendants have constructed the compound wall
in the year 2003 itself. Admittedly, the plaintiffs have not
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approached the Court within three years from the date of
construction of the compound wall;
(vi) It is settled law that when the plaintiffs filed a
suit for mandatory injunction directing the demolition of
certain completed construction and where the plaintiff
could not prove his exclusive possession and enjoyment of
the site, mandatory injunction for demolition of wall
cannot be granted;
(vii) It is pertinent to note that, the plaintiffs have
not examined any independent witness to show that, they
are in possession of the suit property on the date of suit
and the defendants have illegally constructed the
compound wall by making encroachment in the suit
property;
(viii) Admittedly, the plaintiffs and defendants are
adjacently residing next to each other. Under the
circumstances, the plaintiffs cannot plead the ignorance of
the construction of the compound wall by the defendants
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in the first week of June, 2003. However, they did not file
the suit for mandatory injunction immediately. On the
contrary, they filed the suit on 07.03.2008 after 05 years
01 month and 29 days after completion of the construction
of the compound wall;
(ix) P.W.1 at page 10 paragraph No.3 of his cross-
examination stated that, the police directed him to
approach the civil Court in the year 2003 itself.
15. The first appellate Court upon a re-appreciation
of the oral and documentary evidence on record has
noticed that, P.W.1 in the cross-examination has deposed
that, on 09.01.003 itself, the defendants have constructed
the compound wall. Hence, the first appellate Court has
recorded a finding that, the plaintiffs are not in possession
of the suit property. Further, the first appellate Court
noticing the settled proposition of law has affirmed the
findings recorded by the trial Court and dismissed the
appeal filed by the plaintiffs.
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16. It is clear and forthcoming from the
aforementioned that concurrent finding of facts have been
recorded that the suit has been filed belatedly and that the
plaintiffs are not in possession of the suit property.
17. The appellants have failed in demonstrating
that the said concurrent findings have been recorded
without considering any specific oral or documentary
evidence available on record and is hence erroneous. The
appellants have failed in demonstrating that any
substantial question of law arises for consideration in the
above appeal.
18. In view of the aforementioned, the above
appeal is dismissed as being devoid of merit at the stage
of admission itself.
Sd/-
JUDGE
SVH
CT:GSM
