Karnataka High Court
Sri I B Palangappa vs Sri I S Karumbaiah on 26 June, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
-1-
NC: 2024:KHC:23586
RSA No. 136 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
REGULAR SECOND APPEAL NO. 136 OF 2013 (DEC)
BETWEEN:
SRI. I.B. PALANGAPPA
S/O I.K. BELLIAPPA,
AGED ABOUT 74 YEARS,
AGRICULTURIST,
BALAMURI VILLAGE,
NAPOKLU HOBLI, MADIKERI TALUK,
REPRESENTED BY HIS
GPA HOLDER I.B. MONNAPPA,
AGED ABOUT 71 YEARS,
AGRICULTURIST,
RESIDING AT BALAMURI VILLAGE,
NAPOKLU HOBLI, MADIKERI TALUK
KODAGU DISTRICT - 571 201.
...APPELLANT
(BY SRI. RAVINDRANATH K, ADVOCATE)
Digitally signed
by AND:
NARAYANAPPA
LAKSHMAMMA
Location: HIGH 1. SRI. I.S. KARUMBAIAH
COURT OF S/O SOMANNA,
KARNATAKA
AGED ABOUT 73 YEARS,
RESIDING AT SUBASH NAGAR,
MURNAD, MADIKERI TALUK,
KODAGU DISTRICT - 571 201.
2. SRI. I.M. JOYAPPA,
S/O MACHAIAH,
AGED ABOUT 63 YEARS,
RESIDING AT BALAMURI VILLAGE,
NAPOKLU HOBLI, MADIKERI TALUK,
-2-
NC: 2024:KHC:23586
RSA No. 136 of 2013
KODAGU DISTRICT - 571 201.
...RESPONDENTS
(BY SRI. PRABHU GOUD B. THUMBAGI, ADVOCATE
FOR R1 AND R2)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT
& DECREE DATED 4.10.2012 PASSED IN R.A.NO.6/2009 ON THE FILE
OF SENIOR CIVIL JUDGE, MADIKERI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 5.12.2008
PASSED IN OS.NO.73/2007 ON THE FILE OF PRINCIPAL CIVIL JUDGE
(JR.DN.), MADIKERI.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The appellant, who was the plaintiff in O.S.No.73/2007 is
before this Court challenging concurrent finding of the Trial
Court and the First Appellate Court, dismissed the suit for
declaration of title.
2. A suit in O.S.No.73/2007 having been filed seeking for the
relief of declaration of title over the plaint schedule property
measuring 6 cents out of 80 cents in Sy.No.53 situated at
Balamuri Village, Napoklu Hobli, Madikeri Taluk and for
delivering the possession thereof came to be dismissed by
the Trial Court and an appeal filed by the plaintiff also came
to be dismissed.
NC: 2024:KHC:23586
3. The above matter has been admitted on 11.10.2013 to
answer the following substantial questions of law:
3.1.Whether the lower appellate judge having held in para
21 that the appellant / plaintiff has approved his title
over 80 cents of the land in Sy.No.53 and later stage
holding that the appellant has not proved his title over
the property?
3.2.Whether the Courts below are justified in not making
reference to both oral and documentary evidence
placed by the parties properly?
4. Sri. K.Ravindranath, learned counsel for the appellant would
submit that:
4.1. Once the defendants had admitted that the plaintiff
was the owner of 80 cents, the claim of the plaintiff
claiming title as regards portion of the said property
measuring 6 cents and to handover possession ought
to have been allowed, which has not been done and
therefore, he submits that the finding of the Trial
Court and the First Appellate Court are not in
accordance with law. Once there was a finding that
the plaintiff had title over 80 cents of the land in
Sy.No.53, the question of denying the right of
possession to the plaintiff to 6 cents of the land out
of 80 cents was not permissible.
NC: 2024:KHC:23586
4.2. His further submission is that all the witnesses have
admitted that the plaintiff was the owner of 80 cents
of the land. The said admission on behalf of all the
witnesses has been ignored both by the Trial Court
and the First Appellate Court and as such, both the
judgments of the Trial Court and First Appellate
Court have to be set aside.
4.3. Lastly, he relies upon the survey sketch, which has
been marked as Ex.P4 before the Trial Court.
Relying on the said survey sketch, he submits that
the area constituting 80 cents in Sy.No.53 having
been clearly demarcated even after the road there
was an extent of 6 cents which has been marked in
the said survey sketch which was abutting the
property of the defendants in Sy.No.53 which has
been encroached upon by the defendants. The said
survey sketch would categorically establish that 6
cents of the land in Sy.No.53 had been encroached
by the defendants. This aspect ought to have been
taken into consideration by the Trial Court, this not
having been taken into consideration, the oral and
NC: 2024:KHC:23586
documentary evidence on record has been ignored
both by the Trial Court and First Appellate Court. On
that basis, he submits that the substantial questions
of law which have been framed by this Court on
11.10.2013 have to answered in favour of the
appellant.
5. Learned counsel for the respondents would further submit
that the Trial Court and the First Appellate Court have
categorically come to a conclusion that the survey sketch
was not proper inasmuch as the guideline given for the
survey sketch had not been identified, without such
identification, the land not been measured even as per the
evidence of P.W.3/DDLR. The survey was carried out as per
the village map, which could not have been so carried out,
and the land could not be so identified without the guideline
boundary marks being clearly and categorically identified.
This aspect has been taken into consideration by the Trial
Court. His submission is that the defendants have no claim
as regards the 80 cents of land owned by the plaintiff in
Sy.No.53, the only contention is that there is no land of the
said survey number which has been encroached upon by the
NC: 2024:KHC:23586
defendants, therefore, the Trial Court has rightly rejected
the relief sought for by the plaintiff.
6. Heard Sri. Ravindranath K., learned counsel for the
appellant, Sri. Prabhugoud B. Thumbagi, learned counsel for
respondent Nos.1 and 2 and perused papers.
7. In the present case, there is no dispute as regards the
ownership of 80 cents of the land in Sy.No.53 of Balamuri
Village by the plaintiff. The subject matter of the suit is 6
cents out of that 80 cents, which the plaintiff claims to have
been encroached upon by the defendants, who are the
owners of the neighbouring property in Sy.No.55. The
pleadings and evidence in this regard before the Trial Court
was that at the request of all family members and certain
other persons, road had been formed in Sy.No.53 to give
access to the other properties, and while doing so, an extent
of 6 cents was left out on the northern side of the road,
which forms part and parcel of Sy.53 and therefore, the
same belongs to the plaintiff.
8. It is these 6 cents that have allegedly remained on the
northern side after the road, which is the subject matter of
NC: 2024:KHC:23586
the present suit and the present appeal. The basis on which
the plaintiff claims is by relying on Ex.P4 being a survey
sketch prepared by P.W.3/DDLR. By referring to item No.4
of the mahazar in Ex.P4, it is contended that there is a
categorical assertion made by P.W.3/DDLR that there is an
encroachment of 6 cents of the land by the owner of the
land in Sy.No.55 i.e., the defendants.
9. Thus, the entire basis of the plaint is as regards 6 cents by
relying on Ex.P4, being a survey sketch. P.W.3 who has
carried out the said survey in his cross-examination, has
clearly and categorically admitted that while carrying out
such a survey, the guideline boundary stones had not been
identified and the survey was not carried out with reference
to the guidelines survey boundary stones but was done on
the basis of the village map. He has further categorically
admitted that even the PT sheets relating to such documents
were not available and that the survey has not been carried
out with reference to the PT sheets.
10. When the survey has not been carried out without reference
to the guideline boundary stones and without reference to
NC: 2024:KHC:23586
the PT sheets, the dispute in the present matter relating to 6
cents out of 80 cents, it was but required for the plaintiff to
establish that the land situated on the northern side of the
road was forming common part of Sy.No.53 and it belonged
to the plaintiff. The survey not having been carried out
properly, what remains is only the oral testimony of the
other witnesses on behalf of the plaintiff as regards the
claim of 80 cents of land in Sy.No.53, which has not been
denied by the defendants. The issue in question being only
relating to the 6 cents being situated on the northern side of
the road, the plaintiff has not been able to establish that the
said land form part of the northern side in Sy.No.53.
11. Hence, I answer the substantial question No.1 raised by
holding that though in the judgments, the Trial Court and
the First Appellate Court have admitted and accepted the
title of the plaintiff to an extent of 80 cents of the land in
Sy.No.53 what the Trial Court and the First Appellate Court
have indeed held is that the plaintiff was not able to
establish, where the 6 cents of land is situated and that the
6 cents of land forms part of Sy.No.53 which has allegedly
been encroached upon by the defendants. Thus, there is no
NC: 2024:KHC:23586
infirmity in the order passed by the Trial Court and the First
Appellate Court.
12. I answer point No.2 by holding that all the oral and
documentary evidence has been taken into consideration by
the Trial Court and the First Appellate Court and they have
come to a conclusion that the plaintiff has not been able to
establish that 6 cents of land situated on the northern side
of the road is part and parcel of Sy.No.53 which has been
encroached upon by the defendants.
13. Having answered both the substantial questions as above, I
find no infirmity in the judgment and decree passed by the
Trial Court and the First Appellate Court. As such, the
appeal stands dismissed.
Sd/-
JUDGE
GJM
CT: BHK
