Karnataka High Court
Sri. Karegouda S/O. Gadippagouda vs Sri. Shivayogiswamy on 31 May, 2024
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NC: 2024:KHC-D:7244
RSA No. 101072 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 31ST DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 101072 OF 2022 (DEC/POS-)
BETWEEN:
1. SRI KAREGOUDA S/O GADIGEPPAGOUDA
HOSAGOUDA, AGED ABOUT: 66 YEARS,
OCC: AGRICULTURIST, R/O. KUDUPALI,
HIREKERUR TQ (OLD)
RATIIHALLI TALUKA-581116.
HAVERI DISTRICT.
2. SRI MAHADEVAGOUDA S/O GADIGEPPAGOUDA
HOSAGOUDAR,
AGED ABOUT 61 YEARS,
OCC: AGRICULTURIST,
R/O. KUDUPALI,
HIREKERUR TQ (OLD),
RATIIHALLI TALUKA-581116,
HAVERI DISTRICT.
Digitally signed 3. SRI. RAMANAGOUDA S/O. GADIGEPPAGOUDA
by SAROJA HOSAGOUDAR
HANGARAKI
AGED ABOUT: 50 YEARS,
Location: HIGH OCC: AGRICULTURIST,
COURT OF
KARNATAKA R/O. KUDUPALI,
DHARWAD HIREKERUR TQ (OLD)
BENCH RATIIHALLI TALUKA-581116.
DHARWAD HAVERI DISTRICT.
...APPELLANTS
(BY SRI S.G.KADADAKATTI
AND SRI LINGESH V. KATTEMANE, ADVOCATES)
AND:
1. SRI. SHIVAYOGISWAMI
S/O MAHALINGAYYA MATHAD,
-2-
NC: 2024:KHC-D:7244
RSA No. 101072 of 2022
AGE: 70 YEARS, OCC: RETIRED SERVICE,
R/O. KUDUPALI, HIREKERUR TQ (OLD)
RATTIHALLI TALUKA
DIST: HAVERI-581116
NOW AT DWC-203A LOWER HATTA,
BHADRAVATI, DIST. SHIVAMOGGA-577301.
2. SRI SIDDAPPAYYA W/O MAHALINGAYYA MATHAD
AGE: 64 YEARS, OCC: RETIRED SERVICE,
R/O.KUDUPALI, HIREKERUR TQ (OLD),
RATTIHALLI TALUKA, DIST HAVERI-581116.
NOW AT SHIVAMOGGA.
3. SRI. MAHESHWARAYYA W/O MAHALINGAYYA MATHAD,
AGE: 59 YEARS, OCC: AGRICULTURIST
R/O.KUDUPALI, HIREKERUR TQ (OLD),
RATTIHALLI TALUKA,
DIST: HAVERI-581116.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE DATED 22.01.2018 PASSED
BY THE SENIOR CIVIL JUDGE AND JMFC, HIREKERUR, IN
R.A.NO.55/2015 BY CONFIRMING THE JUDGMENT AND DECREE
DATED 17.07.2015 PASSED BY THE PRINCIPAL CIVIL JUDGE AND
JMFC, HIREKERUR, IN O.S.NO.34/2002 AND TO DISMISS THE SUIT
FILED BY THE PLAINTIFFS BY ALLOWING THIS APPEAL.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal is filed under Section 100 of
the Code of Civil Procedure1, by the defendants, challenging
the Judgment and decree dated 22.01.2018 passed in
R.A.No.55/2015 by the Senior Civil Judge and JMFC Court,
Hereinafter referred to as 'CPC'.
NC: 2024:KHC-D:7244
Hirekerur2 and the Judgment and decree dated 17.07.2015
passed in O.S.No.34/2002 by the Senior Civil Judge and
JMFC Court, Hirekerur3.
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
owners in possession of R.S.No.427/1+2B, measuring 13
acres 1 gunta and the defendants are the owners of
R.S.No.427/1+2A measuring 10 acres 10 guntas. That the
defendants taking undue advantage of the absence of the
plaintiffs, in the year 1993, encroached the northern portion
of the land of the plaintiffs measuring 3 acres 4 guntas and
are in possession of the encroached portion. Hence, the
plaintiffs filed a suit for declaration to declare that, they are
the owners of the property and to direct the defendants to
handover the encroached portion i.e. 3 acres 4 guntas,
shown as letters 'BMJKLB' in the rough hand sketch annexed
along with the plaint.
Hereinafter referred to as 'the appellate Court'.
Hereinafter referred to as 'the trial Court'.
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4. The defendants entered appearance before the
trial Court and contested the case of the plaintiffs. The
defendants in their written statement have denied that they
have encroached the property of the plaintiffs and have
denied the case put forth by the plaintiffs.
5. The trial Court, consequent to the pleadings of
the parties have framed the following issues :
(i) Whether the plaintiffs prove that, they are the
absolute owners of the suit schedule properties?
(ii) Whether plaintiffs prove that, the defendants
have encroached on suit property illegally?
(iii) Whether defendants prove that, the suit of the
plaintiffs is barred by limitation?
(iv) Whether the defendants prove that, this Court
has no pecuniary jurisdiction to try the present suit?
(v) Whether the defendants prove that, the Court
fee paid by the plaintiffs is not proper and insufficient?
(vi) Whether the plaintiffs are entitled for the relief
of declaration of title and possession of the suit
property?
(vii) Whether the plaintiffs are entitled for mesne
profits?
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(viii) What order or decree?
6. The plaintiff No.3 examined himself as P.W.1, and
Two witnesses were examined as P.W.2 and P.W.3. Ex.P.1 to
Ex.P.8 have been marked in the evidence. The defendant
No.3 examined himself as D.W.1 and a witness as D.W.2.
Ex.D.1 and Ex.D.2 have been marked in the evidence.
7. The trial Court by its Judgment and decree dated
17.07.2015 decreed the suit of the plaintiff and passed the
following order:
ORDER
"The suit filed by the plaintiff against the
defendants is hereby decreed with cost.
The plaintiffs are hereby declared as the owners
of the suit schedule property bearing RS No.427/1+2B
measuring 13 acres 05 guntas.
The defendants are hereby directed to handover
the encroached portion i.e. 3 acres 04 guntas as shown
by the letters BMJKLB in the rough hand sketch map
annexed to the plaint within 3 months from the date of
this order.
Draw decree accordingly."
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8. Being aggrieved, the defendants preferred
R.A.No.55/2015. The plaintiffs entered appearance before
the first appellate Court and contested the same. The first
appellate Court framed the following points for consideration:
(i) Whether the plaintiffs prove that, the
defendants have encroached the suit schedule
property?
(ii) Whether the trial Court is justified in
holding that, the plaintiffs are the owners of the suit
schedule property and as such whether the trial Court
is justified in ordering the defendants to hand over the
possession of the schedule property in favour of the
plaintiffs?
(iii) Whether the judgment and decree of the
trial Court is capricious, devoid of merits, erroneous
and warrants for the interference by the instant Court?
(iv) What order ?
9. The first appellate Court by its Judgment and
decree dated 22.01.2018, dismissed the appeal of the
defendants with costs and affirmed the Judgment and decree
passed by the trial Court.
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10. Being aggrieved, the present second appeal is
filed by the defendants. Along with the above appeal, the
defendants have filed I.A.No.1/2021 for condonation of delay
of 692 days in filing the appeal.
11. In the affidavit accompanying I.A.No.1/2021, the
appellants have deposed that, after disposal of the matter
before the first appellate Court, they have not contacted
their Advocate and when they received the summons in the
Execution Case No.6/2021 in the month of July, 2021, they
contacted the Advocate and they came to know that, the
above appeal was disposed of in the year 2018 itself and
they applied for the certified copy of the Judgment and
decree and then have taken steps to file the present appeal.
12. In the affidavit accompanying the application, the
defendants have not set out any ground to condone the
inordinate delay of 692 days. However, in order to ascertain
as to whether there is any case on the merits of the matter,
submissions on the merits have also been heard.
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13. In the said context, it is relevant to note that, the
trial Court has relied upon the P.T.Sheet produced by the
plaintiff at Ex.P.3 and Ex.P.8 and recorded a finding that, the
said document discloses encroachment as alleged by the
plaintiffs. The trial Court has further noticed that, the
P.T.Sheet at Ex.P.3 has been prepared upon the application
made by the plaintiffs and the P.T.Sheet at Ex.P.8 has been
prepared upon the request of the defendants.
14. The trial Court has also considered the contention
put forth by the defendants that, no official witness has been
examined by the plaintiffs to prove the encroachment, nor
any Commissioner has been appointed to prove the
encroachment. However, the trial Court, noticing the
documents on record, has recorded a finding of fact that, the
said Ex.P.3 and Ex.P.8 itself clearly discloses the
encroachment made by the defendants.
15. The first appellate Court has re-appreciated the
entire aspect of the matter and has once again noticed that
Ex.P.3 and Ex.P.8 have been prepared much prior to the suit
NC: 2024:KHC-D:7244
and hence, the finding recorded by the trial Court has been
affirmed.
16. The trial Court and the first appellate Court have
recorded a concurrent finding of fact that, the defendants
have encroached the portion of the plaintiffs property as
alleged by the plaintiffs.
17. The appellants have miserably failed in
demonstrating that the said findings of fact are in any
manner erroneous having been recorded without reference
to any specific material available on record. Hence, 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, I.A.No.1/2021 is
dismissed. Consequently, the appeal stands dismissed.
Sd/-
JUDGE
SVH
CT:GSM
