Karnataka High Court
Babu S/O. Dundappa Lavathe vs Madubai W/O. Appasab Yadawad on 1 February, 2025
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NC: 2025:KHC-D:2058
RSA No. 100785 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 1ST DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100785 OF 2018 (POS-)
BETWEEN:
BABU S/O. DUNDAPPA LAVATHE
AGE:62 YEARS,
OCC:AGRICULTURE,
R/O. JAMKHANDI,
TQ and DIST:BAGALKOT.
...APPELLANT
(BY SRI. M. C. HUKKERI, ADVOCATE)
AND:
1. MADUBAI W/O. APPASAB YADAWAD,
AGE:82 YEARS,
OCC:HOUSEHOLD WORK,
R/O.BIDARI VILLAGE,
TQ AND DIST:BAGALKOT-587313
Digitally signed
by V N
BADIGER
VN
BADIGER
Location: High
Court of
Karnataka,
Dharwad Bench
2. SHRI MOHAN
Date:
2025.02.05
15:17:18 +0530 S/O. APPASAB YADWAD
AGE:59 YEARS,
OCC:AGRICULTURE,
R/O.BIDARI VILLAGE,
TQ AND DIST:BAGALKOT-587313.
3. SHRI ASHOK S/O. APPASAB YADWAD
AGE:57 YEARS,
OCC:AGRICULTURE,
R/O.BIDARI VILLAGE,
TQ AND DIST:BAGALKOT-587313.
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NC: 2025:KHC-D:2058
RSA No. 100785 of 2018
4. SRI GOVINDAPPA
S/O. APPASAB YADWAD
AGE:52 YEARS,
OCC:AGRICULTURE,
R/O.BIDARI VILLAGE,
TQ AND DIST:BAGALKOT -587313.
5. SHRI YANKANNA
S/O. APPASAB YADWAD
AGE:47 YEARS,
OCC:AGRICULTURE,
R/O.BIDARI VILLAGE,
TQ AND DIST:BAGALKOT-587313.
6. SMT SAROJINI W/O. RACHAPPA CHIKKUR
AGE:45 YEARS,
OCC:HOUSEHOLD WORK,
R/O. KORTI KOLAR,
TQ:B.BAGEWADI,
DIST:VIJAYPUR-587313.
7. SMT KASTURIBAI
W/O. KRISHNAPPA TIMASANI
AGE:44 YEARS,
OCC:HOUSEHOLD WORK,
R/O. MANTUR VILLAGE, TQ:MUDHOL,
DIST:BAGALKOT -587314.
...RESPONDENTS
(BY SRI. MRITYUNJAYA TATA BANGI, ADV.,
SRI.S. S. YALIGAR, ADV., SRI. SHIVAKUMAR APARAJ, ADV.,)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
PASSED IN R.A.NO.11/2024 BY THE COURT OF ADDITIONAL SENIOR
CIVIL JUDGE JAMAKHANDI DATED 29.08.2018 AND THE JUDGMENT
AND DECREE PASSED IN O.S.NO.85/2011 PASSED BY THE
PRINCIPAL CIVIL JUDGE AND 1ST ADDITIONAL JMFC JAMAKHANDI
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RSA No. 100785 of 2018
DATED 22.01.2014 AND THE SUIT OF THE PLAINTIFF MAY BE
DECREED WITH COST.
THIS REGULAR SECOND APPEAL, COMING ON FOR FINAL
HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE E.S.INDIRESH)
This appeal is filed by the plaintiffs challenging the
judgment and decree dated 29.08.2018 in R.A.No.11/2014 on
the file of the Additional Senior Civil Judge and JMFC,
Jamakhandi (for short "the First Appellate Court") dismissing
the appeal and confirming the judgment and decree dated
22.01.2014 on the file of the Principal Civil Judge and JMFC,
Jamakhandi (for short "the Trial Court").
2. For the sake of convenience, the parties are
referred to as per their rank before the Trial Court.
3. It is the case of the plaintiff that the plaintiff is the
owner in possession of the land bearing Survey No.247/1
measuring 5 Acres 39 Guntas and land bearing Survey
No.247/2 measuring 6 Acres of Bidari village and the
defendants are the owners of the land bearing Survey No.248/1
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measuring 11 Acres 2 Guntas of Bidari village. It is the case of
the plaintiffs that after purchasing the schedule properties, the
plaintiff got surveyed the schedule property and came to know
that the defendants have encroached an extent of 18 Guntas of
land bearing Survey No. 247/2 towards southern side. Hence,
the plaintiff has filed O.S.No.85/2011 seeking relief of
possession in respect of the land which is said to have been
encroached by the defendant. After service of notice, the
defendants entered appearance and filed a detailed written
statement denying the averments made in the plaint. The
defendants took up a specific contention that the land in
question has not been surveyed by the competent surveyor and
no notice relating to survey has been issued to the defendants
and accordingly sought for dismissal of the suit.
4. Based on the pleadings on record, the Trial Court
framed issues for its consideration. In order to establish their
case, the plaintiff has examined himself as PW1 and got
examined the surveyor as PW2 and produced 6 documents,
which were marked as Ex.P1 to Ex.P6. The defendants have
examined two witnesses as DW1 and DW2 and got marked 8
documents as Ex.D1 to Ex.D8. The Trial Court, after
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considering the material on record, by its judgment and decree
dated 22.01.2014 dismissed the suit and feeling aggrieved by
the same, the plaintiff has preferred appeal in R.A.No.11/2014
before the First Appellate Court and same was resisted by the
defendants. The First Appellate Court, based on material on
record, by its judgment and decree dated 29.08.2018
dismissed the appeal, consequently, confirmed the judgment
and decree passed by the Trial Court in O.S.No. 85/2011.
Hence, this second appeal is filed.
5. This Court vide order dated 31.01.2025 framed the
following substantial question of law:
"Whether both the Courts below have
committed an error in not assessing the
evidence of PW2?"
6. I have heard Sri. M.C.Hukkeri, learned counsel
appearing for the appellant and Sri. Mrityunjaya Tata Bangi,
learned counsel appearing for the respondents.
7. Sri. M. C. Hukkeri, learned counsel appearing for
the appellant invited the attention of this Court to the evidence
on record, particularly evidence of PW1 and PW2 and
contended that the plaintiff came to know about the
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encroachment of the land by the defendant only after
purchasing the same and survey made by the competent
surveyor. Accordingly, he sought for interference of this Court.
It is also submitted by the learned counsel appearing for the
appellant that Ex.P5 has not been properly appreciated by both
the Courts below and as such, he sought for interference.
8. Per contra, learned counsel appearing for the
respondents justifies the impugned judgment and decree.
9. Having heard the learned counsel appearing for the
parties and taking into consideration the factual aspects on
record, it is not in dispute that the plaintiff had purchased the
land bearing Survey No.247/1 and Survey No.247/2 measuring
5 Acres 39 Guntas and 6 Acres, respectively, of Bidari village
from its erstwhile owner Sri. Shantaveerappa as per sale deed
dated 28.04.2008. It is the case of the appellant that the
defendant is the owner of the adjoining land bearing Survey
No.248/1. In that view of the matter, taking into account the
fact that the defendants have admitted that the notice of
survey has been served to them however, both the Courts
below on erroneous assumption of facts have dismissed the
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suit. In that view of the matter, I find force in the submission
made by the learned counsel appearing for the appellant. Since
the issue involved in this appeal is with regard to the
encroachment said to have been made by the defendants
herein and in order to resolve the same, it is expedient for the
plaintiff to get survey the land in question again at the instance
of the defendants with a statutory revenue officer/surveyor and
if such a survey is made by the competent person, the lis
between the parties would be resolved to ascertain whether the
defendants have encroached the 18 Guntas of land in Survey
No.247/2 towards southern side. In that view of the matter, the
substantial question of law framed above favours the plaintiff.
In the result, I pass the following:
ORDER
i) The appeal is allowed.
ii) The judgment and decree dated 29.08.2018 in
R.A.No.11/2014 passed by the Additional
Senior Civil Judge and JMFC, Jamakhandi
confirming the judgment and decree dated
22.01.2014 passed by the Principal Civil Judge
and JMFC, Jamakhandi is hereby set aside and
the plaintiff is hereby directed to get re-survey
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the entire schedule property again in the
presence of the defendants through a
competent surveyor to ascertain the
encroachment, if any, in the land in question.
iii) It is also made clear that in the event after
the re-survey as directed by this Court
referred to above, in the event there is any
encroachment made by the defendant insofar
as the land bearing Survey No.247/2
belonging to the plaintiff is concerned, then it
is open for the plaintiff to agitate his legal
rights before the competent Civil Court. With
the above observation, the appeal stands
disposed of.
iv) In view of disposal of the appeal, pending
interlocutory applications, if any, do not
survive for consideration and are disposed of
accordingly.
Sd/-
(E.S.INDIRESH)
JUDGE
YAN
