Karnataka High Court
Sri K L Nagaraju vs The President on 11 February, 2025
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RSA No. 2112 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE K. V. ARAVIND
REGULAR SECOND APPEAL No.2112 OF 2021 (DEC/INJ)
BETWEEN:
1. SRI K. L. NAGARAJU,
S/O LAKSHMINARAYANAPPA,
AGED ABOUT 56 YEARS,
R/AT KALAPURA VILLAGE,
KALLAMBELA HOBLI,
SIRA TALUK 572137,
TUMAKUR DISTRICT.
...APPELLANT
(BY SRI RAMACHANDRA R. NAIK, ADVOCATE)
AND:
1. THE PRESIDENT,
VYAVSAYA SEVA SAHAKARA SANGH NIYAMITHA,
KALAPURA VILLAGE,
Digitally signed KALLAMBELA HOBLI,
by VALLI
MARIMUTHU SIRA TALUK 572137,
Location: High
TUMAKUR DISTRICT.
Court of ...RESPONDENT
Karnataka
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 11.03.2020
PASSED IN RA.No.8/2015 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, SIRA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 22.01.2015
PASSED IN OS.No.239/2008 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE AND JMFC, SIRA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 2112 of 2021
CORAM: HON'BLE MR JUSTICE K. V. ARAVIND
ORAL JUDGMENT
Heard Sri. Ramachandra R. Naik, learned counsel for
the appellant.
2. The defendant in O.S. No.239/2008 on the file of the
Principal Civil Judge and JMFC at Sira is in appeal against
the judgment and decree in O.S. No.239/2008 dated
22.01.2015 and judgment in R.A. No.8/2015 dated
11.03.2020 passed by Senior Civil Judge and JMFC at Sira.
3. The brief facts as pleaded are that, the plaintiff is a
Society registered under the Co-operative Societies Act.
The suit property is a land bearing Katha No.139
measuring East-West 100 feet, North-South 60 feet,
situated at Kalapura Village, Kallambella Hobli, Sira Taluk.
The suit property was within the jurisdiction of Grama
Panchayath of Kalapura Village. The suit property was
gifted by Grama Panchayath in favour of the plaintiff
through a registered Gift Deed dated 30.05.1981. The
possession of the suit property was also handed over to
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the plaintiff, and the plaintiff is in continuous possession
and enjoyment of the suit property. The Katha of the suit
property is transferred in the name of the plaintiff, the
plaintiff has constructed a godown and office on a portion
of the suit property and the vacant portion is let out to
Anganwadi.
4. The cause of action arose for filing a suit when
defendant without any rights, title and possession over the
suit schedule property interfered and started putting up
unauthorized construction in an area measuring east-west
30 feet and north-south 20 feet within the suit property.
The defendant, having refused to stop the unauthorized
construction, the suit was preferred.
5. The defendant after service of notice has filed a
written statement denying the plaint averments. The
defendant denied the gift deed. The defendant contended
that the site bearing No.10, measuring east-west 20 feet
and north-south 30 feet, originally belonged to Tharur
Mandala Panchayath. The Tharur Mandala Panchayath has
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granted the site in favour of the defendant. The defendant
was put in possession of the granted site. The
construction by the defendant is on the site granted by the
Tharur Mandala Panchayath. The location of the suit
property and the property under construction by the
defendant is different and located in different places.
6. The trial court appointed the Assistant Engineer of
PWD, Sira as Court Commissioner. The Court
Commissioner inspected the property and submitted a
report. The plaintiff or the defendant did not object to the
said report. The trial court, based on the commissioner
report and other evidence on record, held that the
construction work of the defendant is located exactly on
the north-west corner of the suit property. It is further
held that the defendant has not produced any title deeds
or grant certificates to show that the property under
construction is granted to him. The trial court, on
appreciation of the evidence on record, decreed the suit,
declaring that the plaintiff is the absolute owner of the suit
property.
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7. The defendant, being aggrieved against the
judgment and decree, preferred the appeal under Order 41
Rule 1 read with Section 96 of CPC.
8. The first appellate court on re-appreciation of the
evidence and the findings recorded by the trial court held
that the defendant has encroached upon the suit property
and the construction by the defendant is on the northwest
corner of the plaintiff's property. Accordingly, dismissed
the appeal.
9. Sri. Ramachandra R. Naik, learned counsel appearing
for the appellant, submits that he was allotted the site
bearing No.10 measuring east-west 20 feet and north-
south 30 feet by Tharur Mandala Panchayath. From the
grant date, he is in possession and enjoyment of the site.
The construction by the appellant/defendant is in the
granted site. The suit property and the construction place
are altogether different. It is submitted that the Grama
Panchayath has no authority to execute a gift deed in
favour of the plaintiff. The Court Commissioner's report
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that the construction by the appellant/defendant within
the plaintiff's land is incorrect. The trial Court and the first
appellate Court without considering the allotment made in
favour of the defendant decreed the suit and directed to
demolish the construction made on north-west corner of
the suit schedule property.
10. Learned counsel further submits that the construction
was made in 2001, whereas the suit was filed in 2008. The
plaintiff allowed the construction and remained quiet until
2008.
11. Considered the submissions of learned counsel for
the appellant and perused the impugned orders.
12. As per the plaint averments, the suit schedule
property was gifted by Grama Pachayath of Kalapur Village
under gift deed dated 30.05.1981. Thereafter, the plaintiff
continued to be in possession and enjoy the suit schedule
property. The plaintiff has partially put up constructions
on the suit schedule property, and the remaining land is
vacant. The defendant is claiming rights through
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allotment made by the Tharur Mandala Panchayath. The
other defence of the defendant is that the place of
construction and suit schedule property are altogether
different. The trial Court has appointed Assistant
Engineer, PWD, Sira as Court Commissioner to inspect and
report. The Court Commissioner has submitted the
report. The same is not objected by the plaintiff or the
defendant. The Commissioner reported that the defendant
has constructed on the plaintiff's land to an extent
measuring east-west 11.2 feet and north-south 12.5 feet.
It is further reported that the construction work is located
on the north-west corner of the suit schedule property.
13. The trial Court has further considered that the
defendant has not produced any title deeds or grant
certificate to show that the property where construction is
carried on is granted to him. No evidence is produced by
the defendant to reject the Court Commissioner's report.
14. The other plea canvassed by the defendant is that
the construction was commenced in the year 2001. The
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suit was preferred in the year 2008. The plaintiff allowed
construction to continue and, without any cause of action,
has preferred suit in 2008. However, the trial court, based
on the pleadings in earlier proceedings in O.S.
No.157/2006, has held that construction did not
commence in the year 2001, even not in the year 2006.
Thereby, it is concluded that construction work has not
commenced prior to 2008. While appreciating the oral and
documentary evidence, the trial court has decreed the
suit, declaring the plaintiff as the absolute owner of the
suit schedule property and ordered the demolition of
construction made on the encroached portion.
15. The first appellate court on appreciation of the
evidence and the findings recorded by the trial court held
that the defendant had not placed resolution passed by
the Panchayath for granting property to the defendant.
Further held that the defendant has not produced any
document to prove his possession over the alleged granted
site. The first appellate Court further held that the
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appointment of the Court Commissioner to inspect the
spot and submit the report was justified. The first
appellate Court considering Commissioner Report upheld
that the defendant has encroached on a portion of the suit
schedule property.
16. The appreciation of the pleadings and the findings
recorded by both courts would establish the following
undisputed facts. The suit property was gifted by Grama
Panchayath to the plaintiff under the registered gift deed
dated 30.05.1981. The plaintiff is in possession and
enjoyment of suit schedule property as an absolute
owner. The plaintiff's title is not disputed. The katha of
the suit schedule property stands in the name of the
plaintiff. The plaintiff has put up constructions on the suit
schedule property and is in possession. The claim of the
defendant that he was allotted a site measuring 30X20
feet by Tharur Mandala Panchayath is not established.
The Court Commissioner has reported that the defendant's
construction is on the plaintiff's land. No contrary
evidence is produced to dispute the Court Commissioner's
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report. The defendant though claimed allotment of the
site by the Panchayath, but no document supporting such
allotment was produced. The Court Commissioner's report
was not objected by the defendant before the trial Court.
The trial Court has granted sufficient time to the defendant
to object to the Commissioner's report, which is not
availed by the defendant.
17. The above concurrent findings of the facts recorded
by the trial court and the first appellate court are not
demonstrated to be erroneous. The findings of both the
Courts are not demonstrated to be perverse. The findings
recorded by both the Courts are pure findings of fact. No
question of law would arise for consideration of this Court.
Accordingly, the appeal is dismissed.
Sd/-
(K. V. ARAVIND)
JUDGE
