Karnataka High Court
Sri.K.K. Purushotham Naika vs Sri. Bharathkumar Gundya on 9 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1869 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1869 OF 2023 (DEC/POS)
BETWEEN:
1. SRI. K.K.PURUSHOTHAM NAIKA,
AGED ABOUT 56 YEARS,
S/O LATE KORAGAPPA NAIKA,
RESIDING AT CHEMBU VILLAGE,
MADIKERI TALUK-571218,
KODAGU DISTRICT.
...APPELLANT
(BY SRI. SHATHABISH SHIVANNA, ADVOCATE)
AND:
1. SRI. BHARATHKUMAR GUNDYA,
AGED ABOUT 50 YEARS,
S/O DEVAPPA GUNDYA,
RESIDING AT M.CHEMBU VILLAGE,
Digitally signed
by DEVIKA M MADIKERI TALUK-571218,
Location: HIGH KODAGU DISTRICT.
COURT OF ...RESPONDENT
KARNATAKA
(BY SRI. B.S.PRASAD, ADVOCATE FOR C/R)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 05.07.2023
PASSED IN R.A.NO.16/2021 ON THE FILE OF SENIOR CIVIL
JUDGE, MADIKERI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
14.09.2021 PASSED IN O.S.NO.108/2015 ON THE FILE OF
ADDITIONAL CIVIL JUDGE, MADIKERI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 1869 of 2023
HC-KAR
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission. Heard the learned
counsel for the appellant and the learned counsel for the
caveator/respondent.
2. This appeal is filed against the concurrent finding
of the Trial Court.
3. The factual matrix of the case of the plaintiff
before the Trial Court while seeking the relief of declaration
and possession is that he is the absolute owner of the 'A'
schedule property by virtue of the grant by the Land Grant
Committee of Madikeri Taluk. It is the specific case that 'A'
schedule property was the granted land and the defendant is
in illegal possession of 'B' schedule property without any right,
title or interest and also sought for the relief of possession in
respect of 'B' schedule property, which is in illegal occupation
of the defendant. The defendant appeared and filed the
written statement contending that he is not in encroachment
of any property and contended that the suit is barred by
limitation and the plaintiff is not entitled for any relief of
declaration and possession as sought.
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4. The plaintiff in order to prove his case examined
himself as P.W.1 and also got marked the documents at
Exs.P.1 to 10 and also examined P.W.2. On the other hand,
the defendant examined himself as D.W.1 and got marked the
documents at Exs.D.1 and 2. The Commissioner was also
appointed before the Trial Court and the Commissioner went
and inspected the property and gave the report in terms of
Ex.C.1 and both the advocates have filed the memo of
instructions before conducting the spot inspection. The
Commissioner report Ex.C.1 is very clear that there was an
encroachment to the extent of only 0.30 cents of land. The
Trial Court having considered the report as well as the
evidence available on record, in paragraph No.15 while
answering issue No.2 comes to the conclusion that the
plaintiff has established the encroachment by the defendant
to the extent of 0.30 acres belonging to him. While
answering issue No.4 i.e., in respect of limitation, the
pleadings of the parties and the plaintiff is claiming possession
of schedule 'B' property on the basis of his title and Article 65
of the Limitation Act is taken note of. Having considered the
material on record, while answering issue No.5 taken note of
the property granted in favour of the plaintiff is schedule 'A'
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property measuring 2.84 acres in Sy.No.155/579 and also
answering issue No.3 comes to the conclusion that it is the
total extent of the land granted to him. The Trial Court also
taken note of that the Surveyor has submitted Exs.C.2 and 3
and on the basis of Exs.C.2 and 3, the Commissioner has filed
his report as per Ex.C.1. The answer elicited from the mouth
of the Commissioner as well as the report is extracted in
paragraph No.21 of the order and discussed in detail that the
plaintiff is in possession of only 1.74 acres in Sy.No.155/579
and total possession of the plaintiff is 2.54 acres, including
the portion of the property which is in his occupation and
cultivation. As per Ex.P.1, the total extent is 2.84 acres and
measurement shown in Ex.P.5 saguvali chit is also the same.
The Trial Court also taken note of Ex.C.3, wherein the
Surveyor marked the area of 0.30 acres in green colour,
which is in the possession of the defendant and to disprove
this fact, the defendant neither led oral or documentary
evidence before the Trial Court with regard to he has been in
possession to the extent of 0.30 acres and no documents are
produced before the Trial Court to claim that 0.30 acres of
land belongs to him. Hence, the Trial Court granted the relief
as sought, in respect of only portion of the property declaring
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that the 'A' schedule property belongs to the plaintiff and the
plaintiff is entitled for possession of only 0.30 acres in
Sy.No.155/579 and directed the defendant to hand over the
possession of 0.30 acres of land, which is identified as is in
the possession of the defendant.
5. Being aggrieved by the said judgment and decree,
an appeal is filed in R.A.No.16/2021. The First Appellate
Court considered the grounds urged in the appeal and issue is
with regard to the possession is concerned i.e., 'B' schedule
property. It is claimed as measuring 1.50 acres out of 2.84
acres and taken note of the Commissioner report and also
formulated the point whether the plaintiff proves the
encroachment as shown in 'B' schedule property. The First
Appellate Court re-assessing the material on record, comes to
the conclusion that there is an encroachment and answered
the point in the affirmative with regard to the finding of the
Trial Court that there is an encroachment to the extent of
0.03 acres and the same is discussed in paragraph No.35.
The First Appellate Court also discussed that the
Commissioner inspected the property and re-surveyed the
land in view of both the learned counsel agreed for the same
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and the Court Commissioner taken note of the memo of
instructions given by both the parties and also the plaintiff
has established that only portion of the property to the extent
of 0.03 cents of land is encroached by the defendant and not
1.50 acres of land as contended by the plaintiff and answered
the same in the affirmative i.e., point No.2.
6. Being aggrieved by the said concurrent judgment,
the present second appeal is filed before this Court.
7. The learned counsel for the appellant would
vehemently contend that the report is not a scientific report.
The learned counsel contend that the judgment and decree
passed by the Trial Court is against the material on record.
Both the Courts relied upon the vague and uncertain report of
the Court Commissioner and ought not to have relied upon
the same and hence this Court has to frame substantial
question of law whether the judgment and decree passed by
both the Courts are without appreciating the facts and
circumstances of the case, much particularly regarding law of
estoppel, res judicata and abandonment of the cause of
action?
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8. The learned counsel for the respondent would
contend that the Commissioner was appointed with consent
and both of them have given memo of instructions and based
on that only, the Commissioner conducted the inspection and
measured the land and given the report that encroachment is
to the extent of 0.30 acres of land and not as claimed by the
plaintiff to the extent of 1.50 acres. Both the Courts have
taken note of the evidence of the plaintiff and the defendant
and also the Commissioner report and the evidence of the
Commissioner and comes to the conclusion that
encroachment is only to the extent of 0.30 acres and hence it
does not require interference of this Court.
9. Having heard the learned counsel for the appellant
and the learned counsel for the respondent, the main
contention of the learned counsel for the appellant is that
both the Courts failed to appreciate the facts and
circumstances of the case. The learned counsel contend that
law of estoppel is applicable to the case on hand and also res
judicata and abandonment of cause of action. Having perused
the plaint averments, it is the specific case of the plaintiff
before the Trial Court that 2.84 acres of land was allotted and
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'A' schedule property is the property allotted to the plaintiff
and only claim made is in respect of encroached portion and
though claimed 1.50 acres of land as in the occupation of the
defendant, but the Commissioner was appointed and the
Commissioner went and inspected the spot and both the
learned counsel filed the memo of instructions and the same
is considered and as per the report of the Commissioner,
comes to the conclusion that encroachment is only to the
extent of 0.30 cents. No doubt, objection is filed to the
Commissioner report and the Commissioner was examined
before the Trial Court and nothing is elicited from the mouth
of C.W.1. The learned counsel contend that the
Commissioner report is not scientific report and in the cross-
examination with regard to possession of 0.30 acres of land is
concerned, nothing is suggested to C.W.1 and elicited any
answer. Apart from that, he has not made any claim in
respect of 0.30 acres of land placing any document before the
Court and the same has been considered by the Trial Court in
paragraph No.15 while answering issue No.2.
10. The First Appellate Court while answering issue
No.2, having re-assessed the same taken note of the
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Commissioner report as well as the evidence of P.W.1 and
D.W.1. When such being the case, both the Courts have
applied their mind for the consideration of factual dispute with
regard to the possession of the property, which was claimed
and the defendant is not claiming any right in respect of 'A'
schedule property is concerned and only his grievance is in
possession of his property. But the Commissioner identified
the property which is in occupation of the defendant in
Sy.No.155/579 and the land which was granted in favour of
the plaintiff. When such factual finding is given and also
taken note of the mixed question of fact and law by the First
Appellate Court, I do not find any ground to admit the appeal
and frame any substantial question of law.
11. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
MD
