Karnataka High Court
Shri. Suresh S/O Shivanand Manjrekar vs Smt Krishni W/O Suresh Naik on 4 March, 2025
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NC: 2025:KHC-D:4179
RSA No. 100053 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 4TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100053 OF 2022 (POS-)
BETWEEN:
SRI. SURESH S/O. SHIVANAND MANJREKAR,
AGE ABOUT 81 YEARS, OCC: CARPENTER,
R/O. MAJALI VILLAGE-583101,
TAL: AND DIST: KARWAR.
...APPELLANT
(BY SRI. SRINAND A. PACHHAPURE,
SMT. PALLAVI S. PACHHAPURE,
SRI. RAJENDRA R. PATIL &
SMT. DEEPIKA M. HOLEYANNARA, ADVOCATES)
AND:
SRI. SURESH PUNDALIK NAIK,
SINCE DECEASED BY HIS LR'S.
SMT. KRISHNI W/O. SURESH NAIK,
SINCE DECEASED BY HER LR'S.
Digitally signed by
MOHANKUMAR B
SHELAR 1. SRI. SURAJ S/O. SURESH NAIK,
Location: HIGH
COURT OF AGE: MAJOR,
KARNATAKA
DHARWAD BENCH R/O. MAJALI VILLAGE IN KARWAR TALUKA,
Date: 2025.03.07
16:18:44 +0530 NOW R/O. MPT QUARTERS, BUILDING NO.82-1/2,
VASCODA-GAMA, GOA-403711.
RAMESH S/O. SHIVANAND MANJREKAR,
SINCE DECEASED BY HIS LRS.
2. SRI. SUNIL S/O. RAMESH MANJREKAR,
AGE: MAJOR, OCC: CARPENTER,
R/O. MAJALI VILALGE,
TQ & DIST: KARWAR-581301.
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NC: 2025:KHC-D:4179
RSA No. 100053 of 2022
3. SRI. SHARATCHANDRA S/O. RAMESH MANJREKAR,
AGE: MAJOR, OCC: CARPENTER,
R/O. MAJALI VILLAGE-581301,
TAL & DIST: KARWAR.
4. SRI. PARESH S/O. RAMESH MANJREKAR,
AGE: MAJOR, OCC: CARPENTER,
R/O. MAJALI VILLAGE-581301,
TAL & DIST: KARWAR.
...RESPONDENTS
(BY SRI. K.L. PATIL &
SRI. S.S. BETURMATH, ADVOCATES FOR C/R1(B))
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC, PRAYING TO SET ASIDE BOTH THE JUDGMENT AND
DECREE DATED 29.09.2021 PASSED BY THE COURT OF ADDITIONAL
SENIOR CIVIL JUDGE, KARWAR, IN R.A.NO.28/2019 CONFIRMING
THE JUDGMENT AND DECREE DATED 18.03.2019 PASSED BY THE
ADDITIONAL CIVIL JUDGE, KARWAR, IN O.S. NO.48/1997, BY
ALLOWING THIS APPEAL IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
1. This appeal is preferred by defendant No.2
challenging the judgment and decree dated 29.09.2021 in
R.A.No.28/2019 on the file of the Additional Senior Civil
Judge, Karwar1 dismissing the appeal and confirming the
judgment and decree dated 18.03.2019 in
hereinafter referred to as 'First Appellate Court'
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O.S.No.48/1997 on the file of the Additional Civil Judge,
Karwar2 decreeing the suit of the plaintiff.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. It is the case of the plaintiff that the plaintiff
has acquired the suit schedule property bearing
Sy.No.469A/2 measuring 1 gunta 8 annas in the family
partition. It is stated in the plaint that the defendant is the
adjoining land owner of Sy.No.469B measuring 4 guntas
situate on the northern side boundary of the suit schedule
property. The defendant has constructed residential house
adjacent towards eastern side. During 1986, the defendant
has made door to extend a wing on southern side wall of
the residential house without obtaining permission from
the statutory authorities, however, the defendant has
illegally encroached the portion of the land belonging to
the plaintiff. It is also stated in the plaint that the plaintiff
has filed objection before the Gram Panchayat, Majali, to
hereinafter referred to as 'Trial Court'
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the application filed by the defendant seeking licence for
construction of the extended abutting land towards
southern side wall of the house. Thereafter, the defendant
has stopped the construction. It is the case of the plaintiff
that the defendant has encroached an extent of 1 anna out
of 1 gunta 8 annas of the property in land bearing
Sy.No.469A/2 of the plaintiff and as such the plaintiff has
filed O.S.No.48/1997 seeking relief of recovery of
possession of 1 anna out of 1 gunta 8 annas of the land in
question.
4. After service of notice, as the original defendant
died and accordingly his legal representatives were
brought on record. Defendant No.1 entered appearance
and filed detailed written statement denying the
averments made in the plaint. It is specific case of the
defendants that no encroachment has been made as
alleged in the plaint and the defendants have constructed
house long back and also it is stated that, the defendant is
the owner of the property by adverse possession and the
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defendants are using the entire land including portion of 1
gunta as of right without obstruction from the plaintiff and
therefore sought for dismissal of the suit.
5. The Trial Court based on the rival pleadings,
has framed issues for its consideration as per para No.6 of
the impugned judgment and decree passed by the Trial
Court. In order to establish their case, the plaintiff himself
was examined as PW.1 and produced 7 documents and
same were marked as Exs.P.1 to P.7. The defendants have
examined one witness as DW.1 and got marked 2
documents as Exs.D.1 and D.2. During the course of
proceedings, Commissioner was appointed to submit a
report and accordingly report of the Commissioner was
marked as Ex.C.1.
6. The Trial Court after considering the material on
record, by its judgment and decree dated 18.03.2019
decreed the suit and as such directed the defendants to
remove the encroachment insofar as an extent of 1 anna
as per the report of the Commissioner. Feeling aggrieved
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by the same, defendant No.2 has preferred
R.A.No.28/2019 on the file of the First Appellate Court and
same was resisted by the plaintiff. The First Appellate
Court after re-appreciating the material on record, by its
judgment and decree dated 29.09.2021, dismissed the
appeal, consequently confirmed the judgment and decree
in O.S.No.48/1997. Feeling aggrieved by the same,
defendant No.2 has preferred this Regular Second Appeal.
7. I have heard Sri.Srinand A Pachhapure, learned
counsel appearing for the appellant and Sri.K.L.Patil,
learned counsel appearing for caveat respondent.
8. Sri.Srinand A Pachhapure, learned counsel
appearing for the appellant contended that both the Courts
below have committed an error in solely relying upon the
Commissioner's report which reflects that 1 anna of the
land has been encroached by the defendants and as such
the finding recorded by both the Courts below requires to
be interfered with in this appeal. It is also contended by
the learned counsel appearing for the appellant that the
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defendants have constructed house during 1963 and were
living in the said house and therefore the defendants have
perfected the title by adverse possession and therefore
sought for interference of this Court.
9. Per contra, Sri.K.L.Patil, learned counsel
appearing for the respondent submitted that, as both the
Courts below have concurrently held on facts and same
cannot be interfered with under Section 100 of CPC and
accordingly sought for dismissal of the appeal.
10. In the light of the submission made by the
learned counsel appearing for the parties, I have carefully
examined the finding recorded by both the Courts below.
It is not in dispute that the land bearing Sy.No.469A/2 of
Mijali village of Karwar taluk belong to plaintiff as the
plaintiff acquired the same in the family partition. It is also
not in dispute that the defendant is the owner of land
bearing Sy.No.469B measuring 4 guntas and land
belonging to the plaintiff is situate adjacent to the land
belonging to the defendants. It is the case of the plaintiff
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that the defendants have encroached an extent of 1 anna
land out of 1 gunta 8 annas and accordingly filed suit
seeking recovery of possession. The Trial Court has taken
into consideration the evidence on record particularly,
considered Ex.C.1 filed by the Court Commissioner,
wherein the Court Commissioner has submitted the report
stating that the defendant has encroached to an extent of
1 anna of the land belonging to the plaintiff. It is also
forthcoming from the impugned judgment and decree
passed by the Trial Court that the defendants have not
cross-examined the Court Commissioner with regard to
the said aspects of the matter and therefore, even though
the report says that the old house has been constructed
long back, however, said averment made in the
Commissioner's report would not entitle the defendants to
get the suit to be dismissed.
11. In that view of the matter, taking into
consideration the report of the Commissioner produced at
Ex.C.1, I am of the opinion that the defendants have
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encroached upon the portion of the suit schedule property
to an extent of 1 anna and therefore I do not find any
merit in the appeal.
12. Accordingly, the appeal is dismissed at the
stage of admission as the appellant has not made out a
case for formulation of substantial question of law as
required under Section 100 of CPC.
Sd/-
(E.S.INDIRESH)
JUDGE
SH
CT-MCK
