[Cites 3, Cited by 0]
Karnataka High Court
Gaviyappa vs Mukappa on 26 March, 2026
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RSA No. 2345 of 2007
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 26TH DAY OF MARCH 2026
BEFORE
THE HON'BLE MRS JUSTICE GEETHA K.B.
REGULAR SECOND APPEAL NO. 2345 OF 2007 (RES)
BETWEEN
1. SRI. GAVIYAPPA
S/O. SHIVAPPA SOMASAGAR,
AGE: 60 YEARS, OCC: AGRICULTURIST,
R/O. CHIKKALLI, TALUK: BYADAGI,
DIST: HAVERI.
2. SRI. BASAVANTHAPPA
S/O. SHIVAPPA SOMASAGAR,
AGE: 56 YEARS, OCC: AGRICULTURIST,
R/O. CHIKKALLI, TALUK: BYADAGI,
DIST: HAVERI.
3. SRI. SUBHAS
S/O. SHIVAPPA SOMASAGAR,
AGE: 48 YEARS, OCC: AGRICULTURIST,
Digitally signed
R/O. CHIKKALLI, TALUK: BYADAGI,
by GIRIJA A.
BYAHATTI DIST: HAVERI.
Location:
HIGH COURT ...APPELLANTS
OF
KARNATAKA, (BY SMT. PALLAVI PACHHAPURE, ADVOCATE FOR
DHARWAD
BENCH SRI. F.V. PATIL, ADVOCATE)
AND
1. SRI. MUKAPPA
S/O. BASAPPA SOMASAGAR,
SINCE DECEASED BY HIS LR'S
1(A) SRI. SIDDAPPA
S/O. MUKAPPA SOMASAGAR,
AGE: 55 YEARS, OCC: AGRICULTURE,
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RSA No. 2345 of 2007
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R/O. CHIKKALLI, TALUK: BYADAGI,
DIST: HAVERI.
1(B) SRI. JAGADISH
S/O. MUKAPPA SOMASAGAR,
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O. CHIKKALLI, TALUK: BYADAGI,
DIST: HAVERI.
1(C) SRI. CHANDRAPPA
S/O. MUKAPPA SOMASAGAR,
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O. CHIKKALLI, TALUK: BYADAGI,
DIST: HAVERI.
1(D) SMT. JAISHEELA
W/O. MAHADEVAPPA AKKIVALLI,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O. KUSNOOR, TALUK: HANAGAL,
DIST: HAVERI.
1(E) SMT. MALLAMMA
W/O. MUKAPPA SOMASAGAR,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O. CHIKKALLI, TALUK: BYADAGI,
DIST: HAVERI.
SRI. MAHADEVAPPA
S/O. MUKAPPA SOMASAGAR,
SINCE DECEASED BY HIS LR'S.
1(F) SMT. SAVITA
W/O. MAHADEVAPPA SOMASAGAR,
AGE: 43 YEARS, OCC: HOUSEHOLD WORK,
R/O. CHIKKALLI VILLAGE, TALUK: BYADGI,
DIST: HAVERI.
1(G) KUMARI VANDANA
D/O. MAHADEVAPPA SOMASAGAR,
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RSA No. 2345 of 2007
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AGE: 20 YEARS, OCC: HOUSEHOLD WORK,
R/O. CHIKKALLI VILLAGE, TALUK: BYADGI,
DIST: HAVERI.
1(H) KUMAR NITEESH
S/O. MAHADEVAPPA SOMASAGAR,
AGE: 15 YEARS, OCC: STUDENT,
SINCE MINOR REP. BY HIS NATURAL
MOTHER MINOR GUARDIAN
RESPONDENT NO.1F.
MALLAPPA
S/O. BASAPPA SOMASAGAR,
SINCE DECEASED BY HIS LR'S.
2(A) SRI. SHANTAPPA
S/O. MALLAPPA SOMASAGAR,
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O. CHIKKALLI, TALUK: BYADAGI,
DIST: HAVERI.
2(B) SRI. BASAVARAJAPPA
S/O. MALLAPPA SOMASAGAR,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O. CHIKKALLI, TALUK: BYADAGI,
DIST: HAVERI.
2(C) SRI. SHAMARAJ
S/O. MALLAPPA SOMASAGAR,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O. CHIKKALLI, TALUK: BYADAGI,
DIST: HAVERI.
2(D) SRI. SAHADEVAPPA
S/O. MALLAPPA SOMASAGAR,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O. CHIKKALLI, TALUK: BYADAGI,
DIST: HAVERI.
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RSA No. 2345 of 2007
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2(E) SRI. CHANNAKESHAVA
D/O. MALLAPPA SOMASAGAR,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O. CHIKKALLI, TALUK: BYADAGI,
DIST: HAVERI.
2(F) SMT. INDRAVVA
W/O. SHIVARAJAPPA HANKANAD,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O. BELAGERI, TALUK: SORABA,
DIST: SHIVAMOGGA.
2(G) SMT. SUNANDA W/O. CHANNABASAPPA
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O. INGALAGUNDI, TAL: BYADAGI,
DIST: HAVERI.
2(H) SMT. KUSUMA W/O. BASAPPA HIRUR,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O. SOMASAGAR, TAL: HANAGAL,
DIST: HAVERI.
SRI. CHANNABASAPPA
S/O. BASAPPA SOMASAGAR,
SINCE DECEASED BY HIS LR'S.
3(A) SMT. NEELAVVA
W/O. CHANNABASAPPA SOMASAGAR,
AGE: 65 YEARS, OCC: HOUSEHOLD WORK,
R/O. CHIKKALLI VILLAGE, TAL: BYADAGI,
DIST: HAVERI.
3(B) SRI. MANJAPPA
S/O. CHANNABASAPPA SOMASAGAR,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O. CHIKKALLI VILLAGE, TAL: BYADAGI, DIST:
HAVERI.
3(C) SRI. SHIDDAPPA
S/O. CHANNABASAPPA SOMASAGAR,
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RSA No. 2345 of 2007
HC-KAR
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O. CHIKKALLI VILLAGE, TAL: BYADAGI,
DIST: HAVERI.
3(D) SMT. GIRIJAWWA
W/O. NAGAPPA SOMASAGAR,
D/O. CHANNABASAPPA SOMASAGAR,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O. BADAMALLI VILLAGE, TAL: BYADAGI,
DIST: HAVERI.
3(E) SMT. GEETA
W/O. MANJUNATH MADI
D/O. CHANNABASAPPA SOMASAGAR,
AGE: 39 YEARS, OCC: HOUSEHOLD WORK,
R/O. BALIHALLI VILLAGE, TAL: HANAGAL,
DIST: HAVERI.
THE RESPONDENTS NO.3(A) TO 3(E) BROUGHT ON
RECORD AS PER THE ORDER OF THE HON'BLE COURT
DATED 9/02/2026 ON I.A.NO.1/2026.
...RESPONDENTS
(BY SRI. VEERESH S. GADAG, ADVOCATE R1(A-E) &
R2 (A-H); R3 (A-E)-HELD SUFFICIENT)
THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING
TO SET- ASIDE THE JUDGMENT AND DECREE PASSED BY THE
COURT OF THE ADDITIONAL CIVIL JUDGE (SR.DN.),
RANEBENNUR IN R.A.NO.18/2002, DATED 12.7.07 AND THE
JUDGMENT AND DECREE OF THE COURT THE CIVIL JUDGE
(JR.DN.) AND JMFC., BYADGI IN O.S.NO.56/1991 DATED
15.1.2002, MAY KINDLY BE RESTORED, BY ALLOWING THIS
APPEAL, IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 06.03.2026 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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RSA No. 2345 of 2007
HC-KAR
CORAM: THE HON'BLE MRS JUSTICE GEETHA K.B.
CAV JUDGMENT
This is the appeal filed under Section 100 of C.P.C. by
plaintiffs/appellants praying for setting aside the judgment
and decree dated 12.07.2007 in R.A.No.18/2002 on the file
of Additional Civil Judge (Sr. Dn.) Ranebennur and to
restore the judgment and decree dated 15.01.2002 passed
in O.S.No.56/1991 on the file of Civil Judge (Jr. Dn.) and
J.M.F.C., Byadagi and to allow this appeal.
2. Parties would be referred with their ranks, as
they were before the trial Court for sake of convenience and
clarity.
3. The plaintiffs have filed the suit before trial Court
praying for declaration that plaintiffs are absolute owners of
the encroached portion of 31 guntas and 15 guntas
respectively by defendant Nos.1 and 3 in R.S.No.48/2 and
19 guntas by defendant No.2 in R.S.No.49; for possession
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of the encroached portion of properties and for such other
reliefs.
4. The case of plaintiffs before trial Court in nutshell
is that suit schedule property Item No.1 bearing Sy.No.48/2
measuring 5 acres 9 guntas and Sy.No.49/1 measuring 3
acres 27 guntas situated at Chikkalli Village, Byadagi Taluk
are the ancestral properties of plaintiffs and plaintiffs are
the owners in possession of it; these properties consist of 2
Mango trees, 3 Neem trees and they were grown by the
plaintiffs. Defendants are in possession of Sy.No.48/1A
measuring 2 acres 24 guntas, Sy.No.48/1B measuring 2
acres 24 guntas, Sy.No.49/2 measuring 3 acres 27 guntas.
Towards western side of the lands of plaintiffs bearing
Sy.No.48/1A and 48/1B belonging to defendant Nos.1 and 3
are situated and towards eastern side of the lands of
plaintiffs bearing R.S.No.49/1, lands of defendant No.2 are
situated. There exist small bunds in between the lands of
plaintiffs and defendants. The defendants have demolished
the bunds and trespassed upon the lands of the plaintiffs.
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Specifically, Defendant No.1 has encroached 31 guntas,
Defendant No.3 has encroached 15 guntas in Sy.No.48/2 of
the plaintiffs, and Defendant No.2 has encroached 19
guntas in Sy.No.49/1. The plaintiffs demanded defendants
to vacate and hand over possession of the encroached
portion. But defendants have not vacated. Plaintiffs in
compromise have measured and surveyed their lands
through Land Survey Office and Haddubastu boundaries of
suit schedule properties were fixed. Hence, the suit for
appropriate reliefs.
5. After service of summons defendants appeared
through their counsel and filed their written statement
wherein they have denied the plaint averments in toto.
They have taken contention that one Mookappa was the
original propositus who had 4 sons i.e. Basappa,
Channabasappa, Shivappa and Siddappa. Defendant Nos.1
to 3 and one Shivappa are the sons of Basappa. Plaintiff
Nos.1 to 3 are sons of Shivappa. After death of father of
defendants-Basappa, there was partition and at the time of
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partition, defendant Nos.2, 3 and their younger brother
Shivappa were minors and they were represented by their
mother; they and defendant No.1 together have taken the
properties into their share, which were already in
possession of their father. They contended that during
lifetime of elders only, for convenience parties have divided
their properties and were enjoying the properties
separately. Said Channabasappa died without issues and
the properties which were allotted to the share of
Channabasappa was given to Basappa's heirs-defendant
No.1 to 3 and Shivappa. After death of Siddappa who died
without issues, the properties allotted to his share were
taken by the heirs of Shivappa-plaintiffs without the
knowledge and consent of defendants. A channel runs in
Hirekeri, and to the East of this channel, the property of the
plaintiffs is situated and its width towards East is becoming
narrow. Likewise, in Sy.No.49, there were some barren
lands, including Karalu and Javalu lands and hence, towards
East the most fertile land was given to plaintiffs.
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6. Defendants along with written statement, have
produced the rough sketch. It is further pleaded in the
written statement that with the letters 'GNCD' shown in
rough sketch annexed to written statement, plaintiffs are in
possession of Survey No.48/2 and towards western side of
it, lands of defendant No.3 bearing Sy.No.48/1B is situated
and it is shown with letters 'MNGF' in the sketch annexed to
written statement. Defendant No.3 has grown two Mango
trees in his property and they are shown with letters 'Z' and
'Z1' in the sketch annexed to written statement; lands of
defendant No.2 bearing Sy.No.49/2 is situated and it is
shown with letters 'PQRO' in the sketch annexed to written
statement. Since 50-60 years, the old badu exists in
between the lands of plaintiffs and defendants at Sy.No.48
and it is shown with letters 'NG' in the rough sketch
annexed to the written statement; likewise, badu exists in
between the lands of plaintiffs and defendants at Sy.No.49
and it is shown with letters 'OP' in the rough sketch
annexed to the written statement; within the badu or
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bunds, medegaddes (ªÉÄÃzÀUÀqÉØUÀ¼ÀÄ) are in existence. Towards
western side of the lands of defendant No.3, lands of
defendant No.1 situated at Sy.No.48/1A is in existence and
it is shown with letters 'FMNG' in the rough sketch annexed
to written statement. Thus at no point of time, lands of
defendant No.1 are adjacent with the lands of plaintiffs to
encroach his lands. Lands of defendant No.2 are not
adjacent to Sy.No.48/1. Likewise lands of defendant No.3
are not adjacent to Sy.No.49/1.
7. The defendants further contended that in the
year 1975, another partition had taken place among the
defendants and Shivappa. In the said partition, Survey
No.48/1A was fallen to the share of defendant No.1, Survey
No.48/1B was fallen to the share of defendant No.3, and
Survey No.49/1 was fallen to the share of defendant No.2.
Defendant No.3 has planted two Mango trees in the
property that fallen to his share and is enjoying the yield
from the same. The defendants have also stated about
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other properties that fallen to their respective shares.
However, those properties are not the suit schedule
properties, and therefore a detailed discussion regarding
those properties and the pleadings relating to them is not
relevant.
8. Defendants further contended that during 1983,
Poth Hissa survey was conducted in respect of Survey
No.48, and therefore the plaintiffs were aware of the
alleged encroachment in 1983 itself. Hence, the suit is
barred by limitation. Furthermore, the defendants are in
peaceful possession and enjoyment of these properties from
the time of their elders, openly, peacefully, without any
obstruction, with the knowledge of the plaintiffs since more
than 30 years. Therefore, they have perfected their title by
way of adverse possession. Hence, they prayed for
dismissal of the suit.
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9. From the above facts, issues were framed. Later,
the issues were recasted, and the recasted issues are as
follows.
1) Whether plaintiffs prove their title to suit
property including two Mango trees, three
Neem trees as pleaded?
2) Whether plaintiffs prove that defts. No.1
and 3 have encroached in R.S.NO.48/2 of
Chikkalli village to the extent of 31 Guntas
and 15 Guntas in total 46 Guntas including
two Mango trees and three Neem trees as
pleaded?
3) Whether plaintiffs prove that deft. No.2
has encroached in R.S.NO.49/1 of Chikkalli
village to the extent of 19 Guntas as
pleaded?
4) Whether plaintiffs prove the court fee paid
on the plaint is proper?
5) Whether defendants prove that suit of the
plaintiffs is barred by limitation?
6) Whether defendants prove that they have
become owner by adverse possession of
the alleged encroached land in the suit
lands?
7) Whether plaintiffs prove that they are
entitle for the relief as claimed?
8) What order and decree?
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10. After recording evidence of both sides and
hearing the arguments, the Trial decreed the suit that the
plaintiffs had proved that defendant No.1 had encroached
31 guntas, defendant No.3 had encroached 15 guntas in
Survey No.48/2, and defendant No.2 had encroached 19
guntas in Survey No.49; accordingly, the defendants were
directed to deliver possession of the encroached area to the
plaintiffs as per the PT sheet drawn by the Court
Commissioner at Ex.C.6. However, the suit in respect of
mesne profits was rejected.
11. Aggrieved by the said judgment and decree, the
defendants/appellants preferred first appeal. After hearing
arguments, the First Appellate Court allowed the appeal and
dismissed the suit of the plaintiffs by setting aside the
judgment and decree passed by the Trial Court. Aggrieved
by the said judgment and decree, the plaintiffs/appellants
are before this Court.
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12. Heard the arguments of learned counsel for the
appellants and respondents.
13. Learned counsel for the appellants, Smt. Pallavi
Pachhapure, would submit that admittedly the plaintiffs and
defendants are cousins, i.e., the children of two brothers.
The admitted genealogical tree reveals that the plaintiffs are
the children of deceased Shivappa, who was the younger
brother of Basappa. Defendants No.1 to 3 and Shivappa are
the children of deceased Basappa. There was partition
between the elders long back, and both parties have been
enjoying their respective shares separately by putting small
bunds between the properties of the plaintiffs and
defendants. By demolishing those bunds, the defendants
have encroached with the properties of the plaintiffs in
Survey No.48/2 and Survey No.49/1.
14. The plaintiffs came to know about the
encroachment through private survey. After filing the suit,
Court Commissioner-Surveyor was appointed, who
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submitted his survey report and sketch. Based on said
report and sketch, plaintiffs amended the plaint and altered
the reliefs in accordance with said commissioner's report
and sketch. The said report and sketch reveal that
defendant No.1 had encroached 31 guntas in Survey
No.48/2, defendant No.3 had encroached 15 guntas in
Survey No.48/2, and defendant No.2 had encroached 19
guntas in Survey No.49/1. These facts were established by
the plaintiffs by producing the Commissioner's report and
sketch and by examining the Commissioner.
15. Very recently, prior to filing of the suit, when the
private survey was conducted, the plaintiffs came to know
about the alleged encroachment. Considering these aspects,
the Trial Court rightly decreed the suit of the plaintiffs.
However, the First Appellate Court reversed the said
judgment without assigning cogent and acceptable reasons.
The First Appellate Court allowed the appeal without
properly verifying the Commissioner's report and the
evidence on record.
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16. The First Appellate Court held that no
Government survey was conducted and that the report of
the private surveyor is inadmissible in law; said finding of
the first appellate court is patently false.
17. The finding and observation of First Appellate
Court is quite contrary to the established facts and sketch of
court commissioner. The first appellate court wrongly held
that bunds have existed between the properties of both
parties for long time, and therefore the encroachment is not
established. These findings of the First Appellate Court are
against the material evidence available on record. The First
Appellate Court further held that the plaintiffs had not
approached the Revenue Authorities by raising RRT dispute
for recovery of possession, and therefore allowed the
appeal. Thus, the finding of first appellate court is contrary
to the cogent and reasoned judgment of trial court. Hence,
prayed for allowing the appeal.
18. Learned counsel for respondent No.3,
Sri.Veeresh S. Gadag, would submit that the First Appellate
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Court has properly appreciated the oral and documentary
evidence and rightly dismissed the suit. Apparently, the
suit is barred by law of limitation. Furthermore, the land of
defendant No.1 is not adjacent to the land of the plaintiffs,
and therefore there cannot be any encroachment upon the
land of the plaintiffs by defendant No.1. Hence, the alleged
encroachment of 31 guntas by defendant No.1 is only
created and concocted story. The cross-examination of the
commissioner establishes that he has not surveyed lands in
accordance with the rules. Hence, the same is not
acceptable one. Hence, he prayed for dismissal of the
appeal.
19. From the above facts, the substantial questions
of law that arose for consideration, as per the Order dated
13.08.2008, are as follows:
i. Whether the First Appellate Court was justified
in reversing the findings of the Trial Court on
the ground that the survey conducted by the
Government Surveyor, appointed as
Commissioner by the Trial Court, was invalid?
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ii. Whether the First Appellate Court was justified
in reversing the decree of the Trial Court by
ignoring the documents of title standing in the
names of the plaintiffs and by not considering
the plea of adverse possession set up by the
defendants in its proper perspective?
20. Having perused the Trial Court and First
Appellate Court records as well as records of this appeal and
arguments of both sides, the substantial questions of law
are reformulated as follows:
i. Whether the First Appellate Court was justified
in reversing the findings of the Trial Court on
the ground that the survey conducted by the
Court Commissioner without surveying the
lands of adjacent owners is invalid?
ii. Whether the First Appellate Court was justified
in reversing the decree of Trial Court on the
ground that the plea of adverse possession
taken by the defendants was only an
alternative plea and they have not stuck on to
it during trial?
21. After reformulating the substantial questions of
law, heard arguments of both sides.
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22. Answer to the above Question Nos.(i) & (ii) in
affirmative for the following reasons:
23. The admitted facts of the case are that the
plaintiffs and defendants are cousins. The genealogical tree,
as narrated in the written statement and admitted by the
plaintiffs, is as follows:
ªÀÄÆPÀÌ¥Àà (ªÀÄÆ® ¥ÀÄgÀĵÀ)
§¸À¥Àà (¥ÉÆÃw) ZÀ£Àߧ¸À¥Àà (¥ÉÆÃw) ²ªÀ¥Àà (¥ÉÆÃw) ²zÀÝ¥Àà (¥ÉÆÃw)
ªÀÄÆPÀ¥Àà ªÀÄ®è¥Àà ZÀ£Àߧ¸À¥Àà ²ªÀ¥Àà UÀ«AiÀÄ¥Àà §¸ÀªÀAvÀ¥Àà ¸ÀĨsÁ¸À
(1 ¥Àæ.ªÁ) (2 ¥Àæ.ªÁ) (3 ¥Àæ.ªÁ) (¥Ánð E®è) (1 ªÁ¢) (2£Éà ªÁ¢) (3£Éà ªÁ¢)
24. One Mukappa had four sons, namely Basappa,
Channabasappa, Shivappa and Siddappa. Basappa died
leaving behind four sons, i.e., defendant Nos. 1 to 3--
Mukappa, Mallappa and Channabasappa and another son-
Shivappa, who is not a party to the suit. Channabasappa
died, and his share devolved upon defendants and Shivappa
(son of Basappa). Third son of Mukappa-Shivappa is the
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father of plaintiff Nos. 1 to 3, namely Gaviappa,
Basavantappa and Subash. Siddappa is the uncle of both
plaintiffs and defendants. According to the plaintiffs,
Siddappa had given his share of the property to the
plaintiffs, which is not seriously disputed by the defendants.
25. It is an admitted fact that about 50-60 years
prior to the filing of the suit, there was partition. After the
death of Basappa, when defendant Nos. 2 and 3 were
minors, defendant No.1 and defendant Nos. 2 and 3
represented by their mother and Channabasappa, the uncle
of the plaintiffs on one side have taken half share and the
remaining half share was taken by Shivappa and Siddappa.
It is not in dispute that in the said partition, father of the
plaintiffs has got Survey No.48/2 measuring 5 acres 9
guntas and Survey No. 49/1 measuring 3 acres 27 guntas,
into their share.
26. During pendency of the suit, the Taluk Surveyor
was appointed as Court Commissioner, who has visited the
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spot, examined and measured the land, surveyed it and
submitted his report along with a sketch. The Commissioner
was examined as C.W.1, his report was marked as Ex.C.5,
and sketch is marked as Ex.6.
27. According to plaint averments, Survey No. 48/1A
and 48/1B belongs to defendants No.1 & 3 respectively are
situated towards western side of Survey No.48/2 of
plaintiffs. According to the Survey Sketch of Commissioner
as per Ex.C.6, Survey No. 48/1B of defendant No.3 is
situated on western side of Survey No.48/2 of plaintiffs.
The commissioner has shown the encroached portion in red
coloured dotted lines in Ex.C.6. This encroached portion
comes in the land belonging to defendant No.3 and not in
the land of defendant No.1. But in his report and also in his
description in the sketch, the Court Commissioner has
stated that 31 guntas property is encroached by defendant
No.1 and 15 guntas property is encroached by defendant
No.3. The Court Commissioner has fixed the boundaries of
Survey No. 48/1, 48/1A and 48/1B. According to him in this
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48/1A is 31 guntas in excess compared to the revenue
records and thus he had shown the encroachment by
defendant No.1 as 31 guntas. However the said
encroachment, if really is done, it is not in the property of
plaintiffs but it may be in the property of defendant No.3. It
will be only the dispute between defendant Nos.1 and 3 and
plaintiffs cannot claim the excess portion in possession of
defendant No.1 directly because it does not belong to
plaintiffs. At the most he ought to have prayed for
possession from defendant No.3 and not from defendant
No.1.
28. Court Commissioner in his cross-examination has
categorically admitted that property of defendant No.1 is
not adjacent to the property of plaintiffs in Survey No.48
and thus defendant No.1 cannot encroach upon the
property of plaintiffs.
29. It is an admitted fact that the channel runs
through Survey No.48/2. The lands of plaintiffs and
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defendant No.3 in Sy.No.48 are not bifurcated by this
channel; but it passes through on the northern side of
Survey No. 48/2 and 48/1B and 48/1A. Plaintiffs have not
claimed relief of possession from defendant No.3 for the
entire extent of 1 acre 6 guntas in Survey No.48/2, but he
has prayed for only 15 guntas from defendant No.3. There
is no specific bifurcation of these 15 guntas and 31 guntas
in the commissioner's sketch to decide till what portion the
defendant No.3 has encroached the property of plaintiffs in
Survey No. 48/2.
30. In this regard, learned counsel for appellants
would submit that the Court can mould the relief in the
interest of justice and equity. In support of his contention,
he relied upon the judgment of Hon'ble Supreme Court in
the case of J. Ganapatha and Ors. Vs. N. Selvarajalou
Chetty Trust and Ors.1. Paragraph 20 of the said
judgment reads as under:
Civil Appeal No.4370 of 2025, disposed of on 25.03.2025
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"20. The concept of moulding of relief refers to the ability
of a court to modify or shape a relief sought by a party in
a legal proceeding based on the circumstances of the case
and the facts established after a full-fledged trial. The
principle enables the court to grant appropriate remedies
even if the relief requested in the pleading is not exact or
could not be considered by the court or changed
circumstances have rendered the relief obsolete. The
court aims that justice is served while taking into account
the evolving nature of a case. The above road map is
pursued by a court based on the notion of flexibility in
relief, equitable jurisdiction, and is tempered by judicial
discretion. When moulding the relief, the court considers
the issues and circumstances established during the full-
fledged trial, looks at shortening the litigation, and then
in its perspective, renders complete justice to the issue at
hand. The converse of the above is that the moulded
relief should not take the aggrieved party by surprise or
cause prejudice. The relief is moulded as an exception
and not as a matter of course."
According to the principles noted in the above
judgment, the Court can mould the relief in exceptional
circumstances only to meet the ends of justice and not as a
matter course.
31. In the instant case, since from the time of filing
of written statement, defendants have taken specific plea
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that lands of defendant No.1 are not adjacent to the lands
of plaintiffs and thus, it is impossible for him to encroach
with lands of plaintiffs. However, plaintiffs have not
amended the plaint and not amended the reliefs; even
though there was amendment about extent of
encroachment after receipt of commissioner's report.
Hence, the above citation is not helpful for
appellants/plaintiffs.
32. As far as Sy.No.49 is concerned, plaintiffs are in
possession of 49/1 and defendant No.2 is in possession of
49/2. Plaintiffs' possession in this survey number is on
western side and possession of defendant No.2 in this
survey number is on eastern side. According to
commissioner's report and sketch, defendant No.2 has
encroached 19 guntas in this survey number.
33. It is to be noted here that in the alleged
encroached portion by defendant No.3, 2 Mango trees and 3
Neem trees are in existence. But the commissioner has
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shown 4 Neem trees and 1 Mango tree in the alleged
encroached portion by defendant No.3 in Survey No.48/2.
That is on northern side and he had shown one Mango tree
in the alleged encroached portion by defendant No.3 on the
southern edge of the survey number. He has also shown
another Mango tree in the lands of plaintiffs.
34. In the evidence it has come that the alleged
Mango trees and Neem trees are aged about 25-30 years
old plants.
35. In the cross-examination, the Commissioner
admitted that the medegaddes bifurcate the lands of
plaintiffs and defendant No. 3. However, on careful perusal
of the commissioner's sketch, medegaddes bifurcating
Survey No.48/2 and 48/1B are not forthcoming. But only
one medegadde is bifurcating the lands of plaintiffs in
Survey No.49/1 and lands of defendant No.2 in Survey No.
49/2 is forthcoming. That is shown only in one place.
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36. The commissioner further admitted in his cross-
examination that, if seen from those medegaddes, the
Mango plants and Neem trees are in possession and
cultivation of defendant No.3.
37. The Commissioner ought to have shown the
property in cultivation of plaintiffs and the property in
cultivation of defendant No.3. But admittedly, he has not
shown it in Ex.C.6. He has not shown the encroached
portion in any colour. On eastern side of said medegadde,
property in possession and cultivation of defendant No.2 at
Survey No.49/2 is situated and on western side of said
medegadde, property in possession and cultivation of
plaintiffs at Survey No.49/1 is situated. This fact is
categorically admitted by both sides.
38. According to plaint averments, at para No. 7, it is
pleaded that defendants have encroached the property of
plaintiffs and plaintiffs have demanded to vacate it, and
defendants refused to do so and thus the cause of action
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arose about 2 years prior to filing of the suit i.e. on
23.09.1991.
39. In this regard in the evidence, P.W.1
categorically deposed that about 10-15 days prior to filing
of the suit, defendants have encroached with his property.
P.W.1 categorically deposed in further cross-examination
that about 15 days prior to filing of the suit, the defendants
have encroached with suit schedule property. He raised
objection for such encroachment, but he has not filed any
police complaint.
40. In the examination-in-chief itself, P.W.1 has
categorically deposed that a badu is situated in between his
property and the property of defendants, and they are in
enjoyment and possession of the properties as per the said
badu. According to him, when defendants started
encroaching upon his property, he told defendants not to
encroach but they have not heeded to his request. Hence he
got surveyed his property through a private surveyor. He
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has deposed that earlier he was taking the entire proceeds
of Mango tree by himself. But plaintiffs have not produced
even a single iota of evidence to show when exactly or at
least in which year they have planted these Mango trees or
Neem trees, or whether they have purchased the saplings
from anyone, or at least oral evidence of neighbours to
substantiate his contention. Only the report of Court
Commissioner and the sketch of Court Commissioner is
available to say that there is encroachment in the suit
schedule property as alleged by plaintiffs.
41. Defendants have examined a witness on their
behalf as D.W.2 to show the existence of Mango plants and
Neem plants in the lands of defendant No.3.
42. In this regard, said witness has deposed that to
bifurcate the lands of plaintiffs and defendants, the
medegaddes are grown. They are in existence since his
childhood. He further deposed that those medegaddes are
not transferred or transported from one place to another.
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They are in existence in the place where they were. In this
regard, in the cross-examination, D.W.2 categorically
deposed that there is distance of about 30-40 meters of
each medegadde. There is no existence of fence in between
the properties of plaintiffs and defendants. He further
deposed that at the time of cultivation, if those medegaddes
are removed, then they will be demolished. He has not
deposed that the medegaddes that are in existence between
the properties of plaintiffs and defendants were demolished
at the time of cultivation. But he has only deposed in
general that, if at the time of cultivation, there is chance of
demolition of those medegaddes. However, there is no
evidence to show that it happened in the present case also.
43. With this background, the actual date of partition
between parties is to be looked into to say whether the suit
is filed within the period of limitation or not.
44. Defendants have produced the M.E.No.473 dated
10.09.1962. According to this mutation entry, there was
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partition amongst Channabasappa, Shivappa and Siddappa,
the brothers and children of Mukkappa, and also defendant
No.1, who was shown as one of the heirs of first branch-
Basappa. According to this mutation entry certified by the
revenue authorities, on 10.09.1962 there was compromise
and partition amongst brothers and at that time this Survey
No.48 was sub-divided into two portions. 48/1 was fallen to
the share of children of first branch Basappa; 48/2, the
remaining half portion in said survey number, was fallen to
the share of father of plaintiff Nos.1 to 3 measuring 5 acres
9 guntas. Subsequently there is another partition amongst
defendant Nos.1 to 3 and their brother Shivappa; and in
that partition, Survey No.48A measuring 2 acres 17 guntas
was fallen to the share of defendant No.1 and 48B
measuring 2 acres 24 guntas was fallen to the share of
defendant No.3, and Survey No.49/2 measuring 3 acres 27
guntas was fallen to the share of defendant No.2.
45. Ex.D.2 reveals that this Channabasappa died on
19.05.1966 and he had gifted his property to children of
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Basappa i.e., to defendant No.1 to 3 and their brother
Shivappa, and thus the properties which were fallen to his
share were mutated into the names of defendant No.1 to 3
and Shivappa.
46. These documents being admitted revenue
documents produced by defendants clearly and categorically
established that in the year 1962 itself there was partition.
The present suit is filed in the year 1991. Admittedly, at the
time of this alleged partition, a survey was not conducted.
But both were in possession of their respective portions
which they were cultivating separately since long time prior
to the partition. Thus plaintiffs have to produce some
cogent evidence to show that the alleged encroachment in
Survey No.48/2 by defendant No.3 and the alleged
encroachment in Survey No. 49/1 by defendant No.2 has
taken place 2 years prior to filing of the suit as per
pleadings or 10-15 days prior to filing of the suit as per the
evidence. However, as discussed above, no material is
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produced by the plaintiffs to show that when this alleged
encroachment has taken place.
47. The Commissioner in his cross-examination has
deposed that, to decide the encroachment, not only the
property in question but also the properties of adjacent
landowners are also to be surveyed, and then only one can
exactly say what is the actual encroachment. He further
admitted that he has not done so in the present case. He
admitted that on southern side of Re-survey No. 48, Survey
No.77, on its northern side Survey Nos. 49, 57 and 58, on
western side Re-survey No. 65 and on eastern side Re-
survey No. 47 are situated for Survey No.48. However, he
has not surveyed any of these survey numbers. He further
admitted that he has not shown in the sketch as per Ex.C.6
regarding the encroached portion by defendant No.2 in
Survey No.49/1.
48. Without proving the date on which cause of
action arose, it cannot be said that the suit of plaintiffs is
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within the period of limitation. Firstly, as discussed earlier,
since 1962, parties are enjoying their respective portions
separately. However, the suit is filed in the year 1991, i.e.,
about 30 years after such partition. Hence the suit is
definitely barred by limitation to claim any possession of
encroached portion from the defendants. Even though the
defendants have not established the plea of adverse
possession, plaintiffs who have filed the suit have to
establish that their suit is filed within the period of
limitation. When the Mango trees and Neem trees in
existence in the portion of the land of defendant No.3 are
aged 25-30 years, definitely the suit is not filed within the
period of 12 years of the alleged encroachment.
49. The above discussion reveals that the
commissioner's report and sketch are incomplete because
the commissioner has not shown the proper encroached
portion. The suit against defendant No. 1 is completely not
maintainable because he has not encroached with any
portion of the property of plaintiffs and his property is not at
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all adjacent to the property of plaintiffs. There is no proper
survey because the commissioner has not shown the
Kharab land and the cultivable land and he has not shown
the encroached portion properly in the sketch. Further, he
has not surveyed the lands of adjacent owners to decide the
actual encroachment.
50. The survey is conducted by the Court
Commissioner who is a Government surveyor Tahsildar, but
it was not properly examined by the First Appellate Court.
51. As discussed above, the plea of adverse
possession taken by defendants is only an alternative plea
and defendants have not stick on to said plea at the time of
trial. Hence even though the First Appellate Court is wrong
in holding that the survey is not conducted by Government
surveyor, its conclusion that plaintiffs are not entitled for
possession is proper. As discussed above, the plea of
adverse possession taken by defendants is only an
alternative plea and not the main plea. When parties are in
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settled possession since 1962 or prior to said date,
definitely plaintiffs are not entitled for possession from
defendants.
52. Hence the modified substantial questions of law
No.(i) and (ii) are answered in affirmative and this Court
pass the following:
ORDER
The appeal filed under Section 100 CPC is dismissed,
by confirming the judgment and decree dated 12.07.2007 in
R.A.No.18/2002 passed by the Additional Civil Judge (Sr.
Dn.), Ranebennur.
Sd/-
(GEETHA K.B.)
JUDGE
SSP: Para 1 to 5
VB: para 6 to 22
gab - para 23 to end
CT-MCK
