IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL 2019 BEFORE THE HON’BLE MRS JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.442/2017 (DEC) BETWEEN:
1. SMT.DULSIN PINTO W/O MINGEL SALDANHA AGED ABOUT 73 YEARS AGRICULTURIST R/AT HALEKOTE VILLAGE KASABA HOBLI BIDARAHALLI POST MUDIGERE TALUK CHIKKAMAGALURU DISTRICT – 577 101 2. SRI CIPRIAN RODRIGUES S/O BENJAMIN RODRIGUES AGED ABOUT 59 YEARS R/AT HALEKOTE VILLAGE KASABA HOBLI BIDARAHALLI POST MUDIGERE TALUK CHIKKAMAGALURU DISTRICT – 577 101 3. SRI SIMON RODRIGUES SINCE DECEASED BY LRs.
3(a) LILLY RODRIGUES W/O LATE SIMON RODRIGUES AGED ABOUT 81 YEARS 3(b) EDWIN RODRIGUES S/O LATE SIMON RODRIGUES AGED ABOUT 48 YEARS A3(a) AND A3(b) ARE R/AT HALEKOTE VILLAGE KASABA HOBLI, BIDARAHALLI POST MUDIGERE TALUK CHIKKAMAGALURU DISTRICT–577 101 ...APPELLANTS (BY SRI V.F.KUMBAR FOR SMT.USHA.M.V. ADVOCATES) AND:
1. G.L.MANJUNATHA S/O LATE G.B.LAKSHMANA GOWDA AGED ABOUT 51 YEARS 2. G.L.MADANKUMAR S/O LATE G.B.LAKSHMANA GOWDA AGED ABOUT 46 YEARS 3. G.L.MADHURA D/O LATE G.B.LAKSHMANA GOWDA W/O B.A.RAJ AGED ABOUT 41 YEARS R/AT BANNUR VILLAGE AND POST BALEHONNURU HOBLI N.R.PURA TALUK – 577 010 4. G.L.MAMATHA W/O B.C.RAJ MOHAN D/O LATE G.B.LAKSHMANA GOWDA AGED ABOUT 39 YEARS R/AT BANAKAL HOBLI, KENJIGE POST MUDIGERE TALUK – 571 201 5. SMT.K.M.SUNDARAMMA W/O LATE G.B.LAKSHMANA GOWDA AGED ABOUT 71 YEARS R1, R2 AND R5 ARE R/AT BIDARAHALLI VILLAGE KASABA HOBLI MUDIGERE TALUK – 571 201 6. A.MUMTAZ ALI S/O ABDUL AZEEZ AGED ABOUT 71 YEARS R/AT BIDARAHALLI VILLAGE AND POST KASABA HOBLI MUDIGERE TALUK – 571 201 7. ABDUL RAHIMAN S/O MOHIDIN BEARY AGED ABOUT 73 YEARS R/AT BIDARAHALLI VILLAGE AND POST KASABA HOLBI MUDIGERE TALUK – 571 201 … RESPONDENTS (BY SRI S.T.RAJASHEKARA, ADVOCATE FOR R1 TO R5; R6 AND R7 SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 14.12.2016 PASSED BY THE PRINCIPAL DISTRICT JUDGE AT CHIKKAMAGALURU IN R.A.NO.30/2013 AND THE JUDGMENT AND DECREE DATED 02.02.2013 PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE, CHIKKAMAGALURU IN O.S.NO.154/2004.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T Aggrieved by the judgment and decree dated 14.12.2016 in R.A.No.30/2013 passed by Principal District Judge, Chikkamagaluru, defendants Nos.3, 4, 5(a) and 5(b) are before this Court in this appeal.
2. By impugned judgment and decree, the First Appellate Court dismissed the appeal of the appellants and confirmed the judgment and decree of the trial Court passed by Additional Senior Civil Judge, Chikkamagaluru in O.S.No.154/2004. By the said judgment and decree, the trial Court had partly decreed the suit declaring that plaintiffs are the absolute owners of item No.2 of suit ‘A’ schedule properties and for possession of the same from the present appellants.
3. Respondent Nos.1 to 5 filed O.S.No.154/2004 against the present appellants and respondent Nos.6 & 7 for declaration of title to plaint schedule ‘A’ properties and for possession of plaint schedule ‘B’ & ‘C’ properties.
4. For the purpose of convenience, parties will be henceforth referred to with their ranks before the trial Court.
5. Subject matter of the suit is described as plaint schedule ‘A’ to ‘C’ properties. Plaint schedule ‘A’ properties are 2 acres 07 guntas of land in Survey No.4/3 and 1 acre 36 guntas of land in Survey No.5 of Bidarahalli village, Mudigere Taluk. Plaint schedule ‘B’ property is 0-6¾ guntas of land in Survey No.4/3 of Bidarahalli village, Mudigere Taluk and Plaint schedule ‘C’ property is 1 acre 05 guntas of land in Survey No.5 Bidarahalli village, Mudigere Taluk.
6. Plaintiffs’ case in brief is as follows:
Their predecessor K.Basegowda purchased plaint ‘A’ schedule properties under registered sale deed dated 11.03.1943 and since then he and his successors were in possession and enjoyment of the properties as absolute owners. In 1997, defendants encroached upon plaint schedule ‘B’ and ‘C’ properties. When questioned, defendant Nos.2 to 5 sought for measuring all the properties to ascertain whether there is encroachment. On the application of plaintiffs, surveyor conducted survey of land which revealed that defendants were in unauthorised occupation of plaint schedule ‘B’ and ‘C’ properties. Though defendants promised to vacate the property they did not do so.
7. Pending suit it was reported to the trial Court that defendant No.1 delivered possession of plaint schedule ‘B’ property. Therefore suit against defendant No.1 was dismissed.
8. Defendant Nos.2 to 5 contested the suit.
Their case was as follows:
Government granted 10 guntas of land to each of them in Survey No.300 of Halekote village under saguvalli chits Ex.D1 and Ex.D2. Land bearing Survey No.5 of Bidarahalli village and Survey No.300 of Halekote Village were abutting boundaries of each other. Though Government granted them Survey No.300, but put them in possession of suit schedule properties. Since then they were in open and peaceful enjoyment of the same, they have perfected the title against the plaintiffs by adverse possession and suit was barred by time.
9. On the basis of such pleadings, the trial Court framed the following issues and additional issues:
1) Whether the plaintiffs prove that they are the absolute owners of plaint ‘A’ schedule property?
2) Whether the plaintiffs prove that the 1st defendant has encroached portion of plaint ‘A’ schedule property described in plaint ‘B’ schedule and Defendant 2 to 5 have encroached portion of ‘A’ schedule property described in plaint ‘C’ schedule in about June 1997?
3) Whether defendants 3 to 5 prove that they are in possession, enjoyment and cultivation of land in Sy.No.5 continuously and uninterruptedly since 28.01.1950 and they have perfected their right over the said plaint schedule property by adverse possession?
4) What order or decree?
ADDITIONAL ISSUE:
Whether the suit is barred by limitation?
10. Parties adduced evidence. Plaintiff No.1 was examined as PW.1 and Ex.P1 to Ex.P9 were marked. On behalf of defendants, DW.1 to DW.4 were examined and Ex.D1 to Ex.D56 were marked.
11. On the application of the plaintiffs, the trial Court appointed surveyor as Court Commissioner to survey the land to ascertain whether there was any encroachment. Surveyor carried out commission work and submitted his report along with survey sketch as per Ex.P7 and Ex.P8.
12. In his report, surveyor reported that defendant Nos.2 to 5 have encroached upon plaint schedule ‘C’ property. Though defendant Nos.2 to 5 filed objections to commissioner’s report, they did not chose to summon the commissioner to examine him and to impeach the report.
13. The trial Court after hearing the parties partly decreed the suit of the plaintiffs holding that title of the plaintiffs to suit schedule properties is proved by title deed Ex.P1 and other revenue records. The trial Court further held that defendant Nos.2 to 5 have encroached the suit schedule ‘C’ property and they have failed to prove that the Government has inducted them in suit schedule properties under grant order Ex.D1 and Ex.D2. The trial Court further held that since defendant Nos.2 to 5 denied title of the plaintiffs claimed possession under Government grant order, their defence of adverse possession is unsustainable. There was no animus possidendi.
14. Defendant Nos.3, 4, 5(a) and 5(b) challenged the said judgment and decree before the First Appellate Court as afore said. The First Appellate Court by impugned judgment and decree dismissed the appeal concurring with the reasoning and findings of the trial Court.
15. This being second appeal under Section 100 of Code of Civil Procedure, 1908, it can be admitted for hearing only if appellants make out substantial questions of law for consideration. The Hon’ble Supreme Court in Santosh Hazari v. Purushottam Tiwari [(2001) 3 SCC 179] has held that on the question of fact, the First Appellate Court is the last Court unless some perversity is shown in the judgments of the courts below. It was further held that to be a question of law, there must be first a foundation laid to it in the pleadings and the question should emerge from the sustainable findings of fact arrived at by Court of facts.
16. Sri V.F.Kumbar, learned Counsel for appellants submits that plaintiffs did not state on which date defendants encroached the suit schedule properties. He further submits that plaintiffs admitted possession of defendants, but failed to establish since when they came in possession of the properties, therefore, he submits that plaintiffs’ contention that they are in possession of the properties since 1940 should not have been accepted. He further submits that commissioner’s report was erroneously accepted.
17. Sri S.T.Rajashekar, learned Counsel for respondents submits that there are concurrent findings of the Courts below on the question of facts based on sound appreciation of evidence and that cannot be a substantial question of law in this case. He further submits that defendant Nos.2 to 5 though claimed that they are put in possession by Government, they did not examine anybody to that effect, when plaintiffs specifically stated that encroachment is in the year 1997. Therefore, even that question of law does not become substantial question of law.
18. So far as Commissioner’s report, he submits that though defendants filed objections, they did not chose to examine the commissioner with regard to their objections. Therefore, Courts below have rightly accepted that acting under Order XXVI Rule 10 of CPC and there is no substantial question of law in that regard.
19. Defendant Nos.2 to 5 did not dispute Ex.P1 sale deed of the plaintiffs which was more than thirty years old document. The said document showed that K.Basegowda plaintiffs’ predecessor in title had purchased plaint schedule ‘A’ properties from one Salvador Fernandez and he put in possession of the same. According to plaintiffs, encroachment was in the year 1997.
20. Defendant Nos.2 to 5 admitted that they were in possession of plaint schedule ‘C’ property. But their contention was that they were granted 10 guntas of land each in Survey No.300 of Halekote village instead Government put them in possession of plaint schedule ‘C’ property.
21. DW.4 Tahsildhar was examined to prove Ex.D1 and Ex.D2 saguvalli chits for the year 1949-1950. Apparently, Ex.D1 and Ex.D2 related to Survey No.300 of Halekote village which is totally different village. DW.4 Tahsildhar deposed that defendant Nos.2 to 5 were granted 10 guntas of land in Survey No.300 of Halekote village. He did not state that Government at any point in time put them in possession of suit schedule ‘C’ property instead of Survey No.300.
22. Though defendant Nos.2 to 5 contend that they have constructed house long back and enjoying that, they did not adduce any evidence to show that said house was constructed 40 years back as contended by them.
23. Soon before the suit, on the application of the plaintiffs survey was conducted regarding plaint ‘A’ schedule properties and Survey No.300 of Halekote village. The said survey sketch shows that defendant Nos.2 to 5 were found in unauthorized possession of plaint schedule ‘C’ property. That substantiated the contention of the plaintiffs that survey was conducted soon before the suit because of the dispute between plaintiffs and defendant Nos.2 to 5.
24. The trial Court rejected the claim of defendant Nos.2 to 5 that Government have put them in possession of suit schedule ‘C’ property on the ground that though they claimed to have put in possession of 10 guntas, actual possession as per Commissioner’s report varies. Therefore, on that count also, case of defendant Nos.2 to 5 that Government put them in possession is not acceptable.
25. Courts below rightly held that since defendant Nos.2 to 5 did not accept the title of the plaintiffs, therefore, case regarding perfection of title by adverse possession is inconsistent with principle of adverse possession. Further since defendants claim that they are in possession of the properties by virtue of grant order of the Government and that Government put them in possession. That does not amount to animus possidendi. On that count also the theory of perfection of title by defendants by adverse possession fails.
26. Order XXVI Rule 10 of CPC clearly states that report of commissioner forms part of the record. If any party has any grievance on the said report, he has to summon the commissioner and examine him touching his objections to the commissioner’s report. Since that was not done, the Courts below rightly accepted the report.
27. The Courts below on sound appreciation of the evidence and the principles of law and giving cogent and consistent reasoning gave the finding on the issues raised by parties. This Court does not find any substantial questions of law in the case. Therefore, the appeal is dismissed.
Sd/- JUDGE KSR