IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE ASHOK S. KINAGI Regular Second Appeal No. 1245 of 2011 BETWEEN:
H. T. KRISHNA S/O. LATE THOPEGOWDA AGED ABOUT 71 YEARS R/A. HOUSE No.1056, K.R.PURAM HASSAN (BY SRI. VIJAY KRISHNA BHAT, ADV.) AND:
ANAND S/O. RAJEGOWDA AGED ABOUT 41 YEARS R/A. DODDAMANDIGANAHALLI VILLAGE KANDALI POST HASSAN TALUK - 573201 …APPELLANT ... RESPONDENT (BY SMT. D. J. RAKSHITA, ADV. FOR SRI. D. L. JAGADEESH, ADV.) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 18.02.2011, PASSED IN R.A.NO.1/2007 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN.), HASSAN, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 17.10.2006, PASSED IN O.S.NO.368/1996 ON THE FILE OF THE II ADDL. CIVIL JUDGE (JR.DN.) & JMFC, HASSAN.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This is an appeal filed by the plaintiff challenging the judgment and decree passed in O.S.No.368/1996 dated 17.10.2006, dismissing the suit of the plaintiff and the judgment and decree passed by the Appellate Court in R.A.No.1/2007 dated 18.02.2011.
2. The parties are referred to as per their ranking before the Trial Court.
3. Brief facts of the case are as under:
Plaintiff has purchased the suit property measuring 1 acre 10 guntas situated at Doddamandiganahalli of Hassan Taluk from Dyavamma, W/o. Dyavegowda and her children, through registered sale deed dated 17.05.1973. Since then, he is in possession and enjoyment of the suit schedule property. That the plaintiff has got converted portion of land i.e., 1 acre 7 guntas, into non- agricultural land. The defendant has no right, title or interest over the suit property. The defendant trespassed into the said property and constructed a building on the eastern side of northern edge of the suit property by encroaching 0.0¼ guntas in the suit property and the defendant is a very powerful person in the locality having men and money power and hence the plaintiff is unable to prevent the defendant from making unauthorized construction. On this ground, the plaintiff filed a suit for permanent injunction restraining the defendant from making any construction on the suit property and also sought for mandatory injunction directing the defendant to demolish the building constructed on the suit property.
The defendant filed his written statement contending that the suit is not maintainable and he denied that the plaintiff is the owner of the suit schedule property and that he is in possession and enjoyment of the same. He also denied that the plaintiff has got converted the suit schedule property and there is no road or garden on the western side of the property. According to the defendant, to the western side of the suit property, there is a site bearing No.17B measuring 20 x 40 x 25/2 granted by the Mandal Panchayath, Kandali, to the defendant on 19.02.1992. Since then the defendant is in possession and enjoyment of the suit property. The said site is adjacent to the suit property. In order to grab the site allotted to the defendant, the plaintiff has asked the defendant to sell his site. When the defendant refused to do so, plaintiff has filed the false suit. He further contends that the defendant does not have any house. The Mandal Panchayath has granted the site for constructing a house. He has submitted that there is no cause of action for filing the suit. Hence he sought for dismissal of the suit.
The Trial Court, on the basis of pleadings, framed the following issues and additional issue:
1. Whether the plaintiff proves that he is in lawful possession of the suit schedule property on the date of institution of the suit ?
2. Whether the plaintiff proves the alleged obstruction to the suit property ?
3. Whether the plaintiff is entitled to the relief of permanent injunction as prayed ?
4. What order or decree ?
Additional Issues:
1. Whether the plaintiff proves that the defendant towards eastern side of north edge of suit schedule property has encroached 0.0¼ gunta of land and constructed the building ?
2. Is he entitled to the relief of mandatory injunction as prayed by him ?
3. Whether the defendant proves that the suit is not maintainable without claiming the relief of possession ?
Plaintiff examined himself as PW-1 and has examined 3 witnesses as PW-2 to PW-4 and got marked Exs.P1 to P18. Defendant has examined himself as DW-1 and has examined 2 witnesses as DW-2 and DW- 3 and got marked Exs.D1 to D13. On considering the oral and documentary evidence, the Trial Court held that the plaintiff is in lawful possession of the suit schedule property on the date of institution of the suit, but failed to prove the obstruction and also the plaintiff has failed to prove that the defendant has encroached 0.0¼ guntas of land towards eastern side of northern edge of the suit schedule property and constructed building. After considering the oral and documentary evidence, the Trial Court dismissed the suit.
The plaintiff aggrieved by the judgment and decree passed in the above said suit, filed an appeal in R.A.No.1/2007 before the Principal Civil Judge (Sr.Dn.), Hassan. The Appellate Court, after hearing the parties, has framed the following points for consideration:
1. Whether the plaintiff proves that the defendant towards eastern side of north edge of suit schedule property has encroached 0.0¼ guntas of land and constructed the building ?
2. Is he entitled to the relief of mandatory injunction as prayed by him ?
3. Whether the defendant proves that the suit is not maintainable without claiming the relief of possession ?
The Appellate Court held that the plaintiff failed to prove the interference of the defendant on the suit schedule property by encroaching 0.0¼ gunta of land and constructed a building and affirmed the findings of the Trial Court and dismissed the appeal vide judgment and decree dated 18.02.2011.
4. Heard arguments of the learned counsel for the parties and perused the records.
5. The plaintiff in support of his claim has examined himself as PW-1. In the course of his evidence, he admits that at the time of presentation of the plaint he did not state the extent of alleged encroachment made by the defendant. The defendant gave an application to survey the land. The surveyor has issued notice to the plaintiff as well as to the defendant and other adjacent land owners and surveyed the land on 07.08.2000. At the time of survey, the plaintiff was present and survey was conducted in the presence of plaintiff as well as the defendant. Mahazar was drawn as per Ex.D1. PW-1 admits that the contents of Ex.D1 was read over to the parties and after having understood the contents of Ex.D1, he has signed the same. He admits the contents of Ex.D1 as true and correct. He further admits that defendant was allotted a site adjacent to the suit property. He states that defendant has constructed a temporary structure on the suit property, but denies that the defendant has not constructed a permanent structure over the suit property. He also admits that he came to know about the commencement of construction by the defendant and the said construction was undertaken 3 to 4 years back.
PW-2, Manjunath in his examination-in-chief depose that defendant has constructed a house by encroaching the suit schedule property. He pleads ignorance about the site allotted to the defendant adjacent to the suit property. He admits that about 4 years back revenue officers came to the suit property and surveyed the suit lands and at the time of survey, he was present. But the documents Ex.P6 and Ex.D1 does not bear the signatures of PW-2 and does not indicate that he was present at the time of survey.
PW-3, Thammegowda in his evidence depose that the defendant is allotted a site adjacent to the suit property. He admits that the surveyor had issued notice to the plaintiff and defendant. Mahazar was drawn, parties have signed on the Mahazar. PW-3 in the course of cross-examination had admitted that defendant has constructed the building by using bricks and cement. The said admission is contrary to the evidence of PW-1 wherein PW-1 has stated that the defendant has constructed a temporary structure.
PW-4, Girish was examined by the plaintiff in order to prove that he has surveyed the land on 14.03.2000 and he has prepared Ex.P6 and Ex.P12. At the time of conducting the survey on 14.03.2000, no notice was issued to the defendant. The said survey was conducted behind the back of defendant. Hence the reports at Ex.P6 and Ex.P12 cannot be considered on the ground that the alleged survey was conducted behind the back of the defendant without issuing notice and defendant was not present at the time of survey. PW-4 does not depose that he has issued notice of the prior survey to the defendant. But subsequently, on the request of the defendant, survey was conducted on 07.08.2000, in the presence of plaintiff and defendant and they admit the contents of Ex.D1. The contents of Ex.D1 disclose that the defendant has not made any encroachment in the suit property.
6. Considering the evidence of plaintiff, his witnesses and defendant and also the contents of Ex.D1, the plaintiff has failed to prove that the defendant has made an encroachment over the suit property. The evidence of PWs.1 to 4 does not prove that the defendant has made an encroachment over the suit property and the said fact is also clear from the admission of PW-1 in regard to the contents of Ex.D1. The contention of the plaintiff with regard to encroachment is falsified by the contents of Ex.D1. The Trial Court after appreciating the oral and documentary evidence has rightly dismissed the suit holding that the plaintiff has failed to prove that the defendant has encroached upon the suit property. The Appellate Court, after re-appreciating the evidence, has held that the plaintiff has failed to prove that the defendant has made encroachment over the suit property.
7. I do not find any substantial questions involved in the case. The substantial question of law framed by the appellant in the appeal memorandum are questions of fact. I am of the considered opinion that the findings recorded by the courts below on facts, which are based on appreciation of evidence, are essentially in the nature of concurrent findings of fact. Hence, I do not find any grounds to interfere with the judgment passed by the courts below. Accordingly I proceed to pass the following:
Order The appeal is dismissed.
Sd/- JUDGE RD