IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN REGULAR SECOND APPEAL No.1993 of 2011 (KPTCL) BETWEEN KARNATAKA POWER TRANSMISSION, CORPORATION LIMITED, TRANSMISSION LINE AND SUB STATION, SHIMOGA – 577 201. BY ITS EXECUTIVE ENGINEER, V.S.K. RANGAN, AGED ABOUT 53 YEARS.
(BY SMT. M.C. NAGASHREE, ADVOCATE) AND PRAKASH, S/O HUCHAPPA, AGE 35 YEARS, VEERANNANAKERE KUMSI, SHIMOGA TALUK – 577 201.
(BY SRI UMESH MOOLIMANI, ADVOCATE FOR SRI S.V. PRAKASH, ADVOCATE FOR C/R IN C.P.No.868/2011) ... APPELLANT ... RESPONDENT THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT AND DECREE DATED 01.04.2011 PASSED IN R.A.No.45 of 2010 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE & CJM, SHIMOGA, DISMISSING THE APPEAL AND UPHOLDING THE JUDGMENT AND DECREE DATED 03.03.2010 PASSED IN O.S.No.116 of 2004 ON THE FILE OF THE C/C PRL. JUDGE (Jr.Dn.,) & JMFC, SHIMOGA.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal is filed by the Karnataka Power Transmission Corporation Limited (‘KPTCL’ for short) represented by its Executive Engineer assailing the judgment and decree dated 03.03.2010 passed by the Principal Civil Judge (Jn.Dn.,) Shimoga in O.S.No.116/2004, which was confirmed by the Principal Senior Civil Judge and C.J.M., Shimoga in R.A.No.45/2010 by judgment and decree dated 01.04.2011.
2. Heard the arguments of learned counsel on both sides.
3. The status of the parties before the Trial Court is retained for the sake of convenience.
4. The case of the plaintiff before the Trial Court is that the plaintiff-KPTCL is the owner in possession of the property measuring 16 acres 21 guntas in Sy.No.215 of Kumsi Village, Shimoga Taluk. Out of the said extent, the properties measuring a) 135 x 400 feet; b) 226 x 195 feet and c) 590 x 190 feet vide assessment Nos.968 and 963, there is a Master Unit Sub-station belonged to the plaintiff and a land measuring 100 x 18.6 feet is left out to Masjid and an extent of 143 x 366 feet is left out to the Police Department. There are also some quarters built by the plaintiff and are leased out to the persons working in the plaintiff’s department and police department. It is the further case of the plaintiff that KPTCL is in possession and enjoyment of the suit schedule property prior to 1969. The defendant who is not at all concerned with the suit schedule property and not being the owner of the adjoining property is trying to encroach upon the plaintiff’s property morefully described in the plaint schedule to an extent of 55 x 57 feet towards the south-eastern side of the plaintiff’s property i.e. Assessment No.963 measuring 590 x 195 feet. The defendant alleged to have accumulated boulders, bricks and other materials for construction. The plaintiff to the best of their effort prevented the defendant and also lodged a complaint, but the Police advised the plaintiff to approach the civil court. Taking advantage of the holiday i.e., on 07.03.2004, the defendant trespassed into the suit schedule property and tried to start the construction work and the same was prevented. Hence, the plaintiff filed the suit for injunction both for mandatory as well as perpetual injunction against the defendant.
5. Pursuant to the Notice, the defendant appeared before the Court through his counsel and filed written statement denying the averments made in the plaint as false and contended that the defendant is the owner in possession of the house property bearing panchayat Khata No.888/749/3, 749/3 measuring in all 15 x 50 feet. The panchayat records stood in his name and the panchayat also granted license to him to construct the building and the plaintiff has no right, title and interest over this property and prayed for dismissal of the suit.
6. Based upon the rival pleadings, the Trial Court framed the following five issues for its consideration:
1. Whether the plaintiff proves that it is in peaceful possession and enjoyment of suit schedule property as on the date of filing of suit?
2. Whether the plaintiff proves that the defendant illegally put up construction by encroaching the suit schedule property as alleged in the plaint?
3. Whether the plaintiff is entitled for the relief of permanent injunction as prayed in the plaint?
4. Whether the plaintiff is entitled for the relief of mandatory injunction as prayed in the plaint?
5. What order of decree?”
7. In support of the case of the plaintiff, the Assistant Executive Engineer working in the office of the plaintiff examined himself as PW.1 and got marked nine documents as per Exs.P.1 to P.9. The defendant got examined himself as DW.1 and got marked ten documents as per Exs.D.1 to D.10 and the Court also appointed the Taluka Surveyor from Tahsildar Office as the Court Commissioner and the Court Commissioner examined as CW.1 and got marked 5 documents as per Exs.C.1 to C.5. After considering the evidence on record, the Trial Court dismissed the suit of the plaintiff.
Assailing the judgment and decree passed by the Trial Court, the plaintiff approached the Principal Senior Civil Judge and C.J.M., Shimoga, in R.A.No.45/2010, which also came to be dismissed confirming the judgment and decree passed by the Trial Court by judgment dated 01.04.2011. Assailing the judgment and decree passed by the Courts below, the plaintiff-KPTCL is before this Court under second appeal.
8. Smt. M.C. Nagashree, learned counsel for the KPTCL strenuously contended that both the Courts below committed error in dismissing the suit of the plaintiff even though the plaintiff was able to produce documents to show that they are the owners of the property. Even the defendant has not claimed the property of the plaintiff in Sy.No.215, but the defendant had encroached the property on the southern side to the extent of 55 x 57 feet. The possession of the land by the plaintiff is not disputed. The same was not considered by the Courts below. Therefore, the judgment and decree passed by the Courts below are liable to be set aside. Further, learned counsel for the plaintiff contended that the sketch prepared and produced by the Commissioner vide Ex.C.5 goes to show that there is encroachment of the property of the plaintiff in Sy.No.215. The same was not properly appreciated by the Courts below. Therefore, she prayed for setting aside of the judgment and decree passed by the Courts below.
9. Per contra, Sri Umesh Moolimani, learned counsel for the respondent contended that the defendant has not at all encroached the property of the plaintiff and he is in possession of the property measuring 15 x 50 feet which was granted by the Village Panchayat in his favour. Based upon the said document, he has paid taxes and also obtained license to construct the house property by raising loan and he never encroached the property of the plaintiff.
He further contended that even otherwise the plaintiff though approached the Court, it is not able to show as to what was the extent of the property in possession of the plaintiff and what was the extent of the property which was encroached by the defendant much less 55 x 57 feet, but the defendant is in possession of 15 x 50 feet as per the document. Even otherwise, the Commissioner appointed by the Court has also produced Ex.C.5-report which clearly corroborates with Ex.D.8 produced by the defendant. The survey sketch shows that defendant’s property is situated in Sy.No.215 and not in Sy.No.216. Learned counsel also contended that there is no illegality or error committed by the Courts below and there is no substantial question of law involved for admitting the present appeal. Hence, prayed for dismissal of the appeal.
10. Upon hearing the arguments of learned counsel for the parties, admittedly, both the Courts below have given concurrent findings by dismissing the suit of the plaintiff. The plaintiff claim to be the owner of the property measuring 16 acres 21 guntas in Sy.No.215 and some extent of land i.e. 135 x 400 feet, 226 x 195 feet and 590 x 195 feet were given to the Police department and Masjid. It is also stated that out of the said land, vide Assessment Nos.968, 963, there is a Master Unit for Sub-station belonging to the plaintiff and land measuring 100 x 18.6 feet left out to Masjid and 143 x 360 feet is left out to the Police Station. These facts are not in dispute. The specific case of the plaintiff is that the land measuring 55 x 57 feet towards south-eastern side of the plaintiff’s property out of 590 x 195 feet has been encroached upon by the defendant. In order to prove the ownership of the property measuring 16 acres 21 guntas or atleast 590 x 195 feet, they have not produced any document before the Trial Court or the Appellate Court. The plaintiff is not able to show that the defendant had encroached 55 x 57 feet towards south-eastern side of the plaintiff’s property, but as per the sketch Ex.P.9, the extent of encroachment was not at all shown as the disputed property. That apart, the Trial Court has appointed a Court Commissioner from the Tahsildar Office of Shimoga Taluk, who visited the spot and after making thorough inspection, he has given report to the Court. The said report is marked as Ex.C.5. Ex.C.4 is the mahazar prepared by him during the course of spot inspection. Ex.C.3 is the notice given to both the parties prior to inspection. These documents are not in dispute. The Commissioner prepared the sketch wherein he has clearly demarcated the lands in Sy.Nos.215 and 216. Admittedly, the land in Sy.No.216 is shown on the south- eastern side of Sy.No.215 and out of Sy.No.216, a portion of the land is shown in red ink by marking it in capital letter ‘A’. He has also clearly mentioned that the said ‘A’ property is in possession of the defendant and it is measuring 15 x 50 feet. Below the sketch, the Court Commissioner clearly stated that the defendant has not encroached the property of the plaintiff in Sy.No.215 and in point No.4, he has clearly mentioned the defendant’s property as measuring 15 x 50 feet. There is a house and a vacant place in Sy.No.216. These documents are not seriously disputed by the plaintiff in their evidence and also not examined the surveyor from the Tahsildar office to show that this sketch is not correct. On perusal of Ex.D.8- sketch produced by the defendant in his evidence clearly goes to show that the property in Sy.No.216 is situated adjacent to the property in Sy.No.215 and the document of the defendant clearly goes to show that he is in possession of the property and obtained license to construct the house. Ex.D.8-Sketch and Ex.C.5-Commissioner’s report clearly corroborates with each other. Whereas, Ex.P.9 shows that there is no demarcation of the disputed land in question. Even the plaintiff has not challenged Ex.D.8 and Ex.C.5, which clearly shows that the property is on the south-eastern side of Sy.No.215 which is alleged to be belonging to the defendant. Based upon the evidence on record, the Trial Court and the Appellate Court have held that the plaintiff failed to prove the ownership of the property in question and also the encroachment made by the defendant. The findings of the Trial Court has been re- appreciated by the Appellate Court and the Appellate Court has come to the right conclusion and dismissed the suit and appeal of the plaintiff. Both the Courts have given concurrent findings. There is no reason to interfere with the judgment and decree passed by the Courts below and there is no substantial question of law involved to admit the present appeal. The appeal being devoid of merit is liable to be dismissed.
Accordingly, the appeal is dismissed.
Sd/- JUDGE mv