IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.67 OF 2016 BETWEEN:
Mr. S.Ganesh, S/o. Late Siddappa, Aged about 35 years, R/at House No.41/73 Jayanthi Village, Horamavu Post, K.R.Puram Hobli, Bengaluru North Taluk, Bengaluru-560043.
(By Sri T.P.Muthanna, Advocate) AND:
Mr. Dharmesh Ranka, S/o. Mr. Dinesh Ranka, Major R/at M.S.Queen Market, No.30/1, Ranka Chambers Cunningham Road, Bengaluru-560052.
(By Sri S.Ganesh Shenoy, Advocate) …Appellant ... Respondent This RFA is filed under Section 96 read with Order XLI of CPC against the judgment and decree dated 16.10.2015 passed in O.S.No.27094/2012 on the file of XXVIII Additional City Civil Judge, Mayohall Unit, Bengaluru, dismissing the suit for possession.
This RFA coming on for admission this day, the Court delivered the following:
JUDGMENT This appeal is disposed of after hearing the appellant’s counsel and the respondent’s counsel at the stage of admission.
2. This appeal is filed by the plaintiff in O.S.No.27094/2012 on the file of the XXVIII Additional City Civil and Sessions Judge, Bengaluru. By judgment dated 16.10.2015, the trial Court dismissed the suit of the plaintiff and hence this appeal is filed by the plaintiff.
3. Case of the plaintiff is that he is the absolute owner of the plaint ‘A’ schedule property by virtue of a sale deed dated 28.01.2004. Plaintiff alleges that the defendant made encroachment over his property to an extent of 280 square feet on the northern side by constructing a compound wall. The defendant did not file written statement. Thereafter the trial Court recorded the evidence of plaintiff. On perusing the oral and documentary evidence as per Exs.P.1 to P.10, the trial Court come to conclusion that the plaintiff was the absolute owner of ‘A’ schedule property. For proving encroachment said to have been made by the defendant, no evidence has been produced. The trial Court has observed that the plaintiff should have got a Commissioner appointed. Finding that there was no evidence produced by the plaintiff to prove the encroachment over the property, the trial Court dismissed the suit.
4. On going through the entire judgment, I am of the opinion that the trial Court has come to right conclusion. The plaintiff might have purchased ‘A’ schedule property and he might have proved his title by producing sale deed as per Ex.P.1. The other documents as per Exs.P.2 to P.10 do not actually prove the encroachment. If the plaintiff alleges encroachment by the defendant, it must be proved by him. There is no evidence to this effect. Suit has to be dismissed. The trial Court appears to have come to right conclusion. I do not find merits in this appeal. Hence it is dismissed.
KMV/-
Sd/- JUDGE