In The High Court Of Karnataka At Bengaluru DATED THIS THE 14TH DAY OF NOVEMBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No. 643 OF 2019 (PAR) Between:
1. SRI. AFSAR AHAMED SON OF LATE C. K. AHAMED SAB, AGED ABOUT 58 YEARS, MUNICIPAL COUNCILOR, R/AT 5TH CROSS, GANDHI NAGAR, CHIKKAMAGALURU CITY - 577 101.
2. SRI. RAFEEQ AHAMED SON OF LATE C. K. AHAMED SAB, AGED ABOUT 66 YEARS, AGRICULTURIST.
3. SRI. AFROZE AHAMED SON OF LATE C. K. AHAMED SAB, AGED ABOUT 48 YEARS, AUTORICKSHAW OWNER.
APPELLANT NOs.2 & 3 ARE R/AT BELT ROAD, DONIKANA, CHIKKAMAGALURU CITY - 577 101.
4. SRI. ATHEEQ AHAMED SON OF LATE C. K. AHAMED SAB, AGED ABOUT 64 YEARS, VEGETABLE MERCHANT, R/AT BILAL MASJID ROAD, TIPPU NAGAR, CHIKKAMAGALURU CITY - 577 101.
... APPELLANTS (BY SRI. SACHIN B. S., ADVOCATE ) And:
SRI. NASIR AHAMED SON OF LATE SHEIK BUDEN SAB, AGED ABOUT 46 YEARS, BUSINESSMAN, R/AT DONIKANA, BELUR ROAD, CHIKKAMAGALURU CITY - 577 101.
... RESPONDENT (BY SRI. A. MADHUSUDHAN RAO., ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 OF CPC. AGAINST THE JUDGMENT AND DECREE DATED 23.02.2019 PASSED IN R.A. NO. 77/2018 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JDUGE AND CJM, CHIKKAMAGALURU, DISMISSING THE APPEAL AND CONFIRMING JUDGMENT AND DECREE DATED 30.08.2018 PASSED IN OS. NO. 504/2011 ON THE FILE OF THE III ADDITIONAL CIVIL JUDGE AND JMFC, CHIKKMAGALURU.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment Heard the learned counsel for the appellants and perused the impugned judgment.
2. This appeal is filed by the defendants in O.S.No.504/2011 on the file of the III Additional Civil Judge and JMFC, Chikkamagaluru (for short, ‘Civil Court’). The civil Court by its judgment dated 30.08.2018 has decreed the suit in O.S.No.504/2011 directing the appellants to remove the barbed wire fence and demarcation stone pillars and to handover the vacant possession of the site measuring 40 x 40 feet (0-01.08 guntas in Sy.No.129/P of Chikkamagaluru village (Gandhi Nagara), Kasaba Hobli, Chikkamagaluru) while granting permanent injunction restraining the appellants from dispossessing the respondent from the subject property. The appellants have challenged the Civil Court’s judgment in RA No.77/2018 on the file of the Principal Senior Civil Judge and CJM, Chikkamagaluru (for short, ‘appellate Court’). The appellate court has dismissed the appeal by its judgment dated 23.2.2019.
3. The respondent initially filed the suit for permanent injunction against the appellants, but later amended the prayer to implead the relief of mandatory injunction against the appellants to remove the barbed wire fence and to demarcate the stone pillars and also to hand over the vacant possession of the schedule property. The respondent contended that the suit schedule property is purchased by him under the Sale Deed dated 18.5.1999 from a certain Sri G. Ravi Kumar S/o. B.Govindaraju. The revenue records are made in his name and he continues to be in possession thereof. The appellants on 13.12.2011 tried to put up a fence, and later dispossessed the respondent from the suit schedule property. The appellant No.1 is a Municipal Councillor and the other appellants are his siblings, and it was difficult for him to resist the appellants’ attempts to take forcible possession of the subject property.
4. The appellants, on the other hand, contested the suit asserting that the subject property is part of the land in Sy.No.130/p1 and the respondent is attempting to encroach upon this portion asserting that it is part of land in Sy.No.128 purchased by him under the Sale Deed dated 18.5.1999 from Sri G. Ravi Kumar S/o. B.Govindaraju. The appellants also contended that they are in possession of the subject property from the time of their ancestors.
5. The respondent examined himself as PW.1 and produced different documents, including the Sale Deed dated 18.5.1999 executed in his favour, the revenue records in his favour and also certain photos and CDs. The respondent also produced certified copies of the pleadings and the judgments in O.S.No.65/2012 and O.S.No.149/2012. On behalf of the appellants, the appellant No.2 is examined as DW.1. The Civil Court, at the instance of the appellants, has also appointed a Court Commissioner, who is examined as CW.1. The notice issued by the Court Commissioner, statement recorded by him, the survey sketch, which is part of the execution of the Commissioner’s report and reply to the memo of instructions are marked as Exs.C.1 to C.7.
6. The civil Court, on appreciation of the evidence on record, has decreed the suit as aforesaid holding that the respondent is able to prove possession and enjoyment of the subject property as well as encroachment by the appellants. The civil Court, in answering the Issues as regards possession and encroachment in favour of the respondent, has relied upon the Sale Deed dated 18.5.1999, the revenue records, the proceedings in O.S.No.65/2012 and O.S.No.149/2012 as well as the failure by the appellants to produce any documents in support of their claim.
7. The Civil Court has also considered that the appellants, who resisted the suit asserting their possession contending that the subject property was part of the land in Sy.No.130/p1 and this property was an ancestral property which was partitioned amongst them, did not produce any documents either as regards ownership or partition. Significantly, the civil Court has also considered that in the absence of any documents by the appellants to establish the identity of the property as claimed by them, the appellants cannot succeed in their defence. Insofar as the Court Commissioner’s report, the civil Court has concluded that the Commissioner’s report could only be a corroborative piece of evidence and cannot by itself be the evidence and decree cannot be refused to the respondent only because of such report.
8. The appellate Court has re-appreciated the evidence while answering the points formulated for its consideration which include whether the respondent is able to establish possession and subsequent encroachment and whether there is any ground for re-appointment of the Court Commissioner as prayed for by the appellants. As part of such re-appreciation, the appellate Court has also considered culmination of the proceedings in O.S.No.65/2012 and O.S.No.149/2012. The suit in O.S.No.65/2012 is filed by the respondent’s vendor insofar as the portion of the property that he retained while transferring the subject property in favour of the respondent. This suit in OS No.65/2012 is decreed in favour of the respondent’s vendor. The suit in O.S.No.149/2012 is instituted by the appellants as against the respondent’s vendor. This suit is dismissed for non- prosecution. The judgements in these two suits in O.S.No.65/2012 and O.S.No.149/2012 have become final. The appellate Court, being the final arbiter of facts, has concluded that the respondent is able to establish possession and subsequent encroachment in the light of the evidence available on record.
9. This Court, in a second appeal, cannot interfere with the Judgments of the Courts below unless it is pointed out that the Courts below have relied upon the evidence which should not have been relied upon, or if the courts below have over-looked evidence that ought to have been considered, or if the judgments otherwise are opposed to law. The learned counsel for the appellants is not able to point out any such infirmity in the judgments of the Courts below. As such, no substantial question of law arises for consideration, and the appeal is accordingly dismissed.
In view of dismissal of the appeal, the pending application does not survive for consideration.
Sd/- Judge SA Ct:sr