- 1 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO. 1413 OF 2022 (DEC/INJ) BETWEEN: S. NAGESH S/O LATE SHANKARAPPA AGED ABOUT 58 YEARS, R/AT NO.824, 2ND MAIN, 4TH CROSS, NEAR RANGANATHA SWAMY TEMPLE YEMALUR, BENGALURU - 560 037. ...APPELLANT (BY SRI. N. KUMAR, ADVOCATE) AND: VIJAY KUMAR. D, S/O. S.DESIKACHAR AGED ABOUT 35 YEARS, R/AT NO.273/254 YEMALUR MAIN ROAD, OPP SHIVA TEMPLE, NEAR GOVERNMENT SCHOOL, YEMALUR, BENGALURU - 560 037. …..RESPONDENT (BY SRI. R.S. RAVI, SR. ADVOCATE FOR SRI. ANJANA MURTHY.H, ADVOCATE) THIS RFA IS FILED UNDER SECTION 96 OF THE CPC, AGAINST THE JUDGMENT AND DECREE DATED 02.07.2022 PASSED IN O.S.NO.3024/2016 ON THE FILE OF THE LXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, DISMISSING THE SUIT FOR DECLARATION AND INJUNCTION. Digitally signed by RAMYA D Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 THIS APPEAL, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR CAV JUDGMENT The plaintiff has filed the appeal challenging the judgment and decree dated 02.07.2022 passed by the Court of LXVI Add. City Civil & Sessions Judge, Bengaluru City, in O.S.No.3024/2016 (hereinafter referred to as ‘Trial Court’ for short), thereby, the suit filed by the plaintiff for declaration, possession, mandatory injunction and permanent injunction, is dismissed. 2. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court. THE PLAINTIFF’S CASE: 3. It is the case of plaintiff that plaintiff’s father late S. S.Shankarappa was the absolute owner of suit - 3 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 schedule ‘A’ property as having been purchased through registered sale deed dated 10.08.1976. After purchase of suit schedule ‘A’ property, plaintiff’s father has constructed four commercial shops on it and same were let out on rent. The father of plaintiff died on 03.07.2011 and after the death of plaintiff’s father there was registered settlement deed dated 26.02.2013 between plaintiff’s mother and brother. As per the settlement deed, suit schedule ‘A’ property was fallen to the share of plaintiff. Khatha and revenue records were mutated in the name of plaintiff and he was in possession of suit schedule ‘A’ property since settlement deed came into effect. It is stated that plaintiff has intended to construct new commercial complex over suit schedule ‘A’ property by vacating the tenants and demolished three commercial shops. While in the process of constructing new commercial complex over suit schedule ‘A’ property and while marking the suit schedule ‘A’ property, plaintiff came to know that the defendant had encroached 2 x 80 feet land towards Eastern portion of the suit schedule ‘A’ - 4 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 property by constructing a compound wall and also by putting gate towards Southern side. The encroached portion to an extent of 2 x 80 feet over suit schedule ‘A’ property is hereby marked in suit schedule ‘B’ property. Further, it is pleaded that defendant has installed a transformer towards Southern side of the suit schedule ‘A’ property by encroaching 5 x 8 feet towards Southern side of the property and also put up a gate, which is shown as suit schedule ‘C’ property. 4. It is the case of plaintiff that thereafter plaintiff has requested to remove the encroached portions, but defendant denied to remove the same and as such with this allegation made in the plaint, the plaintiff filed a suit against defendant for declaration that plaintiff is the absolute owner of suit schedule ‘B’ and ‘C’ properties for recovery of possession of suit schedule ‘B’ and ‘C’ properties from the defendant and for mandatory injunction directing the defendant to remove the - 5 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 construction put up on the suit schedule ‘B’ and ‘C’ properties. THE DEFENDANT’S CASE: 5. The defendant entered appearance through his counsel and filed the written statement. The defendant has denied the entire plaint averments made in the plaint and pleaded that his grandfather one late V. Seetharamachar was the absolute owner of site formed in Sy.No.24 bearing Site No.24/22 situated at Yamaluru Village, Vartur Hobli, Bengaluru South Taluk, Bengaluru measuring East-West 69 feet and North-South 51 feet totally measuring 3519 square feet bounded on East by Water canal and Obalappa’s House, West by Road, North by Basavalingaiah’s property and South by Mariswamppa’s property, which has been acquired by one Ramaiah, son of Nanjappa under registered sale deed dated 14.11.1950. 6. Further the defendant pleaded that defendant’s grandfather namely, V. Seetharamachar was the absolute - 6 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 owner of site formed in Sy.No.24 bearing Site No.24/22 situated at Yamaluru Village, Vartur Hobli, Bengaluru South Taluk, Bengaluru, measuring East-West 65 feet, North-South 34 feet totally measuring 2210 sq. ft. bounded on East by Obalappa’s House, West by Road, North by V. Seetharamachar’s House and on South by School which is acquired from one Smt. Susheela, w/o Hobale Gowda under registered sale deed dated 02.01.1980. Thereafter, necessary khatha and revenue entries were mutated. 7. Further, it is pleaded that the grandfather late V. Seetharamachar had paid developmental charges for the above said properties. Thereafter, N.Seetharamachar had executed his last Will and Testament dated 27.08.1987 registered in the office of the Sub Registrar bequeathing the entire properties bearing Sy.No.24/23 and property bearing Sy.No.24/22 above stated in favour of defendant and thereby defendant becoming the owner of said property is in possession of the said properties. It is - 7 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 pleaded that both the properties are adjacent to each other and said V. Seetharamchar died on 28.04.2004. It is pleaded that the Khatas in respect of above said two properties namely, site bearing Sy.No.24/22 and 24/23 are standing in the name of defendant. The defendant has pleaded that plaintiff has no knowledge about background of the entire property, which was earlier owned by the defendant’s grandfather late V. Seetharamachar. The said V. Seetharamachar when he was alive has given complaint against father of plaintiff to the Chief Officer, HAL Sanitary Board, Bengaluru on 28.01.1991 when the plaintiff’s father was trying to put up construction illegally without having licence or plan. Also pleaded that defendant’s father gave a complaint before the Commissioner, Mahadevapura, CMC, on 27.12.2004 against the father of plaintiff for his trying illegal construction by encroaching the road and obstructing entry to the road. 8. Further the defendant pleaded that commercial complex situated on suit schedule ‘A’ property and - 8 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 subsequent to demolition of three shops is nothing but deliberate intention of the plaintiff only to avoid the action by the BBMP against the plaintiff. Therefore, it is contended that construction made on suit schedule ‘A’ property is illegal construction. It is further pleaded that plaintiff had encroached road and put up construction. The suit filed by the plaintiff is after a lapse of several years only to harass the defendant, thus the suit is barred by limitation and is not maintainable. Therefore, with these pleadings, the defendant prays to dismiss the appeal. 9. Based on the pleadings, the Trial Court has framed following issues: 1. Whether the plaintiff proves that he is the absolute owner of ‘B’ and ‘C’ schedule property as alleged in the plaint? 2. Whether the plaintiff further prove that she derived ‘B’ and ’C’ schedule property under registered settlement deed dated 26.02.2013 between himself, his mother and brother? - 9 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 3. Whether the plaintiff is entitled for recovery of possession of ‘B’ and ‘C’ schedule properties? 4. Whether defendant prove that his grandfather V. Seetharamachar has bequeathed suit schedule property in Sy.No.24/23 and Sy.No.24/22 in favour of this defendant by way of Will who is non other than grandson of V. Seetharamachar? 5. Whether the plaintiff is entitled for relief claimed? 6. What decree or order? 10. In order to prove the case, the plaintiff has examined himself as PW-1 and got marked documents as Exs.P-1 to P-30. The defendant has examined himself as DW-1 and got marked documentary evidence as Exs.D-1 to D-40. The Court Commissioner appointed is examined as CW-1 and the Court Commissioner has got marked documentary evidence as Exs.C-1 to C-16. 11. The Trial Court dismissed the suit by answering issues that plaintiff has failed to prove that he is the owner of suit schedule ‘B’ and ‘C’ properties as shown in the - 10 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 plaint and also held that plaintiff fails to prove that suit schedule ‘B’ and ‘C’ properties were derived through registered settlement deed dated 26.02.2013 between himself, mother and brother and thus, dismissed the suit. Further, the Trial Court has held that defendant proved that his grandfather V. Seetharamachar had bequeathed the suit schedule properties bearing Sy.Nos.24/22 and 24/23 in favour of the defendant. 12. Further, the Trial Court assigned reason that plaintiff has failed to prove that defendant had encroached the suit schedule ‘B’ and ‘C’ properties, which is part and parcel of suit schedule ‘A’ property. The Trial Court had assigned reason that plaintiff has not produced original sale deed dated 10.08.1976 and it is mere certified copy, but has not laid foundation for leading secondary evidence. Therefore, as per provisions of Sections 61, 62 and 63 of the Indian Evidence Act, 1872, by leading secondary evidence the plaintiff has not proved that he is the owner of suit schedule ‘A’ property. Further, the Trial - 11 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 Court has assigned reasons that there is a difference in the measurement of suit schedule ‘A’ property between Ex.P-1-certified copy of sale deed dated 10.08.1976 and Ex.P-4-settlement deed. Further, it is held that there is variation in the measurement of suit schedule ‘A’ property as per Ex.P-1-sale deed and Ex.P-5-khatha certificate. Further assigned reasons that electric transformer was installed in the suit schedule ‘C’ property by the BESCOM Authorities for the use of public residing in the locality and thus, it is not encroached by the defendant. Therefore, on these reasons, the Trial Court held that plaintiff has failed to prove that the defendant had encroached suit schedule ‘B’ and ‘C’ properties, which is part and parcel of the suit schedule ‘A’ property, thus dismissed the suit. 13. Being aggrieved by the dismissal of suit, the plaintiff has preferred the present appeal. The plaintiff has raised many grounds and Sri. N. Kumar, learned counsel for the appellant/plaintiff argued in consonance with the grounds raised in the memorandum of appeal that the Trial - 12 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 Court has wrongly held that plaintiff is not the owner of suit schedule ‘A’ property, but Ex.P-1–sale deed dated 10.08.1976 prove the fact that plaintiff is the owner of suit schedule ‘A’ property. Further argued that Trial Court has not considered the admission given by DW-1 that total measurement of the property of defendant is 6530 sq. ft., but he has constructed the building on 6836 sq. ft. Further the Trial Court had committed an error by not considering the Commissioner’s report filed by the Court Commissioner. Further argued that defendant’s property measuring East, West and North side was found to be 17.9½ ft. against 69 ft. and Southern side was found 73.06 ft. against 69 ft., but the Trial Court without considering the same dismissed the suit. 14. Further argued that Trial Court has committed an error by considering the sale deed produced by the defendant where the Northern side boundaries is shown as road and dismissed the suit without considering the documents produced by the plaintiff. Further the Trial - 13 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 Court has committed error in not considering the presumption raised under Section 79 of the Indian Evidence Act, 1872 in respect of Ex.P-1-certified copy of sale deed dated 10.07.1976, but the Trial Court has committed error by making glorification of not producing the original sale deed as the same has been damaged due to rat bite, the Trial Court has committed error by observing that plaintiff has not proved title over suit schedule ‘A’ property, but the plaintiff has produced secondary evidence of certified copy of sale deed. Further submitted that the defendant is claiming title over the property by virtue of registered sale deed dated 27.08.1987 at Ex.D-10, but the property allotted by the defendant in the western side is not forthcoming in the aforesaid Will, but the Trial Court has swayed away only by the written argument filed by the defendant. The Trial Court had wrongly discarded Ex.P-5-Khatha standing in the name of the appellant. Further submitted that Trial Court has committed error in dismissing the suit holding that measurement of suit schedule ‘A’ property at Ex.P-1- - 14 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 sale deed and Ex.P-4-settlement deed are different. Further submitted that the Trial Court has committed error in giving finding that the plaintiff has not produced document as to how the plaintiff’s father has acquired suit schedule ‘A’ property and there was no Khatha standing in his name in respect of suit schedule ‘A’ property. 15. Further submitted that the Trial Court has not considered the aspect that the plaintiff’s father has constructed four commercial shops in the suit schedule ‘A’ property. Further the Trial Court had committed an error by rejecting the Court Commissioner’s report holding that the Court while executing commission work it has not considered Ex.P-11-letter addressed by the defendant to the Assistant Engineer, BBMP, Marthahalli, in respect of measurement of property in Sy.Nos.24/23-13. The Trial Court has committed error that transformer was installed by BESCOM, but it was destroyed by the BBMP since the defendant has constructed 17 residential houses. Therefore, on all these grounds prays to set aside the - 15 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 judgment and decree passed by the Trial Court and prays to decree the suit as prayed for. 16. In support of arguments, learned counsel for the appellant places reliance on the following judgments: Sl. No. Judgments 1. DAMODAR NARAYAN SAWALE (D) THROUGH LRS. VS. SHRI TEJRAO BAJIRAO MHASKE AND OTHERS passed in SLP (C) No.10747/2016 (Damodar’s Case) 2. JAYAMMA VS. THE ASSISTANT REVENUE OFFICER AND OTHERS passed in Writ Petition No.16738/2005 (Jayamma’s Case) 3. APPAIYA VS. ANDIMUTHU @ THANGAPANDI AND OTHERS passed in SLP (C) No.10013/2015 (Appaiya’s Case) 17. On the other hand, learned counsel for the defendant submitted that plaintiff has not produced original sale deed but has produced only certified copy of sale deed and by leading secondary evidence the plaintiff has not laid foundation, but in the appeal the plaintiff has produced original sale deed by invoking application under Order XLI Rule 27 of CPC. In the evidence the plaintiff has - 16 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 taken contention that the original sale deed was damaged due to rat bite, but the original sale deed is produced in the appeal. As such submitted that the plaintiff has suppressed material facts before the Trial Court in the suit and has taken false contention. Further submitted that the there is variance in the measurement and extent of suit schedule ‘A’ property in Ex.P-1-certified copy of sale deed and Exs.P-4 and P-5, which are settlement deed and khata certificate. When the plaintiff has alleged that towards Southern side gate was fixed, but in the course of cross-examination the plaintiff has admitted that gate was fixed towards Eastern side. Further submitted that when it is the case filed by the plaintiff that defendant has encroached suit schedule ‘A’ property which is described as suit schedule ‘B’ and ‘C’ properties, the plaintiff has failed to prove the alleged encroachment made by the defendant. In this regard, the Trial Court has rightly appreciated evidence on record, therefore, prays to dismiss the appeal. - 17 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 18. In support of arguments, learned counsel for the respondent places reliance on the judgment of this Court in the case of K. GOPALA REDDY (DECEASED) BY LRS. VS. SURYANARAYANA AND OTHERS reported in LAWS (KAR) 2003 11 86. 19. After hearing the submissions of both sides and perusing Trial Court records, the points that would arise for my consideration are as follows: i. Whether, under the facts and circumstances involved in the case, the plaintiff proves that the defendant has encroached suit schedule ‘B’ and ‘C’ properties, which are part and parcel of suit schedule ‘A’ property? ii. Whether, the judgment and decree passed by the Trial Court requires any interference? 20. Upon considering the case made out by the plaintiff and evidence produced that it is the case of plaintiff that he is the owner and having title over the suit schedule ‘A’ property, the defendant has encroached suit - 18 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 schedule ‘B’ and ‘C’ property which are portions of suit schedule ‘A’ property. The case of plaintiff is denied by the defendant stating that defendant has not encroached suit schedule ‘B’ and ‘C’ properties. Therefore, burden is on the plaintiff to prove that defendant has encroached suit schedule ‘B’ and ‘C’ properties at least even on preponderance of probabilities. 21. There is no dispute that plaintiff is the owner of suit schedule ‘A’ property except the measurement of boundaries stated. The only dispute is that the defendant has encroached part and parcel of suit schedule ‘A’ property, which are suit schedule ‘B’ and ‘C’ properties. It was not necessary for the Trial Court to frame Issue No.(i) - whether the plaintiff proves who is the owner of suit schedule ‘A’ property? But the Trial Court assigned the main reason that plaintiff has failed to prove that he is the owner of suit schedule ‘A’ property. The Trial Court disbelieved the evidence of plaintiff whether Ex.P-1- certified copy of sale deed by observing that it is only a - 19 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 mere certified copy of sale deed. Hence, by this secondary evidence the plaintiff is claiming title over the suit schedule ‘A’ property. Ex.P-1-certified copy of sale deed dated 10.08.1976 is stated to have been purchased by the plaintiff’s father. It is also not the case of defendant that plaintiff is not the owner of suit schedule ‘A’ property and what is disputed fact is that whether the defendant has encroached suit schedule ‘B’ and ‘C’ properties which are part and parcel of suit schedule ‘A’ property. The Trial Court has rejected the documentary evidence Ex.P-1- certified copy of sale deed dated 10.08.1976 on the reason that plaintiff has not lead foundation for leading secondary evidence as per the provisions under Sections 61, 62 and 63 of the Indian Evidence Act, but in the appeal the plaintiff has produced original sale deed dated 10.08.1976 by invoking the provision under Order XLI Rules 27 of CPC along with original settlement deed. Though the plaintiff has stated that original sale deed was damaged due to rat bite but the same was produced in this appeal. The very fact of producing the original sale deed by the plaintiff in - 20 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 the appeal falsifies the explanation afforded by the plaintiff that the original sale deed was damaged due to rat bite. Anyhow, this Court is of the opinion to consider the original sale deed produced in this appeal as additional evidence along with the original settlement deed. Therefore, this Court is of the opinion to accept the said original sale deed dated 10.08.1976 and original settlement deed for considering and appreciating the evidence lead in this case. Therefore, the application filed for additional Evidence is allowed and considered for the purpose of case. 22. In view of production of original sale deed and settlement deed, the above said decisions are not applicable in the present case since the principle of law laid down in the above said decisions are regarding bringing of secondary evidence of proving the fact. 23. Though in Ex.P-1-certified copy of sale deed measurement of boundaries is not clear, when the plaintiff is claiming that suit schedule ‘A’ property measuring East- - 21 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 80 feet, West–80 feet, North–27 feet and South-5 feet, the same is not reflected in the sale deed. When the plaintiff is contending that there was settlement between himself, mother and brother and he has acquired the suit property by virtue of settlement deed dated 26.02.2013 (Ex.P-4- certified copy of settlement deed) and Ex.P-1-certified copy sale deed, as per the settlement deed when the plaintiff is claiming that the suit schedule ‘A’ property is suit schedule ‘C’ property in settlement deed but the measurement stated that feet situated at Yamaluru village, Varaturu Hobli, Bengaluru South Taluk, Bengaluru. Therefore, there is variance found in the measurement stated in the sale deed dated 10.08.1976 and Ex.P-4-settlement deed dated 26.02.2013 admitted by the plaintiff in the cross examination in his evidence. If the plaintiff is claiming that suit schedule ‘A’ property with an extent and measurement as in the suit schedule ‘A’ property, the same should be in the settlement deed but there is variance in the said measurement in both - 22 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 documents. When the plaintiff is claiming towards East and West the length of the property is 80 feet but the same is not found in the settlement deed and the maximum in the settlement deed the length of the property is shown as 62 feet. Further in Ex.P-5-khatha certificate, the measurement shown as feet. The site dimension shown in Ex.P-4-settlement deed and Ex.P- 5-khatha certificate is feet therefore there is variance in the site dimension stated in Ex.P-1-certified copy of sale deed and Ex.P-4-settlement deed and Ex.P-5- khatha certificate. 24. Further, Exs.P-10 and P-11 are the letters dated 04.06.2013 and 25.02.2014 respectively. The plaintiff has admitted that he has written a letter requesting the authorities to identify the boundaries of the suit schedule ‘A’ property but not the extent of suit schedule ‘A’ property. Therefore, the plaintiff is not definite in dimension of the site. Originally, as per sale deed the dimension of the site may be East–80 feet, West–80 feet, North–27 feet and - 23 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 South–5 feet, but when the plaintiff’s family members have got settled the property then at that time the plaintiff had received the site of dimension feet. What is the site dimension mentioned in the settlement deed, the same is reflected in the khatha certificate in Ex.P-5 therefore there is variance in the dimension and extent of suit schedule ‘A’ property. Further, the plaintiff has admitted in the cross-examination that Ex.P-2- encumbarance certificate the measurement of the site towards East-West is 62 feet but not 80 feet as mentioned in Ex.P-1. Therefore, in this regard, it is the contention of the defendant that the plaintiff has encroached the extra area beyond 62 feet and put up construction on it may be from the time of his father hence to hideout the said mistake of encroachment made by the plaintiff or by of his father is attempting to make allegation against the defendant. The discussions above stated probablizes the defence of the defendant. - 24 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 25. Further the plaintiff admitted that he has not produced any documents to show that he has filed complaint before the BBMP alleging that the defendant has encroached the Government property to an extent of 2 x 80 feet. It is the case of the plaintiff that there is 2 feet gap between the plaintiff and defendant’s property and the said gap was encroached by the defendant width of 2 feet and length 80 feet but for which there is no evidence by the plaintiff. 26. Though the Court Commissioner is appointed to measure the property but upon perusal of the Court Commissioner report it is not proved that the defendant has encroached 2 x 80 feet. Just the Court Commissioner has measured length and width of the property that does not establish that the defendant has encroached property. Though the defendant has contended that the total measurement of the site of the defendant is 6350 sq. ft., and he has constructed building in the area of 6836 sq. ft., but only by this extent it does not prove that the - 25 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 defendant has encroached plaintiff’s property in order to come to conclusion that there is encroachment of property. Firstly the total extent of property of the plaintiff and defendant is to be measured according to the title deeds thereafter actual survey is to be conducted. What is the extent of physical possession of the plaintiff and defendant is to be measured if there is any overlap is found then that portion of overlapping could be stated as encroachment, but this is not found in the Court Commissioner report and also the plaintiff has failed to prove the encroachment made by the defendant in this regard. 27. Regarding allegation of the plaintiff that the defendant had encroached 2 feet x 5 feet towards Southern side and put up gate towards Southern and installed transformer but the plaintiff admitted in the cross examination that the gate is put up by the defendant is facing towards West, the same is found in the sketch prepared by the Court Commissioner but the plaintiff has not led evidence that transformer is put up by defendant - 26 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 on suit schedule ‘C’ property. The plaintiff has admitted that the transformer installed by the BESCOM authorities for the use of public in the area. Further, when it is the case of the plaintiff that the transformer has been installed by the BESCOM authorities on suit schedule ‘C’ property but the plaintiff is asserting that the suit schedule ‘C’ property is belonging to the plaintiff then the plaintiff ought to have filed the case against the BESCOM authorities for making use of his properties, but the plaintiff has not made any complaint against the BESCOM authorities stating that his property was utilized by BESCOM authorities for installation of transformer. Therefore, in this regard, the plaintiff has failed to prove that the defendant has encroached suit schedule ‘B’ and ‘C’ properties. 28. Further, the plaintiff admitted that there is no space between compound wall of the defendant and the registered shop which has been retained by the plaintiff, this belies the case of the plaintiff that the defendant has - 27 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 encroached suit schedule ‘B’ and ‘C’ property. Further, the plaintiff admitted that as per Ex.P-4-settlement deed he has not allotted the property measuring East-West 80 feet also admitted that as per Ex.P-4-settlement deed the plaintiff has allotted the property measuring East by 62 feet and West by 62 feet, therefore the plaintiff is in use of the property having measurement of the site 62 feet length both at Eastern side and Western side, but not 80 feet towards Eastern and Western side. When this being the fact that the plaintiff has received lesser dimension of site then the plaintiff has not proved that the remaining property was encroached by the defendant. 29. Therefore, upon considering the evidence as above discussed above, the plaintiff has failed to prove that the defendant has encroached the suit schedule ‘B’ and ‘C’ properties. 30. Further, PW-1 plaintiff in his cross-examination admitted that towards South of the suit schedule ‘A’ - 28 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 property there is a Government School and installation of electric transformer and from the said transformer the electric connections were taken for benefit of that area. Therefore, there is no proof by the plaintiff that the defendant has installed transformer by using suit schedule ‘C’ property which belongs to the plaintiff. 31. Therefore, upon considering the entire case on all its preponderance of probabilities, the plaintiff has failed to prove that the defendant has encroached the portion of suit schedule ‘A’ property which is described as suit schedule ‘B’ and ‘C’ properties. Therefore, in this regard though the plaintiff has proved that he is owner and having title over the suit schedule ‘A’ property as per Ex.P-4-settlement deed, Ex.P-2-encumberance certificate and Ex.P-5-khatha certificate to the extent mentioned in the said settlement deed, khatha certificate and encumbrance certificate and other revenue records but has not produced any document to show that the defendant has encroached suit schedule ‘B’ and ‘C’ properties. - 29 - NC: 2025:KHC:15479 RFA No. 1413 of 2022 Therefore, in this regard, the judgment and decree passed by the Trial Court is justified which requires no interference by this Court. Accordingly, I answer point (i) in the negative and thus there is no requirement to cause interference with the judgment and decree passed by the Trial Court. Accordingly, I also answer point (ii) in the Negative. Therefore, the appeal is liable to be dismissed. Consequently, the appeal is dismissed. SD/- (HANCHATE SANJEEVKUMAR) JUDGE SRA