- 1 - NC: 2025:KHC:5980 RSA No. 2112 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE K. V. ARAVIND REGULAR SECOND APPEAL No.2112 OF 2021 (DEC/INJ) BETWEEN: 1. SRI K. L. NAGARAJU, S/O LAKSHMINARAYANAPPA, AGED ABOUT 56 YEARS, R/AT KALAPURA VILLAGE, KALLAMBELA HOBLI, SIRA TALUK 572137, TUMAKUR DISTRICT. …APPELLANT (BY SRI RAMACHANDRA R. NAIK, ADVOCATE) AND: 1. THE PRESIDENT, VYAVSAYA SEVA SAHAKARA SANGH NIYAMITHA, KALAPURA VILLAGE, KALLAMBELA HOBLI, SIRA TALUK 572137, TUMAKUR DISTRICT. …RESPONDENT THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 11.03.2020 PASSED IN RA.No.8/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, SIRA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 22.01.2015 PASSED IN OS.No.239/2008 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, SIRA. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by VALLI MARIMUTHU Location: High Court of Karnataka - 2 - NC: 2025:KHC:5980 RSA No. 2112 of 2021 CORAM: HON'BLE MR JUSTICE K. V. ARAVIND ORAL JUDGMENT Heard Sri. Ramachandra R. Naik, learned counsel for the appellant. 2. The defendant in O.S. No.239/2008 on the file of the Principal Civil Judge and JMFC at Sira is in appeal against the judgment and decree in O.S. No.239/2008 dated 22.01.2015 and judgment in R.A. No.8/2015 dated 11.03.2020 passed by Senior Civil Judge and JMFC at Sira. 3. The brief facts as pleaded are that, the plaintiff is a Society registered under the Co-operative Societies Act. The suit property is a land bearing Katha No.139 measuring East-West 100 feet, North-South 60 feet, situated at Kalapura Village, Kallambella Hobli, Sira Taluk. The suit property was within the jurisdiction of Grama Panchayath of Kalapura Village. The suit property was gifted by Grama Panchayath in favour of the plaintiff through a registered Gift Deed dated 30.05.1981. The possession of the suit property was also handed over to - 3 - NC: 2025:KHC:5980 RSA No. 2112 of 2021 the plaintiff, and the plaintiff is in continuous possession and enjoyment of the suit property. The Katha of the suit property is transferred in the name of the plaintiff, the plaintiff has constructed a godown and office on a portion of the suit property and the vacant portion is let out to Anganwadi. 4. The cause of action arose for filing a suit when defendant without any rights, title and possession over the suit schedule property interfered and started putting up unauthorized construction in an area measuring east-west 30 feet and north-south 20 feet within the suit property. The defendant, having refused to stop the unauthorized construction, the suit was preferred. 5. The defendant after service of notice has filed a written statement denying the plaint averments. The defendant denied the gift deed. The defendant contended that the site bearing No.10, measuring east-west 20 feet and north-south 30 feet, originally belonged to Tharur Mandala Panchayath. The Tharur Mandala Panchayath has - 4 - NC: 2025:KHC:5980 RSA No. 2112 of 2021 granted the site in favour of the defendant. The defendant was put in possession of the granted site. The construction by the defendant is on the site granted by the Tharur Mandala Panchayath. The location of the suit property and the property under construction by the defendant is different and located in different places. 6. The trial court appointed the Assistant Engineer of PWD, Sira as Court Commissioner. The Court Commissioner inspected the property and submitted a report. The plaintiff or the defendant did not object to the said report. The trial court, based on the commissioner report and other evidence on record, held that the construction work of the defendant is located exactly on the north-west corner of the suit property. It is further held that the defendant has not produced any title deeds or grant certificates to show that the property under construction is granted to him. The trial court, on appreciation of the evidence on record, decreed the suit, declaring that the plaintiff is the absolute owner of the suit property. - 5 - NC: 2025:KHC:5980 RSA No. 2112 of 2021 7. The defendant, being aggrieved against the judgment and decree, preferred the appeal under Order 41 Rule 1 read with Section 96 of CPC. 8. The first appellate court on re-appreciation of the evidence and the findings recorded by the trial court held that the defendant has encroached upon the suit property and the construction by the defendant is on the northwest corner of the plaintiff's property. Accordingly, dismissed the appeal. 9. Sri. Ramachandra R. Naik, learned counsel appearing for the appellant, submits that he was allotted the site bearing No.10 measuring east-west 20 feet and north- south 30 feet by Tharur Mandala Panchayath. From the grant date, he is in possession and enjoyment of the site. The construction by the appellant/defendant is in the granted site. The suit property and the construction place are altogether different. It is submitted that the Grama Panchayath has no authority to execute a gift deed in favour of the plaintiff. The Court Commissioner's report - 6 - NC: 2025:KHC:5980 RSA No. 2112 of 2021 that the construction by the appellant/defendant within the plaintiff's land is incorrect. The trial Court and the first appellate Court without considering the allotment made in favour of the defendant decreed the suit and directed to demolish the construction made on north-west corner of the suit schedule property. 10. Learned counsel further submits that the construction was made in 2001, whereas the suit was filed in 2008. The plaintiff allowed the construction and remained quiet until 2008. 11. Considered the submissions of learned counsel for the appellant and perused the impugned orders. 12. As per the plaint averments, the suit schedule property was gifted by Grama Pachayath of Kalapur Village under gift deed dated 30.05.1981. Thereafter, the plaintiff continued to be in possession and enjoy the suit schedule property. The plaintiff has partially put up constructions on the suit schedule property, and the remaining land is vacant. The defendant is claiming rights through - 7 - NC: 2025:KHC:5980 RSA No. 2112 of 2021 allotment made by the Tharur Mandala Panchayath. The other defence of the defendant is that the place of construction and suit schedule property are altogether different. The trial Court has appointed Assistant Engineer, PWD, Sira as Court Commissioner to inspect and report. The Court Commissioner has submitted the report. The same is not objected by the plaintiff or the defendant. The Commissioner reported that the defendant has constructed on the plaintiff's land to an extent measuring east-west 11.2 feet and north-south 12.5 feet. It is further reported that the construction work is located on the north-west corner of the suit schedule property. 13. The trial Court has further considered that the defendant has not produced any title deeds or grant certificate to show that the property where construction is carried on is granted to him. No evidence is produced by the defendant to reject the Court Commissioner's report. 14. The other plea canvassed by the defendant is that the construction was commenced in the year 2001. The - 8 - NC: 2025:KHC:5980 RSA No. 2112 of 2021 suit was preferred in the year 2008. The plaintiff allowed construction to continue and, without any cause of action, has preferred suit in 2008. However, the trial court, based on the pleadings in earlier proceedings in O.S. No.157/2006, has held that construction did not commence in the year 2001, even not in the year 2006. Thereby, it is concluded that construction work has not commenced prior to 2008. While appreciating the oral and documentary evidence, the trial court has decreed the suit, declaring the plaintiff as the absolute owner of the suit schedule property and ordered the demolition of construction made on the encroached portion. 15. The first appellate court on appreciation of the evidence and the findings recorded by the trial court held that the defendant had not placed resolution passed by the Panchayath for granting property to the defendant. Further held that the defendant has not produced any document to prove his possession over the alleged granted site. The first appellate Court further held that the - 9 - NC: 2025:KHC:5980 RSA No. 2112 of 2021 appointment of the Court Commissioner to inspect the spot and submit the report was justified. The first appellate Court considering Commissioner Report upheld that the defendant has encroached on a portion of the suit schedule property. 16. The appreciation of the pleadings and the findings recorded by both courts would establish the following undisputed facts. The suit property was gifted by Grama Panchayath to the plaintiff under the registered gift deed dated 30.05.1981. The plaintiff is in possession and enjoyment of suit schedule property as an absolute owner. The plaintiff's title is not disputed. The katha of the suit schedule property stands in the name of the plaintiff. The plaintiff has put up constructions on the suit schedule property and is in possession. The claim of the defendant that he was allotted a site measuring 30X20 feet by Tharur Mandala Panchayath is not established. The Court Commissioner has reported that the defendant's construction is on the plaintiff's land. No contrary evidence is produced to dispute the Court Commissioner's - 10 - NC: 2025:KHC:5980 RSA No. 2112 of 2021 report. The defendant though claimed allotment of the site by the Panchayath, but no document supporting such allotment was produced. The Court Commissioner's report was not objected by the defendant before the trial Court. The trial Court has granted sufficient time to the defendant to object to the Commissioner's report, which is not availed by the defendant. 17. The above concurrent findings of the facts recorded by the trial court and the first appellate court are not demonstrated to be erroneous. The findings of both the Courts are not demonstrated to be perverse. The findings recorded by both the Courts are pure findings of fact. No question of law would arise for consideration of this Court. Accordingly, the appeal is dismissed. Sd/- (K. V. ARAVIND) JUDGE VBS/List No.: 1 Sl No.: 12