- 1 - NC: 2025:KHC-D:4179 RSA No. 100053 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100053 OF 2022 (POS-) BETWEEN: SRI. SURESH S/O. SHIVANAND MANJREKAR, AGE ABOUT 81 YEARS, OCC: CARPENTER, R/O. MAJALI VILLAGE-583101, TAL: AND DIST: KARWAR. …APPELLANT (BY SRI. SRINAND A. PACHHAPURE, SMT. PALLAVI S. PACHHAPURE, SRI. RAJENDRA R. PATIL & SMT. DEEPIKA M. HOLEYANNARA, ADVOCATES) AND: SRI. SURESH PUNDALIK NAIK, SINCE DECEASED BY HIS LR’S. SMT. KRISHNI W/O. SURESH NAIK, SINCE DECEASED BY HER LR’S. 1. SRI. SURAJ S/O. SURESH NAIK, AGE: MAJOR, R/O. MAJALI VILLAGE IN KARWAR TALUKA, NOW R/O. MPT QUARTERS, BUILDING NO.82-1/2, VASCODA-GAMA, GOA-403711. RAMESH S/O. SHIVANAND MANJREKAR, SINCE DECEASED BY HIS LRS. 2. SRI. SUNIL S/O. RAMESH MANJREKAR, AGE: MAJOR, OCC: CARPENTER, R/O. MAJALI VILALGE, TQ & DIST: KARWAR-581301. Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.03.07 16:18:44 +0530 - 2 - NC: 2025:KHC-D:4179 RSA No. 100053 of 2022 3. SRI. SHARATCHANDRA S/O. RAMESH MANJREKAR, AGE: MAJOR, OCC: CARPENTER, R/O. MAJALI VILLAGE-581301, TAL & DIST: KARWAR. 4. SRI. PARESH S/O. RAMESH MANJREKAR, AGE: MAJOR, OCC: CARPENTER, R/O. MAJALI VILLAGE-581301, TAL & DIST: KARWAR. …RESPONDENTS (BY SRI. K.L. PATIL & SRI. S.S. BETURMATH, ADVOCATES FOR C/R1(B)) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE BOTH THE JUDGMENT AND DECREE DATED 29.09.2021 PASSED BY THE COURT OF ADDITIONAL SENIOR CIVIL JUDGE, KARWAR, IN R.A.NO.28/2019 CONFIRMING THE JUDGMENT AND DECREE DATED 18.03.2019 PASSED BY THE ADDITIONAL CIVIL JUDGE, KARWAR, IN O.S. NO.48/1997, BY ALLOWING THIS APPEAL IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by defendant No.2 challenging the judgment and decree dated 29.09.2021 in R.A.No.28/2019 on the file of the Additional Senior Civil Judge, Karwar1 dismissing the appeal and confirming the judgment and decree dated 18.03.2019 in 1 hereinafter referred to as ‘First Appellate Court’ - 3 - NC: 2025:KHC-D:4179 RSA No. 100053 of 2022 O.S.No.48/1997 on the file of the Additional Civil Judge, Karwar2 decreeing the suit of the plaintiff. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiff that the plaintiff has acquired the suit schedule property bearing Sy.No.469A/2 measuring 1 gunta 8 annas in the family partition. It is stated in the plaint that the defendant is the adjoining land owner of Sy.No.469B measuring 4 guntas situate on the northern side boundary of the suit schedule property. The defendant has constructed residential house adjacent towards eastern side. During 1986, the defendant has made door to extend a wing on southern side wall of the residential house without obtaining permission from the statutory authorities, however, the defendant has illegally encroached the portion of the land belonging to the plaintiff. It is also stated in the plaint that the plaintiff has filed objection before the Gram Panchayat, Majali, to 2 hereinafter referred to as ‘Trial Court’ - 4 - NC: 2025:KHC-D:4179 RSA No. 100053 of 2022 the application filed by the defendant seeking licence for construction of the extended abutting land towards southern side wall of the house. Thereafter, the defendant has stopped the construction. It is the case of the plaintiff that the defendant has encroached an extent of 1 anna out of 1 gunta 8 annas of the property in land bearing Sy.No.469A/2 of the plaintiff and as such the plaintiff has filed O.S.No.48/1997 seeking relief of recovery of possession of 1 anna out of 1 gunta 8 annas of the land in question. 4. After service of notice, as the original defendant died and accordingly his legal representatives were brought on record. Defendant No.1 entered appearance and filed detailed written statement denying the averments made in the plaint. It is specific case of the defendants that no encroachment has been made as alleged in the plaint and the defendants have constructed house long back and also it is stated that, the defendant is the owner of the property by adverse possession and the - 5 - NC: 2025:KHC-D:4179 RSA No. 100053 of 2022 defendants are using the entire land including portion of 1 gunta as of right without obstruction from the plaintiff and therefore sought for dismissal of the suit. 5. The Trial Court based on the rival pleadings, has framed issues for its consideration as per para No.6 of the impugned judgment and decree passed by the Trial Court. In order to establish their case, the plaintiff himself was examined as PW.1 and produced 7 documents and same were marked as Exs.P.1 to P.7. The defendants have examined one witness as DW.1 and got marked 2 documents as Exs.D.1 and D.2. During the course of proceedings, Commissioner was appointed to submit a report and accordingly report of the Commissioner was marked as Ex.C.1. 6. The Trial Court after considering the material on record, by its judgment and decree dated 18.03.2019 decreed the suit and as such directed the defendants to remove the encroachment insofar as an extent of 1 anna as per the report of the Commissioner. Feeling aggrieved - 6 - NC: 2025:KHC-D:4179 RSA No. 100053 of 2022 by the same, defendant No.2 has preferred R.A.No.28/2019 on the file of the First Appellate Court and same was resisted by the plaintiff. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated 29.09.2021, dismissed the appeal, consequently confirmed the judgment and decree in O.S.No.48/1997. Feeling aggrieved by the same, defendant No.2 has preferred this Regular Second Appeal. 7. I have heard Sri.Srinand A Pachhapure, learned counsel appearing for the appellant and Sri.K.L.Patil, learned counsel appearing for caveat respondent. 8. Sri.Srinand A Pachhapure, learned counsel appearing for the appellant contended that both the Courts below have committed an error in solely relying upon the Commissioner’s report which reflects that 1 anna of the land has been encroached by the defendants and as such the finding recorded by both the Courts below requires to be interfered with in this appeal. It is also contended by the learned counsel appearing for the appellant that the - 7 - NC: 2025:KHC-D:4179 RSA No. 100053 of 2022 defendants have constructed house during 1963 and were living in the said house and therefore the defendants have perfected the title by adverse possession and therefore sought for interference of this Court. 9. Per contra, Sri.K.L.Patil, learned counsel appearing for the respondent submitted that, as both the Courts below have concurrently held on facts and same cannot be interfered with under Section 100 of CPC and accordingly sought for dismissal of the appeal. 10. In the light of the submission made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the Courts below. It is not in dispute that the land bearing Sy.No.469A/2 of Mijali village of Karwar taluk belong to plaintiff as the plaintiff acquired the same in the family partition. It is also not in dispute that the defendant is the owner of land bearing Sy.No.469B measuring 4 guntas and land belonging to the plaintiff is situate adjacent to the land belonging to the defendants. It is the case of the plaintiff - 8 - NC: 2025:KHC-D:4179 RSA No. 100053 of 2022 that the defendants have encroached an extent of 1 anna land out of 1 gunta 8 annas and accordingly filed suit seeking recovery of possession. The Trial Court has taken into consideration the evidence on record particularly, considered Ex.C.1 filed by the Court Commissioner, wherein the Court Commissioner has submitted the report stating that the defendant has encroached to an extent of 1 anna of the land belonging to the plaintiff. It is also forthcoming from the impugned judgment and decree passed by the Trial Court that the defendants have not cross-examined the Court Commissioner with regard to the said aspects of the matter and therefore, even though the report says that the old house has been constructed long back, however, said averment made in the Commissioner’s report would not entitle the defendants to get the suit to be dismissed. 11. In that view of the matter, taking into consideration the report of the Commissioner produced at Ex.C.1, I am of the opinion that the defendants have - 9 - NC: 2025:KHC-D:4179 RSA No. 100053 of 2022 encroached upon the portion of the suit schedule property to an extent of 1 anna and therefore I do not find any merit in the appeal. 12. Accordingly, the appeal is dismissed at the stage of admission as the appellant has not made out a case for formulation of substantial question of law as required under Section 100 of CPC. Sd/- (E.S.INDIRESH) JUDGE SH CT-MCK List No.: 1 Sl No.: 26