- 1 - HC-KAR NC: 2025:KHC-D:8053 RSA No. 100261 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 26TH DAY OF JUNE 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.100261 OF 2025 (DEC/INJ) BETWEEN: PARASHURAM S/O. CHATREPPA HIREMANI, AGE: 69 YEARS, OCC: JOB, R/O: BELAVATAGIYAVAR PLOTS, SAVADATTI ROAD, TQ: NARAGUND, DIST: GADAG – 582 207. …APPELLANT (BY SRI. S. L. MATTI, ADVOCATE) AND: VENKATESH S/O. LAKSHMAPPA MANTUR, AGE: 42 YEARS, OCC: JOB, R/O: SARASWATINAGAR, TQ: NARAGUND, DIST: GADAG – 582 207. …RESPONDENT (BY SRI. MAQBOOLAHAMED M. PATIL, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN R.A. NO.95/2022 DATED 06.02.2024 BY THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, GADAG, BY CONFIRMING THE JUDGMENT AND DECREE PASSED IN O.S.NO.73/2011 DATED 29.10.2022 BY THE CIVIL JUDGE AND JMFC, NARAGUND, AND TO DISMISS THE SUIT OF PLAINTIFF BY ALLOWING THIS APPEAL, IN THE ENDS OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:8053 RSA No. 100261 of 2025 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. This appeal is filed by the defendant being aggrieved by the judgement and decree dated 29.10.2022 passed in O.S.No.73/2011 on the file of the Civil Judge and JMFC, Naragund (for short ‘the trial Court’) by which the suit filed the plaintiff/respondent herein for a declaration and mandatory injunction has been decreed, as sought for, which has been confirmed by the judgement and decree dated 06.02.2024 passed in R.A.No.95/2022 by the Principal Senior Civil Judge and CJM, Gadag (for short ‘the First Appellate Court’). 2. The case of the plaintiff is that he is the absolute owner in possession and enjoyment of the property bearing CTS No.3910/C-16, measuring East to West 12 meters, North to South 18 meters, totalling 216 Sq. meters. The said property is shown in letters “ABCD” in the hand sketch, enclosed with the plaint and is bounded on the East by: road, West by: plot No.3910/C-15, North by: plot belonging to the defendant and South by : road. That the suit property was purchased by the plaintiff in terms of deed of sale dated 27.05.1994 from the - 3 - HC-KAR NC: 2025:KHC-D:8053 RSA No. 100261 of 2025 previous owners. Similarly, the defendant purchased his property, which is measuring East to West 12 meters and North to South 18 meters, totalling 216 Sq. meters in terms of deed of sale dated 16.05.1991 from the very same vendor. 3. In paragraph No.4 of the plaint, it is specifically averred that the defendant had earlier constructed a residential house consisting of a ground floor and about a year ago, constructed a first floor. It is alleged that the defendant has recently encroached upon a portion of the suit property belonging to the plaintiff, measuring East to West 12 meters and North to South 1.8 meters, which area is earmarked and delineated by the letters "EABF" in the hand sketch, annexed to the plaint. It is alleged that defendant having encroached upon the said area, has constructed a compound wall on the line between points E and F, a toilet at the point E and a staircase at the point B. That the plaintiff learnt about this aspect of the matter, when he visited his property on 27.07.2011 with an intention of measuring his property for the purpose of construction of his house. That the plaintiff’s attempt to resolve the matter amicably with the intervention of well-wishers, did not yield any result as defendant did not cooperate, - 4 - HC-KAR NC: 2025:KHC-D:8053 RSA No. 100261 of 2025 constraining the plaintiff to file the suit seeking declaration of his ownership over the suit property and a mandatory injunction directing the defendant to remove the encroachment by demolishing the toilet and staircase constructed in the area shown in the hand sketch. 4. The defendant filed a written statement admitting the plaintiff being owner of the suit schedule property, having purchased it from the common vendor. However, the defendant denied the allegation of he encroaching upon an area measuring East to West 12 meters, North to South 1.8 meters, shown by the letters ‘EABF’ in the hand sketch and constructing staircase and toilet thereon. 5. In paragraph No.6 of the written statement, the defendant has specifically contended that area shown in the plaint hand sketch by letters EABF, which is a portion of the suit property belongs to the defendant and the same has been in his possession ever since he purchased his property. In paragraph No.8 of the written statement, the defendant has specifically contended that the property bearing CTS No.3910/C-4 was purchased by him on 16.05.1991, which is about 21 years ago and that he has been in possession and - 5 - HC-KAR NC: 2025:KHC-D:8053 RSA No. 100261 of 2025 enjoyment of the same ever since then, to the knowledge and information of all concerned, including the plaintiff. That he constructed his house, toilet and staircase on the area mentioned by letters EABF in the hand sketch of the plaint, which he claims forms part of his own property. The defendant has contended that he has been in possession and enjoyment of the said area openly and without any interruption from anyone whomsoever and as such he has perfected his title by way of adverse possession. Hence, he has sought dismissal of the suit. 6. The trial Court framed the following issues: Issues 1. Whether the plaintiff proves that, he is in lawful possession and enjoyment of the suit property CTS No.3910/C/16 as on the date of the suit? 2. Whether the plaintiff further proves that, the defendant encroached upon the suit property and constructed staircase and toilet in 12 meters at East - West and 18 meters at North-South of the plaintiff’s property? 3. Whether the plaintiff is entitled to the relief of declaration that the suit property measures 12 meters at East West and 18 meters at North-South? 4. Whether the plaintiff is entitled for the relief of mandatory injunction directing the defendant to remove the staircase and the toilet constructed in the property of the plaintiff? 5. What order or decree? - 6 - HC-KAR NC: 2025:KHC-D:8053 RSA No. 100261 of 2025 7. The plaintiff examined himself as PW-1 and also got examined two witnesses as PW-2 and PW-3 and exhibited seven documents, marked as Ex.P.1 to P.7. The defendant examined himself as DW-1 and exhibited three documents marked as Exs.D1 to D3. A Court Commissioner was appointed, who was examined as CW-1 and his report was marked as Ex.C1. 8. Upon appreciation of the evidence, the trial Court answered Issue Nos.1, 3 and 4 in the affirmative and issue No.2 partly in the affirmative. Consequently, the suit was partly decreed by holding that the plaintiff is the owner of the suit schedule property and consequently, directed the defendant to directed to remove the compound wall, staircase and toilet constructed in the encroached portion to the extent of 5 feet 2 inches on the western side and 6 feet 8 inches on the eastern side of the northern portion of suit schedule property within three months from the date of the decree. 9. Being aggrieved, the defendant preferred a regular appeal in R.A.No.95/2022 before the First Appellate Court. The - 7 - HC-KAR NC: 2025:KHC-D:8053 RSA No. 100261 of 2025 First Appellate Court framed the following points for its consideration: “1. Whether the Judgment and Decree passed by Trial Court in O.S.No.73/2011 dated 29.10.2022 calls for any interference by this appellate Court? 2. Whether the Trial Court has erred in not properly scrutinizing the oral and documentary evidence? 3. What order or Decree?” 10. Upon re-appreciation of the evidence, the First Appellate Court dismissed the appeal confirming the judgement and decree passed by the trial Court. 11. Aggrieved by the same, the defendant is before this Court in this regular second appeal. 12. The learned counsel Sri.S.L.Matti appearing for the appellant/defendant at the outset submits that the plaintiff has not specifically pleaded in the plaint the actual area, which is encroached upon by the defendant. That both the trial Court and the First Appellate Court decreed the suit solely based on Commissioner’s Report, which is defective and incomplete. Referring to the cross-examination of the Commissioner, he submits that the Commissioner has admitted to the fact of he not measuring the property of the defendant by referring to the - 8 - HC-KAR NC: 2025:KHC-D:8053 RSA No. 100261 of 2025 layout plan for the purpose of ascertaining the actual extent of the properties belonging to both plaintiff and defendant. In the absence of Commissioner measuring the plots with reference to the layout plan and the CTS records, his conclusion that the defendant had encroached upon the area, as alleged by the plaintiff cannot be the basis for the trial Court and the First Appellate Court to decree the suit. Therefore, he submits that there has been a complete lack of appreciation of the evidence available on record, resulting in a perverse finding, which gives rise to a substantial question of law requiring consideration by this Court. 13. Per contra, the learned counsel appearing for the respondent/plaintiff submits that the plaintiff in the hand sketch has earmarked and delineated the area encroached upon by the defendant. Referring to paragraph No.8 of the written statement, the learned counsel submits that the defendant himself has admitted to he being in possession of the area earmarked in the hand sketch by the plaintiff, while making his claim for adverse possession. He further submits that the Commissioner has carried out the inspection and filed his report in the presence of the both parties, after considering the - 9 - HC-KAR NC: 2025:KHC-D:8053 RSA No. 100261 of 2025 memos of instructions given by the parties. As such the trial Court and the First Appellate Court have rightly relied on the Commissioner’s report to arrive at the conclusion that the defendant has encroached upon the plaintiff’s property. Accordingly, he prays for dismissal of the appeal. 14. Heard and perused the records. 15. The fact that the plaintiff being the owner of property bearing No.3910/C-16 and that the defendant being the owner of the property bearing No.3910/C-4 and each measuring 216 square meters, falling within the respective boundaries is not in dispute. 16. The plaintiff in Paragraph No.4 of the written statement has specifically pleaded and alleged that the defendant has encroached upon an area measuring East to West 12 meters and North to South 1.8 meters forming part of his property, which is earmarked and delineated by letters “EABF” in the plaint hand sketch. It is further alleged that the defendant has constructed a toilet and a staircase at the points shown by letters E and B and has also constructed a compound wall along the line marked by letters E and F in the hand sketch. These averments and allegation have been adverted to - 10 - HC-KAR NC: 2025:KHC-D:8053 RSA No. 100261 of 2025 and denied by the defendant. Therefore, the first submission made by the counsel for the defendant that there is no specific pleading in the plaint regarding defendant encroaching upon the property of the plaintiff cannot be countenanced. 17. As rightly pointed out by the learned counsel for the plaintiff, the defendant in paragraph No.8 of his written statement, has unequivocally admitted that he is in possession of the area earmarked by the letters EABF in the plaint hand sketch, forming part of the suit property and that he has constructed a toilet and staircase thereon. He has further gone on to claim his right over the said area by asserting that he has perfected his title over the same through adverse possession. 18. It is submitted by learned counsel for the appellate/defendant that though the defendant as an alternate had taken up a plea of adverse possession in paragraph No.8 of his written statement, the same has not been pursued further. 19. In the light of the aforesaid admitted position of facts emanating from the pleading, both the trial Court and the First Appellate Court have rightly decreed the suit in favour of the plaintiff. - 11 - HC-KAR NC: 2025:KHC-D:8053 RSA No. 100261 of 2025 20. The Commissioner’s report has been duly corroborated with the evidence made available by the parties, and the admissions made by the defendant’s witness. The Commissioner’s report has merely supplemented to the aforesaid admitted facts and the said report of the Commissioner has been taken note of and relied upon by the trial Court to the extent of issuing direction to the defendant to remove the encroachment and construction in the encroached portion to the extent of 5 feet 2 inches on the Western side and 6 feet 8 inches on the eastern side of Northern portion of the suit property. 21. The aforesaid findings on facts recorded by the trial Court and the First Appellate Court are based on appreciation of evidence. In the absence of any illegality or perversity being pointed out by the appellant/defendant, the said findings do not warrant any interference in the second appeal. 22. No substantial question of law arises for consideration. Accordingly, the appeal is dismissed. Sd/- (M.G.S. KAMAL) JUDGE RHR/CT-ASC List No.: 1 Sl No.: 2