- 1 - NC: 2025:KHC-D:2058 RSA No. 100785 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 1ST DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100785 OF 2018 (POS-) BETWEEN: BABU S/O. DUNDAPPA LAVATHE AGE:62 YEARS, OCC:AGRICULTURE, R/O. JAMKHANDI, TQ and DIST:BAGALKOT. …APPELLANT (BY SRI. M. C. HUKKERI, ADVOCATE) AND: 1. MADUBAI W/O. APPASAB YADAWAD, AGE:82 YEARS, OCC:HOUSEHOLD WORK, R/O.BIDARI VILLAGE, TQ AND DIST:BAGALKOT-587313 2. SHRI MOHAN S/O. APPASAB YADWAD AGE:59 YEARS, OCC:AGRICULTURE, R/O.BIDARI VILLAGE, TQ AND DIST:BAGALKOT-587313. 3. SHRI ASHOK S/O. APPASAB YADWAD AGE:57 YEARS, OCC:AGRICULTURE, R/O.BIDARI VILLAGE, TQ AND DIST:BAGALKOT-587313. V N BADIGER Digitally signed by V N BADIGER Location: High Court of Karnataka, Dharwad Bench Date: 2025.02.05 15:17:18 +0530 - 2 - NC: 2025:KHC-D:2058 RSA No. 100785 of 2018 4. SRI GOVINDAPPA S/O. APPASAB YADWAD AGE:52 YEARS, OCC:AGRICULTURE, R/O.BIDARI VILLAGE, TQ AND DIST:BAGALKOT -587313. 5. SHRI YANKANNA S/O. APPASAB YADWAD AGE:47 YEARS, OCC:AGRICULTURE, R/O.BIDARI VILLAGE, TQ AND DIST:BAGALKOT-587313. 6. SMT SAROJINI W/O. RACHAPPA CHIKKUR AGE:45 YEARS, OCC:HOUSEHOLD WORK, R/O. KORTI KOLAR, TQ:B.BAGEWADI, DIST:VIJAYPUR-587313. 7. SMT KASTURIBAI W/O. KRISHNAPPA TIMASANI AGE:44 YEARS, OCC:HOUSEHOLD WORK, R/O. MANTUR VILLAGE, TQ:MUDHOL, DIST:BAGALKOT -587314. …RESPONDENTS (BY SRI. MRITYUNJAYA TATA BANGI, ADV., SRI.S. S. YALIGAR, ADV., SRI. SHIVAKUMAR APARAJ, ADV.,) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.NO.11/2024 BY THE COURT OF ADDITIONAL SENIOR CIVIL JUDGE JAMAKHANDI DATED 29.08.2018 AND THE JUDGMENT AND DECREE PASSED IN O.S.NO.85/2011 PASSED BY THE PRINCIPAL CIVIL JUDGE AND 1ST ADDITIONAL JMFC JAMAKHANDI - 3 - NC: 2025:KHC-D:2058 RSA No. 100785 of 2018 DATED 22.01.2014 AND THE SUIT OF THE PLAINTIFF MAY BE DECREED WITH COST. THIS REGULAR SECOND APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE E.S.INDIRESH) This appeal is filed by the plaintiffs challenging the judgment and decree dated 29.08.2018 in R.A.No.11/2014 on the file of the Additional Senior Civil Judge and JMFC, Jamakhandi (for short “the First Appellate Court”) dismissing the appeal and confirming the judgment and decree dated 22.01.2014 on the file of the Principal Civil Judge and JMFC, Jamakhandi (for short “the Trial Court”). 2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court. 3. It is the case of the plaintiff that the plaintiff is the owner in possession of the land bearing Survey No.247/1 measuring 5 Acres 39 Guntas and land bearing Survey No.247/2 measuring 6 Acres of Bidari village and the defendants are the owners of the land bearing Survey No.248/1 - 4 - NC: 2025:KHC-D:2058 RSA No. 100785 of 2018 measuring 11 Acres 2 Guntas of Bidari village. It is the case of the plaintiffs that after purchasing the schedule properties, the plaintiff got surveyed the schedule property and came to know that the defendants have encroached an extent of 18 Guntas of land bearing Survey No. 247/2 towards southern side. Hence, the plaintiff has filed O.S.No.85/2011 seeking relief of possession in respect of the land which is said to have been encroached by the defendant. After service of notice, the defendants entered appearance and filed a detailed written statement denying the averments made in the plaint. The defendants took up a specific contention that the land in question has not been surveyed by the competent surveyor and no notice relating to survey has been issued to the defendants and accordingly sought for dismissal of the suit. 4. Based on the pleadings on record, the Trial Court framed issues for its consideration. In order to establish their case, the plaintiff has examined himself as PW1 and got examined the surveyor as PW2 and produced 6 documents, which were marked as Ex.P1 to Ex.P6. The defendants have examined two witnesses as DW1 and DW2 and got marked 8 documents as Ex.D1 to Ex.D8. The Trial Court, after - 5 - NC: 2025:KHC-D:2058 RSA No. 100785 of 2018 considering the material on record, by its judgment and decree dated 22.01.2014 dismissed the suit and feeling aggrieved by the same, the plaintiff has preferred appeal in R.A.No.11/2014 before the First Appellate Court and same was resisted by the defendants. The First Appellate Court, based on material on record, by its judgment and decree dated 29.08.2018 dismissed the appeal, consequently, confirmed the judgment and decree passed by the Trial Court in O.S.No. 85/2011. Hence, this second appeal is filed. 5. This Court vide order dated 31.01.2025 framed the following substantial question of law: ”Whether both the Courts below have committed an error in not assessing the evidence of PW2?” 6. I have heard Sri. M.C.Hukkeri, learned counsel appearing for the appellant and Sri. Mrityunjaya Tata Bangi, learned counsel appearing for the respondents. 7. Sri. M. C. Hukkeri, learned counsel appearing for the appellant invited the attention of this Court to the evidence on record, particularly evidence of PW1 and PW2 and contended that the plaintiff came to know about the - 6 - NC: 2025:KHC-D:2058 RSA No. 100785 of 2018 encroachment of the land by the defendant only after purchasing the same and survey made by the competent surveyor. Accordingly, he sought for interference of this Court. It is also submitted by the learned counsel appearing for the appellant that Ex.P5 has not been properly appreciated by both the Courts below and as such, he sought for interference. 8. Per contra, learned counsel appearing for the respondents justifies the impugned judgment and decree. 9. Having heard the learned counsel appearing for the parties and taking into consideration the factual aspects on record, it is not in dispute that the plaintiff had purchased the land bearing Survey No.247/1 and Survey No.247/2 measuring 5 Acres 39 Guntas and 6 Acres, respectively, of Bidari village from its erstwhile owner Sri. Shantaveerappa as per sale deed dated 28.04.2008. It is the case of the appellant that the defendant is the owner of the adjoining land bearing Survey No.248/1. In that view of the matter, taking into account the fact that the defendants have admitted that the notice of survey has been served to them however, both the Courts below on erroneous assumption of facts have dismissed the - 7 - NC: 2025:KHC-D:2058 RSA No. 100785 of 2018 suit. In that view of the matter, I find force in the submission made by the learned counsel appearing for the appellant. Since the issue involved in this appeal is with regard to the encroachment said to have been made by the defendants herein and in order to resolve the same, it is expedient for the plaintiff to get survey the land in question again at the instance of the defendants with a statutory revenue officer/surveyor and if such a survey is made by the competent person, the lis between the parties would be resolved to ascertain whether the defendants have encroached the 18 Guntas of land in Survey No.247/2 towards southern side. In that view of the matter, the substantial question of law framed above favours the plaintiff. In the result, I pass the following: ORDER i) The appeal is allowed. ii) The judgment and decree dated 29.08.2018 in R.A.No.11/2014 passed by the Additional Senior Civil Judge and JMFC, Jamakhandi confirming the judgment and decree dated 22.01.2014 passed by the Principal Civil Judge and JMFC, Jamakhandi is hereby set aside and the plaintiff is hereby directed to get re-survey - 8 - NC: 2025:KHC-D:2058 RSA No. 100785 of 2018 the entire schedule property again in the presence of the defendants through a competent surveyor to ascertain the encroachment, if any, in the land in question. iii) It is also made clear that in the event after the re-survey as directed by this Court referred to above, in the event there is any encroachment made by the defendant insofar as the land bearing Survey No.247/2 belonging to the plaintiff is concerned, then it is open for the plaintiff to agitate his legal rights before the competent Civil Court. With the above observation, the appeal stands disposed of. iv) In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly. Sd/- (E.S.INDIRESH) JUDGE YAN List No.: 1 Sl No.: 31