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2025 DAILYLAW 79356 (KAR)

SRI. HANUMANTHAPPA v. G. VEERENDRA

RSA/881/2025 · 2025-12-01

H P Sandesh

body2025

Judgment text

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- 1 - HC-KAR NC: 2025:KHC:49914 RSA No. 881 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.881 OF 2025 (DEC/POS) BETWEEN: SRI HANUMANTHAPPA S/O SIDDAPPA AGED ABOUT 61 YEARS AGRICULTURIST R/O CHIRADONI VILLAGE CHANNAGIRI TALUK DAVANGERE DISTRICT-577231 …APPELLANT (BY SMT. VINITA J D, ADVOCATE FOR SRI H DEVENDRAPPA, ADVOCATE) AND: G. VEERENDRA S/O G SATHYANARAYANA AGED ABOUT 42 YEARS AGRICULTURIST R/O CHIRADONI VILLAGE CHANNAGIRI TALUK DAVANGERE DISTRICT-577231 …RESPONDENT (BY SRI N RAMAKRISHNA, ADVOCATE FOR SRI M R HIREMATHAD, ADVOCATE) THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 02.12.2024 PASSED IN Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:49914 RSA No. 881 of 2025 R.A.NO.28/2024 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, CHANNAGIRI AND ETC. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This second appeal is filed against the concurrent finding of both the Trial Court and the First Appellate Court. 2. This matter is listed for admission. Heard the learned counsel appearing for the respective parties. 3. The factual matrix of case of the plaintiff before the Trial Court while seeking the relief of declaration and consequential relief of possession to the extent of 3 guntas, 2 guntas and 1 gunta in the suit schedule property is that the survey was conducted and surveyor also given the report and there was an encroachment by the defendant to the above extent and hence, filed the suit for the relief of declaration and possession. The defendant appeared and filed the written statement contending that the suit is vexatious and suppressed the material facts. The land comprised under Sy.No.9/2 is - 3 - HC-KAR NC: 2025:KHC:49914 RSA No. 881 of 2025 measuring 3 acres. The same is in actual, peaceful possession of the defendant. The land bearing Sy.No.9/2 was totally measuring 9 acres 1 guntas wherein, the defendant was having 4 acres of land and he had alienated 1 acre of land to the father of the plaintiff in the year 1988. The defendant is in possession of the remaining area of 3 acres in the said Sy.No.9/2. The father of plaintiff had owned and possessed 6 acres 1 gunta of land in Sy.No.9/2 of Chiradoni Village and totally denied that he has encroached to the extent of 5 guntas. Hence, prayed the Court to dismiss the suit. 4. The Trial Court considering the pleadings of the parties, framed the Issues and allowed the parties to lead their evidence. The Trial Court having considered both oral and documentary evidence placed on record as well as admission on the part of PW1 wherein PW1 also not disputes the fact that property in Sy.No.9/2 is part of Sy.No.9/2C3 and the same is extracted in paragraph 21 and also taken note of defence of the defendant. In paragraph 22, PW2 categorically deposed before the Court that consequent upon the application of plaintiff, the surveyor did the survey and measurement also taken note of - 4 - HC-KAR NC: 2025:KHC:49914 RSA No. 881 of 2025 and found encroachment on the northern side of all the three properties. The said encroachment was by the holder of the property bearing Sy.No.9/2, which is on the north side of all three properties referred supra. Even he was in detail cross- examined but nothing is elicited. The Trial Court also taken note of the evidence of DW1. DW1 also categorically admitted the extent of the property purchased by the father of the plaintiff. It is also admitted that the matter was taken before the ADLR and the same also disposed of and same is in detail discussed in paragraphs 24 to 26. The Trial Court also taken note of the admission on the part of DW1 that the suit schedule properties are the properties of plaintiff. On the north of the same, his property is situated and even location of the property also taken note of. He also admitted allotment of the properties to the plaintiff in the family partition and consequently, mutation entries also changed in favour of the plaintiff. In paragraph 30, discussed with regard to the appeal taken before the ADLR and finding place at Ex.D2 and the said appeal was disposed of on the date of evidence of defendant. All the materials were considered by the Trial Court and comes to the conclusion that there is an encroachment by the defendant - 5 - HC-KAR NC: 2025:KHC:49914 RSA No. 881 of 2025 while answering Issue Nos.1 and 2 as affirmative and granted the relief of declaration declaring that the plaintiff is the owner of the suit schedule properties and directed to hand over the possession of the suit schedule properties as demarcated in the survey reports within the period of 3 months. 5. Being aggrieved by the judgment of the Trial Court, an appeal was preferred before the First Appellate Court in R.A.No.28/2024. The First Appellate Court having considered the grounds which have been urged in the appeal, framed the points for consideration and having reassessed both oral and documentary evidence placed on record, in paragraph 24 comes to the conclusion that plaintiff by way of registered partition deed dated 09.09.2015 became the absolute owner of the suit schedule property and in paragraph 25 also discussed that the plaintiff got haddu bastu survey from the survey department by submitting an application dated 16.11.2019 based on the partition deed dated 09.09.2015 and also taken note of the document of Ex.P6 survey sketch in respect of Sy.No.9/2C2 that is Item No.2 of schedule property and as per Ex.P9 in respect of Sy.No.9/2C1 in respect of Item No.1 of the - 6 - HC-KAR NC: 2025:KHC:49914 RSA No. 881 of 2025 schedule property and Ex.P2 is in respect of Sy.No.9/2C3 i.e. Item No.3 of the schedule property. Wherein the surveyor clearly recited that in Item No.3 of schedule property as per Ex.P2, one gunta land being encroached by land holder of Sy.No.9/2A and in detail also Ex.P3, two guntas of land being encroached in Item No.2 schedule property and as per Ex.P9, three guntas in Item No.1 of schedule property being encroached by the holder of Sy.No.9/2A. Admittedly, the defendant is in owner and possession of Sy.No.9/2A. Having reassessed the material and record, the First Appellate Court also taken note of each and every document and also the report of the surveyor who has been examined as PW2 and confirmed the judgment of the Trial Court. Being aggrieved by the concurrent finding of both the Courts, the present second appeal is filed before this Court. 6. The learned counsel appearing for the appellant would vehemently contend that in respect of 6 guntas of land is concerned, survey was not conducted. The counsel would vehemently contend that without thereby any proper mention of the schedule and boundaries and the extent of the - 7 - HC-KAR NC: 2025:KHC:49914 RSA No. 881 of 2025 encroachment being made by the appellant/defendant ought not to have granted such a relief. Hence, prayed this Court to admit the appeal. 7. Per contra, the learned counsel appearing for the respondent would submit that both the Courts have taken note of both oral and documentary evidence and particularly taken note of admission on the part of witnesses and rightly decreed the suit of the plaintiff. Hence, it does not require any interference by this Court. 8. Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, it discloses that the specific case of the plaintiff that defendant had encroached the land in 3 survey numbers to the extent of 6 guntas and particularly, the plaintiff relies upon the evidence of the surveyor-PW2 who conducted the survey and he has given definite opinion that he had conducted the survey in respect of all the three survey numbers and found that defendant is in possession of the property which is in the encroached portion and even DW1 also categorically admits that he was very much present at the time of conducting the - 8 - HC-KAR NC: 2025:KHC:49914 RSA No. 881 of 2025 survey, but he refused to sign the same. When such material available on record, taken note of the extent of land as per Ex.P14 and also not in dispute that property was allotted to the plaintiff in terms of the partition. In paragraph 23 to 32 in detail discussed while answering Issue Nos.1 and 2 and definite conclusion was given that defendant encroached the property. With regard to the location of the property also there is a clear admission on the part of defendant and the same also taken note of by the Trial Court. Even First Appellate Court also having reassessed both oral and documentary evidence placed on record in paragraphs 24 and 25 taken note of the contention of the respective parties and in paragraph 25, in detail taken note of the extent of land. Admittedly, the defendant is owner in possession of Sy.No.9/2A which is situated at northern side of the plaint schedule property. There is a clear admission on the part of the defendant with regard to the location of the property. When such being the case, I do not find any error on the part of both the Courts in appreciating both oral and documental evidence and not found any perversity since both question of fact and question of law also rightly considered by both the Courts. Under such circumstances, I do not find any - 9 - HC-KAR NC: 2025:KHC:49914 RSA No. 881 of 2025 ground to admit the appeal and to frame substantial question of law invoking Section 100 of CPC. 9. In view of the discussions made above, I pass the following: ORDER The second appeal is dismissed. In view of dismissal of the main appeal, I.A. if any, does not survive for consideration and the same stands dismissed. Sd/- (H.P.SANDESH) JUDGE SN