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2025 DAILYLAW 80146 (KAR)

SMT PARVATAMMA v. SRI B RAJAPPA

RSA/1594/2024 · 2025-11-28

H P Sandesh

Original Suitbody2025

Judgment text

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- 1 - HC-KAR NC: 2025:KHC:49536 RSA No. 1594 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.1594 OF 2024 (DEC/POS) BETWEEN: 1. SMT. PARVATAMMA, W/O LATE NAGENDRAPPA, AGED ABOUT 82 YEARS. 2. SRI. CHANDRASEKHAR, S/O LATE NAGENDRAPPA, AGED ABOUT 42 YEARS. 3. SRI. SHIVAKUMAR, S/O LATE NAGENDRAPPA, AGED ABOUT 41 YEARS. ALL ARE AGRICULTURISTS, R/O HIRE MALALI VILLAGE, CHANNAGIRI TALUK 577213. DAVANAGERE DISTRICT. …APPELLANTS (BY SRI. B.M.SIDDAPPA, ADVOCATE) AND: 1. SRI. B. RAJAPPA, S/O LATE SANNABASAPPA, AGED ABOUT 56 YEARS, AGRICULTURIST, R/O HIRE MALALI VILLAGE, CHANNAGIRI TALUK-577213. DAVANAGERE DISTRICT. …RESPONDENT (BY SMT. SARITHA KULKARNI, ADVOCATE) Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:49536 RSA No. 1594 of 2024 THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 01.08.2024 PASSED IN R.A.NO.43/2023 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, CHANNAGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 22.09.2023 PASSED IN O.S.NO.183/2020 ON THE FILE OF PRL. CIVIL JUDGE AND JMFC, CHANNAGIRI. 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 matter is listed for admission. Heard the learned counsel for the appellants and the learned counsel for the respondent. 2. This second appeal is filed against the concurrent finding. 3. The factual matrix of the case of the plaintiff before the Trial Court is that the plaintiff is the owner of the property measuring 3 acres 39 guntas with kharab of 4 guntas in Sy.No.42/2 of Chikkamalali Village. It is the specific case of the plaintiff that on the western side of the suit schedule property, the property of the defendants is situated and the defendants are the owner of the property bearing Sy.No.42/1. The specific - 3 - HC-KAR NC: 2025:KHC:49536 RSA No. 1594 of 2024 pleading in the plaint is that when the survey was conducted, came to know that the defendants had encroached the portion of the property, which is in possession of the plaintiff and inspite of demand made to deliver the possession, the defendants did not deliver the possession of the encroached portion and hence, without any other alternative, filed the suit for the relief of possession contending that he is the absolute owner of the property and entitled for the encroached area. 4. The defendants appeared and filed the written statement denying the contention of the plaintiff. It is contented that the ancestors of the plaintiffs are enjoying the property bearing Sy.No.42/2. The defendants denied the alleged demand for survey, alleged survey work and also the alleged foundation for claiming of encroached suit property and also denied the encroachment and contended that no cause of action. It is contented that the defendants converted their land into garden land about 5 years back and while doing so, no objection was received from the plaintiff. The husband of defendant No.1 got measured the Sy.No.42/1 about 30 years back and did got fix the boundary of it. Since the time of - 4 - HC-KAR NC: 2025:KHC:49536 RSA No. 1594 of 2024 husband of defendant No.1 and till today, the defendants are enjoying the said property without anybody's interruption and obstruction. The defendants did not encroach 5 guntas of land in Sy.No.42/2. The plaintiff did not get measure the suit property and in collusion with the survey office, the document was got created. 5. The Trial Court allowed the parties to lead evidence and the plaintiff examined himself as P.W.1 and got marked the documents at Exs.P.1 to 5 and also examined the surveyor, who conducted the survey as P.W.2. On the other hand, defendant No.3 entered the witness box as D.W.1 and got marked the documents at Exs.D.1 to 3. The Trial Court having considered both oral and documentary evidence available on record, particularly the document Ex.P.4 map, comes to the conclusion that there was an encroachment and also comes to the conclusion that notice was issued before conducting the survey. The Trial Court also taken note of admission on the part of D.W.1 in his cross-examination and extracted the same in paragraph No.19 with regard to the issuance of notice and conducting of the survey and he was very much present and - 5 - HC-KAR NC: 2025:KHC:49536 RSA No. 1594 of 2024 also found that 5 guntas of land was encroached by him and Exs.P.3 to 5 map and sketch was prepared by the Survey Department and the same was not questioned. D.W.1 admitted that survey was conducted in the year 1990 and produced the application, but not produced the documents of survey and the Trial Court discussed the same in paragraph No.20 and comes to the conclusion that the plaintiff has proved that the defendants did encroach the suit schedule property in the course of their routine work of cultivation since from the beginning and till the measurement under notice is concerned. The plaintiff has established that there was an encroachment and the same is discussed in paragraph No.21 and granted the relief directing the defendants to hand over the encroached portion in favour of the plaintiff. 6. Being aggrieved by the said judgment and decree, an appeal is filed before the First Appellate Court. The First Appellate Court having considered the grounds urged in the appeal memo, formulated the points whether the Trial Court committed an error in coming to the conclusion that there was an encroachment and also whether the Trial Court committed - 6 - HC-KAR NC: 2025:KHC:49536 RSA No. 1594 of 2024 an error in appreciating the documents at Exs.P.4 and 5 believing those documents and whether it requires interference. The First Appellate Court having re-assessed both oral and documentary evidence available on record, in paragraph No.19 taken note of the defence of D.W.1 and also the evidence. D.W.1 reiterated in terms of the written statement averments and got marked the documents at Exs.D.1 to 3. The First Appellate Court also taken note of the documents at Exs.P.1 to 5 and particularly taken note of the admission on the part of D.W.1 that suit schedule property belongs to the plaintiff and not disputed that his property is on the western side of the suit schedule property and also not disputed that there is a ridge between the property of the plaintiff and the defendants and also not disputed that the plaintiff has submitted an application to the Survey Department and the Survey Department official came and surveyed the property and notice was given and in terms of the notice, survey was conducted and came to know that there was an encroachment and accordingly prepared the documents Exs.P.3 to 5. The First Appellate Court in paragraph No.20, taken note of all these details and in paragraph No.21, taken note of that the suit schedule property is the ancestral - 7 - HC-KAR NC: 2025:KHC:49536 RSA No. 1594 of 2024 property of the family of the plaintiff and it fell to the share of the plaintiff by way of registered partition deed dated 28.05.1998. The First Appellate Court also taken note of that by virtue of Ex.P.1, the defendants not disputed Ex.P.1, the plaintiff proved his title over the suit schedule property. The documents of Exs.P.3 to 5, clearly discloses that survey was conducted and there was an encroachment and the same was considered in paragraph No.23 and in paragraph No.24 taken note of that survey was conducted in the presence of the defendants and confirmed the judgment of the Trial Court. 7. Being aggrieved by the concurrent finding, the present second appeal is filed before this Court. 8. The learned counsel for the appellants would vehemently contend that there was a clear dispute with regard to the survey is concerned. The learned counsel contend that evidence of P.W.2 is very clear that he did not survey the entire land and his admission takes away the case of the plaintiff. The learned counsel also vehemently contend that both the Courts have committed an error in declaring the ownership of the plaintiff solely on the basis of survey report, which is based - 8 - HC-KAR NC: 2025:KHC:49536 RSA No. 1594 of 2024 on village map and tippani copy. The learned counsel would contend that both the Courts committed an error in the absence of title deeds under which the plaintiff acquired the property are partitioning the same to hold that the plaintiff is the owner of the suit schedule property. Both the Courts are not right in law in not considering the unequivocal admission of P.W.1 that the property of the defendants is situated after the fence put up by him around his land when there is no pleading and evidence on record to show that after removing the fence the defendants have encroached the plaintiff’s land. 9. Per contra, the learned counsel for the respondent would vehemently contend that there is no dispute with regard to the title is concerned and also no dispute with regard to the location of the property and the same is admitted by D.W.1. D.W.1 categorically admits that survey was conducted in his presence only and he admits that surveyor noticed that there was an encroachment and prepared the survey documents in terms of Exs.P.3 to 5. When such admission was given, both the Courts taken note of the same and not committed any error. - 9 - HC-KAR NC: 2025:KHC:49536 RSA No. 1594 of 2024 10. Having heard the learned counsel for the appellants and the learned counsel for the respondent, it is not in dispute that the plaintiff is the owner in respect of the suit schedule property. The defendants also admits the same and also there is a specific pleading that on the western side of the suit schedule property, the property of the defendants is located and the same is also not disputed by D.W.1. D.W.1 categorically admits that notice was given in terms of Ex.P.3 on 12.10.2018 and in his presence only, survey was conducted and report was prepared. Ex.P.4 is the map and Ex.P.5 is the report dated 25.04.2019 given by the Surveyor who has been examined as P.W.2. The plaintiff in order to substantiate the encroachment, examined the Surveyor as P.W.2. When a clear admission was given by D.W.1 in his cross-examination, the same was extracted in paragraph No.19 and the Trial Court in detail discussed in paragraph Nos.20 and 21 with regard to the encroachment is concerned and the plaintiff established the title as well as encroachment on the part of the defendants and detailed reasoning is given by the Trial Court. - 10 - HC-KAR NC: 2025:KHC:49536 RSA No. 1594 of 2024 11. The First Appellate Court having considered the grounds urged in the appeal memo, in paragraph Nos.19, 20, 21 and 22, taken note of both oral and documentary evidence and particularly taken note of Exs.P.3 to P5 in paragraph No.23 and also taken note of that the signature of defendant No.3 is also forthcoming in the notice Ex.P.3 and Ex.P.4 is the survey report prepared by the surveyor, who issued the same on 25.04.2019. Ex.P.4 clearly recite the encroached area to an extent of 5 guntas made by the landowners of Sy.No.42/1. It is not in dispute that the owner of Sy.No.42/1 are the defendants. When all these findings are given, I do not find any error on the part of the Trial Court and the First Appellate Court in appreciating both oral and documentary evidence and there is no any perversity in the findings of both the Courts and the same is based particularly on the admission on the part of D.W.1, in whose presence the survey was conducted and found the encroachment to an extent of 5 guntas of land and rightly directed to vacate the encroached portion in favour of the plaintiff. Both the Courts taken note of factual aspects and also the question of law and hence, not a case to invoke Section 100 of CPC. - 11 - HC-KAR NC: 2025:KHC:49536 RSA No. 1594 of 2024 12. In view of the discussions made above, I pass the following: ORDER The second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 41