In a second appeal challenging the dismissal of a suit for declaration of title and possession, the High Court of Karnataka affirmed the trial court's finding that the appellant failed to prove ownership boundaries or evidence of encroachment, dismissing the appeal.
The appeal is dismissed and the judgments and decrees of the courts below are confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 738 OF 2014 (DEC)
BETWEEN:
SRI. ABDUL RAHIMAN S/O ALI BEARY AGED ABOUT 45 YEARS, R/AT BIJUVALLI, KASABA HOBLI, MUDIGERE TALUK-577132, CHICKMAGALUR DIST.
…APPELLANT (BY SRI. SUYOG HERELE, ADVOCATE FOR SRI. SACHIN B S., ADVOCATE)
AND:
Digitally signed by SUNITHA GANGARAJU Location: High Court of Karnataka
SRI KRISHNAPPA AGED ABOUT 55 YEARS, R/AT BIJUVALLI, KASABA HOBLI, MUDIGERE TALUK-577132, CHICKMAGALUR DIST.
…RESPONDENT (BY SRI. PRUTHVI WODEYAR., ADVOCATE)
THIS RSA IS FILED U/S.100 OF CPC., AGAINST THE JUDGEMENT & DECREE DATED 01.03.2014 PASSED IN R.A.NO.15/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, CHIKMAGALORE., DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 17.12.2011 PASSED IN OS.NO.13/2004 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE, JMFC., MUDIGERE.
NC: 2023:KHC:40374 RSA No. 738 of 2014
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellant challenging the judgment and decree dated 01.03.2014 passed in R.A.No.15/2012 by the Principal Senior Civil Judge, Chikkamagaluru, confirming the judgment and decree dated 17.12.2011 passed in O.S.No.13/2004 by the Principal Civil Judge and JMFC, Mudigere.
Plaintiff filed a suit for declaration of title and possession. It is the case of the plaintiff that, the plaintiff was in possession of the suit schedule properties. The plaintiff was in unauthorized occupation of 'A' schedule property and he submitted an application before the
revenue authorities for regularization of his unauthorized occupation of 'A' schedule property. The revenue authorities regularized his unauthorized occupation and issued a saguvali chit and the same is produced in O.S.No.7/2004. On the strength of saguvali chit, name of
the plaintiff was entered in the revenue records and the plaintiff has fenced the 'A' suit schedule property. It is contended that the plaintiff has cultivated the A suit schedule property with coffee plants. The defendant has no right, title or interest over the suit schedule property. It is alleged that during the period from 26.09.2002 to 03.02.2003 the plaintiff was out of station to attend his ailing father and during that period the defendant has trespassed in 'A' schedule property and encroached to an extent of 11/2 guntas, which is described in 'B' schedule property. After returning, the plaintiff enquired the defendant about the encroachment made by him. The defendant had admitted his encroachment over 'A' schedule property and assured him that he will hand over the encroached possession, but the defendant has not
NC: 2023:KHC:40374 RSA No. 738 of 2014
handed over the portion of 'A' schedule property to the plaintiff. Hence, the cause of action arose for the plaintiff to file the suit for declaration of title and possession.
NC: 2023:KHC:40374 RSA No. 738 of 2014
issued on 12.08.2002. The defendant become absolute owner of the residential house situated in land bearing Sy.No.1. The plaintiff with a mala fide intention has filed false suit. Hence, prayed to dismiss the suit with cost.
pleadings, framed the following issues:
1. Whether the plaintiff proves that he has been issued with saguvali chit in respect of 'A' schedule property and as such he has become absolute owner of 'A' schedule property?
2. Whether the plaintiff proves that defendant encroached an extent of 11/2 guntas of land in 'A' schedule property?
3. Whether the plaintiff is entitled to declaration that he is the owner of 'A' schedule property?
4. Whether the plaintiff entitled to recover possession of 'B' schedule property from the defendant?
5. What order or decree?
marked 4 documents as Ex.P-1 to Ex.P-4. The defendant
examined himself as DW-1 and got marked 3 documents as Ex.D-1 to Ex.D-3. During pendency of the suit, an
application was filed for appointment of Court Commissioner. The said application came to be allowed. Commissioner was appointed and has executed a commission work and submitted a report and later on commissioner was examined as CW-1 and got marked documents as Ex.C-1 and Ex.C-2. The trial Court considering the oral and documentary evidence produced by the parties, answered Issue Nos.1 to 4 in the negative and Issue No.5 as per the final order and consequently, dismissed the suit of the plaintiff.
decree passed by the trial Court, preferred an appeal in R.A.No.15/2012 on the file of Principal Senior Civil Judge, Chikmagalur.
parties, framed the following points for consideration:
1. Whether the plaintiff has proved his title and ownership over the suit "A" schedule property, as per the measurement and boundaries shown in the plaint schedule and
encroachment of the same by the defendant?
2. Whether the impugned judgment of the trial court is against law, fact, evidence and probabilities of the case and liable to be intervened by this court?
3. What order or decree?
decrees passed by the Courts below, filed this second appeal.
the plaintiff was in unauthorized occupation of land
bearing Sy.No.73 at Mudigere village and submitted an application for regularization of his unauthorized occupation. The concerned authorities have allowed the application and regularized his unauthorized occupation. He submits that the defendant has made an encroachment of 11/2 guntas in the 'A' schedule property in the absence of the plaintiff. The plaintiff requested the defendant to hand over the portion of 'B' schedule property allegedly encroached by the defendant. Hence, he submits that both the Courts below have committed an error in not properly considering the documents produced by the plaintiff. In order to establish his ownership over the 'A' schedule property, plaintiff has produced saguvali chit and RTC extract, which discloses that the plaintiff is the owner in possession of the 'A' suit schedule property. He further submits that the trial court ought to have decreed the suit of the plaintiff, on the contrary dismissed the suit. Hence, he submits that the first appellate Court has also without properly appreciating evidence on record, confirmed the judgment and decree passed by the trial Court. Hence, he
submits that the impugned judgments and decrees passed by the Courts below are arbitrary, perverse and hence, same is liable to be set aside. Hence, on these grounds he prays to allow the appeal.
submissions of the learned counsel for the plaintiff.
the defendant about the alleged encroachment and the defendant had admitted the said encroachment and assured him that he will hand over the possession of the encroached property. But even after the request, demand by the plaintiff for handing over of the possession the defendant did not gave any heed to the request made by the plaintiff. The plaintiff in support of his case, produced Ex.P-1 is the Saguvali chit; Ex.P-2 is the M.R. extract; Ex.P-3 is the of RTC extract in respect of 'A' schedule property and Ex.P-4 is the copy of the sketch.
authorities have allowed the application filed by the plaintiff for regularization of his unauthorized occupation over 'A' schedule property, but the Ex.P-1 does not disclose the boundaries to the 'A' schedule property. Further, the land bearing Sy.No.73 measures 58 acres 30 guntas and in the said land without boundaries to the 'A' schedule property, property cannot be identified. Further in order to identify the 'A' schedule property, the plaintiff
has filed an application for appointment of Court Commissioner to ascertain 'A' schedule property bearing Sy.No.73 at Mudigere village. The said application came to be allowed by the trial Court and the Commissioner after inspection of site, submitted a report and objection was filed by both the parties. Court Commissioner was examined as CW-1 and got marked 2 documents i.e., Ex.C-1 is the Commissioner report and Ex.C-2 is the sketch which discloses that land in occupation of the plaintiff is shown as 18 guntas. Further, PW-1 has admitted that he is in possession of 18 guntas of land and he has put up a fence to the said 18 guntas of land and disputed B' schedule property, in which the defendant has constructed a house, does not come within the land encroached and granted to him. Further, at the time of inspection of the Court Commissioner, the plaintiff has not produced any record to show the boundaries of 'A' schedule property and sketch. Hence, the trial Court disbelieved the Commissioner's report on the ground that the plaintiff has not produced any records at the time of
commission work and also observed that from the perusal of RTC of land bearing Sy.No.73 at Mudigere village produced by the plaintiff, which is marked as Ex.P-3, which discloses that the land bearing Sy.No.73 comprise of 58 acres 31 guntas out of which 22 guntas was granted to the plaintiff and remaining the 58 acres 9 guntas is still the Government land and further, the plaintiff has not examined any independent witnesses to establish that the defendant has made an encroachment in the 'B' schedule property.
was regularized and hence, the defendant after obtaining the permission from the competent authority has constructed a building in 1 gunta of land situated at Kunnahalli village and the defendant has not made any encroachment in 'B' schedule property as alleged by the plaintiff. Hence, the defendant in support of his defence produced document, Ex.D-3 which is the Hakku Patra in respect of 1 gunta of land situated at Kunnahalli village was regularized by the revenue authorities. The plaintiff in order to establish that the defendant has made an encroachment in 'B' schedule property has not produced
any records to show that the property owned by the defendant is part and parcel of 'A' and 'B' schedule properties. The trial Court was justified in recording the finding that the plaintiff has failed to prove that he was in unauthorized occupation of 'A' and 'B' schedule properties and further the revenue authorities allowed the application of the plaintiff and regularized his unauthorized occupation of 'A' and 'B' schedule properties and rightly held that the plaintiff has failed to prove the alleged encroachment by
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the defendant and rightly dismissed the suit. The first appellate court on re-appreciating the material on record was justified in confirming the judgment and decree passed by the trial court. Hence, I do not find any substantial question of law that arises for consideration in this appeal and any grounds to interfere with the impugned judgments and decrees passed by the Courts below.
orders.
O RDER
The appeal is dismissed.
The judgments and decrees passed by the
Courts below are hereby confirmed.
No order as to the costs.
Sd/JUDGE
SKS,SRA
3 issues framed by the court
Whether the appellant proved title and ownership over the suit schedule property and the respondent's alleged encroachment?
Whether the appellant is entitled to declaration of ownership and recovery of possession of the encroached property?
Whether the judgments and decrees of the courts below should be set aside?
Sri. Abdul Rahiman S/o Ali Beary
Sri Krishnappa
Ashok S. Kinagi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
