Plaintiff sought declaration of title and possession over 6 cents allegedly encroached from his 80 cents in Sy.No.53. Survey sketch was unreliable as guideline stones and PT sheets were not used. Court upheld concurrent findings dismissing the suit.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ REGULAR SECOND APPEAL NO. 136 OF 2013 (DEC)
BETWEEN:
SRI. I.B. PALANGAPPA S/O I.K. BELLIAPPA, AGED ABOUT 74 YEARS, AGRICULTURIST, BALAMURI VILLAGE, NAPOKLU HOBLI, MADIKERI TALUK, REPRESENTED BY HIS GPA HOLDER I.B. MONNAPPA, AGED ABOUT 71 YEARS, AGRICULTURIST, RESIDING AT BALAMURI VILLAGE, NAPOKLU HOBLI, MADIKERI TALUK KODAGU DISTRICT - 571 201.
…APPELLANT
Digitally signed by NARAYANAPPA LAKSHMAMMA Location: HIGH COURT OF KARNATAKA
(BY SRI. RAVINDRANATH K, ADVOCATE)
AND:
NC: 2024:KHC:23586 RSA No. 136 of 2013
KODAGU DISTRICT - 571 201.
…RESPONDENTS
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 4.10.2012 PASSED IN R.A.NO.6/2009 ON THE FILE OF SENIOR CIVIL JUDGE, MADIKERI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 5.12.2008 PASSED IN OS.NO.73/2007 ON THE FILE OF PRINCIPAL CIVIL JUDGE (JR.DN.), MADIKERI.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
NC: 2024:KHC:23586 RSA No. 136 of 2013
4.1. Once the defendants had admitted that the plaintiff was the owner of 80 cents, the claim of the plaintiff claiming title as regards portion of the said property measuring 6 cents and to handover possession ought to have been allowed, which has not been done and therefore, he submits that the finding of the Trial Court and the First Appellate Court are not in accordance with law. Once there was a finding that the plaintiff had title over 80 cents of the land in Sy.No.53, the question of denying the right of possession to the plaintiff to 6 cents of the land out of 80 cents was not permissible.
NC: 2024:KHC:23586 RSA No. 136 of 2013
4.3. Lastly, he relies upon the survey sketch, which has been marked as Ex.P4 before the Trial Court. Relying on the said survey sketch, he submits that the area constituting 80 cents in Sy.No.53 having been clearly demarcated even after the road there was an extent of 6 cents which has been marked in the said survey sketch which was abutting the property of the defendants in Sy.No.53 which has been encroached upon by the defendants. The said survey sketch would categorically establish that 6 cents of the land in Sy.No.53 had been encroached by the defendants. This aspect ought to have been taken into consideration by the Trial Court, this not having been taken into consideration, the oral and
documentary evidence on record has been ignored both by the Trial Court and First Appellate Court. On that basis, he submits that the substantial questions of law which have been framed by this Court on 11.10.2013 have to answered in favour of the appellant.
NC: 2024:KHC:23586 RSA No. 136 of 2013
defendants, therefore, the Trial Court has rightly rejected the relief sought for by the plaintiff.
the present suit and the present appeal. The basis on which the plaintiff claims is by relying on Ex.P4 being a survey sketch prepared by P.W.3/DDLR. By referring to item No.4 of the mahazar in Ex.P4, it is contended that there is a categorical assertion made by P.W.3/DDLR that there is an encroachment of 6 cents of the land by the owner of the land in Sy.No.55 i.e., the defendants.
the PT sheets, the dispute in the present matter relating to 6 cents out of 80 cents, it was but required for the plaintiff to establish that the land situated on the northern side of the road was forming common part of Sy.No.53 and it belonged to the plaintiff. The survey not having been carried out properly, what remains is only the oral testimony of the other witnesses on behalf of the plaintiff as regards the claim of 80 cents of land in Sy.No.53, which has not been denied by the defendants. The issue in question being only relating to the 6 cents being situated on the northern side of the road, the plaintiff has not been able to establish that the said land form part of the northern side in Sy.No.53.
NC: 2024:KHC:23586 RSA No. 136 of 2013
infirmity in the order passed by the Trial Court and the First Appellate Court.
Sd/JUDGE
GJM List No.: 2 Sl No.: 36 CT: BHK
1 issue framed by the court
Did the plaintiff prove that the 6 cents on the northern side of the road forms part of Sy.No.53 and was encroached upon by the defendants?
1 provisions across 1 enactments
Sri. I.B. Palangappa
Sri. I.S. Karumbaiah
Sri. I.M. Joyappa
Suraj Govindaraj
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
