Plaintiff sought mandatory injunction to remove a bore-well allegedly installed by the first respondent in his land in Sy.No.114, Kolavanahalli. Trial court found no encroachment based on commissioner's report; first appellate court confirmed. High Court dismissed the second appeal holding no substantial question of law arose.
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NC: 2024:KHC:4805 RSA No. 1452 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 02ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 1452 OF 2018 (INJ)
BETWEEN:
SRI. K.H. NARAYANA REDDY @ K.H.NARAYANAPPA, S/O LATE HANUMANTHAPPA @ HANUMANTHARAYAPPA, AGED ABOUT 53 YEARS R/AT KOLAVANAHALLI, NANDI HOBLI, CHIKKABALLAPURA TALUK CHIKKABALLAPURA DISTRICT - 562 101.
…APPELLANT
(BY SRI. Y. NAGARAJ, ADVOCATE FOR SRI. C. SHANKAR REDDY, ADVOCATE)
AND:
Digitally signed by SUMA B N Location: High Court of Karnataka
NC: 2024:KHC:4805 RSA No. 1452 of 2018
W/O SRI. GOPALAPPA, D/O SRI. RAMANNA, AGED ABOUT 53 YEARS
RESPONDENTS NO. 5 TO 6 ARE R/AT CHIKKA MARALI, NANDI HOBLI, CHIKKABALLAPURA TALUK-562 101.
…RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC., R/W ORDER XLII RULE 1 OF CPC., AGAINST THE JUDGMENT DECREE DATED 03.11.2017 PASSED IN R.A.NO.90 OF 2015 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., CHICKBALLAPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 07.03.2015 PASSED IN OS.NO.484 OF 1996 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AT CHICKBALLAPURA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
NC: 2024:KHC:4805 RSA No. 1452 of 2018
JUDGMENT
This appeal is filed by the plaintiff aggrieved by the judgment and decree dated 07.03.2015 passed in O.S.No.484/1996 on the file of I Additional Civil Judge, Chikkaballapur (hereinafter 'the Trial Court') and which is confirmed by the judgment and order dated 03.11.2017 passed in R.A.No.90/2015 on the file of I Additional Senior Civil Judge and J.M.F.C, Chikkaballapur (hereinafter 'the First Appellate Court').
NC: 2024:KHC:4805 RSA No. 1452 of 2018
interest in the schedule land, has dug up a bore-well within the land belonging to the plaintiff. Despite plaintiff causing issue of notice dated 25.11.1996, defendant No.1 proceeded to install the bore-well.
2.1 It is further alleged that the defendant No.1 after installing the bore-well in the schedule property has been attempting to obtain revenue certificate from the defendant No.2-Tahildar for obtaining electric connection to the bore-well. Despite request of the plaintiff, defendant Nos.2 and 3 not to issue the revenue certificate or to provide electric connection, there has been no favourable response constraining the plaintiff to approach the Court for mandatory injunction and also for permanent injunction.
2.2 On service of summons, defendant No.1 appeared and filed written statement and the Defendant Nos.2 to 4 have been placed ex-parte.
2.3. The defendant No.1 denied the case of the plaintiff
and contended that he has installed the bore-well within his land and not on the land of the plaintiff. It is further contended that after having installed the bore-well within his land he has applied for grant of revenue certificate before the Tahsildar.
NC: 2024:KHC:4805 RSA No. 1452 of 2018
2.4 The contention of defendant No.1 is that he is the owner of a portion for land in Sy.No.114 of Kolavanahalli Village, which he acquired under a registered deed of sale for valuable sale consideration and he had also purchased another portion of the said land. That the plaintiff had also got a portion of this survey number measuring 33 guntas, on the eastern side of the land of the defendant No.1. It is contended that the land measuring 1 acre 33 guntas belonging to the defendant No.1 and land measuring 33 guntas belonging to the plaintiff have been separated by a ridge.
2.5. It is further contended that defendant No.1 has dug up the bore-well within his land and which is situated at-least twenty feet away from the said ridge separating the two lands.
2.6 While the defendant Nos.2 and 3 are about to issue said certificate and electricity connection as sought for. The plaintiff approached the Court only to harass the defendants. Hence, sought for dismissal of the suit.
"1) Whether the plaintiff proves that he is the absolute owner and in possession of suit schedule land?
2) Whether the plaintiff proves that the 1st defendant dugged up bore well in the portion of land belongs to him?
5) What order or decree?"
of law and facts and passed incorrect judgment?
NC: 2024:KHC:4805 RSA No. 1452 of 2018
3) What order or decree ?"
installed within the land belonging to the plaintiff. It is not the case of the plaintiff that he has been dispossessed or any portion of his land has been encroached upon by the defendant No.1. Issue No.2 is framed by the Trial Court specifically with regard to contention of the plaintiff of defendant No.1 installing the bore-well within his land. Adverting to the said issue the Trial Court at para No.24 to 29 has dealt with the pleadings of the parties and the evidence led thereon. The Trial Court has also taken into consideration of the report submitted by the Commissioner. Based on this material evidence the Trial Court has found that the land belonging to the plaintiff and the defendant No.1 is separated by a ridge the suit property being claimed by the plaintiff measuring 33 guntas is bounded on East by K.B.Pille Gowda's Land, West by Ramanna's land, North by Government Halla and South by Ramanna's land. Another portion measuring 1 acre bounded by East by K.B.Pille Gowda's land, West by Narasamma's Land, North by Government Halla and South by the plaintiff's own property. The land claimed by the defendant No.1 has been purchased by him in terms of deed of sale, which is bounded on East by Hanumanthaiah's Land, West by Bachappa's land, North by
NC: 2024:KHC:4805 RSA No. 1452 of 2018
Kothanur border and South by Sy.No.108 to an extent of 33 guntas of land. Further, the boundaries to 1 acre 9 guntas of the property towards East by same Survey number fallen to the share of Venkatarayappa, West by Bachappa's land, North by Kothanur border and South by Pothalappa, Nanjappa and others properties.
the Trial Court has noted that as per third memo of instruction the Commissioner had stated that he had measured the existence of bore-well from the ridge which is about 17.5 feet away from the said ridge and that the said bore-well has been closed down many years ago. Another bore-well which has been dug up by the defendant No.1 is towards the western side and the same is far away from the plaintiff's land. To the 11th memo of instruction the Commissioner has opined that the bore-well existing between the land of the plaintiff and the
defendant No.1 is about 17.5 feet away and it is within the land of the defendant No.1. As such the Commissioner has stated that he is unable to find out any encroachment made by the defendant as no documents were furnished. Based on these material evidence, the Trial Court has come to the conclusion that the plaintiff failed to prove the defendant having installed the bore-well within the boundaries of plaintiff's property as claimed in the plaint. The Commissioner report has not been challenged and same forms part of the record. The First Appellate Court taking note of the aforesaid factual aspects of the matter has concurred with the reasoning and conclusion arrived at by the Trial Court.
In view of the above, no substantial question of law would arise in this appeal requiring consideration. Accordingly, appeal is dismissed.
RL
List No.: 2 Sl No.: 19
Sd/JUDGE
1 issue framed by the court
Whether a substantial question of law arises where concurrent findings held the defendant's bore-well was within his own land and not an encroachment on the plaintiff's land.
2 provisions across 1 enactments
Sri. K.H. Narayana Reddy @ K.H. Narayanappa
Smt. Chinnamma
Smt. Munithayamma
Sri. Ashwathappa
Sri. Srinivas
Smt. Rathnamma
M.G.S. Kamal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
