Ignatius Martis Vs Govinda Bhat

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 10.10.2023 PASSED IN R.A.NO.34/2022 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, ACJM, UDUPI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21.04.2022 PASSED IN O.S.NO.230/2011 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, UDUPI.

¶21

2 -

¶22

NC: 2025:KHC:39785 RSA No. 136 of 2024

¶23

HC-KAR

¶24

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶25

CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

¶26

ORAL JUDGMENT

¶27

This appeal is listed for admission and I have heard learned counsel for the appellant and learned counsel for the respondent.

¶28

This appeal is filed against the concurrent finding.

¶29

The factual matrix of the case of the plaintiff before the Trial Court is that he is the owner in possession of the plaint ‘A’ schedule property. The said properties were obtained by father of the plaintiff by name Sri Victor Martis on chalageni from Adamaru Mutt, Udupi. When Karnataka Land Reforms Act came into force, above said Victor Martis had filed suit for declaration and occupancy rights has been granted in his favour. The father of the plaintiff died on 05.05.2013 by executing registered Will dated 16.04.2002 in favour of the plaintiff with a life interest to enjoy the same to his wife Cicilia Martis.

¶30

The defendant is the owner of immovable property bearing Sy.No.26/11 of Kurkal Village which is situated

¶31

3 - NC: 2025:KHC:39785 RSA No. 136 of 2024

¶32

HC-KAR

¶33

immediately to the east of the properties of the plaintiff along with two others namely, Anantha Bhat and Subbanna Bhat. The defendant is owing some other properties along with Subbanna Bhat and Anantha Bhat jointly. In between the properties of plaintiff and defendant, there was a big thorney fence with shrub growth therein, which is the boundary between the properties of plaintiff and defendant. In the plaint ‘A’ schedule properties, the house of the plaintiff, Well and other fruit trees are existing. In the eastern portion of the plaint ‘A’ schedule properties, inside the plaint ‘A’ schedule property, there exists a road leading from South to North which ends near the house of one Achyutha Acharya and his brother Umesh Acharya. The said road ends in the land of the plaintiff.

¶34

The above said Achyutha Acharya has recently purchased a car on 09.03.2011 and he has requested the plaintiff to permit him to use the road leading to his house existing in the plaint ‘A schedule properties. The said road ends near the house of Achyutha Acharya in the land of plaintiff. Therefore, the plaintiff permitted the above said Achyutha Acharya to use the road existing in the plaint ‘A’ schedule

¶35

4 -

¶36

NC: 2025:KHC:39785 RSA No. 136 of 2024

¶37

HC-KAR

¶38

property. The defendant being a powerful person having money and political power, has removed the thorney fence and put up barbed wire fence by encroaching upon the plaint ‘A’ schedule properties with an intention to block the road leading to the house of Achyutha Acharya. The defendant had removed the thorney fence on 27.02.2011 and put up barbed wire fence by encroaching upon the land of the plaintiff. Hence, the plaintiff has filed the suit for the relief of bare injunction.

¶39

In pursuance of the suit summons, the defendant appeared and filed the written statement contending that the averments made in the plaint are false. But, it is contended that there is only pathway in the land of the defendant. The said pathway is about 2 to 3 feet width. The plaintiff has not left any land. The plaintiff land is surrounded by compound wall. The plaintiff, in order to help Sri Achyutha Acharya, raised a false contention alleging that existence of alleged road in the land of plaintiff in collusion with the said Achyutha Acharya and made attempt to remove the thorney fence and shrub on the eastern side of pathway and attempted to form a road in the land of defendant. The said illegal act of the plaintiff and

¶40

5 -

¶41

NC: 2025:KHC:39785 RSA No. 136 of 2024

¶42

HC-KAR

¶43

Achyutha Acharya was resisted by the defendant and his son and denied all the averments made in the plaint.

¶44

The Trial Court given an opportunity to both the parties to adduce their evidence and framed the issues and allowed the parties to lead evidence. The plaintiff, to prove his case examined himself as P.W.1 and examined one witness as P.W.2 and got marked the documents as Exs.P1 to P26. On the other hand, the son of the defendant, who is a GPA holder is examined as D.W.1 and got marked the documents as Exs.D1 to D30.

¶45

The Trial Court having considered both oral and documentary evidence placed on record, particularly answers elicited from the mouth of P.Ws.1 and 2 comes to the conclusion that there is no interference on the part of the defendant as alleged in the plaint and in detail discussed both oral and documentary evidence placed on record and apart from the evidence of P.Ws.1 and 2, Commissioner was appointed and he was also examined as C.W.1 and Ex.C1 is the report of the Commissioner and having considered the Commissioner’s report which goes against the plaintiff, comes

¶46

6 -

¶47

NC: 2025:KHC:39785 RSA No. 136 of 2024

¶48

HC-KAR

¶49

to the conclusion that there is no encroachment as alleged by the plaintiff against the defendant and dismissed the suit.

¶50

The same is challenged before the First Appellate

¶51

Court in R.A.No.34/2022. The First Appellate Court having considered the grounds urged in the appeal memo, formulated the points whether the Trial Court properly considered the pleadings, oral and documentary evidence and whether it requires interference of this Court and the First Appellate Court comes to the conclusion that the Trial Court in detail discussed both oral and documentary evidence placed on record and given the finding that there is no interference and also comes to the conclusion that it does not require any interference. The First Appellate Court even while considering the appeal, extracted the admission on the part of P.W.1 in paragraph No.23, wherein also taken note of admission given by P.W.1 that defendant has not caused any trouble for enjoyment of the suit schedule property. In paragraph No.24, the evidence of P.W.2 is also discussed and in paragraph No.25, the evidence of D.W.1 and so also in paragraph No.26, the document of Ex.D14 was discussed and the document of Ex.D15 was

¶52

7 -

¶53

NC: 2025:KHC:39785 RSA No. 136 of 2024

¶54

HC-KAR

¶55

discussed in paragraph No.27 and affirmed the judgment of the Trial Court. Hence, this second appeal is filed before this Court.

¶56

The main contention of learned counsel for the appellant before this Court is that even after the compound wall of the plaintiff’s house, the property is in existence and permission is given to use the said property to the neighbouring owner and the same is not taken note of by both the Courts. The counsel during the course of argument also placed on record the photographs with regard to existence of the house and the property and fencing made by the parties. The counsel also vehemently contend that both the Courts have committed an error in appreciating both oral and documentary evidence placed on record and contend that the very reasoning given by the Trial Court and the First Appellate Court is against the Commissioner’s report and Commissioner did not measure the land of the plaintiff and defendant. The Commissioner’s report is also objected and even though he has been examined before the Trial Court, his evidence is not convincing and the same is not considered by both the Courts and both the Courts committed an error in coming to the conclusion that there is no

¶57

8 -

¶58

NC: 2025:KHC:39785 RSA No. 136 of 2024

¶59

HC-KAR

¶60

encroachment on the schedule property and the house of the appellant is surrounded by a compound wall and the very reasoning is erroneous.

¶61

Per contra, learned counsel for the respondent would vehemently contend that when the suit is filed for the relief of permanent injunction, no boundaries are given and learned counsel would vehemently contend that the Commissioner, who has been examined before the Court has given the clear report in terms of Ex.C1 that there is no encroachment and both the Courts have taken note of oral and documentary evidence as well as Commissioner report i.e. Ex.C1 and it does not require any interference.

¶62

Having heard learned counsel for the appellant and learned counsel for the respondent and considering the factual aspects of the case, the very case of the plaintiff is that the defendant had encroached upon the property of the plaintiff and in order to prove the same, nothing is placed on record and even the admission given by P.W.1 during the course of crossexamination which has been extracted by the First Appellate Court in paragraph No.23 is very clear that defendant never

¶63

9 -

¶64

NC: 2025:KHC:39785 RSA No. 136 of 2024

¶65

HC-KAR

¶66

troubled him for using the plaint schedule property and he also categorically admit that the property of the plaintiff was measured and also categorically admitted that on the northern side of the property, the house of Achyutha Acharya is situated and the same is used by several persons and this admission is also taken note of by both the Courts. Even the Trial Court has taken note of the same and Commissioner report is also taken note of by the Courts and with regard to the factual aspects i.e., question of fact and question of law is concerned, both the Trial Court as well as the First Appellate Court considered the same. When there is a clear admission on the part of P.W.1 that the defendant never troubled for use of the plaint schedule property, question of granting the relief of permanent injunction does not arise. When such admission is available and when the Commissioner report also goes against the plaintiff that there is no encroachment by the defendant, question of admitting the second appeal does not arise and I do not find any substantial question of law to frame in this appeal.

¶67