Chigatereappa Vs Shivakumar

THIS RSA IS FILED UNDER SEC.100 OF CPC, 1908 AGAINST THE JUDGMENT AND DECREE DTD 17.11.2018 PASSED IN RA.NO.47/2018, ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE, CHITRADURGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED: 29.08.2018 PASSED IN OS.NO.310/2015 ON THE FILE OF THE III ADDL.CIVIL JUDGE AND JMFC., CHITRADURGA.

¶21

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

¶22

2 -

¶23

NC: 2025:KHC:44849 RSA No. 346 of 2019

¶24

HC-KAR

¶25

CORAM: HON'BLE MR. JUSTICE RAJESH RAI K

¶26

ORAL JUDGMENT

¶27

This is plaintiff's second appeal.

¶28

The plaintiff filed a suit for permanent injunction against the defendant, restraining him from dispossessing the plaintiff in respect of 8 guntas of land in Sy.No.11/4 without due process of law as shown by the surveyor in the sketch.

¶29

The case of the plaintiff is that he and the defendant

¶30

are brothers and they themselves and their father divided the joint family properties through registered Partition Deed dated 01.06.2006. As per said partition, the land measuring 39 guntas including 1 gunta of kharab land in Sy.No.11/5 situated at Singapura village had fallen to the share of plaintiff and land measuring 36 guntas including 1 gunta of kharab land in Sy.No.11/4 of the said village had fallen to the share of the defendant. Accordingly, they both were in possession of said lands. However, the boundaries between those lands were not settled.

¶31

3 -

¶32

NC: 2025:KHC:44849 RSA No. 346 of 2019

¶33

HC-KAR

¶34

Subsequently, the defendant got surveyed his land and in the sketch, it was noted that the plaintiff has encroached 8 guntas of land of the defendant towards eastern portion of Sy.No.11/4. As such, the defendant started to threaten the plaintiff to dispossess him from the alleged encroachment portion of 8 guntas. Hence, the plaintiff filed suit against the defendant.

¶35

After entering appearance, the defendant denied the averments made in the plaint and contended that he is in lawful possession of his share in Sy.No.11/4 and the plaintiff has never encroached any portion of the land of defendant since the boundary line was settled between Sy.Nos.11/4 and 11/5.

¶36

The Trial Court, after framing the relevant issues, has dismissed the suit of the plaintiff on the ground that the plaintiff failed to establish his lawful possession over the suit schedule property and also the encroachment as alleged by him. Further, the plaintiff has also failed to prove the interference of the defendant in the suit

¶37

4 -

¶38

NC: 2025:KHC:44849 RSA No. 346 of 2019

¶39

HC-KAR

¶40

schedule property by placing sufficient evidence and relevant documents.

¶41

On appeal, the First Appellate Court, on reappreciation of evidence on record dismissed the appeal by confirming the judgment and decree passed by the Trial Court by observing that though the plaintiff claims that he came to know about the alleged encroachment of the defendant's property in the year 2014, he has not got measured his lands till 2018 so as to confirm whether there is any encroachment or not as alleged. As such, the possession claimed by the plaintiff cannot be protected by granting discretionary relief of injunction as contemplated under Section 38 of the Specific Relief Act.

¶42

Having given my anxious consideration to the arguments advanced by the learned counsel for the respective parties and on perusal of the evidence, in my view, both the Courts have correctly come to the conclusion that the plaintiff having admitted the registered partition executed on 01.06.2006 between himself, the

¶43

5 - NC: 2025:KHC:44849 RSA No. 346 of 2019

¶44

HC-KAR

¶45

defendant and their father and having admitted possession and cultivation of land in respect of Sy.No.11/5 and Sy.No.11/4 by himself and the defendant respectively after partition, failed to prove any interference by the defendant in the suit schedule property or the encroachment of 8 guntas of land of defendant in Sy.No.11/4 by him. The oral evidence of PWs.1 and 2 also not established the said aspect. As rightly held by the First Appellate Court the plaintiff failed to got measured his lands so as to confirm whether there is any encroachment or not as alleged by him as per the survey sketch. Further, the plaintiff has also failed to prove that he is a trespasser to the suit schedule property and he is in settled peaceful possession of the property belongs to the defendant. In such circumstance, the relief of injunction cannot be granted in favour of the plaintiff as held by both the Courts.

¶46