Honna Ganapu Gouda Vs Kariyanna Rama Gunaga @ Gouda

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NC: 2025:KHC-D:7372 RSA No. 740 of 2006

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 5^TH DAY OF JUNE 2025

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BEFORE

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THE HON'BLE MR. JUSTICE M.G.S. KAMAL

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REGULAR SECOND APPEAL NO.740 OF 2006 (DEC)

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BETWEEN:

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HONNA GANAPU GOUDA

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SINCE DECEASED BY HIS LR’S.

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1A. SRI LAXMAN S/O. HONNA GOUDA, AGE: 52 YEARS, R/O: MARUGADE, TQ: ANKOLA, DIST: UTTARA KANNADA.

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1B. SRI GANAPATI S/O. HONNA GOUDA, AGE: 48 YEARS, R/O: MARUGADE, TQ: ANKOLA, DIST: UTTARA KANNADA.

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Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad

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1C. SRI KESHAVA S/O. HONNA GOUDA, AGE: 42 YEARS, R/O: MARUGADE, TQ: ANKOLA, DIST: UTTARA KANNADA.

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1D. SMT. CHANDRI D/O. HONNA GOUDA, AGE: 52 YEARS, R/O: MARUGADE, TQ: ANKOLA, DIST: UTTARA KANNADA.

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VISHNU S/O. HONNA GOUDA, AGE: 48 YEARS, R/AT: MARUGADDE, POST AGASUR, TQ: ANKOLA, DIST: UTTARA KANNADA.

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…APPELLANTS

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(BY SRI. J. S. SHETTY, ADVOCATE)

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AND:

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KARIYANNA RAMA GUNAGA @ GOUDA, SINCE DECEASED BY HIS LR’S.

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1A. SHIVARAMU S/O. KARIYANNA GUNAGA, AGE:55 YEARS, R/O: MARUGADE, POST: AGASUR, TQ: ANKOLA, DIST: UTTARA KANNADA.

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1B. BELLA S/O. KARIYANNA GUNAGA, SINCE DECEASED BY HIS LR’S

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1(B)(1) SEETE W/O. BELLA GUNAGA, AGE: 30 YEARS, R/O: KALACHE, YELLAPUR, DIST: UTTARA KANNADA.

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1(B)(2) SEETE W/O. BELLA GUNAGA, AGE: 10 YEARS, R/O: KALACHE, YELLAPUR, DIST: UTTARA KANNADA.

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1(C) VASU S/O. KARIYANNA GUNAGA, AGE:42 YEARS, R/O: MARUGADE, POST: AGASUR, TQ: ANKOLA, DIST: UTTARA KANNADA.

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1(D) AYU S/O. KARIYANNA GUNAGA, AGE:55 YEARS, R/O: MARUGADE, POST: AGASUR, TQ: ANKOLA, DIST: UTTARA KANNADA.

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1(E) PUNDALIK S/O. KARIYANNA GUNAGA, AGE:36 YEARS, R/O: MARUGADE, POST: AGASUR, TQ: ANKOLA, DIST: UTTARA KANNADA.

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1(F) CHANDRU S/O. KARIYANNA GUNAGA, AGE:55 YEARS, R/O: MARUGADE, POST: AGASUR, TQ: ANKOLA, DIST: UTTARA KANNADA.

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1(G) PUTTI W/O. PARAMESHWARA GOUDA D/O. KARIYANNA GUNAGA, AGE:45 YEARS, R/O: MARUGADE, POST: AGASUR,

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TQ: ANKOLA, DIST: UTTARA KANNADA.

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1(H) SHANTI BELLA GOUDA D/O. KARIYANNA GUNAGA, AGE:43 YEARS, R/O: MARUGADE, POST: AGASUR, TQ: ANKOLA, DIST: UTTARA KANNADA. 1(I) SANNU D/O. KARIYANNA GUNAGA, Age:15 years, MINOR REPRESENTED BY HIS BOTHER RESPONDENT NO.1(A) SHIVARAMU S/O. KARIYANNA GUNAGA, R/O: MARUGADE, POST: AGASUR, TQ: ANKOLA, DIST: UTTARA KANNADA. 1(J) GOPI S/O. KARIYANNA GUNAGA, AGE:14 YEARS, MINOR REPRESENTED BY HIS BOTHER RESPONDENT NO.1(A) SHIVARAMU S/O. KARIYANNA GUNAGA, R/O: MARUGADE, POST: AGASUR, TQ: ANKOLA, DIST: UTTARA KANNADA. 1(K) CHANDRI D/O. KARIYANNA GUNAGA, AGE:13 YEARS, MINOR REPRESENTED BY HIS BOTHER RESPONDENT NO.1(A) SHIVARAMU S/O. KARIYANNA GUNAGA, R/O: MARUGADE, POST: AGASUR, TQ: ANKOLA, DIST: UTTARA KANNADA.

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…RESPONDENTS

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(BY SRI. SRINIVAS NAIK, ADVOCATE FOR R1 (A, C, D TO H); R1 (I TO K) ARE SERVED; R1B(I) IS SERVED; R1 (B)(II) IS MINOR R/BY R1(B)(I))

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE PRAYING THAT THE JUDGMENT AND DECREE DATED 21.12.2005 PASSED IN R.A.NO.29/2004, BY THE DISTRICT JUDGE, FAST TRACK COURT II, UTTARA KANNADA, KARWAR, SETTING ASIDE THE JUDGMENT AND DECREE DATED 30.11.1999 PASSED BY CIVIL JUDGE (JR. DIVISION) ANKOLA, IN O.S.NO.99/1991, MAY KINDLY BE SET ASIDE BY ALLOWING THIS APPEAL AND DECREEING THE SUIT OF THE PLAINTIFF AS PRAYED FOR WITH COST THROUGHOUT IN THE ENDS OF JUSTICE AND EQUITY.

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NC: 2025:KHC-D:7372 RSA No. 740 of 2006

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

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

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This second appeal is by the plaintiff/appellant

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aggrieved by the judgement and order dated 21.12.2005 passed in R.A.No.29/2004 on the file of District Judge, Fast Track Court II, Uttara Kannada, Karwar (First Appellate Court), by which the First Appellate Court while allowing the appeal filed by the defendant/respondent had set aside the judgement and decree dated 30.11.1999 passed by the Civil Judge Junior Division, Ankola (Trial Court) in O.S.No.99/1991.

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The above suit in O.S.No.99/1991 is filed by the plaintiff against the defendant seeking judgment and decree declaring the plaintiff to be the owner of the land bearing Block No.11B measuring 4 acres 20 guntas situated at Marugadde village, Ankola Taluk (schedule property) and for further relief of partition of the said area by metes and bounds and in the alternative for a direction

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for recovery of possession to an extent of 1 acre 8 guntas of land if in the event of the Court coming to the conclusion that the said extent is in possession of defendant through the process of Court and for consequential relief of permanent injunction against the defendant.

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The case of the plaintiff is that the plaintiff and defendant are the Dayadis and original residents of Samguni-Mallani village. That in the year 1960, suit land measuring 4 acres 20 guntas out of 8 acres 8 guntas in Sy.No.11 of Marugadde village was granted to the plaintiff. Similarly, an extent of 3 acres 20 guntas of land in the said survey number was granted to the defendant by the Assistant Commissioner, Kumta. Ever since then, the plaintiff and the defendants have been in possession and enjoyment of their respective portions of lands by constructing residential houses and cowsheds thereon. That in the year 1982, plaintiff had applied for survey and measurement of the suit land to demarcate the

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boundaries. Accordingly, the Additional Director of Land Records, Kumta had surveyed the suit land of plaintiff and defendant in their presence and gave the report. In spite of the same, the defendant without having any right, title and interest over the suit land belonging to the plaintiff, caused interference constraining the plaintiff to file a suit in O.S.No.18/1985 for relief of permanent injunction. A Court Commissioner was appointed in the said suit to measure the land as per the records available with the parties. The Court Commissioner surveyed the land on 27.11.1990 and submitted his report in collusion with the defendant. The said Commissioner without following the directions of the Court and without properly surveying the land of the plaintiff filed a report showing an area of 4 acre 30 guntas of land being in possession of defendant while an area measuring 3 acre 12 guntas being in possession of the plaintiff. Based on the said report, the defendant again interfered and attempted to encroach upon the suit land. Since there were formal defects in the said suit, the plaintiff withdrew the said suit in O.S.No.18/1985 with

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liberty to institute a fresh suit. Accordingly, the present suit seeking substantial relief is filed.

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Defendant filed written statement denying the plaint averments. It is contended that the plaintiff having withdrawn the earlier suit, filed the present suit only to harass the defendant and suit is therefore liable to be

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dismissed on the principle of res-judicata . It is admitted that the defendant was granted an extent of 3 acre 28 guntas land in Block No.11 on 13.04.1962 by the Assistant Commissioner, Kumta. Based on which, the defendant was

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put in possession and the boundaries were demarcated by metes and bounds. Ever since then the defendant has been in possession and enjoyment of the same openly and with the knowledge of the defendant on his own rights without there being any obstructions. Allegation of report

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the Court Commissioner having been prepared in the earlier suit in collusion with the defendant is denied. It is contented that the defendant has been in adverse

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possession of the land from the year 1962 and even on

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the said count, the suit is liable to be dismissed.

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Based on the pleadings, the Trial Court framed

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following issues for its consideration:

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“1. Whether the plaintiff proves that himself and defendant are granted with an area of 4 acres and 20 gunthas and 3 acres and 20 gunthas out of the suit land by the Government?

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2. Whether the plaintiff proves that, he is entitled to an area of 4 acres and 20 gunthas of the suit land by effecting partition, by metes and bounds?

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3. Whether the plaintiff proves that defendant has encroached in the plaintiff’s portion of the suit land?

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4. Whether the plaintiff proves that he is entitled to possession of encroached portion of the suit land, said to have been encroached by the defendant?

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5. Whether the plaintiff is entitled to the relief of permanent injunction against the defendant?

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6. Whether the defendant proves that the suit is hit by principles of res-judicata?

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7. Whether the defendant proves that he has perfected his title to the encroached portion by way adverse possession?

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8. What order or decree?”

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Plaintiff examined himself as PW.1 and

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exhibited 13 documents marked as Ex.P.1 to Ex.P.13.

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Defendant examined three witnesses as DW.1 to DW.3 and exhibited six documents marked as Ex.D.1 to Ex.D.6. On appreciation of evidence, the Trial Court answered issue No.1, 3 to 5 in the affirmative, issue No.2, 6 and 7 in the negative and consequently decreed the suit by its judgment and decree dated 30.11.1999 as prayed for.

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Being aggrieved, the defendant preferred

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Regular Appeal before the First Appellate Court in RA No.29/2004. The First Appellate Court framed the following points for its consideration:

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1. Whether the plaintiff proves the encroachment of his suit property by the defendant? If so what is the extent of encroachment?

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2. Whether the plaintiff is entitled for possession of the encroached area for the defendant?

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3. Whether the plaintiff proves the interference alleged?

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4. Whether the plaintiff is entitled for permanent injunction?

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5. Is the suit of the plaintiff barred by principles of resjudicata?

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6. Whether the defendant has perfected his title to the property by adverse possession?

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7. Is interference to the findings of the trial Court necessary?

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8. What order?

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On re-appreciation of evidence, the First

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Appellate Court answered point No.1 to 6 in the negative, point No.7 in the affirmative and consequently allowed the appeal, set aside the judgement and decree passed by the Trial Court and dismissed the suit. As against which the plaintiff is before this Court.

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This Court by order dated 25.03.2022 framed

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the following substantial questions of law for its

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consideration:

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1. Whether the lower appellate Court has committed an error in not considering the Ex.P.8 the assignment made in favour of plaintiff to an extent of 4 acre 28 guntas of land in Sy. No.11 and the revenue entries shows that the plaintiff is in ownership and possession of the southern portion of land to an extent of 4 acres 28 guntas?

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2. Whether the lower appellate Court was justified in dismissing the suit of the plaintiff, in the light of finding of the Lower Appellate Court (Sic Trial Court), holding that the plaintiffs are entitled for recovery of possession from defendant to the extent of 1 acre 8 guntas as per Ex.P12?

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Counsel for appellants in support of the aforesaid substantial questions of law, submitted that

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there is no dispute with regard to the plaintiff having been

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granted 4 acre 20 guntas of land in the year 1960, while the defendant having been granted 3 acre 28 guntas of land in the year 1962 by the Assistant Commissioner, Kumta. He submits that Ex.P.8 is the grant order under which an extent of 4 acre 20 guntas of land was granted in favour of the plaintiff. That the name of the plaintiff was thus mutated in the revenue records based on the said grant order which continued and reflected the name of the plaintiff to an extent of 4 acre 20 guntas till today. That the dispute was only with regard to actual extent of land

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that was in possession of the plaintiff and defendant which required to have been adjudicated based on actuals. He submits that in the earlier suit that was filed in O.S.No.18/1985, Commissioner who was appointed had

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filed an erroneous report contrary to the admitted claims of the plaintiff as well of the defendants. In that, the report of the said Commissioner had reflected plaintiff being in possession of 3 acre 20 guntas of land while the defendant being in possession of 4 acre 20 guntas of land.

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Even the locations of the land were also shown interchangeably wherein instead of showing northern portion being in possession of the defendant, the Commissioner had shown the plaintiff’s possession to be in the northern side and the defendant possession which ought to have been on the northern side is shown as on the southern side. He submits that the specific pleading with regard to erroneous report that had been filed in the earlier suit has been made in the plaint in the present suit. However, the First Appellate Court while dealing with point No.5 at paragraph Nos.14 and 15 of the impugned judgment has relied upon the said Commissioner report that had been filed in the previous suit, thereby committed material irregularity in appreciating the evidence and the pleading resulting in perversity in the judgement.

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Per contra, counsel for the respondents submits

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that though the grants have been made in the year 1960 and 1962 in favour of the plaintiff and the defendant respectively, the parties have been in possession to the

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extent different from what is granted. The report in the earlier suit in O.S.No.18/1985 was based on actual possession of the parties which cannot be found fault with and the same has been rightly taken note of by the First Appellate Court and no substantial question of law would therefore arise in the matter. Hence, seeks for dismissal of the appeal.

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Heard. Perused the records.

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This Court by order dated 19.09.2024 taking note of the submissions made by the counsel for appellant as well as respondent, had directed the Additional Director of Land Records and Tahasildar, Ankola to measure the lands and demarcate the lands of the appellant and the respondent and to submit a report to the Court. In furtherance thereof, the Office of Additional Director of Land Records, by communication dated 18.01.2025 has forwarded a report along with the statements of appellant and respondent recorded during the inspection and has also submitted a survey sketch. It is reported that the land

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bearing No.11 of Marugadde village has been registered in the records of rights as 11A and 11B. Land bearing No.11A is shown in the name of the defendant with measurement of 3 acre 28 guntas including 27 guntas of Kharab land, while land bearing No.11B is shown in the name of the plaintiff with measurement as 4 acre 20 guntas and the revenue records do not indicate any encroachment by any of parties. However, the survey sketch which is enclosed along with the report would indicate that defendant being in possession of an extent of 5-09-08 land forming part of Block No.11A, while the plaintiff is shown to be in possession of an extent of 2-38-08 land forming part of Block No.11B. No objection to the said report is filed by defendant. Same is taken on record.

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On perusal of the reasoning assigned by Trial Court with reference to the suit documents and the report now submitted by the Additional Director of Land Records as noted above, would only lead to an inference that the defendant who had been admittedly granted only an

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extent of 3 acre 20 guntas of land is in possession of land in excess of his entitlement. Inasmuch as there is no dispute with regard to the extent of land which was granted in favour of the plaintiff and defendant, as noted above, the only factual issue that was required to be ascertained by the First Appellate Court was the actual extent of the land in possession of the plaintiff and defendant respectively.

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As rightly pointed out by learned counsel for the plaintiff the First Appellate Court has relied upon the report of the Commissioner that had been filed in the earlier suit in O.S.No.18/1985 which was withdrawn and the present suit was filed with specific averment that the earlier Commissioner report was erroneous and collusive. The First Appellate Court has not adverted to this aspect of the matter while allowing the appeal filed by the defendant and reversing the judgment and decree passed by the Trial Court. There is no appreciation of documents at Ex.P.8 and Ex.P.12 by the First Appellate Court. In the

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light of the present report which is filed by the Additional Director of Land Records which is in alignment and in line with the grant orders and the survey records and inconsonance with the reasoning and conclusion arrived at by the Trial Court, the appellant has made out a case for interference. The substantial questions of law are answered in favour of the plaintiff/appellant.

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16. Accordingly, the following:

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ORDER

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i. Appeal filed by the plaintiff/appellant is allowed with cost.

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ii. Impugned order dated 21.12.2005 passed in R.A.No.29/2004 on the file of District Judge, Fast Track Court II, Uttara Kannada, Karwar is set aside.

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iii. Judgment and decree in O.S.No.99/1991 dated

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30.11.1999 passed by the Civil Judge (Jr.Dn.), Ankola is confirmed.