Karnataka High Court
Mallikarjun Shivappa Puttanagoudar vs Basappa Mounappa Kammar on 18 January, 2023
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 100746 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 100746 OF 2014 (DEC-)
BETWEEN:
1. MALLIKARJUN SHIVAPPA PUTTANAGOUDAR
AGE 47 YEARS, OCC:AGRICULTURIST
R/O HEDIGGOND, TQ. BYADAGI,
DIST HAVERI-581110.
2. SURESH SHIVAPPA PUTTANAGOUDAR
AGE 45 YEARS,OCC:AGRICULTURIST
R/O : HEDIGGOND, TQ. BYADAGI,
DIST. HAVERI-581110.
3. MAHADEVAPPA SHIVAPPA PUTTANAGOUDAR
AGE 43 YEARS,OCC:AGRICULTURIST
R/O : HEDIGGOND, TQ BYADAGI,
DIST HAVERI-581110
SMT. DRAKSHAYANI W/O SHIVAPPA
PUTTANAGOUDAR
DIED ON 09-01-2014 LEAVING
BEHIND APPELLANTS NO.1 TO 3
AS HER LEGAL HEIRS
...APPELLANTS
(BY SRI. S N BANAKAR & SRI.ZINGESH V.KATTIMANI, ADVS.)
AND:
1. BASAVANNEPPA MOTHER DYAMAVVA HALAGERI,
AGE 57 YEARS, OCC: AGRICULTURIST,
R/O : HEDIGGOND, TQ BYADAGI,
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RSA No. 100746 of 2014
DIST HAVERI-581110
2. KALLAPPA MOTHER DYAMAVVA HALAGERI
AGE 52 YEARS,OCC:AGRICULTURISTM
R/O. HEDIGGOND TQ. BYADAGI,
DIST HAVERI-581110.
3. MAHADEVAPPA MOTHER DYAMAVVA HALAGERI
AGE 47 YEARS,OCC:AGRICULTURIST,
R/O : HEDIGGOND, TQ BYADAGI,
DIST HAVERI-581110.
4. KALLAPPA BASAVANNEPPA AMBALI
AGE 57 YEARS,OCC:AGRICULTURIST,
R/O : HEDIGGOND, TQ BYADAGI,
DIST. HAVERI-581110.
5. SALEPPA BASAVANNEPPA AMBALI
SINCE DECEASED BY HIS L.RS
5a. SMT. GIGIRAVVA W/O SALIGOUDA
SALEPPA AMBALI,
AGE 69 YEARS, OCC HOUSEHOLD WORK,
R/O : HEDIGGOND, TQ. BYADAGI,
DIST. HAVERI-581110.
5b. SMT. LALITHAVVA W/O ISHAPPA KERODI
AGE 49 YEARS, OCC : HOUSEHOLD WORK,
R/O : ASUNDI, TQ RANEBENNUR,
DIST HAVERI-581110.
5c. KARABASAPPA S/O SALIGOUDA @ SALEPPA
AMBALI
AGE 44 YEARS, OCC : AGRICULTURIST,
R/O : HEDIGGOND, TQ BYADAGI,
DIST HAVERI-581110.
5d. SMT NEELAVVA W/O NAGANAGOUDA TOTHAD
AGE 40 YEARS, OCC : AGRICULTURIST,
R/O : HEDIGGOND, TQ. BYADAGI,
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RSA No. 100746 of 2014
DIST HAVERI-581110.
(CLAIM AGAINST R5(d) IS GIVEN UP VIDE O/D
20.03.2019)
5e. SMT. SHANTA W/O BASAVARAJ KATENAHALLI
AGE 36 YEARS, OCC: HOUSEHOLD
WORK, R/O : HANSBHAVI,
TQ. HIREKERUR, DIST: HAVERI-581110.
6. TIPPANNA A/F BASAVANTAPPA KAMMAR
AGE 35 YEARS, OCC : AGRICULTURIST,
R/O : HEDIGGOND, TQ BYADAGI,
DIST: HAVERI-581110.
7. BASAVANYAPPA IRAPPA MALLAPUR
AGE 71 YEARS, OCC : AGRI,
R/O : HEDIGGOND, TQ BYADAGI,
DIST HAVERI-581110.
8. SHANKRAPPA IRAPPA MALLAPUR
AGE: 49 YEARS, OCC: AGRI,
R/O. HEDIGGOND, TQ: BYADAGI,
DIST: HAVERI-581110.
9. SIDDAPPA IRAPPA MALLAPUR
AGE 42 YEARS, OCC : AGRI,
R/O : HEDIGGOND, TQ BYADAGI,
DIST HAVERI-581110.
10. CHANNABASAPPA ERAPPA MALLAPUR
AGE: 43 YEARS, OCC:COOLIE,
R/O. HEDIGONDA, TQ:BYADAGI
DIST:HAVERI 581 110.
(CLAIM AGAINST R5(d) IS GIVEN UP VIDE O/D
20.03.2019)
11 SHIVAPUTRAPPA CHANNABASAPPA AMBALI
SINCE DECEASED BY HIS LRS,
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RSA No. 100746 of 2014
11a. SMT. MAHADEVAKKA W/O SHIVAPUTRAPPA
AMBALI,
SINCE DECEASED BY HER LRS.
RESPONDENT No.11b. IS THE LR OF RESPONDENT
No.11a.
11b. SHARANAPPA S/O SHIVAPUTRAPPA AMBALI
AGE 30 YEARS, OCC: AGRI,
R/O : HEDIGGOND, TQ BYADAGI,
DIST HAVERI-581110.
11c. CHANNABASAPPA S/O SHIVAPUTRAPPA AMBALI
AGE 28 YEARS, OCC:AGRI,
R/O : HEDIGGOND, TQ BYADAGI,
DIST HAVERI-581110.
12. BASAPPA MOUNAPPA KAMMAR
AGE 52 YEARS, OCC: AGRI,
R/O : HEDIGGOND, TQ BYADAGI,
DIST HAVERI-581110.
...RESPONDENTS
(BY SRI.HARSHAWARDHAN M PATIL, ADV.
FOR SHRI.M H PATIL, ADV. FOR R1 TO R4, R5(c);
NOTICE TO R6, R7, R9, R11(b), R5(a), R5(b), R5(e), R8,
R11(c), R12 ARE SERVED;
R10-DECEASED; R11(a)-DECEASED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 02.09.2014
PASSED IN R.A.NO.33/2010 ON THE FILE OF THE SENIOR
CIVIL JUDGE, BYADGI, ALLOWING THE APPEAL AND SETTING
ASIDE THE APPEAL, FILED AGAINST THE JUDGMENT AND
DECREE DATED 30.06.2010 AND THE DECREE PASSED INI
O.S.NO.44/2002 ON THE FILE OF THE CIVIL JUDGE AND JMFC,
BYADGI, DECREEING THE SUIT FILED FOR DECLARATION AND
POSSESSION.
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RSA No. 100746 of 2014
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Present appeal is filed by the plaintiffs No.1 to 4, aggrieved by the judgment and order dated 02.09.2014, passed in R.A.No.33/2010, on the file of the Senior Civil Judge, IT Court, Byadagi (hereinafter referred to as 'the First Appellate Court'), by which, the First Appellate Court while allowing the appeal filed by the defendants, set aside the judgment and decree dated 30.06.2010 passed in O.S.No.44/2002, on the file of the Civil Judge and JMFC, Byadagi (hereinafter referred to as 'the Trial Court').
2. The parties are referred to as per their rankings before the Trial Court.
3. The above suit is filed by the plaintiffs for relief of declaration and possession contending inter alia that the suit land being land bearing Sy.No.49/6 measuring 6 acres 16 guntas situated at Heddigonda village, Byadagi taluk, -6- RSA No. 100746 of 2014 Haveri district, is the ancestral property, which is succeeded by the plaintiffs. That the said land was granted to their father as per the order of the Land Tribunal in the year 1977 and that the said land is in possession and cultivation of the family members of the plaintiffs. That during the year 1999, the plaintiffs for the purpose of providing treatment to their father, who was suffering from paralysis were moving from place to place. That in the absence of plaintiffs, defendants No.1 to 9 had encroached an extent of 14 guntas towards the Eastern side of the suit land and defendants No.10 to 12 had encroached an extent of 2 guntas of land towards its Southern side. Having realized the reduction of extent of suit land, the plaintiffs applied for a survey, fixing the boundary and preparing of P.T. sheet of their lands in the year 2001. Accordingly, after issuing notices to the plaintiffs and the defendants, survey and measurement was conducted by the Taluka Surveyor vide order No.BDGH-75/2000-2001 on 29.05.2001 in the presence of -7- RSA No. 100746 of 2014 the plaintiffs and the defendants. That during the survey, it was found that an extent of 14 guntas towards Eastern side and 2 guntas towards the Southern side of the suit lands was encroached by defendants No.1 to 9 and 10 to 12 respectively.
4. That the defendants had not handed over the encroached portion of the land belonging to the plaintiffs. The defendants being in illegal occupation of the said portion of the suit lands, deprived the plaintiffs of receiving their annual income of Rs.2000/-. Since the defendants refused to handover encroached portion of the suit land to plaintiffs despite several requests, plaintiffs filed the above suit, suit seeking relief declaration of their ownership and also to recover portion of 14 guntas on the Eastern side and 2 guntas of land on the Southern side of suit land encroached upon by the defendants and for mesne profits.
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5. Though defendants have appeared through their respective counsel, only defendant No.11 filed his written statement, which has been adopted by other defendants. While denying the paint averments, it is contended by the defendants that the suit of the plaintiffs is barred by law of limitation. It is further specifically contended that the land in R.S.No.48 of Hedigonda village was converted to non-agricultural purposes in the year 1940-41 and the measurement of the said converted land was 5 acres 33 guntas by merging 33 guntas of the land in R.S.No.49 and the said fact was known to the original owner of land in R.S.No.49. The land in R.S.No.48 measuring 5 acres 33 guntas was in use and enjoyment of the defendants without any interruption peacefully and continuously and the defendants never encroached the suit land. Hence, sought for dismissal of the suit.
6. Based on the aforesaid pleadings, the Trial Court framed the following issues:
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1. Whether the plaintiffs prove that they are the owners of RS No.49/6 measuring 6 acres, 6 guntas?
2. Whether the plaintiffs prove that defendants have illegally encroached 0-14-0 to the east, and defendants 10 to 12 encroached 0-2-0 guntas in Sy.R.49-6 as alleged?
3. Whether defendants prove that suit of the plaintiffs is barred by limitation?
4. Whether plaintiffs prove that they are entitled for mesne profits as pleaded?
5. Whether plaintiffs prove that they are entitled for the reliefs as claimed?
7. The plaintiffs examined 3 witnesses as PWs.1 to 3 and exhibited 9 documents marked as Exs.P1 to P9. 3 witnesses have been examined as DWs.1 to 3 on behalf of the defendants and 16 documents are produced and marked as Exs.D1 to D16.
8. On appreciation of evidence, the Trial Court answered issue Nos.1, 2, 4 and 5 in the affirmative and issue No.3 in the negative and consequently decreed the suit of the plaintiffs declaring them to be the owners of suit lands as shown as 'ABCDEF' in the hand sketch and further directed recovery of possession of 14 guntas of suit
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RSA No. 100746 of 2014 land from defendants No.1 to 9 and 2 guntas of suit land from defendants No.10 to 12 and also declared that plaintiffs are entitled for mesne profits at the rate of Rs.2000/- per year from the date of filing of the suit, till recovery of possession. Aggrieved by the aforesaid judgment and decree, the defendants filed regular appeal in R.A.No.33/2010, before the First Appellate Court.
9. Considering the grounds urged, the First Appellate Court framed the following points for its consideration:
1. Whether plaintiffs prove that they are the owner of RS No.49/6 measuring 6-a 16 g?
2. Whether plaintiffs prove that plaintiffs have illegally encroached 0-14-0 to the east and defendants 10 to 12 encroached 0-2-0 guntas in SY R.49/6 as alleged?
3. Whether defendants prove that suit of the plaintiffs is barred by limitation?
4. Whether plaintiffs prove that they are entitled for mesne profits as pleaded?
5. Whether plaintiffs prove that they are entitled for the relief as claimed?
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RSA No. 100746 of 2014
6. Whether the judgment passed by lower court is perverse, capricious, illegal one and opposed to the facts and circumstances of the case?
7. Whether there are sufficient grounds for interfering with the judgment and decree passed by the trial court?
8. To what order or decree?
10. The First Appellate Court on re-appreciation of the evidence, answered point Nos.1 to 5 in the negative and point Nos.6 and 7 in the affirmative and consequently allowed the appeal of the defendants setting aside the judgment and decree passed by the Trial Court by its judgment and order dated 02.09.2014.
11. This Court by its order dated 10.03.2017, admitted the present appeal for consideration on the following substantial question of law:
"Whether the First Appellate Court is legally justified in reversing the judgment of the trial Court by ignoring the presumptive value of the revenue record of rights, and that the survey sketch, i.e.PT sheet, Ex.P9, has not been challenged by the defendant according to Section 61 of the Karnataka Land Revenue Act?"
12. Sri.S.N.Banakar, learned counsel for the appellants reiterating the grounds urged in the
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RSA No. 100746 of 2014 memorandum of appeal submitted that the case of the plaintiffs being owners and in possession of land in R.S.No.49/6 measuring 6 acres 16 guntas, has not been denied by the defendants. That the names of plaintiffs have been reflected in the revenue record in respect of suit land as per Exs.P1 to P8. That the entries in the revenue records carrying presumptive value, unless rebutted by the opponents by leading cogent evidence and in the instant case, since there is no dispute of plaintiffs being the absolute owners of the land in Sy.No.49/6, measuring 6 acres 16 guntas, the First Appellate Court grossly erred in not taking into consideration Exs.P1 to P8, Survey Sketch. PT sheet-Ex.P9 is prepared by Taluka Surveyor in accordance with the provisions of the Karnataka Land Revenue Act, 1964. That the said survey sketch has not been challenged. The said survey is conducted fixing boundary in the presence of the defendants in the manner known to law. That the Civil Court has no jurisdiction to adjudicate upon the validity or
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RSA No. 100746 of 2014 otherwise by the survey conducted under the Land Revenue Act, 1964. The defendants not having challenged the said survey records, the First Appellate Court erred in declining to rely upon the PT sheet-Ex.P9. That the reasoning given by the First Appellate Court is without appreciation of evidence and the same therefore suffers from perversity.
13. Learned counsel for the appellants relies upon the judgment of this Court in the case of The State of Karnataka and Others Vs.Smt.H.J.Shakunthalamma reported in 2008 (1) KCCR 16 to buttress his submission with regard to exclusive jurisdiction of the Revenue Courts in the matter pertaining to survey and fixing of boundaries. Thus, he submits that substantial question of law raised for consideration of the appeal needs to be answered in favour of the appellants in the affirmative, by allowing the appeal.
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RSA No. 100746 of 2014
14. Per contra, Sri.Harshawardhan M. Patil, learned counsel for the defendants submits that the First Appellate Court on re-appreciation of evidence, more particularly the PT Sheet at Ex.P9, has held that the pleading and the evidence of the plaintiffs are contradictory to each other. He submits that even PW1 in his evidence has categorically admitted that the extent of property in possession is the same as it was since the year 1940. That in the light of the said admission by PW1, nothing remained for consideration. Further referring to the deposition of PW2, the Surveyor, learned counsel points out that the said witness has categorically admitted that he is not able to specifically point out who has encroached upon the portions of the suit land. He further submits that the First Appellate Court having taken into consideration the mode and method of conducting the survey, which is not in accordance with law, has come to just conclusion of warranting no interference. The substantial question of law
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RSA No. 100746 of 2014 raised needs to be answered in the negative in favour of the respondents, dismissing the appeal.
15. Heard the learned counsel for the parties. Perused the records.
16. As noted above, the plaintiffs filed the suit for declaration, possession and for mesne profit. It is the specific case of the plaintiffs that they are the owners of land in Sy.No.49/6 measuring 6 acres 16 guntas and that an extent of 14 guntas of land forming part of eastern side of suit land has been encroached upon by defendants No.1 to 9 and an extent of 2 guntas of land forming part of southern side of the suit land has been encroached by the defendants No.10 to 12.
17. At paragraph 7 of the plaint, plaintiffs apart from pleading as above, have specifically pleaded that they have caused survey of the suit land to be done by the Taluka Surveyor, who has surveyed the land and fixed the boundaries, pointing out the encroachment as noted
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RSA No. 100746 of 2014 above. The plaintiffs have produced Ex.P1, the RTC reflecting their names and the extent of land owned by them. The defendants have not challenged or disputed the said document. Ex.P9- PT sheet, is prepared by the Director of Land Records in respect of the land in survey No.49/6. In the said PT sheet, on the eastern side, an extent of 14 guntas is shown to have been encroached and on the southern side an extent of 2 guntas of land is shown to have been encroached. The said encroached portions have been delineated and coloured in Blue and Orange respectively. The details of measurement of the said extent encroached is also shown. The author of the said document namely PW2 has been examined, who has deposed about he conducting survey and fixing boundaries. The Trial Court taking into concentration the aforesaid evidence more particularly Ex.P9, has come to the conclusion that there is encroachment of 14 guntas of land forming part of eastern side of suit land by defendants No.1 to 9 and 2 guntas of land forming part of
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RSA No. 100746 of 2014 southern side of suit land by defendants No.10 to 12 and consequently decreed the suit.
18. The First Appellate Court has declined to rely upon Ex.P1, on the premise that the plaintiffs though claimed that suit property was a granted land in favour of their father, had not produced the Grand Certificate. The First Appellate Court also opined that RTC produced is of the year 2001 and the suit is filed in the year 2002. Since the plaintiffs had not produced the revenue records of the year in which the suit is filed, the First Appellate Court declined to accept the said documents. As regards Ex.P9- PT sheet is concerned, the First Appellate Court declined to take into consideration the said document for the reason that the plaintiffs had not produced the notices that were issued to the defendants prior to conducting the survey. The First Appellate Court is also of the view that the plaintiffs had not produced the mahazar report to evidence the fact that the survey was conducted in the presence of plaintiffs and defendants.
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RSA No. 100746 of 2014
19. At paragraph 22 of the impugned judgment, the First Appellate Court has held as under:
"22. On perusal of Ex.P9-PT sheet, the surveyor has shown the encroachment made by defendants in blue and orange color. In the right side of the said PT sheet he state that the area shown in the blue color which is towards east side of the plaintiffs property, defendants have encroached to the extent of 6 acres. In sketch it is shown as 12 guntas. Similarly the area which is shown in orange color towards south of the plaintiffs property there is encroachment of about 6 acres 29 guntas. Where as according to plaint averments there is encroachment of 14 guntas towards eastern side and 2 guntas towards southern side. It shows that PT sheet is contrary to his own pleadings."
20. The First Appellate Court has also relied upon the cross-examination of witnesses and has thus come to the conclusion that the plaintiffs failed to prove the ownership over the suit property and encroachment as claimed in the plaint. However, the First Appellate Court has negated the contention of the defendants of the suit having barred by limitation.
21. As noted above, the claim of the plaintiffs over the suit land in Sy.No.49/6 measuring 6 acres 16 guntas is not disputed by the defendants. The case of the
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RSA No. 100746 of 2014 defendants is that they are the owners of the land in Sy.No.48. At paragraph 2 of the plaint, the plaintiff has given the description of the suit property which is as under:
zÁªÁ D¹ÛAiÀÄ ªÀtð£É:
ºÁªÉÃj f Áè ¨ÁåqÀV vÁ®ÆPÀ ¥ÉÊQ ºÉrUÉÆäAqÀ UÁæªÀÄzÀ d«ÄãÀÄ CzÀgÀ j.¸À.£ÀA.49/6 PÉëÃvÀæ, 6J-16UÀÄA DPÁgÀ 6gÀÆ- 91 ¥ÉÊ¸É £ÉÃzÀÝgÀ ZÉPÀ̧A¢:
¥ÀƪÀðPÉÌ : ¥ÀæwªÁ¢ £ÀA.1 jAzÁ 9 £ÉÃzÀªÀgÀ D¹ÛUÀ¼ÀÄ ¥À²ÑªÀÄPÉÌ : 1) «ÃAiÀiÁå §¸ÀªÀuÉÚAiÀÄå »gÉêÀÄoÀ ªÀÄvÀÄÛ CªÀgÀ CtÚvÀªÀÄäA¢gÀ d«ÄãÀÄ j.¸À.£ÀA.49/1+2+3+4+5 GvÀÛgÀPÉÌ : ¨ÁåqÀV - PÉʸÀ£ÀÆgÀ gÀ¸ÉÛ zÀQÌtPÉÌ : ¥ÀæwªÁ¢ £ÀA.10 jAzÀ 12£ÉÃzÀªÀgÀ d«ÄãÀÄ
22. The description of suit property as given in the plaint is not denied by the defendants. The defendants No.1 to 9 being on the Eastern side and defendants No.10 to 12 being on the Southern side of the suit land is not disputed. Further in cross-examination recorded on 11.09.2008, DW1 has admitted that suit land is in R.S.No.49/6 measuring 6 acres 16 guntas. It is also admitted that Shivappa father of plaintiffs, was the
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RSA No. 100746 of 2014 grantee of the suit land and that he was cultivating the same. In the cross-examination recorded on 03.06.2009, DW1 has admitted regarding receipt of notice by plaintiffs and defendants from the office of Surveyor on 29.05.2004 for the purpose of survey and measurement of suit land.
23. It is necessary to note that in response to the specific pleading in the plaint at paragraph 7, wherein the plaintiffs have pleaded about the encroachment and conducting of survey prior to filing of the suit, the defendants at paragraph 7 of their written statement have made bald and general denial. It is also necessary to see that in the entire written statement, the defendants have not denied plaintiffs causing survey and fixing boundaries of the suit land through Taluka Surveyor as per Ex.P9. The said document has not been denied. The author of the said document namely PW2 has been examined. There is no denial of PW2 conducting survey. Merely because PW2 was not able to state as to who has encroached upon the
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RSA No. 100746 of 2014 portions of the suit land, the authenticity of the said document cannot be taken away. In fact, in the survey sketch at Ex.P9, there are names of some of the defendants who have encroached upon the said suit land. In any case, it was not for PW2 who is appointed as Surveyor, to depose as to who are the encroachers of said portions. PW2 was only required to survey the land belonging to the plaintiffs, fix the boundaries and finding out if there is any encroachment and nothing more.
24. As rightly contended by the learned counsel for the appellants, relying upon the judgment of this Court in the case of H.J.Shakunthalamma (supra), any challenge or dispute to the survey and fixing of boundary can only be made before the Revenue Courts, who are vested with exclusive jurisdiction under Section 61 of the Land Revenue Act, 1964 and the jurisdiction of Civil Court has been expressly barred.
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RSA No. 100746 of 2014
25. In the instant case, as noted above, plaintiffs at paragraph 7 of the plaint have specifically pleaded about they obtaining survey report and fixing boundaries in terms of Ex.P9. The authentication of the said document has been examined by PW2. As noted above, till date, there has been no challenge or dispute to the said survey and fixing of boundaries by PW2 in terms of Ex.P9 in the manner required to be done under the Land Revenue Act, 1964. There is no reason why the First Appellate Court could not or did not take the said document into consideration. In the light of categoric admission by defendant No.1 regarding receipt of notice from the office of Surveyor, as noted above, the reasoning adopted by the First Appellate Court that the plaintiffs had not produced the notices and the mahazar report to evidence that survey was conducted in the presence of the plaintiffs and the defendants, in the considered view of this Court cannot be countenanced. As already noted above, since there is no specific denial by the defendants with regard to
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RSA No. 100746 of 2014 the pleadings at paragraph 7 of the plaint, the same did not meet the requirement of Order VIII Rule 3 of CPC warranting specific denial of the facts by the defendants, the First Appellate Court has not adverted to this aspect of the matter.
26. Further Section 133 of the Karnataka Land Revenue Act,1964 provides that "an entry in the Record of Rights and a certified entry in the Register of Mutations or in the patta book shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor". In the instant case, firstly, there is no denial of the right, title or interest over the suit schedule property by the plaintiffs; secondly, there is no rebuttal evidence rebutting the statutory presumption provided as above with regard to the revenue entries. The First Appellate Court has committed an error in not appreciating this aspect of the matter, while declining to appropriate the revenue entries. Besides, the DW1 in his deposition admitted regarding suit land having
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RSA No. 100746 of 2014 been granted in favour of the father of the plaintiffs and he being in possession and cultivation of land.
27. The reasoning given by the First Appellate Court at paragraph 22 of its judgment as extracted hereinabove, is contrary to the contents of Ex.P9. The area mentioned in Blue and Orange colour is 14 guntas and 2 guntas respectively shown as encroached area. There is no contradiction in area mentioned in the plaint and in the Ex.P9. The First Appellate Court erred in not reading the contents of the document. The encroached area has been delineated and demarcated in the sketch at Ex.P9. In the cross-examination of PW2, there has been no suggestion regarding the purported contradiction, which the First Appellate Court has mentioned at paragraph 22 of the judgment.
28. For the aforesaid reasons and analysis, substantial question of law needs to be answered in the negative. Accordingly, the following:
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RSA No. 100746 of 2014
ORDER
i) The appeal is allowed.
ii) Judgment and order dated 02.09.2014, passed in R.A.No.33/2010, on the file of the Senior Civil Judge, IT Court, Byadgi, is set aside and the judgment and decree dated 30.06.2010 passed by the Trial Court in O.S.No.44/2022, on the file of the Civil Judge and JMFC, Byadgi, is confirmed.
Sd/-
JUDGE KGK List No.: 1 Sl No.: 7