Karnataka High Court
Mr A Paul Rodrigues vs Mr Dolphi Saldanha on 31 August, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC:31318
RSA No. 821 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 821 OF 2021 (INJ)
BETWEEN:
1. MR. A.PAUL RODRIGUES
S/O. SANTHAN RODRIGUES
AGED ABOUT 74 YEARS,
RESIDING AT MELTHOTA HOUSE
PADAVU VILLAGE, KULSHEKAR
MANGALORE TALUK-575 005.
SINCE DECEASED THE APPELLANT
IS REPRESENTED BY LEGAL HEIRS
1(a) MRS. EMILLIANA RODRIGUES
AGED ABOUT 71 YEARS
W/O. MR. PAUL RODRIGUES
RESIDING AT MELTHOTA HOUSE
PADAVU VILLAGE, KULSHEKAR
MANGALORE TALUK-575 005.
Digitally signed
by SHARANYA T 1(b) MRS. PAMELA RODRIGUES
Location: HIGH AGED ABOUT 46 YEARS
COURT OF
KARNATAKA D/O. MR. PAUL RODRIGUES
RESIDING AT MELTHOTA HOUSE
PADAVU VILLAGE, KULSHEKAR
MANGALORE TALUK-575 005.
1(c) MRS. SONIA RODRIGUES PINTO
AGED ABOUT 43 YEARS
D/O. MR. PAUL RODRIGUES
RESIDING AT MELTHOTA HOUSE
PADAVU VILLAGE, KULSHEKAR
MANGALORE TALUK-575 005.
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NC: 2023:KHC:31318
RSA No. 821 of 2021
1(d) MR. BRIAN RAVI PAUL RODRIGUES
AGED ABOUT 48 YEARS
S/O. LATE PAUL RODRIGUES
RESIDING AT 20-64
CHURCH COMPOUND
3RD CROSS
OPP SACRED HEART SCHOOL
KULSHEKAR
MANGALORE TALUK-575 005.
...APPELLANTS
(BY SRI NITIN A M., ADVOCATE FOR A1 (a) - (d))
AND:
1. MR. DOLPHI SALDANHA
AGED ABOUT 65 YEARS,
S/O. LATE JOHN SALDANHA
R/AT CHEZELLE MELTHOTA
PADAVU VILLAGE, KULASHEKAR
MANGALORE-575 005.
2. MR. ROSARIO OSWALD SALDANHA
AGED ABOUT 72 YEARS,
S/O. LATE JOHN SALDANHA
R/AT OSLEEN, KASABA BAZAR VILLAGE,
DARBE, PUTUR-574 202.
...RESPONDENTS
(BY SRI NANDISH PATEL, ADVOCATE FOR R1 & R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC 1908
AGAINST THE JUDGMENT AND DECREE DATED 27.09.2021
PASSED IN RA.NO.35/2020 ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MANGALURU,
D.K., ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 29.11.2019 PASSED IN
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NC: 2023:KHC:31318
RSA No. 821 of 2021
OS.NO.226/2014 ON THE FILE OF THE I ADDITIONAL CIVIL
JUDGE, MANGALURU, D.K.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and learned counsel for the respondents.
2. The matter is listed for admission and this Court, while hearing the matter for admission on 21.03.2022, having considered the dispute between the parties, observed that the appeal essentially revolves round the dispute regarding boundaries of R.S.No.197/1B2 in No.79 of Padavu Village and Sy.No.139/3B1 in No.79 of Padavu Village.
3. Admittedly, the plaintiff has filed the suit contending that defendants are encroaching from the northern side of the land in Sy.No.197/1B2, while the defendants claim that it is the plaintiff, who is encroaching from southern side of Sy.No.139/3B1. Having considered the said averments, in order to put an end to the dispute, this Court found that it is imminent that a Revenue Surveyor be appointed to identify the -4- NC: 2023:KHC:31318 RSA No. 821 of 2021 limits of Sy.Nos.197/1B2 and 139/3B1. Hence, directed the Assistant Director of Land Records, Mangaluru Taluk ("the ADLR" for short) to conduct a survey and fix the boundaries of Sy.Nos.197/1B2 and 139/3B1 and further directed that, if it is found that a revenue survey is not possible, then the ADLR, City Survey, Mangaluru Taluk to conduct such survey and based on the available maps, fix the boundaries of aforesaid survey numbers and directed the parties to be present at the spot. Accordingly, the ADLR has conducted spot inspection and has submitted a report identifying the properties of the respective parties and the same is taken on record.
4. No doubt, the learned counsel for the appellants also filed statement of objection to the said report, the fact that plaintiff filed the suit for the relief of permanent injunction is not in dispute, wherein in the boundaries mentioned in the suit, he has categorically mentioned that on the northern side, there is a survey line and land belonging to the defendants i.e., Sy.No.139/3B1. The ADLR, who was directed to conduct a survey has only identified and marked both the survey numbers i.e., Sy.Nos.197/1B2 and 139/3B1 and no dispute with regard to the fact that there is a survey line between both the -5- NC: 2023:KHC:31318 RSA No. 821 of 2021 properties and also, there is no dispute with regard to the title is concerned and the only allegation is that the parties are encroaching upon each others property. Further the property of the plaintiff i.e., Sy.No.197/1B2 and the property of the defendants i.e., Sy.No.139/3B1 are demarcated in the ADLR report that both the parties are separated by a survey line and in the plaint also, the plaintiff has shown that in the northern boundary, there exists a survey line. When such being the case and the survey line is demarcating the property of the plaintiff and the defendants, the question of either the plaintiff encroaching the property of the defendants or the defendants encroaching the property of the plaintiff does not arise since, the property is demarcated by the survey line.
5. Though the appellants have filed statement of objection to ADLR Report and in the report of the ADLR also, nothing is stated about encroachment made by either the plaintiff or the defendants and when the only work entrusted was to identify and demarcate the boundaries in Sy.Nos.197/1B2 and 139/3B1 and no doubt, in Sy.No.197/1B2 also, portion of the property of the plaintiff is also attached to Sy.No.197/1B1 and so also in respect of Sy.No.139/3B1, the -6- NC: 2023:KHC:31318 RSA No. 821 of 2021 southern portion, the survey sketch prepared by ADLR is clearly demarcating the property belonging to the defendants. When such being the case, the plaintiff and the defendants have to enjoy their property in terms of the sketch which is prepared by the Surveyor i.e., ADLR as identified by the ADLR in terms of the order passed and in view of this sketch prepared by the ADLR and the same is also earmarked in the sketch showing the property of the plaintiff and the defendants which is in existence and not to encroach upon either the property of the plaintiff or the property of the defendants and in between the two properties, there is a survey line and they have to enjoy their property to the extent they are eligible when the property is demarcated by the survey line which is also mentioned in the northern boundary of the plaint. Hence, the survey sketch is also made part of the judgment i.e., ADLR Sketch, in order to avoid future dispute between the parties.
6. Accordingly, the second appeal is disposed of by concluding that the property of the plaintiff as well as the defendants has been demarcated in view of the report of the ADLR and either of the parties are directed not to encroach -7- NC: 2023:KHC:31318 RSA No. 821 of 2021 upon each other property and enjoy the property as demarcated by the ADLR in the survey sketch.
Accordingly, the second appeal is disposed off.
Sd/-
JUDGE ST List No.: 1 Sl No.: 72