Karnataka High Court
Ajit Bharamappa Akki vs Venkanagouda Hanmanthgouda Salmani on 11 July, 2023
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RSA No. 273 of 2008
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
REGULAR SECOND APPEAL NO. 273 OF 2008
BETWEEN:
1. AJIT BHARAMAPPA AKKI
AGE: 32 YEARS OCC:BUSINESS
2. BHARAMAPPA JAIKIRTEPPA AKKI
AGE: 72 YEARS OCC:BUSINESS
SINCE DECEASED BY LRs
2(a) DHANAPAL S/O BHARAMAPPA
Digitally
signed by AKKI AGE:56 YEARS, OCC:BUSINESS
POOJA
POOJA DEELIP R/O: ANTURBENTUR, TQ: GADAG
DEELIP SAVANUR
SAVANUR Date: DIST: GADAG.
2023.07.13
11:20:54 -
0700
2(b) RAVI S/O BHARAMAPPA AKKI
AGE: 53 YEARS, OCC: BUSINESS
R/O: GUDAGERI, TQ: KUNDAGOL
DIST: DHARWAD.
2(c) CHANDRAKANTH S/O BHARAMAPPA AKKI
AGE: 51 YEARS, OCC: COOLIE
R/O: GUDAGERI, TQ: KUNDAGOL
2(d) UDAYAKUMAR S/O BHARAMAPPA AKKI
AGE: 47 YEARS, OCC: COOLIE
R/O: GUDAGERI, TQ: KUNDAGOL
DIST: DHARWAD. ...APPELLANTS
(BY SHRI G.N.NARASAMMANAVAR, ADVOCATE)
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RSA No. 273 of 2008
AND:
VENKANAGOUDA HANMANTHGOUDA SALMANI
AGE: 71 YEARS, OCC: AGRICULTURE
AND RETIRED WORKER
R/O:GUDAGERI Tq: KUNDAGOL
DISTRICT DHARWAD 581107. ...RESPONDENT
(BY SHRI M.H. PATIL, ADVOCATE)
***
THIS REGULAR FIRST APPEAL IS FILED U/S. 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DT.30.10.2007
PASSED BY THE I ADDL. CIVIL JUDGE (SR.DN), HUBLI, IN
R.A.NO.139/2006 AND THE JUDGEMENT AND DECREE
DT.12.10.2006 PASSED BY THE CIVIL JUDGE (JR.DN) & JMFC
KUNDAGOL IN O.S.NO.18/2005.
THIS REGULAR SECOND APPEAL COMING ON FOR
FURTHER HEARING AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 17.03.2023, THIS DAY, THE
COURT, DELIVERED THE FOLLOWING:
JUDGMENT
Appellants/defendants feeling aggrieved by the judgment of first Appellate Court on the file of I Addl. Civil Judge (Sr.Dn.), Hubballi, in R.A.No.139/2006 dated 30.10.2007 preferred this appeal.
2. Parties to the appeal are referred with their ranks as assigned in the trial Court for the sake of convenience.
3. The factual matrix leading to the case of plaintiff can be stated in nutshell to the effect that Kundagol taluk -3- RSA No. 273 of 2008 Gudageri gram panchayat, Gudageri village property bearing R.S.No.538/1/3 plot No.1 and property bearing No.1417 are the properties purchased by plaintiff under the registered sale deed dated 23.07.1993 from its' erstwhile owner Basavaraj Shivappa Malali. The defendants are the owners of property bearing gram panchayat No.254 measuring 1 gunta in R.S.No.538 of Gudageri village. The property of plaintiff bearing No.207/1 is also situated adjacent to the suit schedule property. The defendants have encroached 8 1/2 annas in property bearing No.1417 plot No.1 in R.S.No.538/1/3. The plaintiff filed an application to conduct survey of the suit schedule property in the year 2004 and notice was issued to the defendants. On 05.01.2005, Taluka Surveyor visited the suit schedule properties and prepared PT sheet by fixing the boundaries to the suit schedule properties by showing 8 1/2 annas area encroached by the defendants. The defendants have refused to remove the encroachment in the plot belonging to the plaintiff. Therefore, the plaintiff was constrained to institute the suit on hand for the relief claimed in the suit.
4. In response to suit summons, defendants appeared through counsel and filed written statement contending that land bearing R.S.No.538/1/1 measuring 1 gunta East-West 33 -4- RSA No. 273 of 2008 feet, North-South 33 feet is purchased by the defendants under registered sale deed dated 30.07.1973 from its erstwhile owner Narayan Saralai, assigned with Gram Panchayath No.254. The said property is in exclusive possession of the defendants since from the date of its purchase. The defendants on obtaining permission from Gudageri gram panchayath put up fence. The defendants have not encroached any portion of plot No.1 in property bearing No.1417 of R.S.No.538/1/3 as claimed by plaintiff. Therefore, prayed for dismissal of the suit.
5. The trial Court has framed necessary issues. Plaintiff in order to prove his case relied on the evidence of PWs-1 and 2 and the documents Ex.P.1 to Ex.P.23. The defendants have relied on the evidence of DWs-1 and 2 and the documents Ex.D.1 to Ex.D.19. The trial Court after appreciation of evidence on record has decreed the suit of plaintiff and directed the defendants to hand over the encroached area of 8 1/2 anna within a period of 30 days from the date of decree, failing which plaintiff shall be entitled to get the suit schedule property through the process of law.
6. The defendants feeling aggrieved by the said judgment and decree of trial Court filed appeal before the first -5- RSA No. 273 of 2008 Appellate Court on the file of I Addl. Civil Judge (Sr.Dn.), Hubballi, in R.A.No.139/2006. The first Appellate Court after re-appreciation of evidence has dismissed the appeal and confirmed the judgment and decree of trial Court.
7. Appellants/defendants challenged the said concurrent finding of both the Courts below contending that Courts below have not properly appreciated the pleadings of the parties and evidence on record. The suit itself is not maintainable without seeking the relief of declaration. The Courts below have committed serious error in relying on Ex.P.1 Survey Sketch produced by the plaintiff which is challenged by the defendants. The Assistant Commissioner, Dharwad, on hearing both sides allowed the appeal on 02.08.2006 and set aside the PT sheet Ex.P.1, further remanded the matter for fresh survey. The plaintiff has not denied the title of defendants over 1 gunta of land in R.S.No.538/1/1 measuring East-West 33 ft. - North South - 33 ft. purchased from its' erstwhile owner Narayan Saralai under registered sale deed dated 30.07.1973 assigned with GP No.254. The plaintiff has failed to prove that defendants have encroached 8 1/2 annas in plot No.1 of R.S.No.538/1/3. However, both the Courts below contrary to the evidence on record committed serious error in -6- RSA No. 273 of 2008 holding that the defendants have encroached 8 1/2 annas in the property belonging to the plaintiff. Therefore, on these grounds prayed for allowing the appeal and to set aside the judgment and decree of both the Courts below. Consequently, to dismiss the suit of plaintiff.
8. In response to notice of appeal, respondent appeared through counsel.
9. This Court by order dated 18.02.2008 has framed the following substantial question of law for consideration:
"Whether the Courts below were justified in granting a decree of possession when the plaintiff's title to the property encroached upon is denied without seeking declaration?"
10. Heard the arguments of both sides.
11. On careful perusal of oral and documentary evidence placed on record by the parties to the suit, it would go to show that plaintiff has purchased R.S.No.207/1 bearing Gram Panchayath No.1428 plot No.2 and R.S.No.538/1/3 bearing plot No.1 Gram Panchayath No.1417. The total extent of both these properties is 90 ft. X 72 ft. covered under the registered sale deed dated 23.07.1993 for total consideration of -7- RSA No. 273 of 2008 Rs.45,000/- Ex.P.14. The boundaries of both the plots as described in the sale deed Ex.P.14 are as follows:
East: Girls High School and panchayath road West: Railway boundary North: R.S.No.207/1 plot No.1 PWD road and land of Bharamappa Akki, open space of girls high school South: Plot of Nagappa Mundargi
12. The defendants have purchased 1 gunta of land in R.S.No.538/1/1 measuring East-West 33 feet, North-South 33 feet from its' erstwhile owner Narayan Saralai under registered sale deed dated 30.07.1973 assigned with G.P. No.254 Ex.D.4 having the following boundaries:
North: Government road,
South: 538/1/3
East: 538/1/2
West: 207/1
13. The plaintiff has contended that the defendants have encroached portion of the property in R.S.No.538/1/3 plot No.1 Gram Panchayath No.1417 to the extent of 8 1/2 annas. The said encroached portion is shown as EBKD in red colour. The Courts below have concurrently held that defendants have encroached 8 1/2 annas of area in R.S.No.538/1/1 plot No.1 -8- RSA No. 273 of 2008 Gram Panchayath No.1417. Therefore, granted decree of possession of the said encroached area to the plaintiff.
14. The basis on which the plaintiff is claiming that defendants have encroached 8 1/2 annas in R.S.No.538/1/3 plot No.1 Gram Panchayath 1417 is the PT sheet Ex.P.1 dated 05.01.2005 prepared by the Taluka Surveyor and the author of PT sheet is examined as PW-2 and through him produced Ex.P.18 PT sheet, Ex.P.19 notice sent to parties, Ex.P.20 postal receipt, Ex.P.21 panch ya dast, Ex.P.22 statement of plaintiff. The defendants have denied the alleged encroachment of 8 1/2 annas claimed by plaintiff and challenged the correctness of the PT sheet prepared by PW-2. The defendants though have contended that appeal is filed against PT sheet prepared by PW-2 dated 05.01.2005 have not produced any documents to show that appeal is filed challenging the PT sheet prepared by PW-2 dated 05.01.2005. On the contrary, DW-1 in the cross- examination admitted that no appeal is filed challenging the PT sheet dated 05.01.2005. The document at Ex.P.23 is the notice issued by the Joint Director, Land Records, Belagavi, with respect to PT sheet prepared while effecting pot hissa of Sy.No.538 and GP No.4/1987 and the same does not pertain to PT sheet prepared by PW-2 dated 05.01.2005 Ex.P.1 and -9- RSA No. 273 of 2008 Ex.P.18. DW-1 admits in his cross-examination that PW-2 has issued notice for surveying the land and his son was present at the time of effecting survey. It is also admitted by PW-1 that to the northern side of suit property his property is situated and to the southern side of his property the property of plaintiff is situated. It is also not in serious dispute that both the properties purchased by the plaintiff under the registered sale deed dated 23.07.1993 are adjacent to each other. In view of the above referred admission of DW-1, it is evident that the defendants are adjoining owner of the suit property. The hand sketch map appended to the plaint and the PT sheet Ex.P.1 and Ex.P.18 produced by PW-2 also substantiates the said fact. DW-1 has admitted in his cross-examination that he has not verified the survey records with regard to measurement of his property purchased, further he has not got measured the area purchased by him either before or after purchase of 1 gunta of land under Ex.D.4. It means that the defendants have not seen pot hissa PT sheet to the extent of 1 gunta of land purchased by him under Ex.D.4.
15. The defendants have relied on sanad attested copy Ex.D.1 and the original sanad Ex.D.2 issued by the Collector dated 17.05.1945 wherein 1 gunta of land in R.S.No.538/1/1
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RSA No. 273 of 2008measuring East-West 33 feet North South 33 feet was given to Topanna Bharmappa Kundur including the sketch map as part of the said sanad. No doubt, division of Sy.No.538 is shown in schedule, but in the sketch entire Sy.No.538 is shown. The defendants have not produced any PT sheet or sketch prepared by the Survey Authority while effecting the division. The said extent of land was sold by Topanna Bharamappa Kundur to one Narayan Saralai under registered sale deed dated 31.10.1969 Ex.D.3 who in turn sold the same to defendant No.2 under registered sale deed dated 30.07.1973 Ex.D.4. The extent of so area purchased i.e., 33 ft. X 33 ft. totally measures 1089 sq. ft. The plaintiff is claiming that the defendants have encroached to an extent of 8 1/2 annas and they are claiming 41 ft. X 27 ft. which is equal to 1107 sq. ft. as the area belonging to defendants.
16. Indisputably, none of the documents relied by the defendants an extent of 41 feet X 27 feet is shown or the extent of 33 feet X 33 feet is also not shown. However, in all the documents at Ex.D.1 to Ex.D.4 it is only shown as 1 gunta of land in Sy.No.538/1/1. The map incorporated in the sanad Ex.D.1 is with respect to entire extent of Sy.No.538. However, the division is shown only in the schedule while describing the
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RSA No. 273 of 2008survey number and the boundaries. The map incorporated in the sanad Ex.D.1 does not reflect the division of Sy.No.538. However, the calculation of the extent per gunta in the form of square feet is equal to 1089.
17. The evidence of PW-2 would go to show that excluding the encroached portion, there is land of defendants to the extent of 1 gunta. The extent of 1 gunta of land of defendants is to the eastern side of the property belonging to the plaintiff. The survey was effected on the basis of the records available in the office. Learned counsel for defendants though subjected PW-2 to cross-examination, nothing worth material was elicited to discredit his evidence about the encroachment of defendants to the extent of 8 1/2 annas. The son of DW-1 was very much present at the time of survey. The PT sheet prepared by PW-2 as per Ex.P.1 and Ex.P.18 has not been disputed by the defendants. However, the defendants have claimed that appeal was filed but no any such documents were produced to show that PT sheet as per Ex.P.1 and Ex.P.18 has been challenged before any appropriate forum. Therefore, both the Courts below were justified in relying on the evidence of PW-2 and the PT sheet as per Ex.P.1 and Ex.P.18.
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RSA No. 273 of 2008
18. The extent of land purchased by the plaintiff under the registered sale deed dated 23.07.1993 is not disputed by the defendants. Plaintiff had filed O.S.No.33/2003 Ex.P.15 with respect to the very same property against Raju Basavaraj Nagarhalli and others. The said suit came to be decreed and decree has been drawn as per Ex.P.16. The extent of land purchased by plaintiff under Ex.P.14 is further strengthened by the judgment and decree in O.S.No.33/2003 as per Ex.P.15 and Ex.P.16.
19. The title acquired by plaintiff with respect to suit property under the registered sale deed dated 23.07.1993 as per Ex.P.14 and the title of defendants over an extent of 1 gunta of land in Sy.No.538/1/1 as per Ex.D.4 is not in dispute. The question is as to whether decree of possession over the encroached land to the extent of 8 1/2 annas marked as 'EBKD' can be granted without the relief of declaration.
20. The substantial relief of possession over encroached portion is sought by the plaintiff. The encroachment of defendants is proved by the plaintiff out of the evidence of PW- 2 and the sketch map as per Ex.P.1 and Ex.P.18. The evidence of PW-2 - Surveyor with the sketch map will have a great
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RSA No. 273 of 2008probative value and the oral evidence of the parties will have to be assessed in the light of the same. The assessment of evidence placed on record by the parties, coupled with the evidence of Surveyor - PW- 2 and the sketch map Ex.P.1 and Ex.P.18, so also the presence of son of defendant at the time of survey sketch is not disputed and there is nothing in the cross- examination of PW-2 to disbelieve his evidence, would only demonstrate the fact that defendants have encroached portion shown as 'EBKD' in the sketch map as per Ex.P.1 and Ex.P.18. When the defendants have not denied the extent of land of plaintiff and the plaintiff having proved the encroachment of 8 1/2 annas in Sy.No.538/1/3 plot No.1 panchayath No.1417 then in that event of the matter again seeking relief of declaration does not arise. Accordingly, the substantial question of law is answered in affirmative. Consequently, proceed to pass the following:
ORDER Appeal filed by appellants/defendants is hereby dismissed.
The judgment and decree passed by the first Appellate Court on the file of I Addl. Civil Judge (Sr.Dn.), Hubballi, in R.A.No.139/2006 dated 30.10.2007 which confirmed the
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judgment and decree of trial Court in O.S.No.18/2005 on the file of the Civil Judge (Jr.Dn.) and JMFC, Kundagol, dated 12.10.2006 are hereby confirmed.
The registry is directed to transmit the records with the copy of this judgment to trial Court.
(Sd/-) JUDGE Jm/-