Indian Kanoon - Search engine for Indian Law

5. It is the contention of the plaintiff that during the year 1989 the plaintiff had left to Bangalore and was employed in a hotel and entrusted the cultivation of the suit schedule property to his father. During the month of April- 1990, the respondents' father illegally trespassed on the suit schedule property to an extent of 23 guntas of wet land and enclosed the said encroached area of 23 guntas by putting up a fence. The encroached area of 23 guntas which is situated on the southern side of the Sy.No.37 and eastern side of Sy.No.38 belongs to the defendants which is morefully described as 'B' schedule property which is in triangular shape. The plaintiff also approached the ADLR, Shimoga and got measure the extent of the encroached area by ADLR, Shimoga. The same was measured and prepared the sketch and encroached portion of 23 guntas in Sy.No.37 was marked in red colour in the survey sketch and identified the encroached area. It is also a case that he has issued the notice calling upon him to vacate encroached area and he has received untenable reply setting up of an adverse possession. It is also stated that the respondents' father with an ulterior motive to claim adverse possession dug a well in the encroached portion, without any other alternative, filed the suit for declaration and for possession of 'B' schedule property. The respondents are legal heirs of original defendant Channappa Gowda. The father of the respondents appeared before the Trial Court and filed written statement inter alia contending that he is the owner of the land bearing Sy.No.38. On the western side of Sy.No.37 there is a road. He had put up the fence by the side of the said road from North-South and there is Well close to the said road. He is in possession continuously undisturbed and peaceful possession of the property more than 30 years. He has perfected the title by adverse possession.

4) Whether plaintiff is entitled for possession of 'B' schedule land?

5) Whether the plaintiff is entitled for mesne profits?

     6)     Whether the plaintiff is entitled       for
           permanent injunction as prayed?

     7)    What Decree or order?

7. The plaintiff in order to prove his case examined as PW1 and two witnesses were examined as PW2 and PW3 and marked documents Ex.P1 to Ex.P13. On the other hand, the defendants have examined the son of the original defendant as DW1 and three witnesses were examined as DW2 to DW4 and got marked Ex.D1 to Ex.D15. The Trial Court has also appointed a surveyor from the office of ADLR as Court commissioner and the Court commissioner also examined as PW1 and got marked Ex.C1 to Ex.C4. The Trial Court after having heard the arguments of both the counsel, answered issue Nos.1 and 3 in the Negative and issue Nos.2, 4 and 5 in the affirmative in coming to the conclusion that the plaintiff has not proved that he is a lawful owner of the plaint schedule property and defendants have encroached the 'B' schedule land. The other issue No.3 with regard to the adverse possession and answered the same as negative and answered issue Nos.4 to 6 as affirmative in favour of the plaintiff that he is entitled for possession and directed to hand over the possession of the 'B' schedule property to the appellant within three months from the date of judgment and decree granted for perpetual injunction.

8. Being aggrieved by the judgment, the respondents have preferred an appeal in R.A.No.39/2005 and appellate Court allowed the appeal and set-aside the judgment and decree of the Trial Court. Hence, the present second appeal is filed before this Court.

9. The main grounds urged in the present appeal is that reversing of judgment of the Trial Court is contrary to law and First Appellate Court has miserably fail to consider the material on record. The appellant as a co-owner can maintain a suit as a member of the joint family. However, the First Appellate Court held that Ex.D1, partition deed is not proved by the plaintiff as the said document required to be registered. The First Appellate Court committed a serious illegality in not noticing that the survey sketch produced by the appellant as Ex.P8 -survey sketch prepared by the ADLR, Shimoga showing the encroachment of 23 guntas in Sy.No.37 by the owner of the land bearing Sy.No. 38 was the most reliable document. The First Appellate Court committed patent illegality in not considering the document at Ex.P8.

10. The counsel also would vehemently contend that that finding of the First Appellate Court that the report of the Court commissioner is incomplete and unsustainable in law. The Ex.C3 - the sketch prepared by the Court commissioner showing the encroached area of 21 guntas in yellow colour and the report of the Court commissioner namely ADLR as per Ex.C2 proved beyond reasonable doubt that the respondents have encroached upon the land belonging to the appellant to an extent of 23 guntas in Sy.No.37.