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2002 DIGILAW 21 (KAR)

RAMESH HANAMANT BORWANKAR v. BHALACHANDRA

2002-01-09

V.GOPALA GOWDA

body2002
V. GOPALA GOWDA, J. ( 1 ) THE appellant was the plaintiff and respondent was the defendant in the trial Court. The rank of the parties are referred to as in the Trial Court. ( 2 ) THE plaintiff filed the suit in O. S. No. 8 of 1990 for possession of plot No. 19 in Sy. No. 39/2b situated within the limits of Kangrali khurd in Belgaum District, which is the suit schedule property, for mesne profits etc. The case pleaded is that plaintiff purchased Plot Nos. 17, 19 and 20 while the defendant purchased Plot No. 18 which is on the western side of Plot No. 19. It is stated that plaintiff was employed outside Belgaum and that the defendant encroached upon and put up construction on the suit schedule property belonging to the plaintiff. In those circumstances the plaintiff filed the suit for possession. The defendant resisted the suit by filing written statement. Except denying the alleged encroachment upon Plot No. 19, all the facts pleaded by the plaintiff have been admitted. On the basis of the pleadings, the Trial court framed issues and parties adduced evidence and produced documents in support of their case. Upon consideration of the same, the Trial court dismissed the suit by its judgment dated 6-8-1994. The appeal preferred by the plaintiff in R. A. No. 61 of 1994 against the said judgment and decree, which was allowed by the First Appellate Court by its judgment dated 24-8-1999 setting aside the judgment of the Trial Court and remanding the matter to the Trial Court for fresh disposal in the light of the observations made therein. Aggrieved by the same the defendant has filed this second appeal. ( 3 ) AFTER hearing the learned Counsels for the parties and perusing the judgments and decrees of the Courts below, this Court prima facie found that both the Courts below have not considered the case in a proper perspective resulting in miscarriage of justice. ( 4 ) THE Trial Court while answering Issue No. 1 has held that absolutely there is no dispute with regard to the ownership of plaintiff for plot No. 19 and that of the defendant for Plot No. 18. Ex. P. 2 is the sale deed in favour of the plaintiff and Ex. D. 2 is the sale deed in favour of the defendant in respect of these plots. Ex. P. 2 is the sale deed in favour of the plaintiff and Ex. D. 2 is the sale deed in favour of the defendant in respect of these plots. It is not in dispute that Plot No. 18 situate on the western side of Plot No. 19. There is also no dispute that on the eastern side of Plot No. 18 purchased by the defendant there is open space belonging to the Corporation. It is thus clear the vacant space belong to the Corporation situate in-between Plot Nos. 18 and 19 and there cannot be any dispute in this regard. ( 5 ) THE prayer in the plaint was to direct the defendant to vacate and handover possession of Plot No. 19 to the plaintiff. Plaintiff being the owner of the same, has got every right to seek possession of it in case there is encroachment by the defendant. The defendant is not disputing the ownership of plaintiff in respect of Plot No. 19. Insofar as encroachment by defendant over the said plot is concerned, P. W. 2, the surveyor has clearly stated that on the application of P. W. 1 he got the land surveyed, prepared the hand sketch, Ex. P. 14 and fixed the boundaries of Plot Nos. 17, 18, 19 and 20. He has categorically stated that the defendant has constructed the building on Plot No. 19. In spite of that, the First Appellate Court came to the conclusion that there is dearth of material evidence to give finding on the alleged encroachment. It was also held that plaintiff has made out a case for leading further evidence and accordingly, the matter was remanded to the Trial Court. The findings and the conclusions arrived at by the First Appellate Court are not in conformity with the judgment in AIR 1965 SC 1081. Hence, the impugned judgment of the First Appellate Court cannot be sustained and the matter has to be remanded for fresh consideration. ( 6 ) IT is important to note that what the defendant pleads is that the plaintiff has described the boundaries of his plot by copying the description from the sale deed without giving its precise location. The plaintiff has to seek the relief only on the basis of the sale deed and not describing the precise location as pleaded by the defendant. The plaintiff has to seek the relief only on the basis of the sale deed and not describing the precise location as pleaded by the defendant. The identity of the property shall be based on the boundaries as mentioned in the title deed and not on any other basis. It is a matter for the First Appellate Court to look into the same. ( 7 ) ACCORDINGLY, this miscellaneous second appeal is allowed and the judgment and decree of the First Appellate Court are set aside. The matter is remanded to the First Appellate Court for fresh disposal in the light of the observations made above. Having regard to the passage of time consumed by this litigation, the First Appellate Court is directed to dispose off the matter on merits within a period of six months from the date of receipt of a copy of this judgment. --- *** --- .