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2013 DIGILAW 1204 (KAR)

Srikantappa v. Siddashetty

2013-10-23

A.S.PACHHAPURE

body2013
Judgment : 1. The appellant has challenged the judgment and decree in RA 68/2008 allowing the appeal of the respondents by setting aside the judgment and decree of the trial Court and dismissing the suit filed by the appellant. 2. The facts relevant for the purpose of this appeal are as under: The parties will be referred as per their rank before the trial Court for the sake of convenience. The appellant is the plaintiff and the respondents are the defendants in the suit. The suit property is 2 guntas of land out of Sy.No.90/3A totally measuring 0.28 guntas bounded as mentioned in the schedule to the plaint. 3. The plaintiff sold 2 guntas of land out of the suit survey number 90/3A under a registered sale deed. The remaining portion of the land except two guntas which was sold to the defendants is said to be in possession of the plaintiff. It is the contention of the plaintiff that the defendants encroached upon the suit property under the guise of the sale deed in respect of two guntas of land to put up construction and in the circumstances after resisting the action of the defendants the present suit came to be instituted seeking the relief of declaration, he is the owner of the property, delivery of vacant possession and also sought for injunction. 4. The defendants filed their written statement alleging that they are the owners of the suit property and had purchased the suit property under a sale deed on which they had constructed a house long back and hence they contended that the plaintiff is not entitled to the relief sought for. 5. The trial Court framed the issues casting burden on the plaintiff to establish his right to the suit property and other reliefs' sought for. In the trial Court the plaintiff examined himself as PW1, 2 witnesses PWs.2 and 3 and got marked the documents Exs.P1 to P8. The defendants examined DWs.1 to 5 and got marked Exs.D1 to D22. A Court Commissioner was appointed during the pendency of the suit and Exs.C1 to C6 are marked at the instance of the Commissioner on the basis of the report submitted by him. The trial Court after hearing the counsel for the parties and on appreciation of the evidence on record, decreed the suit. A Court Commissioner was appointed during the pendency of the suit and Exs.C1 to C6 are marked at the instance of the Commissioner on the basis of the report submitted by him. The trial Court after hearing the counsel for the parties and on appreciation of the evidence on record, decreed the suit. Aggrieved by the judgment and decree, the defendants preferred the appeal in RA 68/2008 and the first appellate Court vide judgment and decree dated 5.7.2008 has allowed the appeal and dismissed the suit of the plaintiff. Aggrieved by the judgment and decree of the first appellate Court, the present appeal is filed. 6. I have heard the learned counsel for the appellant. 7. It is the contention of the learned counsel for the appellant that the trial Court on appreciation of the material on record and on the basis of the Commissioner's report had come to the conclusion that the defendants had encroached the property of the plaintiff and rightly granted a relief of declaration and also the possession. He submits that the first appellate Court without assigning proper reasons has wrongly allowed the appeal and dismissed the suit. 8. Learned counsel for the respondents has supported the judgment and decree of the first appellate Court. 9. Perusal of the judgment of the Courts below and the report of the Commissioner, the sketch etc., would indicate that the defendants had put up construction of the building not on the site which was purchased by them from the plaintiff, but at some other place in the suit survey number and this is clearly revealed from the Commissioner's report and also the evidence of the parties. It would indicate that though the defendants purchased the site of two guntas in the suit survey number, did not construct the building on the said site and had encroached the property of the plaintiff. It is also not in dispute that the father of the defendants has purchased the site measuring two guntas in the suit survey number under the registered sale deed dated 16.12.1961. It is about 40 years prior to institution of the suit. After the purchase of the site he had put up construction and there is a clear admission on the part of PW1 in the cross examination that the defendants had put up the construction of the house in the year 1998. It is about 40 years prior to institution of the suit. After the purchase of the site he had put up construction and there is a clear admission on the part of PW1 in the cross examination that the defendants had put up the construction of the house in the year 1998. He further admits that 20 years back during the construction of the house, he had resisted the action of the defendants. He also admits that at the time of construction he had raised objection for the construction on the suit property. He says that despite his objection, the defendants had put up the construction of the house on the suit land. Fromm this admission of PW1 in the cross examination it is very much clear that the defendants instead of constructing their house on two guntas of land purchased by them, had constructed the house of the suit land by encroaching upon the property of the plaintiff. If really the plaintiff was aggrieved of this illegal construction of the house about 20 years back prior to institution of the suit, he could have taken immediate action against the defendants both for the encroachment and also the illegal construction. The fact that he kept quite all along for more than 20 years, itself reveals that the plaintiff was not diligent in making a claim over the suit property and also the wrongful act of the defendants. It is for this reason that the first appellate Court held that there is an understanding on the part of the defendants about the construction of a property of the plaintiff instead of constructing it on the site purchased by them. So, it is of the opinion that there was an understanding between the plaintiff that the property on which the construction is made belongs to the defendants. But, anyhow, the approach of the trial court though appears to be erroneous, the fact that the plaintiff kept quite at the time when the construction was done and also for 20 years after the construction till the date of institution of a suit would indicate that he acquiesed the action of the defendants and therefore has lost a right to claim the possession over the suit property. He could have instituted the present suit at that time seeking the relief of declaration and possession, the cause of action for the plaintiff arose at the time when the construction was made. But, he did not institute the suit at that time and therefore has lost his right to claim a relief of declaration and also the possession of the suit property due to the lapse of time. It is for this reason that the judgment and decree of the first appellate Court is just and proper and is based on proper appreciation of the evidence on record. I do not find any substantial question of law for consideration in this appeal. In the result the appeal fails and it is accordingly dismissed.