JUDGMENT : 1. This is defendants’ second appeal calling in question the correctness and legality of the judgment and decree passed by the Senior Civil Judge, Kumta, in R.A.No.48/2008 dated 30.03.2013 whereunder the appeal filed by the defendants calling in question the judgment and decree passed in O.S.No.60/2007 dated 17.04.2008 decreeing the plaintiffs suit for possession and mesne profits in respect of the suit property measuring 2 guntas and directing defendants 1 and 2 to hand over possession of the encroached portion of 024 of land in Sy.No.12/2 of Bellangi village, Kumta taluk, as shown in Ex.P.8, came to be affirmed by the appellate court. 2. I have heard the arguments of Sri S.G.Kadadakatti, learned counsel appearing for the appellants/defendants. He would contend that courts below erred in not considering the fact that in the cross-examination PW1 has admitted that Sy.No.12 is situate on the southern side of Sy.No.13 and Sy.No.12 purchased by the wife of the 1st plaintiff includes kharab land and there is a water channel dividing the land of the plaintiffs and the defendants and only on imaginary grounds, it was alleged that the defendants had encroached two guntas of land of the plaintiffs. He would also submit that appellants have produced Ex.D.1 and examined the Taluka Surveyor as DW2 before the trial Court and this evidence has been erroneously ignored. He would further elaborate his contention by contending that appellate court has erred in arriving at a conclusion that report of DW2 cannot be accepted. He would also rely upon Ex.C.3 produced by the Court Commissioner which indicates that there is no encroachment of suit schedule property and this material evidence has been ignored. On these grounds, he submits that substantial questions of law formulated in the appeal would arise for consideration and as such he prays for admitting the appeal by formulating the substantial questions of law as enumerated in the appeal memorandum. 3. On these grounds, he submits that substantial questions of law formulated in the appeal would arise for consideration and as such he prays for admitting the appeal by formulating the substantial questions of law as enumerated in the appeal memorandum. 3. Having heard the learned counsel appearing for the appellants/defendants and on perusal of the judgment and decree passed in the original suit and the regular appeal, this Court is of the considered view that there is no substantial question of law involved in this appeal and the findings recorded by the Courts below are all question of fact and as such, there is neither non-appreciation of available evidence or erroneous appreciation of available evidence and as such, the appeal is liable to be dismissed at the threshold for following reasons. 4. Respondents/plaintiffs filed a suit for possession contending interalia that 1st plaintiff’s wife had purchased land in Sy.No.12 to an extent of 3 acres under a registered sale deed dated 22.02.1998 Ex.P.1 and on her demise they sought for mutation of the revenue records and accordingly, Sy.No.12 came to be mutated under Sy.No.12/2 to the names of the plaintiffs and they have been carrying on agricultural operations in the said three acres of land. It is further alleged by them that on the western southern side of the suit land, there is a canal measuring 5 to 6 feet width and towards western and southern side of Sy.No.12, a garden land of plaintiffs is situated. During rainy season plaintiffs used to go to their land by fixing a sanka across the said water canal for the purpose of cultivation of western and southern side of Sy.No.12/2. It was also contended that said land it is attached to the suit land and thereafter land bearing Sy.No.13 of Bellangi village is situated. It is also alleged that during January, 2006, defendants have removed the sanka which was erected by the plaintiffs across the canal which is towards western southern side of the water canal and as such, the suit in question has been filed for possession of land measuring 024 guntas occupied by defendants. Defendants on service of suit summons appeared, filed their written statement and denied the averments made in the plaint. On the basis of the pleadings of the parties, following issues came to be formulated: “1. Defendants on service of suit summons appeared, filed their written statement and denied the averments made in the plaint. On the basis of the pleadings of the parties, following issues came to be formulated: “1. Whether the plaintiffs prove that defendants have illegally encroached 024 land in the suit Sy.No.12/2 towards western and southern side of the channel as shown in the plaint sketch? 2. Whether the plaintiffs prove that defendants are to be directed to hand over the encroached portion of suit land to the extent of 0–24 as shown in the plaint sketch? 3. Whether the plaintiffs are entitled to mesne profits? If so, to what rate? 4. Whether the plaintiffs are entitled to the possession of encroached portion of 024 of land of the suit schedule property as prayed for? 5. What order or decree?” 5. Both parties tendered both oral and documentary evidence and on appreciation of the same and after considering the oral arguments, trial Court by its judgment and decree dated 17.04.2008 decreed the suit in part and directed defendants 1 and 2 to hand over the encroached portion of 2 guntas of land in Sy.No.12/2 as indicated in Ex.P.8 to the plaintiffs within three months from the date of judgment. 6. Being aggrieved by this judgment and decree, defendants preferred an appeal before the appellate court in R.A.No.48/2008. After securing records and while the matter was being heard, an application came to be filed by the defendants seeking for appointment of Court Commissioner and accordingly a Surveyor came to be appointed as Court Commissioner and he inturn after having visited the spot and conducting survey submitted a report. He was examined as CW1 and through him Ex.C.1 to Ex.C.3 were got marked and the survey sketch was marked as Ex.P.14 by the plaintiffs through CW1. The application filed by the plaintiffs for additional evidence also came to be allowed and the Surveyor who had issued the survey sketch Ex.P.8 was examined as PW2. After considering the rival contentions, scrutiny of the trial Court records and on re-appreciation of entire evidence, first appellate court formulated following points for its determination: “1. The application filed by the plaintiffs for additional evidence also came to be allowed and the Surveyor who had issued the survey sketch Ex.P.8 was examined as PW2. After considering the rival contentions, scrutiny of the trial Court records and on re-appreciation of entire evidence, first appellate court formulated following points for its determination: “1. Whether the finding of the trial Court that the defendants have encroached an extent of 024 land in Sy.No.12/2 as shown in Ex.P.8 is contrary to the facts and circumstances of the case and the evidence on record and against the principles of law and calls for interference by this Court? 2. Whether the finding of the trial Court that the plaintiffs are entitled for possession of the extent of 024 land in Sy.No.12/2 as shown in Ex.P.8 is contrary to the facts and circumstances of the case and the evidence on record and against the principles of law and calls for interference by this Court? 3. Whether the Judgment and Decree of the trial Court partly decreeing the suit of the plaintiffs is contrary to the facts and circumstances of the case and the evidence on record and against the principles of the law and calls for interference by this Court? 4. What order?” 7. On re-appreciation of evidence, it was noticed by lower appellate court that defendants have relied upon Ex.D.1Survey Sketch to buttress their arguments namely to contend that there was no encroachment by them in respect of Sy.No.12. Trial Court as well as appellate court have consistently disbelieved this contention and rightly so. 8. Sri S.G.Kadadakatti, learned counsel appearing for the parties has made available survey sketch copy marked Ex.D.1 during the course of his arguments. A perusal of same would indicate that Survey Sketch is in respect of Sy.Nos.13 and 14 and not in respect of Sy.No.12. It is because of this precise reason, first appellate court has recorded following finding at paragraph 20 of its judgment and it reads: “20. As per Ex.P.8 an extent of 024 in Sy.No.12/2 shown in Blue colour is encroached by the person in possession of Sy.No.13. In Ex.D1 only the lands bearing Sy.Nos.13 and 14 and its boundaries are shown.” 9. As per Ex.P.8 an extent of 024 in Sy.No.12/2 shown in Blue colour is encroached by the person in possession of Sy.No.13. In Ex.D1 only the lands bearing Sy.Nos.13 and 14 and its boundaries are shown.” 9. It was the specific case of the plaintiffs that even beyond the water channel there is an extent of 2 guntas of land bearing Sy.No.12/2 i.e., on the southern and western side of the property purchased by them under sale deed dated 22.02.1998. It is true as per Ex.D.1 and Ex.C.3 there is no encroachment. It is in this background, the correctness of the same came to be examined by the appellate court namely as to whether same can be relied in deciding the dispute between the parties. Ex.D.1 is the Survey Report prepared by DW2 Mallappa Basappa Chigadolli. He has admitted that he has surveyed Sy.Nos.12, 13 and 14 of Bellangi village after giving notice to plaintiffs and defendants. He has also admitted that he has identified the boundaries of Sy.No.13. He also states that a halla is between Sy.Nos.12 and 13. On a perusal of Ex.D.1, it would indicate that he has not surveyed Sy.No.12 inasmuch as there is no reference to Sy.No.12 in Ex.D.1. Thus, only inference which can be drawn is that he has only surveyed Sy.Nos.13 and 14 and not Sy.No.12. Even otherwise, evidence of DW2 does not indicate that there is encroachment in Sy.No.12. Though he states that there is a halla between the boundaries of Sy.No.12 and Sy.No.13, he has not depicted the said halla in Ex.D.1. Ex.P.14 is the original survey certificate of Sy.Nos.12 and 13. It indicates that there is a halla by line and flows inside Sy.No.13 and not on the boundary. Having admitted in his cross-examination that halla is the boundary in between two survey numbers, the same should have been shown in the survey sketch. It needs to be observed that in Ex.D.1 prepared by DW2, the said halla is not depicted. In the light of his admission that at the time of survey, only defendants were present would be yet another factor to disbelieve his evidence and the trial Court as well as lower appellate court have rightly disbelieved his evidence and his evidence would be of no assistance to ascertain as to whether there is encroachment in Sy.No.12/2. 10. In the light of his admission that at the time of survey, only defendants were present would be yet another factor to disbelieve his evidence and the trial Court as well as lower appellate court have rightly disbelieved his evidence and his evidence would be of no assistance to ascertain as to whether there is encroachment in Sy.No.12/2. 10. Ex.C.3 which is the sketch prepared by CW1 does not tally with the original sketch. The cross-examination of CW1 reveals that distance between the two points marked during the evidence of CW1 in Ex.C.3 and in Ex.P.14, as ‘AB’ does not tally with Ex.C.3. This would indicate that CW1 has not properly indicated eastern boundary of Sy.No.12/2 in Ex.C.3. For this precise reason, lower appellate court has rightly held that Ex.C.3 cannot be accepted to be sacrosanct or cannot be believed to arrive at a conclusion that there is no encroachment of Sy.No.12/2. Having said so, it has noticed that Ex.P.8 is the Survey Sketch and PW2 who has been examined to prove the contents of Ex.P.8 has withstood the cross-examination and nothing has been elicited in his cross-examination to disbelieve the contents of Ex.P.8 to be untrue. In the light of the said documentary evidence available on record which the lower appellate court has also found that it is in conformity with the original survey records has held that a portion of Sy.No.12/2 is encroached by the owner of Sy.No.13 i.e., defendants namely the appellants herein. 11. For these myriad reasons, appellate court has rightly arrived at a conclusion that defendants have encroached to an extent of 024 of land of Sy.No.12/2 of plaintiffs as reflected in Ex.P.8. Hence, it has rightly refused to interfere with the finding of fact recorded by the trial Court after reappreciating the evidence in its entirety. There is no error committed by both the courts below. 12. Hence, regular second appeal is hereby dismissed. Judgment and decree passed by the Senior Civil Judge, Kumta, in R.A.No.48/2008 dated 30.03.2013 stands affirmed. In view of the appeal having been dismissed, IAI/2013 does not survive for consideration.