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2017 DIGILAW 858 (KAR)

Ayyanagouda v. Amaresh

2017-05-31

B.V.NAGARATHNA

body2017
JUDGMENT : 1. Though the appeal is listed for admission, with the consent of learned counsel for both sides it is heard finally. 2. Plaintiff in O.S.No.229/2003 has preferred this appeal being aggrieved by the judgment and decree of the Addl. District Judge and Presiding Officer, Fast Track Court-III at Raichur passed in R.A.No.161/2006 dated 03.10.2007 by which, the suit filed by the appellant/plaintiff has been dismissed by reversing the judgment of the court of the Addl. Civil Judge (Sr.Dn.), Raichur dated 28.11.2006 passed in O.S.NO.229/2003. 3. For the sake of convenience, the parties herein shall be referred to, in terms of their status before the trial court. 4. The appellant/plaintiff filed the suit seeking the relief of declaration of ownership of the encroached portion of land and possession of the same in Sy.No.72/B which totally measures 15 acres 28 guntas. The said land is situated at Chickotnekal Village, Manvi Taluk. According to the plaintiff, he is the absolute owner of the aforesaid extent of land. The said extent of land was mutated in his name by virtue of a partition deed executed by the father of the plaintiff, Veeranagouda. It is the case of the plaintiff that Veeranagouda had three sons namely, Pampanna, Parameshwarappa and Ayyanagouda (plaintiff), Parameshwarappa had three sons namely Amaresha, Vishwanatha and Sidlingappa. Smt. Siddamma is the wife of Parameshwarappa. They are all the defendants in the suit. Defendants are the owners in possession of 15 acres 38 guntas of land in Sy.No.72/A. That subsequent to the partition deed executed by Veeranagouda, the landed property of the family was divided and mutated in the individual names and entered in the revenue records. According to the plaintiff, 32 guntas of land is encroached by the defendants towards the North-South side by taking undue advantage of the plaintiff. When enquiries were made by the plaintiff, he became aware of the encroachment made by the defendants vis-à-vis the land bearing Sy.No.72/B which totally measures 15 acres 28 guntas. In the circumstances, plaintiff filed the suit seeking a declaration that he is the owner in possession of the aforesaid extent of land in Sy.NO.72/B. 5. In response to the suit summons and Court notices, defendant No.1 filed his written statement, while the other defendants appeared and adopted the same. In the written statement the relationship between the parties is admitted. In response to the suit summons and Court notices, defendant No.1 filed his written statement, while the other defendants appeared and adopted the same. In the written statement the relationship between the parties is admitted. It is contended that the father of the plaintiff divided the family properties amongst the members of the family. The father of defendant Nos.1 to 3 was allotted 15 acres 38 guntas which has been assigned Sy.No.72/A, while the plaintiff was allotted 15 acres 28 guntas which was assigned Sy.NO.72/B. That, in Sy.No.72/A defendant Nos.1 to 3 have each divided the said land to an extent of 4 acres each and defendant NO.4 has been allotted 3 acres 38 guntas which have been assigned new numbers as Sy.No.72/A/1 to Sy.No.72/A/4. That the plaintiff has made baseless allegations about encroachment against the defendants. Plaintiff has not specifically shown as to which portion of his land was encroached upon. The allegations made by the plaintiff are general allegations. It is contended that towards the north-south of the suit land there is a land of Maddi Hanumappa and not the land of Devappa. That on the southern side it is the land of Devappa. That there is no cause of action for filing the suit. Therefore, defendant Nos.1 to 4 sought for dismissal of the suit. 6. On the basis of the aforesaid pleadings, the trial court framed the following issues for its consideration: 1. Whether the plaintiff proves that, he is the owner of the suit property? 2. Whether the plaintiff proves that, defendants have encroached 32 guntas of land of the plaintiff? 3. Whether the plaintiff is entitled for possession in the suit property? 4. What order or decree? 7. In support of his case, the plaintiff examined himself as PW-1 and another witness was examined as PW-2. Seven documents were produced by the plaintiff, which were marked as Exs.P-1 to P-7. Defendant No.3 was examined as DW-1. He produced thirty nine documents which were marked as Exs.D-1 to D-39. On the basis of the said evidence, the trial Court answered all the issues in the affirmative and decreed the suit by declaring that the plaintiff is the owner of the suit land including the encroached portion and directed the defendants to hand over possession of 32 guntas of land to the plaintiff. 8. On the basis of the said evidence, the trial Court answered all the issues in the affirmative and decreed the suit by declaring that the plaintiff is the owner of the suit land including the encroached portion and directed the defendants to hand over possession of 32 guntas of land to the plaintiff. 8. Being aggrieved by the judgment and decree of the trial court dated 28.11.2006, the defendants preferred R.A.No.161/2006, before the Fast Track Court-III, Raichur (first appellate court) which, on hearing the learned counsel for respective parties, raised the following points for its consideration. 1. Whether plaintiff proves that he is the owner of Sy.No.72/B measuring 15 acres 28 guntas? 2. Does plaintiff further prove that defendants have encroached 32 guntas in his land towards its western side? 3. What order? 9. The first appellate court answered point Nos.1 and 2 in the negative and allowed the appeal by setting aside the judgment and decree of the trial court and consequentially dismissed the suit. Being aggrieved by the dismissal of the suit, plaintiff has preferred this appeal. 10. I have heard learned counsel for the appellant and learned counsel for respondent No.1, Respondent Nos.2 to 4 are served and are un-represented. I have perused the material on record. 11. It is contended on behalf of the appellant that the relationship between the parties is not in dispute. It is also not in dispute that the father of the plaintiff had partitioned the family properties amongst his three sons Pampanna, Parameshwarappa and Ayyanagouda. That Parameshwarappa and Ayyanagouda (plaintiff) were allotted 15.38 and 15.28 acres of land respectively in Sy.No.72, while Pampanna was allotted 15.28 acres of land in Sy.No.71/B. That the dispute in the instant case is with regard to Sy.NO.72. He submitted that pursuant to the partition and division of the family properties, the father also ensured that the names of the sons are mutated in the revenue records. That Sy.NO.72/A measuring 15 acres 38 guntas was mutated in the name of Parameshwarappa and that Sy.No.72/B measuring 15 acres 28 guntas was initially mutated in the name of Veeranagouda and subsequently the name of plaintiff was mutated. That Sy.NO.72/A and Sy.No.72/B are adjacent lands. That Sy.NO.72/A measuring 15 acres 38 guntas was mutated in the name of Parameshwarappa and that Sy.No.72/B measuring 15 acres 28 guntas was initially mutated in the name of Veeranagouda and subsequently the name of plaintiff was mutated. That Sy.NO.72/A and Sy.No.72/B are adjacent lands. The trial court has categorically found from the Court Commissioner’s report that there was an encroachment to an extent of 32 guntas although initially the plaintiff had claimed that there was encroachment by the defendants to an extent of two acres. The trial court rightly declared the plaintiff as the owner of 15 acres 28 guntas in Sy.No.72/B and directed handing over of possession to an extent of 32 guntas to the plaintiff. 12. Learned counsel for the appellant further submitted that first appellate court was not right in holding that the assignment of numbers to Sy.No.72 in the form of Sy.No.72/A and Sy.No.72/B was not forthcoming from the survey reports. He contended that in the mutation extracts as per Ex.P-7 the aforesaid extent of lands are shown as Sy.No.72/A and Sy.No.72/B. That Sy.No.72/B is the subject matter of the suit land. He further contended that the approach of the first appellate court with regard to Commissioner’s report is wholly erroneous. When the surveyor had reported that there was encroachment to an extent of 32 guntas by the defendants, the first appellate court did not believe the same and by skewed reasoning has held that the trial court was not right in accepting Ex.P-7 report and thereby decreeing the suit. Therefore, learned counsel that the judgment of the first appellate court calls for interference by this court as substantial questions of law would arise in this appeal. He submitted that the appeal may be admitted and disposed of in accordance with law. 13. Per contra, learned counsel for respondent No.1, supporting the judgment of the first appellate court contended, that merely because there is a shortage to an extent of 32 guntas in plaintiff’s land would not imply that the defendants have encroached upon plaintiff’s land which is the suit schedule property. He contended that the surveyor measured plaintiff’s land and he did not measure defendants’ land. In the absence of measurement of defendants’ land, merely because the plaintiff’s land was short by 32 guntas, it could not have been inferred that defendants have encroached upon plaintiff’s land. He contended that the surveyor measured plaintiff’s land and he did not measure defendants’ land. In the absence of measurement of defendants’ land, merely because the plaintiff’s land was short by 32 guntas, it could not have been inferred that defendants have encroached upon plaintiff’s land. That the first appellate court has been right in coming to the conclusion that the plaintiff has not let in any evidence to the effect that he was in fact in possession of the entire 15 acres 28 guntas or that extent of land was really allotted to him by him father Veeranagouda. He further submitted that Commissioner’s report does not show encroachment made by the defendants. But that there is shortage of suit land to an extent of 32 guntas. This could not have let the trial court to come to a finding that the defendants have encroached upon plaintiff’s land, which is the suit schedule land. Therefore, the first appellate court was right in setting aside trial court’s judgment by allowing the appeal and thereby dismissing the plaintiff’s suit. He contended that no substantial question of law would arise in the appeal and therefore the appeal may be dismissed. 14. Having heard learned counsel for the parties and on perusal of the material on record, I find that the appeal would have to be admitted to consider the following substantial questions of law: (i) Whether the first appellate court was right in coming to the conclusion that the suit land and the land belonging to the defendants do not bear survey numbers as Sy.No.72/B and Sy.No.72/A as there is absence or lack of evidence in that regard? (ii) Whether the first appellate court was right in holding that the defendants had not encroached upon plaintiff’s land in the absence of there being any material with regard to extent of land held by the defendants as per the measurements, as the surveyor had not conducted any such measurement of defendants’ land? 15. The appeal is admitted to consider the aforesaid substantial questions of law. 16. From the detailed narration of facts, it becomes clear that there is no dispute with regard to the relationship between the parties and also with regard to the allotment of land made by the father of the plaintiff between his sons. 15. The appeal is admitted to consider the aforesaid substantial questions of law. 16. From the detailed narration of facts, it becomes clear that there is no dispute with regard to the relationship between the parties and also with regard to the allotment of land made by the father of the plaintiff between his sons. It is the case of the plaintiff that Sy.No.72/B measuring 15 acres 28 guntas was allotted in the name of the plaintiff while Sy.No.72/B measuring 15 acres 38 guntas was allotted to the share of plaintiff’s brother, Parameshwarappa now represented by the defendants who are his legal representatives. 17. As far as the first substantial question of law is concerned, I find that the first appellate court was not right in coming to the conclusion that there is no material on record to show that the suit schedule land bears Sy.No.72/B. The first appellate court has failed to notice that in Ex.P-7, which is the mutation extract, after the division of the properties made by Veeranagouda in favour of his sons, Sy.No.72/A is shown to measure 15 acres 38 guntas which has been allotted to the share of Parameshwarappa and Sy.No.72/B measuring 15 acres 28 guntas has been allotted to the share of plaintiff which was initially in the name of Veeranagouda and subsequently possession of the same was handed over to the plaintiff in the year 1980. Therefore, the plaintiff was justified in seeking the relief with regard to Sy.NO.72/B which measures 15 acres 28 guntas which indeed is the suit schedule property. Merely because the survey report does not show division of Sy.No.72 as Sy.No.72/A and B, would not imply that there has been no such division of Sy.No.72 as such. Therefore, the plaintiff was justified in seeking the relief with regard to Sy.NO.72/B which measures 15 acres 28 guntas which indeed is the suit schedule property. Merely because the survey report does not show division of Sy.No.72 as Sy.No.72/A and B, would not imply that there has been no such division of Sy.No.72 as such. In fact there has been such division mentioned in the mutation extract Ex.P-6 and it is on that basis, in the RTCs also the extents of land are shown as bearing Sy.No.72/A and Sy.No.72/B and that the suit schedule land belonging to the plaintiff is SY.NO.72/B. Hence, the first appellate court was not right in coming to the conclusion that the plaintiff has not let in any evidence to show that Sy.NO.72 has been sub-divided as Sy.No.72/A and Sy.No.72/B. Hence, the first substantial question of law is answered in favour of the plaintiff by holding that the suit schedule land bears Sy.No.72/B as belonging to the plaintiff while Sy.No.72/A belongs to the defendants. 18. As far as the second substantial question of law is concerned, both the courts below have come to a conclusion that the suit schedule property bearing Sy.NO.72/B measures 15 acres 28 guntas but the actual possession of the plaintiff is not to that extent and that 32 guntas have been encroached. The case of the plaintiff is, an extent of 32 guntas have been encroached by the defendants. That contention has been accepted by the trial court while decreeing the suit. But the first appellate court has not accepted that contention by reasoning to the effect that there is no material on record to come to the conclusion that it is the defendants who have encroached 32 guntas of suit land belonging to the plaintiff. The first appellate court has held that, no material has been placed by the plaintiff to show that the boundaries have been fixed to an extent of 15 acres 28 guntas and that in violation of the said boundaries fixed by the plaintiff, the defendants had encroached to an extent of 32 guntas of the plaintiff’s land. The first appellate court has held that, no material has been placed by the plaintiff to show that the boundaries have been fixed to an extent of 15 acres 28 guntas and that in violation of the said boundaries fixed by the plaintiff, the defendants had encroached to an extent of 32 guntas of the plaintiff’s land. It is in this background, that the first appellate court has come to a conclusion that in the absence of there being any evidence to the effect that the defendants had encroached to an extent of 32 guntas in plaintiff’s land, the trial court could not have decreed the suit. Therefore, the first appellate court while reversing the finding of the trial court, dismissed the suit. 19. The aforesaid approach of the first appellate court, in my view, is not correct for the simple reason that there was a shortage of land in the possession of the plaintiff to an extent of 32 guntas. But to come to a categorical conclusion that the defendants had not encroached to that extent, there was no material placed by the plaintiff, but at the same time, defendants’ land bearing Sy.No.72/A was also not measured. If defendants’ land had also been measured by the Court Commissioner, then the extent of land in their possession as to whether it was in consonance with the mutation entries i.e., to an extent of 15 acres 38 guntas would have been known. If the extent of land in possession of the defendants was more than 15 acres 38 guntas, then it would have become clear that the defendants had in fact encroached upon plaintiff’s land. But without measuring the extent of land in Sy.NO.72/A which was allotted to the defendants and which was in their possession, the first appellate court could not have concluded that the defendants have not encroached upon plaintiff’s land. Of course, in this context, learned counsel for the respondents submitted that the plaintiff had not stated as to where exactly the encroachment was and it may be possible that the encroachment may have been from the adjoining laid owner and not from the side of the defendants. Of course, in this context, learned counsel for the respondents submitted that the plaintiff had not stated as to where exactly the encroachment was and it may be possible that the encroachment may have been from the adjoining laid owner and not from the side of the defendants. But it is the categorical case of the plaintiff that the defendants have encroached upon the plaintiff’s land on the North-South side of western boundary on the plaintiff’s land i.e., towards western portion of the suit schedule property in Sy.No.72/A. hence, in the absence of there being any measurement of Sy.No.72/A and without knowing the extent of that land being in possession of the defendant – respondents, the first appellate court could not have found that there was no encroachment by the defendants vis-à-vis the plaintiff’s land as detailed in the plaint schedule. The presumption and conjectures made by the first appellate court in the absence of there being any measurement of Sy.No.72/A is wholly unjustified. Had Sy.No.72/A also been measured, then the true and correct picture with regard to encroachment made by the defendants as contended by the plaintiff would have become clear. But in the absence of the said measurement of Sy.No.72/A, no clear picture has emerged as to whether the defendants have encroached upon the plaintiff’s land or not. Therefore, in order to ascertain this aspect of the matter and to come to a clear conclusion as to whether the defendants have indeed encroached upon plaintiff’s land to an extent of 32 guntas, it is just and necessary to measure Sy.No.72/A which is on the western side of the suit schedule land through a Court commissioner. 20. For the aforesaid purpose, it is necessary to remand the matter to the first appellate court so that a Court Commissioner could be appointed by the first appellate court for the purpose of conducting survey and measurement of both Sy.NO.72/A as well as Sy.NO.72/B which is the suit schedule land and thereafter to submit a report as to whether the defendants have encroached any portion of the suit schedule land and on the basis of the report to be submitted by the Court Commissioner, the first appellate court to dispose of the appeal in accordance with law. Hence, the second substantial question of law is also answered in favour of the appellant – plaintiff. 21. Hence, the second substantial question of law is also answered in favour of the appellant – plaintiff. 21. In the result, the judgment and decree of the first appellate court is set aside. The matter is remanded to the concerned first appellate court. The first appellate court is directed to appoint a Court Commissioner for the purpose of measurement of both survey Nos.72/A and 72/B (which is suit schedule land) and to a submit report to the said court which shall consider the same and dispose of the appeal in accordance with law. 22. As the suit is of the year 2003 and the appeal is of the year 2006 and as the appellant and respondent No.1 are represented by their respective counsel they are directed to appear before the concerned first appellate court on 03.07.2017 without expecting any separate notice from that court. The first appellate court to issue notice to respondent Nos.2, 3 and 4 herein in case they do not appeal before court as they are also the appellants in R.A. No.161/2006 and thereafter to dispose of the appeal in accordance with law. The appeal is disposed of in the aforesaid terms. Parties to bear their respective costs. In view of disposal of the appeal, I.A.NO.1/2008 also stands disposed.