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2022 DIGILAW 333 (KAR)

Shekarappa v. Puppanna

2022-03-08

R.NATARAJ

body2022
JUDGMENT 1. This is an appeal filed by the defendants challenging the concurrent finding of fact recorded by the Civil Judge (Jr.DN) and Addl. JMFC, Tarikere in O.S.No. 160/2003 which was confirmed by the Senior Civil Judge and Prl. JMFC, Tarikere in R.A.37/2007. 2. The appellants herein were the defendants while the respondents herein were the legal representatives of the deceased plaintiff. 3. The plaintiff sought declaration of his title and recovery of possession of 12 guntas of land in Sy.No.23/2 of Sokke village, Ajjampura Hobli, Tarikere Taluk, Chikmagalur District. The plaintiff claimed that the land bearing Sy.No.23 of Sokke village was earlier owned and possessed by Puttappa, who was the propositus of a joint family comprised of Naganna and Nanjanna. After the death of Puttappa both Naganna and Nanjanna divided the land bearing Sy.No.23 in terms of an un-registered partition dtd. 24/4/1919. The land in Sy No.23 was re-surveyed and sub-divided into Sy No.23/1 to 23/4. The land in Sy No.23/1 was allotted to the share of Nanjappa, while Sy No.23/2 was allotted to the share of Naganna. The plaintiffs are the legal heirs of Naganna and defendants are the grand sons of Nanjappa. It was alleged that the land in Sy No.23/1 lay on the western and southern side of Sy No.23/2. The plaintiff alleged that the defendants had encroached 12 guntas of land in Sy No.23/2 which came to his knowledge after the ADLR conducted a survey and hence, suit was filed for declaration of title and consequently, recovery of possession. 4. The suit was contested by defendant No.4 who filed written statement which was adopted by defendants No.1 to 3. The defendants have admitted the relationship with the plaintiffs and also admitted the partition deed dtd. 24/4/1919. They claim that after the death of Nanjappa, they were in possession of half portion of the property bearing Sy No.23. They alleged that the suit property claimed by the defendants was a portion of land bearing Sy No.23/4 and that their father mortgaged the said property to Patel Mallappa and also contended that property bearing Sy No.23/4 was their ancestral property. They disputed the extent of land available in Sy No.23/2 as claimed by the plaintiffs. 5. Based on the rival contentions, the Trial Court framed the following issues:- 1. Whether the plaintiffs prove that they are the absolute owners of the suit schedule property? 2. They disputed the extent of land available in Sy No.23/2 as claimed by the plaintiffs. 5. Based on the rival contentions, the Trial Court framed the following issues:- 1. Whether the plaintiffs prove that they are the absolute owners of the suit schedule property? 2. Whether the plaintiffs prove that suit schedule property is part and parcel of Sy No.23/2 of Sokke Village? 3. Whether the plaintiffs prove that the defendants encroached the western portion of 12 guntas of land in Sy No.23/2?. 4. Whether the plaintiffs are entitled for the reliefs sought four? 5. What decree or order? Additional Issue : Whether the suit is barred by law of limitation? 6. During the pendency of the suit, the plaintiff died and his legal representatives were brought on record. Legal representative No.2 was examined as PW-1 and he marked documents as Ex.P1 to Ex.P12 and examined a witness as PW-2. On the other hand defendant No.4 was examined as DW-1 and he marked documents as Ex.D1 to Ex.D17 and examined a witness as DW-2. The Trial Court appointed a Court Commissioner to inspect the spot. He was examined before the Court as CW-1 and he marked documents as Ex.C1 to Ex.C5. 7. Based on the oral and documentary evidence, the Trial Court held that the antecedent title of the predecessor of plaintiff and defendants in respect of land bearing Sy No.23 was admitted. It also held that the parties had admitted the partition between the father of plaintiff and grandfather of defendants. The Trial Court noticed that property bearing Sy No.23 was re-surveyed and sub-divided as Sy No.23/1, Sy No.23/2, Sy No.23/3 and Sy No.23/4. While Sy No.23/2 measured 1 acre 30 guntas including 1 gunta Kharab, Sy No.23/1 measured 1 acre 15 guntas and Sy No.23/4 measured 15 guntas. It is also noticed from the evidence on record that suit property lay on the northern side of property bearing Sy No.23/4. The Trial Court took the assistance of the Commissioner who visited the spot and prepared a sketch indicating that the defendants have encroached an area of 12 guntas in Sy No.23/2. It is also noticed from the evidence on record that suit property lay on the northern side of property bearing Sy No.23/4. The Trial Court took the assistance of the Commissioner who visited the spot and prepared a sketch indicating that the defendants have encroached an area of 12 guntas in Sy No.23/2. The Trial Court also noticed from RTC extracts which were marked as Ex.P1 to Ex.P10, Ex.D2, Ex.D3 and Ex.D13 to 16 that Sy No.23/1 measured 1 acre 15 guntas, while Sy No.23/2 measured 1 acre 13 guntas, Sy No.23/3 measured 3 acres and Sy No.23/4 measured 25 guntas. 8. The Trial Court held from the evidence on record that the defendants were in possession of lands bearing Sy No.23/1 and Sy No.23/4 and the claim of the defendants that suit property was part and parcel of the land bearing Sy No.23/4 was negated from the evidence of DW-1 who deposed that Sy No.23/2 lay on the southern side of Sy No.23/4. The Trial Court held that defendants had encroached into the suit property and hence, directed the defendants to quit and deliver vacant possession of encroached area to the legal representatives of the plaintiff. 9. Being aggrieved by the aforesaid judgment and decree the defendants filed R.A.No.37/2007. The First Appellate Court secured the trial Court records and heard the learned counsel for the parties and framed the points for consideration and after taking into consideration the oral and documentary evidence adduced by the parties, held that the defendants had encroached 12 guntas of land in Sy No.23/2 and thus dismissed the appeal. 10. Being aggrieved by the concurrent findings of facts of the Trial Court as well as the First Appellate Court, the defendant have preferred this Regular Second Appeal. 11. Learned counsel for the defendants submitted that the property claimed by the plaintiff lay in the property bearing Sy No.23/4 which belonged to them and therefore, the plaintiff was not entitled for any reliefs. However, learned counsel did not dispute that property bearing Sy No.23/2 was allotted to the father of plaintiff, in which the defendants did not have any right, title or interest. If the defendants had no manner of right, title or interest in Sy No.23/2, they could not complain against the decree in the suit filed by the plaintiff. However, learned counsel did not dispute that property bearing Sy No.23/2 was allotted to the father of plaintiff, in which the defendants did not have any right, title or interest. If the defendants had no manner of right, title or interest in Sy No.23/2, they could not complain against the decree in the suit filed by the plaintiff. Even otherwise, the Trial Court as well as the First Appellate Court have elaborately considered the oral and documentary evidence in a proper perspective and concurrently held that defendants had unauthorizedly encroached into the suit property. This Court does not feel it appropriate to disturb the concurrent finding of fact recorded by both the Courts. As no substantial question of law arises for consideration, this appeal is dismissed.