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2025 DIGILAW 864 (KAR)

K. K. Purushotham Naika v. Bharathkumar Gundya

2025-07-09

H.P.SANDESH

body2025
JUDGMENT : H.P. Sandesh, J. This matter is listed for admission. Heard the learned counsel for the appellant and the learned counsel for the caveator/respondent. 2. This appeal is filed against the concurrent finding of the Trial Court. 3. The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of declaration and possession is that he is the absolute owner of the ‘A’ schedule property by virtue of the grant by the Land Grant Committee of Madikeri Taluk. It is the specific case that ‘A’ schedule property was the granted land and the defendant is in illegal possession of ‘B’ schedule property without any right, title or interest and also sought for the relief of possession in respect of ‘B’ schedule property, which is in illegal occupation of the defendant. The defendant appeared and filed the written statement contending that he is not in encroachment of any property and contended that the suit is barred by limitation and the plaintiff is not entitled for any relief of declaration and possession as sought. 4. The plaintiff in order to prove his case examined himself as P.W.1 and also got marked the documents at Exs.P.1 to 10 and also examined P.W.2. On the other hand, the defendant examined himself as D.W.1 and got marked the documents at Exs.D.1 and 2. The Commissioner was also appointed before the Trial Court and the Commissioner went and inspected the property and gave the report in terms of Ex.C.1 and both the advocates have filed the memo of instructions before conducting the spot inspection. The Commissioner report Ex.C.1 is very clear that there was an encroachment to the extent of only 0.30 cents of land. The Trial Court having considered the report as well as the evidence available on record, in paragraph No.15 while answering issue No.2 comes to the conclusion that the plaintiff has established the encroachment by the defendant to the extent of 0.30 acres belonging to him. While answering issue No.4 i.e., in respect of limitation, the pleadings of the parties and the plaintiff is claiming possession of schedule ‘B’ property on the basis of his title and Article 65 of the Limitation Act is taken note of. While answering issue No.4 i.e., in respect of limitation, the pleadings of the parties and the plaintiff is claiming possession of schedule ‘B’ property on the basis of his title and Article 65 of the Limitation Act is taken note of. Having considered the material on record, while answering issue No.5 taken note of the property granted in favour of the plaintiff is schedule ‘A’ property measuring 2.84 acres in Sy.No.155/579 and also answering issue No.3 comes to the conclusion that it is the total extent of the land granted to him. The Trial Court also taken note of that the Surveyor has submitted Exs.C.2 and 3 and on the basis of Exs.C.2 and 3, the Commissioner has filed his report as per Ex.C.1. The answer elicited from the mouth of the Commissioner as well as the report is extracted in paragraph No.21 of the order and discussed in detail that the plaintiff is in possession of only 1.74 acres in Sy.No.155/579 and total possession of the plaintiff is 2.54 acres, including the portion of the property which is in his occupation and cultivation. As per Ex.P.1, the total extent is 2.84 acres and measurement shown in Ex.P.5 saguvali chit is also the same. The Trial Court also taken note of Ex.C.3, wherein the Surveyor marked the area of 0.30 acres in green colour, which is in the possession of the defendant and to disprove this fact, the defendant neither led oral or documentary evidence before the Trial Court with regard to he has been in possession to the extent of 0.30 acres and no documents are produced before the Trial Court to claim that 0.30 acres of land belongs to him. Hence, the Trial Court granted the relief as sought, in respect of only portion of the property declaring that the ‘A’ schedule property belongs to the plaintiff and the plaintiff is entitled for possession of only 0.30 acres in Sy.No.155/579 and directed the defendant to hand over the possession of 0.30 acres of land, which is identified as is in the possession of the defendant. 5. Being aggrieved by the said judgment and decree, an appeal is filed in R.A.No.16/2021. The First Appellate Court considered the grounds urged in the appeal and issue is with regard to the possession is concerned i.e., ‘B’ schedule property. 5. Being aggrieved by the said judgment and decree, an appeal is filed in R.A.No.16/2021. The First Appellate Court considered the grounds urged in the appeal and issue is with regard to the possession is concerned i.e., ‘B’ schedule property. It is claimed as measuring 1.50 acres out of 2.84 acres and taken note of the Commissioner report and also formulated the point whether the plaintiff proves the encroachment as shown in ‘B’ schedule property. The First Appellate Court re-assessing the material on record, comes to the conclusion that there is an encroachment and answered the point in the affirmative with regard to the finding of the Trial Court that there is an encroachment to the extent of 0.03 acres and the same is discussed in paragraph No.35. The First Appellate Court also discussed that the Commissioner inspected the property and re-surveyed the land in view of both the learned counsel agreed for the same and the Court Commissioner taken note of the memo of instructions given by both the parties and also the plaintiff has established that only portion of the property to the extent of 0.03 cents of land is encroached by the defendant and not 1.50 acres of land as contended by the plaintiff and answered the same in the affirmative i.e., point No.2. 6. Being aggrieved by the said concurrent judgment, the present second appeal is filed before this Court. 7. The learned counsel for the appellant would vehemently contend that the report is not a scientific report. The learned counsel contend that the judgment and decree passed by the Trial Court is against the material on record. Both the Courts relied upon the vague and uncertain report of the Court Commissioner and ought not to have relied upon the same and hence this Court has to frame substantial question of law whether the judgment and decree passed by both the Courts are without appreciating the facts and circumstances of the case, much particularly regarding law of estoppel, res judicata and abandonment of the cause of action? 8. 8. The learned counsel for the respondent would contend that the Commissioner was appointed with consent and both of them have given memo of instructions and based on that only, the Commissioner conducted the inspection and measured the land and given the report that encroachment is to the extent of 0.30 acres of land and not as claimed by the plaintiff to the extent of 1.50 acres. Both the Courts have taken note of the evidence of the plaintiff and the defendant and also the Commissioner report and the evidence of the Commissioner and comes to the conclusion that encroachment is only to the extent of 0.30 acres and hence it does not require interference of this Court. 9. Having heard the learned counsel for the appellant and the learned counsel for the respondent, the main contention of the learned counsel for the appellant is that both the Courts failed to appreciate the facts and circumstances of the case. The learned counsel contend that law of estoppel is applicable to the case on hand and also res judicata and abandonment of cause of action. Having perused the plaint averments, it is the specific case of the plaintiff before the Trial Court that 2.84 acres of land was allotted and ‘A’ schedule property is the property allotted to the plaintiff and only claim made is in respect of encroached portion and though claimed 1.50 acres of land as in the occupation of the defendant, but the Commissioner was appointed and the Commissioner went and inspected the spot and both the learned counsel filed the memo of instructions and the same is considered and as per the report of the Commissioner, comes to the conclusion that encroachment is only to the extent of 0.30 cents. No doubt, objection is filed to the Commissioner report and the Commissioner was examined before the Trial Court and nothing is elicited from the mouth of C.W.1. The learned counsel contend that the Commissioner report is not scientific report and in the cross- examination with regard to possession of 0.30 acres of land is concerned, nothing is suggested to C.W.1 and elicited any answer. Apart from that, he has not made any claim in respect of 0.30 acres of land placing any document before the Court and the same has been considered by the Trial Court in paragraph No.15 while answering issue No.2. 10. Apart from that, he has not made any claim in respect of 0.30 acres of land placing any document before the Court and the same has been considered by the Trial Court in paragraph No.15 while answering issue No.2. 10. The First Appellate Court while answering issue No.2, having re-assessed the same taken note of the Commissioner report as well as the evidence of P.W.1 and D.W.1. When such being the case, both the Courts have applied their mind for the consideration of factual dispute with regard to the possession of the property, which was claimed and the defendant is not claiming any right in respect of ‘A’ schedule property is concerned and only his grievance is in possession of his property. But the Commissioner identified the property which is in occupation of the defendant in Sy.No.155/579 and the land which was granted in favour of the plaintiff. When such factual finding is given and also taken note of the mixed question of fact and law by the First Appellate Court, I do not find any ground to admit the appeal and frame any substantial question of law. 11. In view of the discussions made above, I pass the following: ORDER The second appeal is dismissed.