G.S. Girisha vs Padambil Chinnappa

A.V. Chandrashekara, J.—Concurrent findings are called in question before this Court by filing an appeal under Section 100 CPC. Plaintiffs are aggrieved by the rejection of the relief of possession sought for by them in regard to properties described in schedule ''B'' to ''D'' of the plaint. The Trial Court has declared that plaintiffs are the absolute owners of suit ''A'' schedule property bearing Sy. No. 197 of Gargandur Village, Somwarpet Taluk, Kodagu District. According to the plaintiffs, the defendants have put up constructions unauthorisedly in a portion of the land as described in schedule ''B'' to ''D'' which are part of ''A'' schedule and therefore, plaintiffs had requested to declare that they are the owners of the portion encroached by the defendants and for the consequential relief of possession. The Trial Court has come to the conclusion that plaintiffs are the absolute owners in possession of land bearing Sy. No. 197 measuring 1 acre 71 cents. But the Trial Court has held that the defendants are not in possession of any portion of the land in Sy. No. 197, but they are in possession of the Government land bearing Sy. No. 222/1 in different stretches.

The Trial Court has decreed the suit in part on 16.02.1999. Against the said judgment and decree, an appeal had been filed before the First Appellate Court i.e., the Court of District Judge, Kodagu, by the plaintiffs in R.A. No. 5/1999. The said appeal has been dismissed after contest. Thus the judgment of the Trial Court passed in O.S. No. 49/1993 has been upheld. Being aggrieved by the dismissal of the suit as well as the regular first appeal, plaintiffs have approached this Court.

On hearing the learned counsel appearing for the plaintiffs, this Court has framed the following substantial questions of law on 28.11.2012:

"Whether the Courts below having granted the relief of declaration in respect of plaint ''A'' schedule property and permanent injunction against the defendant Nos. 1 to 5 & 9 & 10 restraining them from interfering with the possession and enjoyment of the plaintiff in respect of plaint ''A'' schedule property are justified in not granting the relief of possession in respect of plaint ''B'' to ''D'' schedule property by directing the defendant Nos. 6 to 8 to deliver the possession of the same in favour of the plaintiffs and whether such judgments and decrees of the Courts below are sustainable in law?

To consider any other substantial question of law which may arise for consideration while hearing the appeal ?"

The learned counsel appearing for the parties have submitted their arguments at length. Perused the entire records of the Trial Court and the First Appellate Court.

The defendants have not denied the ownership of the plaintiffs in regard to the land in Sy. No. 197 measuring 1 acre 71 cents. The averment made in the plaint is that the defendants have encroached a portion of the land in Sy. No. 197 and have put up huts in Sy. No. 197. The said averment has been specifically denied. Their specific case, as put forth before the Trial Court in their written statement, is that they are in possession of different snips of land in Sy. No. 222/1 which is a Government land and that the said land is to the west of the land in Sy.No. 197.

During the pendency of the suit before the Trial Court, surveyor of Somawarpet Taluk Office had been appointed as Commissioner to visit the spot and to submit a detailed report along with a sketch. Accordingly, he visited the land in Sy. Nos. 197 and 222/1 on 28.11.1997 and chose to draw a mahazar. The said Surveyor is examined as CW1. He has been cross-examined not only by the learned counsel for the plaintiffs but also by the counsel for the defendants. Nothing has been culled out from the mouth of CW1 who is a disinterested witness to disbelieve his deposition. The Trial Court as well as the First Appellate Court have clearly come to the conclusion that there is no reason to interfere with the assertion of CW1 the surveyor appointed by the Court.

Perused Ex. C1 which is stated to be the rough sketch prepared by the surveyor, who was examined as CW1, at the spot. He has specifically asserted that on the basis of Ex. C1, the rough sketch prepared at the spot, Ex. P10 the detailed sketch along with the report was submitted. The fact of Surveyor visiting these two survey numbers is not disputed, since plaintiffs and defendants along with the adjacent land owners were present on 28.11.1997.

What is argued before this Court by the learned counsel for the appellants-plaintiffs is that there is a reference about the encroachment made by the defendants in Sy. No. 197 in Ex. P9 the mahazar drawn at the spot and that sketch mentioned as Ex. P10 has been prepared contrary to the contents of Ex. P9.

This Court is unable to accept the said contention since Ex. C1, the rough sketch which is prepared at the spot tallies with the location of the houses of the defendants in Sy. No. 222/1. Admittedly to the west of land in Sy. No. 197 is a big road and to the West of this road is land in Sy. No. 222/1.

10 In fact, the learned counsel for the plaintiffs himself has elicited from the mouth of CW1 that the sketch is prepared on the basis of the documents available in the office of the Land Records. Even Ex. P11 which is the sketch issued by the Assistant Director of Land Records, Somwarpet, discloses the existence of land in Sy. No. 222/1 to the North of Tank in Sy. No. 220. Land in Sy. No. 222/1 is to the West of the road running North: South abutting the land in Sy. No. 197.

On a conjoint reading of Ex. P10, Ex. P11 and Ex. C1, it is evident that plaintiffs have failed to prove that land in Sy. No. 197 has been encroached by the defendants to put up residential houses.

Even otherwise, Ex. P10 specifically discloses that the land in Sy. No. 197 measuring 1 acre 71 cents has been in possession of G. Siddalingappa and his sons, and that Ravi, Sadashiva and Duggappa, have encroached 15 guntas, 12 guntas and 15 guntas respectively in Government land bearing Sy. No. 222/1 and have put up Mangalore Tiled House and have planted coconut trees and jack fruit trees also.

In a case like this, the evidence of the Commissioner plays a pivotal role and both Courts have properly assessed the evidence of the parties, more particularly, the evidence the Commissioner in right perspective. Neither the Trial Court nor the First Appellate Court have adopted any wrong approach to the real state of affairs. The evidence placed on record has been assessed on the touchstone stone of intrinsic probabilities. Suffice to state that no illegality or perversity is found in assessing the evidence by both these Courts.

Apart from this, there is absolutely no ground to interfere with the well considered finding on fact relating to the existence in land in Sy. No. 222/1 to the West of the road abutting the land in Sy.No. 197 and the houses being put up by the defendants in Government land and in Sy. No. 222/1 which is to the North of Government Tank bearing Sy. No. 220.

In this view of the matter, the appeal is liable to be dismissed holding that both the judgments are sustainable in law and on facts.

ORDER

Appeal is dismissed with costs. Consequently, judgments of both the Courts are upheld.