Honappa Rayappa Dhanagar vs Gurappa Sidappa Mageppagol and Others

B. Veerappa, J.—Though the matter is posted for admission, by consent of both the parties the matter is taken up for final hearing.

This is an unsuccessful plaintiffs regular second appeal against the judgment and decree dated 05.07.2011 made in R.A. No. 18/2007 on the file of the Fast Track Court and Ad hoc District Judge, Hukken, confirming the judgment and decree dated 17.02.2007 made in O.S. No. 64/2005 on the file of the Civil Judge (Jr. Dn.) Hukken, dismissing the suit for possession filed by the plaintiff

It is the case of the plaintiff that he is the owner of Sy. No. 271/1C measuring 3 acres 6 guntas out of which 7 guntas on southern side situated at Yadgud Village, Hukken Taluk is the subject matter of the present suit.

It is further contention of the plaintiff that the defendants being the owners of neighbouring land in R.S. No. 271/2 are unnecessarily encroaching upon the suit property. Inspite of repeated request made by the plaintiff, the defendants did not head to the request of the plaintiff Thereafter, the plaintiff on doubt had applied the survey of land from Survey Authorities i.e., A.D.L.R., Hukken and also applied for fixing boundaries of suit property bearing Sy. No. 271/1C on 19.12.2003. Accordingly, the A.D.L.R., Hukken as per application of plaintiff issued notice to the adjoining land owners and defendant Nos. 1 and 2 came to the suit property on 14.02.2004 and got surveyed the land bearing RS. Nos. 271/1c, 271/1A, 271/1B, 271/1D, 271/2, 271/3, 270 and 272 of Yadgud Village. After measuring the lands, the A.D.L.R., Hukken fixed the boundary stones to the property after due compliance of process of law and prepared the P.T. Sheet. The said P.T. Sheet clearly disclosed about the extent of the properties. In the P.T. Sheet, the suit property is shown as encroached by the defendants in the suit survey number. After the knowledge of encroachment by the defendants, the plaintiff issued legal notice to the defendant Nos. 1 to 7 for vacating encroached portion of the property within 15 days and notice were served to the defendants when the defendants have denied to hand over the possession of the suit property. Therefore, the plaintiff was constrained to file the suit.

The 2nd defendant filed written statement and other defendants adopted the same. Defendants denied the entire plaint averments and contended that R.S. No. 271/2, measuring 2 acres 27 guntas of Yadgud Village is the ownership of defendant Nos. 1 and 2 and their brothers Rayappa, Sidramappa and Beerappa and they are in actual possession and enjoyment of the said property. The brother (Rayappa) of defendant Nos. 1 and 2 was dead and his wife Channawa was alive. From time to time, the defendant Nos. 1 and 2 and their brothers have also sold RS. No. 271/2 to defendant Nos. 4 to 7 and others. The father of defendant Nos. 1 and 2, Siddappa had constructed a hut in R.S. No. 271/2 by side of Hukken Yadgud Road about 60 years back and there were two residential houses constructed by the father of the defendant Nos. 1 and 2 and his family were residing in the said house. Said Siddappa used to tether his cattles in the hut constructed in Sy. No. 271/2 and VPC No. 690 has been assigned to the defendant Nos. 1 and 2 have independently constructed two houses about 30 years back and residing along with their families. VPC Nos. 692 and 691 had been assigned to the said houses. Towards western side of defendants'' house their cousins'' houses and Sy. No. 271/1C was situated and there was a bund in between the said R.S. No. 271/1C and defendants houses about width of 8 to 10 feet and also contended that at the time of constructing house of the house of defendant Nos. 3 and 4, the plaintiff himself has measured the lands and consented for construction of their houses. The surrounding lands of R.S. No. 271/1C and R.S. No. 271/2 are not measured and survey authorities have not issued any notices to the defendant Nos. 1 to 7 nor fixed the boundaries of the lands by intimating to all land owners. The survey authorities have not intimated the defendants about the survey of lands, as there was no measurement taken place of the lands bearing R.S. No. 271/1C and R.S. No. 271/2 the question of encroaching of 7 guntas of land by the defendants does not arise. The P.T. Sheet on the basis of which the plaintiff based is false document, the same is illegally prepared colluding with the Revenue Authorities and the defendants have not encroached any portion of plaintiffs land. Hence, the question of handing over the possession of 7 guntas of land by the defendants to the plaintiff does not arise. Therefore, the defendants prayed for dismissal of the suit.

Based on the pleadings, the Trial Court framed the following issues:

In order to establish his case, the plaintiff examined himself as P.W.1 and Surveyor as P.W.2 and marked the documents Exs. P-1 to P-8. Defendant No. 2 examined himself as D.W.1 and marked the documents Exs. D-1 to D-5.

Considering the entire material on record, the Trial Court recorded a finding that the plaintiff failed to prove that he is the owner of the suit schedule property and also failed to prove that the defendants have encroached the suit schedule property and defendant Nos. 1 and 3 proved that their father Siddappa had constructed a hut in the suit schedule property. So also defendant No. 3 had constructed a house on the basis of the consent given by the defendant Nos. 1 and 2. Therefore, the plaintiff is not entitled for the relief Accordingly, the suit came to be dismissed.

Aggrieved by the said judgment and decree, the plaintiff filed R.A. No. 18/2007 before the District Judge, Hukken, who after hearing both the parties by its impugned judgment and decree dated 05.07.2011 dismissed the appeal and confirmed the judgment and decree of the Trial Court. Therefore, the plaintiff filed the present regular second appeal.

This Court by an order dated 15.07.2015 on the basis of the application I.A. No. 1/2014 filed, appointed the A.D.L.R., Hukken to visit and inspect the suit property and report regarding the encroachment, if any, over the suit schedule property after issuing notice to adjoining owners of the suit property Sy. No. 271/1C and submit the report. In pursuance of the said order passed by this Court, the A.D.L.R., Hukken submitted a report by letter dated 28.08.2015. According to the report, it clearly depicts that the owners of Sy. No. 271/2 that the defendants have encroached 3 guntas in Sy. No. 272/1C i.e., the suit schedule property.

I have heard the learned counsel for the parties to the lis.

Shri Sangram S. Kulkarm, learned counsel for the appellants has contended that both the Courts below have committed an error in not considering Ex. P-1 - P.T. Sheet and other material documents which discloses that the defendants have encroached the suit schedule property i.e., 7 guntas of land belongs to the plaintiff The said aspect has not been considered. He also contended that in view of the report filed by the A.D.L.R., Hukken before this Court on 28.08.2015, the report clearly disclose that they have encroached the suit schedule property. Therefore, he sought to set aside the impugned judgment and decree of the Courts below.

Per contra, Shri M.G. Naganun, learned counsel for the respondents sought to justify the impugned judgment and decree and contended that the report dated 28.08.2015 submitted by the A.D.L.R., Hukken in pursuance of the order passed by this Court on 15.07.2015, in the above appeal disclosed that the defendants encroached 3 guntas in the suit schedule property. If that is so, an opportunity could be given to the defendants to file objections to the report and to cross-examine the Commissioner. In view of the same, he sought to dispose of the regular second appeal.

This Court while admitting the above appeal has framed the following substantial questions of law:

"1. Were the Courts below justified in dismissing the suit filed by the plaintiff for possession negating the contentions of the plaintiff?

Were the Courts below justified in dismissing the suit in the facts and circumstances of the present case?"

The substance of the plaintiffs case is that he is the owner of Sy. No. 271/C and the defendants have encroached to an extent of 7 guntas in his property as per the extent of P.T. Sheet and other contemporary documents. The substance of the case of the defendants is that they are the owners of Sy. No. 271/2 and they never encroached the suit property and the alleged P.T. Sheet produced by the plaintiff issued by the Survey Authorities is without any notice and without any demarcation of the property.

In order to prove the case of the plaintiff, the plaintiff has examined as P.W.1 and other witness as P.W.2 and produced the material documents Exs. P-1 to P-8. To disprove the case of the plaintiff, 2nd defendant examined as C.W.1 and marked documents Exs. D-1 to D-5. The Trial Court considering the entire material on record has recorded a finding that D.W.1 in his cross-examination has stated that he has not preferred any appeal against P.T. Sheet and the evidence of P.W.2 witness is no way helpful to the plaintiff, as defendant claims that the P.T. Sheet prepared by P.W.2 is without their knowledge. After filing of the said suit, the defendants had denied the preparation of P.T. Sheet Ex. P-1 by P.W.2. Therefore, there was no need for the defendants to prefer the appeal against the P.T. Sheet.

The Trial Court also recorded a finding that on going through the Ex. P-1, nowhere ensures that the land is shown by P.W.2, neither measurement of any lands as deposed by him. During the cross-examination, P.W.2 admits that there is road existing in the land R.S. No. 271/2, leading towards Yadgud Village and same is not shown in the P.T. Sheet. P.W.1 also admits that there is an alleged land existing in R.S. No. 271/2 belonging to the defendants. When the road is existing in the land R.S. No. 271/2 there was no difficulty for P.W.2 to show the existence of road in P.T. Sheet. That itself created doubt about the survey conducted by P.W.2 and P.W.2 admits that he has not affixed notice to the notice board i.e., in the Gram Panchayat of their Village. Further admits that notice is served by their office attender. While P.W.1 in his in his evidence has stated that he has received notice of survey through post. Therefore, it creates doubt about the notice alleged to be issued by P.W.2, to the defendants before conducting survey and fixing boundaries of the lands of plaintiff and defendants. P.W.2 during his cross-examination has stated that he do not know whether there are boundary marks existing and there are boundary marks of land R.S. No. 271/C, measuring 3 acres 6 guntas. Therefore, it creates doubt about the existence of boundary marks alleged to be fixed by P.W.1 by measuring land R.S. No. 271/1C and R.S. No. 271/2. Therefore, the Trial Court was of the opinion that it clearly depicts that the measurement of land alleged to be measured by the P.W.2 and ultimately the Trial Court come to the conclusion that P.W.2 has not at all issued notice to the defendants before measurement has made. Therefore, the Trial Court was of the opinion that there is no survey conducted by P.W.2. Therefore, the Trial Court come to the conclusion that the plaintiff failed to establish that he is the owner of suit property of 7 guntas as shown in P.T. Sheet - Ex. P-1 and same is claimed by defendants. Therefore, the Trial Court dismissed the suit.

The lower Appellate Court concurring the finding recorded by the Trial Court has dismissed the appeal and recorded a finding that P.W.1 has admitted in the cross-examination that on the side of the road in the land of defendant Nos. 1 and 2 there is an old house at the distance of 5 to 6 feet from the road. He also admitted that there is one cattle shed abutting to the road and also admitted that the said house and hut is in existence prior to his birth and also admitted that the defendant Nos. 3 and 4 also constructed house in R.S. No. 271/2 and the Surveyor has observed this structures at the time of measurement of his land. He also admitted that Survey Authorities have not shown the said structures in encroached portion. P.W.2 admitted in the cross-examination that there was no structure of any land on the place shown as encroachment area in the P.T. Sheet. Considering the evidence of P.Ws.1 and 2 ought to have shown extent in the existing things i.e., structures in the P.T. Sheet and he has not mentioned the same in the P.T. Sheet that P.W.2 has not mentioned the existing structures in the P.T. Sheet had not explained by him in his evidence. Non-mentioning of the structures admitted by the plaintiff in P.T. Sheet shadows about the measurement of the land of plaintiff by Survey Authorities. Therefore, Ex. P-1 - P.T. Sheet alone does not help to the plaintiff to show encroachment made by defendant in his land and ultimately the lower Appellate Court dismissed the appeal.

As already stated above, this Court by an order dated 15.07.2015 on the application filed by appellant LA No. 1/2014, by allowing application, this Court has appointed A.D.L.R., Hukken as Court Commissioner to visit and inspect the suit property and submit a report. In pursuance of the said order passed by this Court, A.D.L.R., Hukken, who inspected the spot and conducted the survey after giving notice to adjoining land owners including defendants and submitted the report. As per the report, it clearly discloses that the owners of Sy. No. 271/2 i.e., the defendants have encroached the extent of 3 guntas in the suit property i.e., Sy. No. 271/1C. The said report also discloses that he has followed all the procedure as contemplated.

In view of the fact that both the Courts has concurrently held that P.W.2 - Surveyor has not conducted any survey after issuing notice to the defendants. Therefore, P.T. Sheet - Ex. P-1 produced by the plaintiff has been disbelieved. In order to dissolve the controversy, this Court appointed A.D.L.R., Hukken on 15.07.2015. The A.D.L.R., Hukken after following all the procedures, as stated above has submitted the report. The report clearly discloses that there is an encroachment of 3 guntas in Sy. No. 271/1C by the defendants/owners of the land in Sy. No. 272/2. If that is so, it is obvious that defendants should be given an opportunity to file objections to the Commissioner''s report and cross-examine the Commissioner in respect of the report. Therefore, the matter requires reconsideration by the Trial Court afresh.

In view of the same, the substantial questions of law framed in the above appeal answered in the negative holding that the Courts below not justified in dismissing the suit of the plaintiff Accordingly, the impugned judgment and decree of the Courts below are liable to be set aside, in view of the report submitted by the A.D.L.R., Hukken on 28.08.2015 and an opportunity should be given to the defendants to file objections and cross-examine the Court Commissioner.

In view of the aforesaid reasons, the impugned judgment and decree of the Courts below are set aside. The matter is remanded to the Trial Court for fresh consideration after giving an opportunity to both the parties to adduce their evidence, including an opportunity to the defendants to file objections to the Commissioner''s report and pass the judgment and decree in accordance with law.

Any observations made by this Court during the course of the above judgment and decree shall not influence the learned Judge and he shall pass the judgment and decree with reference to the pleadings and material evidence in accordance with law.

Office is directed to send back the records forthwith.