H.R. Sanganna and Others vs Sri. P. Thimmaiah

H.N. Nagamohan Das

This Second Appeal is directed against the judgment and decree dated 05.02.1999 in O.S. No. 543/1990 passed the Additional Civil Judge (Jr. Dvn.) at Hiriyur and confirmed by the judgment and decree dated 10th March 2005 in R.A. No. 196/2004 passed by Principal District Judge at Chitradurga

The Appellants are the Plaintiffs and Respondents are the Defendants before the trial Court. In this judgment for convenience the parties are referred to their status before the trial Court.

Plaintiffs contend that they are the owners of property bearing alto No. 4, Assessment No. 536 and Assessment No. 537 which is more fully described in the plaint schedule. The Defendant No. l illegally encroached a portion of the Plaintiffs'' property to an extent of 9 feet x 35 feet in site No. 4. Therefore, the Plaintiff filed O.S. No. 543/1990 for declaration of title, recovery of possession and for mandatory injunction to demolish the illegal structure put up by the Defendant No. 1.

The 1st Defendant entered appearance before the trial Court and filed written statement inter-alias contending that he is the owner of property bearing site No. 3 measuring 20 feet x 39 feet. The schedule property is a part and parcel of site No. 3. The Defendant No. l has not encroached the Plaintiffs'' property and has not put up any construction on the property of Plaintiffs. On the other hand, the construction put up by the Defendant No. l is on his property bearing Site No. 3. The 2nd Defendant remained unrepresented.

On the basis of the pleadings, the trial Court framed the following issues and Additional Issues for its consideration:

1) Whether the Plaintiff proves that he is the absolute owner of the schedule property?

2) Whether the Plaintiff proves that the 1st Defendant encroached upon the schedule property towards the Western side measuring East-West: 9ft, and North-South: 39 ft; in the month of October 1990?

3) Whether the suit against the 2nd Defendant is not maintainable in view of not complying the provisions u/s 284 of the Karnataka Municipalities Act, 1964?

4) Whether the suit is barred by law of limitation?

5) Whether the Plaintiff is entitled for the relief sought for?

6) To what order or decree the parties are entitled?

Additional Issues:

Whether the Plaintiff proves that the 1st Defendant was put up a structure over the suit schedule property by encroaching the same?

Whether the Plaintiff proves that he is entitled for mandatory injunction as prayed?

Before the trial Court the Plaintiffs examined 4 witnesses as P.W. 1 to P.W. 4 and got marked Ex. P1 to P24. The Defendants examined 2 witnesses as D.W. 1 and D.W. 2 and got marked Ex.D1 to D12.

The trial Court on appreciation of the pleadings, oral and documentary evidence held that Plaintiff has failed to prove and establish his ownership over the plaint schedule property and the alleged encroachment by the 1st Defendant, Consequently, the trial Court dismissed the suit of Plaintiffs.

Aggrieved by the judgment and decree of the trial Court, the Plaintiffs filed, an appeal in R.A. No. 196/2004. After hearing the arguments, the First Appellate Court framed the following points for its consideration:

Whether the Plaintiff has made out sufficient grounds to summon the documents as prayed for in I.A. No. II?

Whether the Plaintiff has proved that he is the absolute owner of the suit site?

Whether the Plaintiff has proved that the Defendant No. 1 has encroached upon a portion of the suit site and that the Defendant No. 1 is liable to be removed from such encroachment?

Whether the Plaintiff is entitled to all or any of the relief?s claimed?

Whether the impugned judgment and Decree call for interference in this appeal?

On re-appreciation of the entire material on record, the First Appellate Court confirmed the judgment of the trail Court and dismissed the appeal. Hence, this second appeal.

This Court by order dated 10.03.2006 admitted this second appeal to consider the following substantial question of law:

Whether the concurrent findings of the Courts below that the Plaintiff- Appellant has not proved encroachment to on cadent of 9 Z 35'' in site No. 4, is perversely contrary in law, overlooking the evidence of the Court Commissioner/Engineer of City Municipal Council, Hiriyus, which positively establishes the fact of encroachment by the Defendant. ?

I heard the arguments on both side and perused the entire appeal papers. It is not in dispute that Plaintiff is the owner of site No. 4 measuring east to west 23 ft and north to south 35 ft. Further, it is not in dispute that on the western side of site No. 4 the property of Defendant No. l bearing site No. 3 measuring 20 ft. x 39 ft. is situated. Plaintiff contends that the 1st Defendant has encroached a portion of site No. 4 measuring 9 ft. x 35 ft. On the other hand, the 1st Defendant contends that he has put up construction on his site No. 3 and he has not encroached. This is the only controversy between the parties. In regard to this controversy, a Court Commiesioner was appointed before the trial Court and he submitted a report, mahezar and sketch as per Ex. P21 to P24 and he was examined as P.W. 4. The trial Court noticed that P.W. 4 in his cross-examination admitted, that there is a mistake in his report and that he has not measured the disputed portion as per the sale deeds and memo of instructions. Therefore, the trial Court refused to rely on the report submitted by the Court Commissioner though it discloses that Defendant No. 1 has encroached Plaintiffs'' property bearing site No. 4. Even the First Appellate Court noticed the irregularity in the report submitted by the Court Commissioner and consequently refused to rely on the same.

If for any reason, the Courts below were to reject the report of the Court Commissioner then it is necessary and incumbent on the part of the Court to secure a fresh report. But in the instant case, no such attempt is made by the Courts below, But having regard to the extent of property in dispute and that the length of time that it has consume, I am of the opinion that it is not a fit case to remand the matter again to the trial Court for re-consideration in accordance with law. In order to balance the interest of both the parties and to put an end to the litigation, I am of the considered opinion that directing the 1st Defendant to pay a sum of Re. 25,000/- to the Plaintiffs will meet the ends of justice. Accordingly, the question of law framed above is answered in negative.

The appeal is hereby dismissed.

The 1st Defendant to pay a sum of Rs. 25,000/- to the Plaintiffs within two months from today.