Ramjan vs Tippanna

A.V. Chandrashekara, J.—Concurrent findings are called in question before this Court by the plaintiff of an original suit bearing O.S. No. 257/2002. Suit filed by the plaintiff against the respondent before the trial Court in O.S. No. 257/2002 i.e. the Court of Prl. Civil Judge (Jr. Dn.), Raibag for the relief of declaration of mandatory injunction has been allowed in part granting the relief of mandatory declaration, only relief of mandatory injunction has been negatived by the trial Court.

Plaintiff by filing an appeal u/s 96 of C.P.C. challenged the said judgment and decree in R.A. No. 258/2008 before the Court of Senior Civil Judge, Raibag. The said appeal has also been dismissed after contest. Parties will be referred to as plaintiff and defendant as per the ranking given in the trial Court.

Perused the judgment of both the Courts and heard the learned Counsel appearing for the appellant in regard to admission.

Case of the plaintiff is that he is the absolute owner of 12 guntas of land in Sy. No. 15C/4 of Raibag town in the vicinity of Railway station and that the defendant has encroached an area of 4 guntas of land in this Survey number. According to him, the encroachment is forthcoming from the P.T. sheet prepared by the competent surveyor. He has relied upon Ex. P3 the original sale deed in regard to the acquisition of title of the suit property. According to the plaintiff he has purchased the suit property from the original owner Mulla family on 27.04.1992 through a registered sale deed by paying a consideration of Rs. 6,000/-. The property was vacant and in abutting, the railway station at Raibag. The defendant''s land in R.S. No. 15C/4 measuring 6 guntas on the western side by suit schedule property and defendant is said to have illegally encroached the land of 4 guntas in the year 2002 in during the month of January 2002. Defendant is said to have put up construction by encroaching his land and plaintiff raised objections at that time and even called upon the defendant to get his property measured and then only to put up construction. On 17.05.2002, an application was filed before the Survey Authorities for measuring his land and ultimately, it was noticed encroachment had been made by the defendant.

Defendant has denied all the material averments. Plaintiff has been called upon to strictly prove the contents of the plaint as they are specifically denied. Defendant has stated that plaintiff might have purchased the suit property from his vendor through a registered sale deed. He has denied the allegations of encroachment of the land of the plaintiff. The survey conducted by the surveyor is specifically denied and he has alleged that PT sheet is got prepared by the plaintiff in collusion with the survey authorities that too behind his back. Hence, he had prayed for dismissal of the suit.

On the basis of the above pleadings, following issues came to be framed by the trial Court.

ISSUES

Does the plaintiff proves that he is absolute owner of suit schedule property?

Does the plaintiff further proves the encroachment of suit property made by defendant illegally as alleged in plaint?

Does the defendant proves that there is no encroachment in suit property 15C/4 as alleged in Written Statement?

Does the plaintiff is entitled for relief''s as sought?

What order or decree?

Plaintiff is examined as PW1 and one Sri. Shrishail Ramu Sanadi is examined as PW. 2. 3 exhibits have been got marked on his behalf. Defendant himself is examined as DW1 and one Sri. Basappa Narasappa Chougala is examined as DW2. 25 exhibits have been got marked on his behalf. After hearing the arguments and analysing the evidence, the learned Judge of the trial Court has answered the issue No. 1 in the affirmative, issue No. 2 and 3 in the Negative and issue No. 4 partly in the affirmative. Only relief of declaration is granted but relief of mandatory injunction is refused.

Appeal filed u/s 96 of CPC has also been dismissed by confirming the judgment of the trial Court.

Plaintiff who is examined as PW. 1 has got marked P.T. sheet as Ex. P2. This is fundamental of the suit. The authority of Ex. P2- the surveyor is not been examined before the trial Court. Mere marking of this document would be insufficient more particularly when the defendant has denied the authenticity of the same. Admittedly, the defendant has 6 guntas of land on the western side of the suit schedule property in Sy. No. 15C/3. As rightly pointed out by the trial Court as well as the 1st Appellate Court, plaintiff has described the suit schedule property as a vacant land. At another breath he asserts that defendant has encroached his land and constructed a building. Ex. P2 does not clearly depict the location of the property of the parties and the alleged encroachment.

Plaintiff himself admitted that defendant is the owner of land measuring 6 guntas in adjoining R.S. No. 15C/2. As rightly pointed by the trial Court that nothing is forthcoming as to what prevented the plaintiff from taking immediate legal action when he came to know that defendant was putting up construction by encroaching his land. Unless the initial burden cast upon the plaintiff is effectively discharged, onus does not shift on the either side. Therefore, negative finding on issue No. 3 does not have any significance. Plaintiff was expected to place acceptable materials in regard to the alleged encroachment and he has not placed any acceptable evidence before the trial Court or before the 1st Appellate Court.

As rightly pointed by the 1st Appellate Court, the author of the disputed sketch or map should have been examined. In this regard, a decision of this Court in the case of Ranganath Ramachandra Survyavanshi v. Mohan and others has been relied upon. The said decision is aptly applicable to the facts of the case.

PW1 has admitted that prior to the purchase of the suit property, he had got the property measured by himself. It would go to show that plaintiff did not purchase the property after the survey was conducted by the Competent Authority. If the survey authority conducted the survey and subdivided RS No. 15C/2, it is un-understandable as to why the plaintiff has not produced the survey sketch. Hence, authenticity of Ex. P2 P.T. sheet appears to be doubtful.

Even otherwise nothing came in the way of the plaintiff to have examined the vendor to prove the exact extent of land purchased by him. Though Ex. P1 the registered sale deed is relied upon by the plaintiff, it is not of much helpful unless the exact extent of the land purchased is made out with specific reference to boundaries and measurement. Nothing came in the way of the plaintiff to have got a Commissioner appointed before the trial Court or the 1st Appellate Court to arrive at a proper conclusion. In the light of the plaintiff in not taking steps to prove either of P.T. Sheet-Ex. P2 or not getting any Commissioner appointed on his behalf either in the trial Court or in the 1st Appellate Court and in the light of important admissions being culled out from the mouth of PWs. 1 and 2, trial Court is justified in dismissing the suit. The 1st Appellate Court being the final Court on facts, has reassessed the entire evidence and adopted right approach to the real state of affairs. No infirmity or illegality is found in the judgment of the trial Court or the 1st Appellate Court. Questions of law proposed in the appeal memo are not substantial questions of law in essence as contemplated u/s 100 of C.P.C. Even otherwise no substantial questions of law would arise for consideration before this Court and hence, appeal is liable to be dismissed as unfit for admission.

ORDER

Appeal is dismissed as unfit for admission by upholding the judgments of the trial Court as well as the First Appellate Court.

There is no order as to costs.