IN THE HIGH COURT OF KARNATAKA AT
BANGALORE
DATED THIS THE 27"' DAY OF SEPTEMBER, 2010
EEEORE
THE I:~1_ON'BLE MR. JUSTICE ANAND BYRARED_D.';i?-._v
REGULAR SECOND APPEAL No. 2216 A-
C/W
REGULAR SECOND APPEAL 1\;1gA,'_'22E"1U7 bfzitioés» '
IN R.S.A.NO.22£6 DP 2008
BETWEEN :
Goopalappa dead by LES E
Paehamma I _
W/0 G<)()p'a].a*;)pa§'j"__._»_ .1 '
AgedE.SU A A
1 .
MfiiT_iyeEVEaxDp_EV7'_ "
;' ~ S/D G0ep:;iia'p_pa';
A 60 v
" _ E' 'G_Ow'1*::1gT1'n'}a
'V'J1"Q. __M}11TiSwamappa,
Age"(}_. 55 years,
H Vfiiiiiamma
W/0 Mmivenkatappa,
Aged 51 years
Jyothagaiah
S/0 Goopaiappa,
Aged 53 years,
8
5. Rathnzlmma
W/0 .L21_ksh.m.iah
Aged 49 years,
R/o Mangaia Layout,
Kammanahalii,
Nr. Old Police Station,
Banasavadj,
Bangalole -- 560 084.
6. Krishnappa
S/o Goopalappa,
Aged 46 yeamx,
7. Sfinivasa
S/0 Goopalappa,
Aged 43 years, V
Appellants 1, 2, 3, 4, 5, 6 &'7
Residents of H¢_i:i11:}gz1r2};'Vil'lag§g., . s
Anekal Ta1ukf-- .../Appellants
(By SVhri.. 'M . 'Ad V0cat.e)
AND:
\Jenkatz1s'W';uhy
_ evsxg Chandra Pillappa,
A 1 Aged V6.1' years,
__ Kfiéhnappa
.. S;{o Chzlndra Pillappa,
"Aged 58 years,
A "'..vvReSj':)<)11cients No.1 and 2
x V HER/0 Hennagara,
A Jigani Hobii, Anekal Taluk W 562 I06.
3
3. Secretary
Hennagara Group
Panchayath,
Jigani Hobli,
Anekal Taluk M 562 106.
4. Assistant Executive Engineer
Karnataka Electricity Board,
Anekal Taluk - 562. l06.
(Respondents No.1 to 4 are Served)";
This Regular Second Appeal Lt11delr.”.;5l€:cti’on’-4100 L
of Code of Civil Procedure, ‘l9(}~8, against th_e’j.t1dg’r1’:eu.t*’t1nd * ‘
decree. dated 04.08.2008 passectiilni’R.A.No..3«3ti’;’2002 on the
file of the District and; ‘Sessions ..i’u:1ge._& Presiding’ Officer
FTC–V, Bangalore Ru;-ali:y’~Disltrict,,l}3angal.oi’e dismissing the
appeal and confirming the lj-t1dg1ne1it–f’_’and decree dated
20.11.2002 passed in,.G«.vS.No.*94;{l991 the file of the
Additional Civiiglutlge if} &«.JMFC,_, Aiiekal.
IN RlS.A..i\i0.22’it-7flOF’2008 7
BETwEi:eN;i .
Clealti ‘b-y——l;.Rs
0’ ‘Pachaniinaé Dead by LRS
~.Age’d 80″_yeai”s’l
z ‘lli\/Iu.nli:iyel_l_appa
*3/0 Goopalappa,
Aged 60 years,
E2. GOW1.’£.l}’1’l.mI;1
W/o Muniswamappa,
Aged 55 years, g
3. Kuilamma
W/0 M’u11i.venkatappa,
Aged 5} years;
4. J yothagaiah
S/0 Goopalappa,
Aged 53 years,
5. Rathn.21mma
W/0 Lakshmiah
Aged 49 years, T.
R/0 Mangala Layout, ‘A ‘
Kammanahzflli,
Nr. Oid Police Station, .
Banasavadi, ' ._ A v Bangalore -- 560 084;' 6. K1*isE1n.ap';3rr _ __ S/o_.Gr)c)pz§A1!_ap_pa, __ z _ Agéd 4§'}iea1'S*; » : 7. A . S/0 «Gocapgiia « .. _' Ags:_d'43 y'c;115s,, = V
A;pfi;éVlE:in.ts 1,’A2r,ry3:_yVy4,M_y5:, 6 & 7
A A * A VRcsi_d3eIr1tsbfHen11agara village,
‘ Anejkaly 562 E06. . . .Appe11ants
A Shri} S.Varaciarajan, Advocate)
2 Venkataswamy
S/0 Chandra Piiiappa,
Aged 61 years, 6
2. C. Krishnappa
S/0 Chandra Pillappa,
Aged 58 years,
Respondents No.1. and 2
R/0 Hennagara,
Jigani Hobli, 3 _
Anel<alTa1ul<– 562 106. ..Re.s'p()ndent's–i -2 *
(By Shri. Jayarama Reddy, Advcucate' ftnj
This Regular Second Appe..:;1 is filed undeij lecvtion .7100
of Code of Civil Procedure, l9'08;"tagaii1st' the'AjI:dgh1ent. and
decree dated 04.08.200__8 passed.__ih~vR.'AV.N0.33i?,/200?; on the
file of the District aiid__Sessi(ins Presiding Officer
FTC–V, Bangalore Rural 'lf)ist'ricftE; fBali'1gal(jre.Vdismissing the
appeal and c0nfirrni.ng.._ ju.dgmen:t, 'at1jd decree dated
20.11.2002 passed-_ in on the file of the
Additional Qiiiil .E;tdge.(Ji'.D.n) &4..lMFC.';"Anekal.
These R_egtilat'llSeceii1'd~ Appeals coming on for Hearing
this day; the court deli«xe1'ed"th"e following:
l'ts31t3i)GMENT
'~ the ieldnnsel for the appellant. The learned
.cdu_n.selvli"Qi,i___tlie'resp0ndent appearing in RSA 22E7/2008 had
s0dght"f01f'tiine. However, he is not present today.
" The brief facts as are relevant for the disposal of
Aithilsliappeal as follows-:-
6
6
The appellants were the defendants before the trial
court. The suit was tiled for mandatory injunction against
the original defendant alleging that he had eneroached___ into
the property bearing survey nos.77/2 and 77/7 with eiaréifrjndnp
boundaries and that he had dug a bore–well ll
power lines in. their property. Thtismwas e(rnte;steVdi«._by”the
defendant and the defendant. had t’u1the.r stated ptshatlhe ‘had. no 7
claim in the suit property, whiehw..ad:ni_tted’ly. to the
plaintiff, but ht)weVejg–._._he atirseigte-.d”~that”‘he had installed a
borewel} and laid poweAr~line’s in_h_i._so’wn'”‘property bearing
l<hata1:VVilno7.v83/ contended that there was no
encroaeirtnent of the suit property and the
rnisjehief was infllthe suit property having been described .in
.7 '1*;s.a_n_r.erVitojnelttde the property of the defendant in Khata
7. the pendency of the suit, the original
defendant had died and the appellants were brought in as his
.1ega’} representatives. At the trial, a Commissioner was
__appointed to identify the plaintiffs as well as the defendant’s
property and to report as to tgstate of affairs as regards
if
allegation of the borewell and the power–lines being installed
in the plaintiff’s property. It is admitted on record that the
commissioner at the time of executing warrant did not issue
any notice to the appellants. He has, in his 1’eport,~,_’
that he has not identified and located the defertdaafs H
as shown to him by the plaintiff and filed i«that’~tl’1ei.”‘l
bore–well exists in the plaintift”‘s property. .It the blasis V
of the Commissioner’s Report anode’ while olverlooliiriggthe fact
that no notice was issued “to the orig,f’ii’1~.:.1_i»defendant or that the
defendant’s property wassnottyeVenz_idlehtitied’ at the time of
executlionil itifflthe i7i.wanl*a:3lt, that” the courts decreed the
plai11tiff”s.V_siuit. itis ground on which the present
appeal is sotlghtpltolbe filed.
appeals were admitted while framing the
‘ ~foil-owingli_que’s;ti’on of law , namely,
V “Whether the courts below were justified in
acting on the Comm.issioner’s sketch Ex.P.l.5
l without there being any wgence to show that the
appellants were issued notice by the
Commissioner before drawing the sl._tippr’eei2tte the
appellant’s case that tliiilifl _was no ‘en’croa2§l11nen.t and the
borewell and power lihes”»w{e:i’e”irfldeed. oridthe defendants’
property and ithat5litheI’e’ ~.a_o rjlairn by the appellants over
the .4lh..ithis_ regaixl, both the courts having
failed :_af;pec’t. of the matter has certainly
restiltediii gra’vev_ihjusti};e. The question of law would have
,i to be aiisiweredv in favour ofthe appellants.
the appeals are allowed. The judgment
andliidectreeiiot’ the lower appellate court are set aside. The
is remanded to the lower appellate court for a
i reconsi.derati()_n with a direction that the lower appellate court
Z
Ci
shall. appoint another c0m.missi0ne:’ to obtain a report as to
the measurement of both the plaintiffs and the def’en{}ants
property and iliereaftei’ to identify the SiiLl3.t.i,(~)~12.
borewell and the power lines which are the of”
complaint and to report as to IhQi:__SiEL1£”1-t,iQ:i1 .§£:rtie. it
order that the appellate court V2Tia3,r_V1″e-deierntine the Axis:-:.1,1e”a.3 to
whether there was indeed enc1’o_aeih’m_eIit_p()f the” s;.11i_t préperties.
dli