IN1TH3HKHiCOURTCWWfl%UW¥UflQLKTBANGALORE
DATED THIS THE 29TH DAY OF SEPTEMBER 20
BEFORE
THE HON'BLE3 MR JUSTICE K GOV1NDARAJ_ij1.t;~.f..:: "
REGULAR SECOND APPEAL 2G9 /;2O..1O'._' "
BETWEEN: « ' '
1. MRS.SHAzADA BEE
W/O AGE ANWAR SAB.
AGED ABOUT 70 YEARS. A
2. MRRAFIQ -- _ ,
AGED ABOUT 51 '$.'EARS.,"" -
3. MR.AAT}~1I_(g.,§'--..' . A _ _
AGED ABOUT 4s§."'{EARS,. .
4. NEQSADIQ, _
AGED ABOUT 4:?' YEARS." V. __ =
5. MRRIZWAN, V - .
AGEl)ABOUT4;2YEARS. ,
6. .....
AGB3.)A13Oz.;T' 40
7. .ENASRtN,...."~«... " V
' AGED AIE3()U"'l'* 38 V ' 'V
MFLBABU.' A
-- ABOUT SBVVYEAFS.
ABOUT29 YEAE.
iO%.i*§aR.S..SEEMA.
V j AGED ABOUT 32 YEARS.
I E .MR.I1\/IRAN.
AGED ABOUT 29 YEARS.
12.MRS.SAL1\/IA.
AGED ABOUT 26 YEARS.
SERIAL N052 TO 12 ARE
CHILDREN OF DECEASED
MRAYUB KHAN @ ANWAR V
SAB AND ALL ARE RESIDING AT
BHAK LI VILLAGE, "
MALLENHALLI POST,
CHIKMAGALUR TALUK -V 5.77 Loy"
{BY SR1 M.s.RAGHAvENDi§A.A_PRAsA:),
AND: A A A V' A
1. MRLEO " j_ ~
AGED AEom'.V55.._Y_EARs; «_ '
2. _
AGED ABOUT 48 Y'$fA,RS..v '-
3. " A
AGED ABOUT 2&2 YEARS',-
_ SERVE', N03. 1 TO" 3 ARESONS OF
DECEASED ARI.-U
R/Q .HALAs.A13ALU VILLAGE,
'M_'A1,LEPJAIErIALLIG. POST,
c1~11NLA.GAm_E_ 'FALUK
AND .p1sT_E1cI 4 577101.
MRS: MARY
= "W/C_K.T.:v1ATHAIs,
' "R/0 B"E_mK LI VILLAGE,
_ *_Mz'.\LLENAI{ALLI POST,
'"cH:KMAGALUR TALUK & DISTRICT.
5. MRSJASCINTHA
W/O LATE ANTHONY FERNANDES.
AGED ABOUT 57 YEARS,
SUBHASH NAGAR, BELAGOLA,
MUDIGERE TALUK,
CHIKMAGALUR DISTRICT -- 577101.
6. MRSGRACY.
W/O VINCENT LOUIS,
AGED ABOUT 50 YEARS, _
LOUIS METAL MART, GUNDLUPET, ..
CHAMARAJANAGAR DISTRICT --' 'SW1 0 1.
7. MR. D.MOHAl\/IMED ANEEE -A "
s/O DMOHAMMED SULEIVIAN,-_
ANJANAPPA COMPOUND, ' ;
BASAVANAHALLI EXTENSIO.N.'=. '
CI«1IKI\»1AGALUR_--.577101;, *
8. MR.MO}iA;E\AP;'IEDw.R;LI' _
S/O MOHAME/I_ED_ MOHIDDIN; ..
AGED: MA-JAOR.-"';. ' _
PENSION MOHA£'4L.AVNEV1'.'EX1'ENSION,
CHIKMAG.ALURw-- .=57j'7.10I,"--z..__ ' ...RESPONDENTS
(BY SR1 VIGNESHwAR"S.SH:ASTRY FOR R1--R6)
..THIS~ RSAV"IS.,I«fILED UNDER SEC'I'ION 100 OF CPC,
. A€}AINST?-."v THE JUDGMENT AND DEGREE DATED
'~A.24..VIO.'2O09.PAs--sED IN R.A.NO.383/2006 ON THE FILE OF
"RRES1DIIN_G_. OFFICER, FAST TRACT COURT.
CI»IIKNIAGzAI.',UR;~," DISMISSING THE APPEAL AND
CONIijIRMING*--«_.THE JUDGMENT AND DECREE DATED
.3.11.2'O03. PASSED IN O.S.NO.144/1996 ON THE FILE OF
THE ADD_L.1CIV1L JUDGE (JR.DN.] CHIKMAGALUR.
A 3 * : »T1_'HIS APPEAL COMING ON FOR ADMISSION THIS
};)A'::.'._'I'P_iE COURT DELWERED THE FOLLOWING:
JUDGMENT
Defendants in OS 144/1996 on the file of
Civil Judge (Jr.Dn.), Chikmagalur is the appel_la1:t
appeal under Section 100 CFC.
2. Parties will be referred ac1(:’0rd’ienglv tol’thA’eir’_
found in the suit for convenienc\§’x’._,,,.,. 1. V V l ”
3. The case of the pla.intiffs”is”that plaintiff-lis granted
“A” schedule property byvtihe._Chicl{rnagValur by
u.
order date””1<Dcfen.dantsVh'ave no manner of right,
title or interest 18' defendant has
encroached v.prope1*tyr..:as the one described in "B"
\'\phed»*d:Ee and it has corne to the notice of the plaintiff before
the defendant has no right to go on with such
also 271d defendant has encroached the
«property as "C" schedule about 6 years back. 151
he he ' '4"'dei'endantVVhas removed Segekai and Antwala crop in the "B"
.l_p1sch.edule property worth Rs.3,000/–. So, seek for a decree
-<l_4:b'ei'171g passed for possession. Defendants have entered
appearance. Call upon the plaintiff to prove the grant by the
land tribunal. Contend that the cause of action has not
arisen as the one contended. Deny the encroach:rie.nte
pleaded. Contend that Sy.No.161 is a wet land. .
3 acres 30 guntas. It is situated at.I&ialasabaIu'~1fil,lage"of
Chickmagalur. it is bounded on the east.
land and I-Ialla, west by Shanthaxreri
and south by road belonged to it is
further contended the sold the said
property to the father of thedefendaht Yakub Khan
under a sale as document
No.4:36/" Khan, the defendants
are in possession._anfdi.Z'enj:oynient of the property having
acquired.titlefun_der.the°sal'e deed. Defendants have raised
cioffee, guai/a""and other plants in Sy.No.161. It is
conte,aded':that Sy.No. 162 which the plaintiff alleged
to adjacent to Sy.No.161 belonging to the
'd,,efendantu.";. The two properties are bifurcated by a fence.
._ is in existence for more than 40 years. Plaintiff in the
1996 tried to interfere with the possession of Sy.No.161
beionging to 2" defendant. Defendant remonstrated. __So,
the plaintiff has filed a false suit. The Court do
pecuniary jurisdiction to entertain the suit. .
comes to the conclusion that 3" defendant h«as"en'c_roach*ed
on the "C" schedule property, it isV'».__su:'o1nitted
defendant that 2nd defendant is*in«–p_Vosses-sionVaridfenjoymelntfd
of the property continuously andfniidinterruptedlyniadiferse to
the interest of the plaintiff; rls defendant has
perfected title by adverse h f d
4. trial Judge has
framed evidence. PW1 is
examined.’ marked on behaif of the
Plaintiff… ..:V1’ahd.”-Zdfare examined on behalf of the
d if ‘Clefenidants and Exs.VD”.’1fto 13.5 are marked. Learned Trial
dduddged dfeereeing the suit with costs has answered has
ansAw.eredV.th”e?–.V. following issues with the following reasons
thereby”bvel.ieved the case of the plaintiff and disbelieved the
V’ ‘ease « the defendant:
5. Unsuccessful defendants have preferred RA
383 / 2006 on the file of the Fast Track Court, Chikmagal_ur,a
Learned Appellate Judge has raised the fol1ow1’ng__poinfts…l__foir;__vAl
consideration and answered them in negatiVeiV.uthLere_by
dismissed the appeal.
1. Whether the plaintiffs prove thatfthey are 1 ‘
absolute owners of the *plaint” esch.ed’i;1_Ie–~
property’? ” V ‘
2. Whether the list
defendant encroached f;.the ,’:Bf A schedule
property? ” ‘ 1 V ‘
3. Whether plaintiffs: p’ro:\}’ei_”that:lsfthe second
defendantf_h–as’v ergcroached. the ‘C’ schedule
Whether. the plaintiffs «prove that they are
{entitle fer”-._tl1e”po’s–ses’sion of ‘B’ and ‘C’
sr;h’edul’e,_ p1joperty”‘«frorn the hands of the
defendants? 1 ”
Whetherthe plaintiffs are entitled for mesne
. Epppprofiis? _____
impugned judgment and decree
“pas-.sed’by the trial court are opposed to law.
facts; and just circumstances of the case?
7”. VvllV:Jhat order?
V’ , fl ‘Findings:
Point No.1 : in the affirmative
Point No.2 : in the affirmative
Point No.3 : In the affirmative
Point No.4 : in the affirmative
Point No.5 : in the affirmative
Point No.6 : ln the negative
Point No.7 : As per final order for
the following
6. Defendants are in second appeal: Learnelduadvocatelf
for the 2nd defendant contends that «aplproaclh
learned trial Judge in taking jpudiciallrnotice ofplVt;_he’val1eget1′.pVll
grant is an improper method. l”Secondly”conte_nd that on
revenue documents such’ an inqlniigfj cannot be”‘do”ne and
such a finding cannot be ff’Place’t__ reliance on
GURUNATH MAN@liAR :éAvAsKrxR’~~$§a_ VNAGESH SIDDAPPA
NAVALG3.UND H’l’hirdly contend that the
Commissionefs ‘cou.1d”‘not have been looked into by
the Courts bellowfirittvievv ofthe mandate of the ruling of the
if l*lon’ble’ A;p’ex'”vC&ourt.lVVl’S’ol,l unless the plaintiff establishes his
llla,\vf;illl the subject of trespass or encroachment
doesnot arsisleg, S0. pray for orders.
7… All have carefully considered the material
A {submi«ssions and addresses.
10
8. In Gurunath Manohar Pavaskars case, the Hon’ble
Apex Court was considering the subject of a suitktor
permanent injunction. While granting permanent _inj’unctiorr.__ A’
Court only looks into the lawful possession.
possession on the ground of encroachment.’ €’,ourt’has’toi.giv’e _
a finding in regard to title. So,gtl.1’e ‘relied “erred. V
that the revenue documents cannot be looked a
finding on such revenue approplriate, urged
is rejected.
Secondly, -it ‘ the:.A_case:fof advocate that
the grant is not7.pgrodiiced.”~«tearned advocate’s attention is
drawn to the laverinent ‘invlthieplaint and asked to go through
and su’om_it regard to’-the allegations contrary to the said
llal3.egat.ion”‘iin’dine plaint. it Learned advocate submits in reply
‘was called upon to prove the same. This
couiclé have. accepted as a proper defence when there is
no othergwdefence placed by the 2″‘ defendant. The
plea taken by the defendant in the facts of the
lease is adverse possession. To constitute the allegation of
adverse possession, the person who pleads adverse
possession should admit title in favour of one person;”V.e:2¥1_d’~V.Vv
defendant by denying the title of the plaintiff .
paragraph and by admitting the title in the ‘latte.flpat9agtapl’1s l
in the written statement has taken two :’g_’
submission would take supportheoausell it. fur1;}ié;¥1t:pl.eaded it
by the 2nd defendant that the plai_ntiff:_is..thell It
is also further pleaded thatline ll?’ husband has
purchased the propfirty. of title by
purchase, there ::po’ss’e’ssion against 3*”
party. been analyzed by the learned the case of the
defendants. ‘~V’k’it”iS’ ‘law declared by the Hon’ble
Apex Court in ‘ease oi’ concurrent finding by the two Courts.
secof1tlp_appealllhas very limited jurisdiction. So, this
‘thatV:jthere is no merit in the appeal. Hence,
appeal is rejected at the stage of admission itself.
Judy?
as