RSA M01538/2008 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DI-IARWAD DATED THIS THE 30TH DAY OF NovEMsER;2-coai._jj it BEFORE THE HON'BLE MR.JUSTiCE _E,s;PAT:L " it REGULAR SECOND APPEAL Napiiissszaees 0' Between: 0 Z .0 sMT.K01-1iLA T _ w/0 SHAMUEL WELLUR ~ AGE:MAJOR, OCC:HOUSEHOLD,* V R/O GADAG TALUK AND DE-S'T;4GA]_3AG.4_'_ 1;: , APPELLANT (By Sri.Mahentepsh1ii~Q,IjIut_tD.TsI1cttar,vfiadv) And: cHANNAPPA'H..f _ V . s/0 KAREBASAPPAT .1EESS, HR/0'GAD.AGs.'«.. TAL-';,lK'AND_DISZPECEADAG. RESPONDENT A is filed under Section 100 of CPC against the -judgmt"-:nt"g and decree dated 03.04.2008 passed in R.,A.N0.7-1}/1994 on the file of the Civil Judge (Sr.Dr1.) and CJM, * 'Gadag, dismissing the appeal, filed against the judgment and A idecreeidated 07.11.1994 passed in O.S.No.34/1992 on the file .. ._j_0f 7.t1'ie' Pr}. Munsiff, Gadag, decreeing the suit filed for V possession and mesne profits. RSA No. I 538/2008 This appeal coming on for admission, this day, the Court delivered the following: JUDGMENT
1. This second appeal is directed against and _
decree dated 03.04.2008 in R.A.No,74/i_l994’«ppdismissing”i’the:«
appeal filed by the appellant, _hereinA and cor;2′.iri11ing*y’thew’;
judgment and decree passed”s<e.:l't:y the._i_tria11 "court in
O.S.No.34/1992.
2. The suit O.S.No.3{l’;”1v992 ‘ wee ‘i’i1e§i”9,by the p1aintiff~
respondent herein encroached portion of
the suit prope1*tyi:— i§~§iainitiff«.eonteindedifthat he was the owner of
the operihwell site situated around it which
formed partiiiof Gadag town. According to the
_._plaintiff, it was Ii the__ancestral property and his name was
?__f=;ntered in the Survey Records. It was further alleged that
the lessee of an open site bearing CTS
V –VNo.3§’f/”ivvhich belonged to the Government and the
it i * i”vde1’cndant”wanted to put up construction of a temporary cattle
which the Government granted permission on ground
T basis with a condition that she should only construct a
RSA No.1538/2008
temporary shed. However, the defendant constructed a
permanent building contrary to the lease conditionvi~vvithout
leaving any set backs and byxencroaching a portionroif .
property on the northern side. It isiprrthis .bac’l:éround;AVti1e_e
possession of the encroached portion ‘was:_’sozughet,
3. The defendant denied theifavexrmeritsp niadr;irr._:the..plaint v T’
and contended that the area is ivlgpasfii and she
has put up construction. was that plaintiff
was not at all thel’oivner.-‘ofihthe ‘_ suit schedule
property and family in
whose name the i’po:rtion hwhe’19ein_ian open well shown to be in
existenceivvcarne to lb:-}:fr.eco,rdeed”‘ini the City Survey Records.
4. The trial , court-__franie«d’if’necessary issues including as to
-vlwhetlfieir plainit”1ffv.p_ro’vved that he is the owner of the suit
i”–sChiedu,le of the property and whether the defendant
encr.oa’ehed it–h’e:said portion illegally and has taken unlawful
‘possessioritrofi the Same. Both these issues were answered in
‘then affirrnative and in favour of the plaintiff. The lower
court has re–appreciated the evidence both oral and
RSA “No.1538/2008
documentary and has recorded a finding that CTS No.308
belonged to the family of Kadappanavar and that in the City
Survey Records the name of Kadappanavar was recorded_.tev.en
in respect of the portion where the well was situatedHsiholvvin:g*it’ .
as Kadappanavara Bhavi (well). It wasualso noted banfcestial
property. The contention urged by the defendant
undisputed point of time Charia-basapiipail’Kada.pi15E;n:avar_:§had
himself given an application to City ilvltlniicipalg Council
admitting that there was spa<;eVi'ir;..__ex;istyence adjoining his
property and that he inten.de_d.V/to._dig 'i'fhvei"viieVll'V" therein for the
public use and zscheduleii'portioriwis the said portion
which _to– lithe Government. One
Chenabasappa yKad§p;§afia:z§r«.had dug up the well and it is in
this background was described as Kadappanavara
,{'!'lghaVr;{{;ve;,'1) in the Records and hence the plaintiff
had _n¢'t– 'orAVc.pio,ssession over the same. The courts below
have ._negative'd_. this defence taken by the defendant and have
recorded concurrent findings holding that the suit property was
308 which belonged to Kadappanavara family and
if –..ii:the'y%C'I'S records disclosed that the property was entered in the
av
RSA No. 1538/2008
name of the ancestors of the plaintiff. On these findings both
the courts have held that the defendant had a'oso_lt1telyi_i'~no
right, title or interest over the said portion of the '7'
5. Learned counsel for the appe11.ant..contendis if
light of Ex.D.8 and Ex.D.7, the reprzeseritatiionis.
Chanabasappa Kadappanavar in “i931 * if
stating that the open space in questiorir.._belonged_to_the State
Government and that he i’r;t:en.ded to} there, both the
courts erred in laW*in_ hoad’i’n’g«th-at”the_pr¢per’tjflbelonged to the
plaintiff. This. ‘will _not_» lanjfirnanner further the
defence takcn.,._b*y their Written statement
wherein they’ haiirel:t’specifi’cal’iy’asserted their right over the
property. fact :_that even as per Ex.D.8 and 9, the
,v,defenda.nt”has or interest over the suit schedule
proper_ty…:_ ‘Tliat’*–apart, both the courts have held that much
watelraphas’lillflowriilviafter 1931 and the documents that are
~maintained’.thereafter disclosed that CTS 308 is the property
uibelonged to the plaintiff and the defendant had no right
._ jover the same.
RSA N0.1538/2008
6. As can be seen from the finding recorded by the trial
court, the defendant has admitted the right and title.
plaintiff over CTS 308. She has also admitted t.
that the government property lies beyondthe Well’.’–:She”Vcannot
now contend that well was dug up in’».the:;’pro’pe’1rty’Ab:e’1on§ing’*to
the Government.
7 . In the wake of these concurrent findings._ii:arrive§:l at both
the courts a-)1:-felv after the iexiidence on
record, both oral and docAL.J.rI1:t.i_1″i.tai”i–,\.i/’ix, embark
upon re–apprec§fiatiojnbVof ‘”‘saIne._itoi”arrive at a different
conclusion f”in.AiAi’e::erc’i¢se. of the ipowe1″s 11/ s 100 of the CPC.
Hence, Iifitdo not ifindpiianyfsiibstantial question of law for
consideration this appe’aV1,._ii..’f’The same is therefore dismissed.
….. Sd/L
EUDSE